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`LEVI & KORSINSKY, LLP
`Adam M. Apton (SBN 316506)
`Adam C. McCall (SBN 302130)
`75 Broadway, Suite 202
`San Francisco, CA 94111
`Tel.: (415) 373-1671
`Email: aapton@zlk.com
`amccall@zlk.com
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`Attorneys for Plaintiff and Counsel for the Class
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`[Additional Counsel on Signature Block]
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`
`IN RE TESLA, INC. SECURITIES
`LITIGATION
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`Case No. 3:18-cv-04865-EMC
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`PLAINTIFF’S MEMORANDUM OF
`POINTS AND AUTHORITIES IN
`SUPPORT OF MOTION FOR
`TEMPORARY RESTRAINING ORDER
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`PLAINTIFF’S NOTICE OF MOTION AND
`MOTION FOR LIMITED RESTRAINING ORDER
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`CASE NO. 3:18-CV-04865-EMC
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 2 of 12
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`On August 7, 2018, Defendant Elon Musk published two notorious tweets on his Twitter
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`account: “Am considering taking Tesla private at $420. Funding secured.” and “Investor support is
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`confirmed. Only reason why this is not certain is that it’s contingent on a shareholder vote.” As this
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`Court has determined in its recent order granting Plaintiff’s motion for partial summary judgment,
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`these statements by Musk were false and misleading and that Musk made these false statements
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`recklessly and with full awareness of the facts that he misrepresented in his tweets. See Order
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`Granting in Part and Denying In Part Plaintiff Littleton’s Motion for Partial Summary Judgment at
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`23-29 (ECF No. 387). The Court determined that no reasonable juror could conclude otherwise.
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`Over three years earlier, the United States Securities & Exchange Commission reached the same
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`conclusion. It filed a complaint alleging that Musk violated its Rule 10b-5 by publishing his tweets
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`on August 7, 2018 because the tweets were false and misleading and “premised on a long series of
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`baseless assumptions and were contrary to facts that Musk knew.” See SEC v. Musk Complaint,
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`case No. 1:18-cv-08865 (S.D.N.Y.) (McCall Decl. Ex. A). Musk settled with the SEC agreeing,
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`inter alia, not to make any “public statement denying, directly or indirectly, any allegation in the
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`complaint or creating the impression that the complaint is without factual basis.” See id. Consent
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`of Defendant Elon Musk (McCall Decl. Ex. B).
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`Despite the findings by this Court, the SEC, and his own written consent, Musk has engaged
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`in a high-profile public campaign to present a contradictory and false narrative regarding his August
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`7, 2018 tweets. Musk telegraphed this in his deposition in this proceeding taken on November 5,
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`2021 where he stated his intent to use the upcoming trial in this case as an opportunity to “clear the
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`record” and explain how he was coerced into the “terrible SEC settlement” even though he
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`purportedly and counterfactually did nothing wrong. See E. Musk 11/5/21 Dep. at pp. 120:17-
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`122:12 (McCall Decl. Ex. C). Next Musk filed on March 8, 2022 a motion to terminate the SEC
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`settlement accompanied by a declaration in which Musk, in flagrant violation of his consent,
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`proclaimed under penalty of perjury that the allegations in the SEC Complaint were false and the
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`SEC coerced him into settling. See Declaration of Elon Musk dated March 7, 2022 (McCall Decl.
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`- 1 -
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`PLAINTIFF’S MOTION FOR LIMITING RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 3 of 12
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`Ex. D). Yesterday, on April 14, 2022, Mr. Musk added to this. Four days after receiving the Court’s
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`order entering judgment against Musk on the question of the falsity of his August 7, 2018 tweets,
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`Musk once again attempted to advance his self-serving narrative regarding his tweets. In a TED
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`Talk in Vancouver while discussing his recent proposal to take Twitter, Inc. private, an interview
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`which has now been streamed hundreds of thousands of times and reported in dozens of publications
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`in just the past 24 hours alone, Musk insisted “funding was actually secured.· I want to be clear
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`about that.· In fact, this may be a good opportunity to clarify that.· Funding was indeed secured”
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`before going on to refer to the SEC as “bastards” and claiming that he settled with the agency only
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`because they had a “gun to [his] child’s head” and was “forced to admit that [he] lied . . . to save
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`Tesla’s life and that’s the only reason.” See 4/14/22 Musk Transcript (McCall Ex. E).
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`The gratuitous and apparently premeditated nature of Musk’s comments and his flagrant
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`disregard of the opinions of the SEC, this Court, and his own written consent, strongly suggest that
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`Musk is likely to continue making similar statements up to trial. Such statements are potentially
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`highly prejudicial to Plaintiff. Despite the Court’s explicit and unambiguous grant of summary
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`judgment in Plaintiff’s favor on the issues of falsity and scienter, Musk’s comments risk confusing
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`potential jurors with the false narrative that he did not knowingly make misrepresentations with his
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`August 7, 2018 tweets. Such confusion could taint any further determinations that the jury may
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`need to make, such as the liability of Tesla, Inc. and its board or the amount of damages owed by
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`Musk and the other Defendants. Accordingly, Musk should be restrained from making any further
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`public comments about his interpretation and opinions of the allegations in this case until after trial.
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`His present statements on that issue, an unsubtle attempt to absolve himself in the court of public
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`opinion, will only have a prejudicial influence on a jury who may entertain Mr. Musk’s claims of
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`veracity despite what the evidence has shown.
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`A fair trial is among the Constitution’s most significant guarantees. “Few, if any interests
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`under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors, and
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`an outcome affected by extrajudicial statements would violate that fundamental right.” Gentile v.
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`State Bar, 501 U.S. 1030, 1075 (1991). This Court has the responsibility of ensuring that media
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`coverage does not affect the fairness of the proceeding. Sheppard v. Maxwell, 384 U.S. 333, 362-
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 4 of 12
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`63 (1966) (“[T]he cure lies in those remedial measures that will prevent the prejudice at its
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`inception. The courts must take such steps by rule and regulation that will protect their processes
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`from prejudicial outside interferences.”); Levine v. United States Dist. Court for the Central Dist.
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`of Cal., 764 F.2d 590, 596 (9th Cir. 1985). The government and public have a fundamental interest
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`in ensuring the integrity of the judicial process. Levine, 764 F.2d at 596. “[T]he circus-like
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`environment that surrounds highly publicized trials threatens the integrity of the judicial system.”
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`Levine, 764 F.2d at 598; see Sheppard, 384 U.S. at 342–49.
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`In light of the highly prejudicial pretrial media blitz seemingly underway by Musk, and in
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`order to ensure a fair and impartial trial with a jury untainted by inflammatory and distracting media
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`quotes seeking to sway public opinion, Plaintiff requests that the Court issue a narrowly drawn
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`restraining order precluding Musk from speaking with the press and/or media about the case and
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`its underlying facts until the end of trial. As officers of the Court, the lawyers will then be able to
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`focus their full attention on performing their duties with respect to the courtroom proceedings only.
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`Because there are no restrictions on the media’s First Amendment rights, the media can fully
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`perform their duties of apprising the public without any assistance from Musk. See, e.g., Levine,
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`764 F.2d at 597–99; cf. Farr v. Pitchess, 522 F.2d 464, 468–69 (9th Cir. 1975) (encouraging use of
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`such orders).
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`Such a limited and narrowly drawn order—following substantial evidence of inflammatory
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`and improper statements by Musk threatening Plaintiff’s constitutional right to a fair trial—will
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`strike the proper balance between: (1) ensuring the parties’ right to a fair trial without the
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`distractions of media inquiries; (2) minimizing the risk of improperly influencing prospective and
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`actual jurors; and (3) not interfering with the media’s function to accurately and fairly report the
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`proceedings and keep the public apprised. Given Mr. Musk’s demonstrated proclivity towards
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`publicity, a fair trial is unlikely without such an order in this case.
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`II.
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`FACTUAL AND PROCEDURAL BACKGROUND.
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`Following his Tweets on August 7, 2018, the SEC immediately began an investigation into
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`the circumstances of their publication. After an investigation which included taking testimony from
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`Musk and other witnesses, the SEC filed a complaint against Musk on September 27, 2018 in the
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 5 of 12
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`United States District Court for the Southern District of New York. (McCall Ex. A). The SEC
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`alleged in its complaint that Musk’s August 7, 2018 statements, including his statements that “Am
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`considering taking Tesla private at $420. Funding secured.” And “Investor support is confirmed.
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`Only reason why this is not certain is that it’s contingent on a shareholder vote.”, were false and
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`misleading. Id. ¶¶ 61-67. The SEC further alleged that Musk acted knowingly or recklessly when
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`he made his statements on August 7, 2018 as he knew they “were premised on a long series of
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`baseless assumptions and were contrary to facts that [he] knew”. Id. ¶ 68. The SEC also alleged
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`that Musk’s August 7, 2018 statements caused market chaos and harmed Tesla investors. Id. at ¶¶
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`75-77. The SEC alleged that Musk violated Section 10(b) of the Securities Exchange Act of 1934,
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`15 U.S.C. § 78j, and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5.
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`The next day, Musk signed a consent to entry of final judgment on the claims he knowingly
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`or recklessly violated Section 10(b) and Rule 10b-5. He agreed to pay a penalty of $20 million and
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`resign as Chairman of Tesla. See McCall Ex. B. As part of his consent to entry of judgment, Musk
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`agreed to comply with 17 C.F.R. § 202.5(e). Specifically, Musk undertook that he:
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`(i) will not take any action or make or permit to be made any public
`statement denying, directly or indirectly, any allegation in the
`complaint or creating the impression that the complaint is without
`factual basis; (ii) will not make or permit to be made any public
`statement to the effect that Defendant does not admit the allegations
`of the complaint, or that this Consent contains no admission of the
`allegations, without also stating that Defendant does not deny the
`allegations….1
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`Id. p.5. Judgment was duly entered on October 16, 2018.
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`In this proceeding, Plaintiff’s Consolidated Complaint was filed on January 16, 2019. (ECF
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`No. 184). By order dated April 15, 2020, the Court denied Defendants’ motion to dismiss the
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`complaint. (ECF No. 251). Discovery commenced. On November 5, 2021, Plaintiff took the
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`deposition of Musk. In the middle of his testimony, Musk took the opportunity to volunteer that he
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`was “quite excited” to “clear the record” in this proceeding, stating in pertinent part:
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`1 Although Musk’s consent permits him to take legal or factual positions in other proceedings, this
`right does not include proceedings to which the SEC is a party. Id.
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 6 of 12
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`I should mention that I'm actually quite excited about this case, because I've -- I'm
`extremely unhappy about the SEC settlement, but I'm prohibited from talking about
`it, but now I'm forced to talk about it under penalty of perjury. And so I can now clear
`the record about that terrible SEC settlement where they held a gun to Tesla's head,
`and it was Tesla would either die or they would force me to lie. And now I can finally
`clear the record, and I'd like to thank you for that.
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`. . .
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`No.· It was saying that the SEC -- and this is the reason why I lack respect for the
`SEC, is that they knew they had no case. They knew that they were factually in the
`wrong, but they also knew that Tesla would be under extreme pressure to settle the
`case, and ·that -- and I declined to settle the case with the SEC. And then I was told
`by Deepak Ahuja that if we did not settle the SEC, that the banks would stop
`providing Tesla with working capital, and we would go bankrupt immediately.
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`So I was faced with a terrible choice, publicly settle with the SEC -- and although the
`– it says there is no admission or denial of guilt, if you pay a fine to the SEC, everyone
`thinks you're guilty. I knew this, and this has been used against me for a long time.
`And now I can finally clear the record. And I'm going to do it, and it's going to be
`great.
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`E. Musk 11/5/21 Deposition, pp. 120:17-122:12 (McCall Decl. Ex. C).2
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`On January 12, 2022, Plaintiff filed his motion for partial summary judgment, including
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`judgment on the issues of the falsity of Musk’s August 7, 2018 tweet and the on the issue that he
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`acted knowingly or recklessly. (ECF No. 352). Oral argument was scheduled for March 10, 2022.
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`On February 17, 2022, Musk’s counsel submitted a letter to the Court in New York seeking relief
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`from its judgment entered in favor of the SEC and against Musk and erroneously stating that Musk
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`consented to judgment “without admitting or denying wrongdoing relative to the SEC’s dubious
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`legal theories”. See 2/17/22 letter from A. Spiro to Nathan J. (McCall Ex. F). As set forth above,
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`this was already contrary to the express terms of Musk’s consent to entry of judgment.
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`On March 8, 2022, Musk went even further, moving to quash the entire judgment entered
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`in SEC v. Musk. The motion attached a declaration from Musk where, in violation of his consent
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`to entry of judgment, he both “made [a] public statement denying, directly or indirectly, [an]
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`2 Musk’s deposition was initially designated as confidential but the contents of this portion of the
`transcript were publicly disclosed by Musk when he filed his declaration in SEC v. Musk. Therefore,
`to the extent this portion contains any confidential information protected under the confidentiality
`order entered in this proceeding, which is highly dubious, such confidentiality has now been waived
`by Musk.
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 7 of 12
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`allegation in the complaint or creating the impression that the complaint is without factual basis”
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`as well as made a “public statement to the effect that [Musk] does not admit the allegations of the
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`complaint without also stating that [he] does not deny the allegations.” Specifically, he swore under
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`penalty of perjury that “My August 7, 2018 tweet was written at a time when I was in fact
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`considering taking Tesla private at $420 a share, funding was secured, and there was investor
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`support.” See McCall Ex. D at ¶ 3. Musk also swore that “I never lied to shareholders. I would
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`never lie to shareholders. I entered into the consent decree for the survival of Tesla, for the sake of
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`its shareholders.” Id. at ¶ 9. Musk’s motion to quash his consent judgment with the SEC remains
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`pending. Musk’s motion got widespread media coverage. See Dave Michaels and Rebecca Elliot,
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`Elon Musk Seeks to Terminate 2018 Fraud Settlement With SEC, WALL STREET JOURNAL (Mar. 8,
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`2022); Lauren Feiner, Musk seeks to end SEC settlement that required preapproval of his tweets,
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`CNBC (Mar. 8, 2022); Faiz Siddiqui, Elon Musk asks court to scrap SEC settlement over his tweets,
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`claims he was ‘forced’ to enter into it, THE WASHINGTON POST (Mar. 8, 2022).
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`On April 1, 2022, this Court entered its order granting in part Plaintiff’s motion for partial
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`summary judgment. As the Court held, the evidentiary record demonstrated that no reasonable jury
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`could find Musk’s tweets on August 7, 2018 accurate or not misleading. Likewise, given that Musk
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`was intimately involved with the facts leading to that conclusion, the Court also held that he
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`recklessly made the statements with knowledge as to their falsity. See ECF No. 387 at 24-29. The
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`parties received the Court’s order on April 10, 2022.
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`On April 14, 2022, Musk appeared at TED 2022 Vancouver for an in-person, sit-down
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`interview with TED CEO Chris Anderson. In front of nearly 1,800 attendees and thousands more
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`who were streaming the interview online in real-time, Anderson quipped with Musk whether he
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`had “funding secured” for his recent proposal to take Twitter, Inc. private. Musk eagerly used the
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`prompt to emphatically proclaim his innocence with respect to the August 2018 “funding secured”
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`tweet at issue in this case. In pertinent part, Musk said:
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`Q <Chris Anderson>: . . . is funding secured?
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`A <Elon R. Musk>: I have sufficient assets to complete the -- it’s not a forward-
`looking statement, blah, blah, blah. I have suff-- I mean, I can do it if possible.
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 8 of 12
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`Q <Chris Anderson>: Right.
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`A <Elon R. Musk>: So, -- and I mean, I should say actually, even in the -- or
`originally the -- with Tesla back in the day, funding was actually secured. I want to
`be clear about that. In fact, this may be a good opportunity to clarify that. Funding
`was indeed secured, and I should say, like, why do I not have respect for the SEC in
`that situation. And I don’t mean to blame everyone at the SEC, but certainly the San
`Francisco office. It’s because the SEC knew that the funding was secured, but they
`pursued the -- an active public investigation none the less. At the time, Tesla was in
`a precarious financial situation, and I was told by the banks that if I did not agree to
`settle with the SEC, that they would -- the banks would cease providing working
`capital and Tesla would go bankrupt immediately. So, that's like having a gun to your
`child’s head. So, I was forced to concede to the SEC, unlawfully, those bastards. And
`now, they -- it makes it look like I lied, when I did not in fact lie. I was forced to
`admit that I lied for -- to save Tesla’s life and that’s the only reason.
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`E. Musk 4/18/22 Transcript (excerpt), pp. 2:5-3:16 (McCall Decl., Ex. E). Again, Musk’s comments
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`received widespread media coverage. See Hyunjoo Jin and Sheila Dang, Musk says U.S. SEC
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`'bastards' forced settlement over Tesla tweets, REUTERS (Apr. 14, 2022); Andrew Hawkins, Elon
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`Musk says the SEC’s investigations into Tesla are ‘like having a gun to your child’s head’ ‘Funding
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`was actually secured’, THE VERGE (Apr. 14, 2022); Alan Ohnsman, Did Elon Musk Trigger New
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`Legal Headache With SEC ‘Bastards’ Comment?, FORBES (Apr. 14, 2022). These statements
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`clearly violate Musk’s written consent to judgment in favor of the SEC as well as squarely
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`contradict the Court’s entry of summary judgment against Musk on the issues of falsity and scienter.
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`III. MUSK’S EXTENSIVE PRETRIAL MEDIA INTERVIEWS POSE A CLEAR
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`DANGER AND SERIOUS RISK TO A FAIR TRIAL BECAUSE THEY ATTRACT
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`PRETRIAL PUBLICITY, POISON THE JURY POOL, AND INFLUENCE THE
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`OUTCOME ON THE EVE OF TRIAL.
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`Musk’s public statements about his August 7, 2018 tweet or the merits of the SEC settlement
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`are inflammatory and prejudicial in light of the Court’s recent order granting partial summary
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`judgment. The truth of the August 7, 2018 tweets and Musk’s state of mind when publishing them
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`are no longer issues to be decided by the jury. Therefore, Musk’s continuing public statements
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`about these issues only serve to prejudice the jury pool in this case by potentially influencing their
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`deliberations during trial. Any impression held by a juror that “funding was actually secured”, as
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`repeatedly and publicly stated by Musk, would affect that juror’s ability to fairly consider, for
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 9 of 12
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`example, whether Tesla or its board of directors should be liable for Musk’s false statement or
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`assessing the damages that Tesla investors should receive resulting from Musk’s fraudulent August
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`7, 2018 tweets. Furthermore, the gratuitous nature of Musk’s statements, volunteered to questions
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`that do not directly address the topic, suggest that these statements are deliberate and part of a
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`purposeful strategy on Musk’s behalf. Without a narrowly drawn restraining order against Musk,
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`this type of extensive publicity campaign will jeopardize the Court’s ability to select a fair and
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`impartial jury. See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562-63 (1976). Measures short of
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`this will not ensure Plaintiff a fair trial. See id. at 563; see also In re Russell, 726 F.2d 1007, 1009-
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`10 (4th Cir. 1984) (“reasonable likelihood that prejudicial news prior to trial will prevent a fair
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`trial”); United States v. Tijerina, 412 F.2d 661, 666–67 (10th Cir. 1969) (“‘reasonable likelihood’
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`of prejudicial news which would make difficult the impaneling of an impartial jury and tend to
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`prevent a fair trial”).3
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`IV.
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`THE NARROWLY DRAWN LIMITED RESTRAINING ORDER ON
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`DEFENDANTS WILL NOT INTERFERE WITH THE FIRST AMENDMENT
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`GUARANTEE OF THE PRESS TO REPORT FAIRLY AND OPENLY AND NO
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`LESS RESTRICTIVE ALTERNATIVES ARE VIABLE.
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`The Court has ruled that, because the First Amendment guarantees the media and public
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`access to a full and open trial, the media is unrestricted in attending the proceedings, gathering
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`information, and reporting on the proceedings. Plaintiff’s request neither denies the media access
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`to the proceeding nor bars the media from disseminating any information that it obtains. See Levine,
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`764 F.2d at 594; Sheppard, 384 U.S. at 359, 361-62, 363; Nebraska Press, 427 U.S. at 564 & n. 8;
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`id. at 601 & n. 27 (Brennan, J., concurring); cf. In re Halkin, 598 F.2d 176, 195 & n.44 (D.C. Cir.
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`3 This applies equally to Defendants’ counsel in ongoing related legal disputes. See Doe v. Cabrera,
`307 F.R.D. 1, 9 (D.D.C. 2014) (“The Court is deeply concerned and troubled by the public statement
`made by the plaintiff—presumably with the plaintiff’s consent—to the media after the plaintiff filed
`the complaint. It appears that the plaintiff, her attorney, and others operating on her behalf, are
`attempting to try her case in the media or gain a tactical advantage through their public statements.
`. . Upon the filing of the complaint, the plaintiff and any counsel representing the plaintiff or
`otherwise acting on her behalf should have remained silent about the case. Although the court
`appreciates zealous advocacy, counsel for the plaintiff and other attorneys acting on her behalf
`should have known better than to publicize the plaintiff’s case.”).
`- 8 -
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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`
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`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 10 of 12
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`1979) (order directed against lawyers and litigants is less drastic than restraining the press).
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`Plaintiff’s request for this narrowly drawn order is an effective and workable method of ensuring a
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`fair trial. See Nebraska Press, 427 U.S. at 562-63.
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`Officers of the court have a fiduciary obligation not to prejudice fair trials. Lawyers have
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`special access to information not available to the public, a vested interest in a particular outcome,
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`and a professional responsibility to the Court to conduct themselves in a manner that does not harm
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`the integrity of the judicial process or impede fair judicial proceedings. See, e.g., Sheppard, 383
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`U.S. at 363; Nebraska Press, 427 U.S. at 601 n.27 (Brennan, J., concurring) (“As officers of the
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`court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate
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`that will redound to the detriment of the accused or that will obstruct the fair administration of
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`justice. It is very doubtful that the court would not have the power to control the release of
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`information to impose suitable limitations whose transgression could result in disciplinary
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`proceedings.”) (citation omitted); Gentile, 501 U.S. at 1075 (“The State has a substantial interest in
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`preventing officers of the court, such as lawyers, from imposing such costs [as detrimental effects
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`of pretrial publicity] on the judicial system and on the litigants.”).
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`No alternative other than a limited restraining order on Mr. Musk will achieve a fair trial.
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`The parties are preparing for trial; trial is scheduled to begin May 31, 2022 (though the Court has
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`scheduled a conference for April 18, 2022 to discuss new trial dates); public attention is nationwide;
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`public attention is unlikely to subside given Mr. Musk’s proclivity to publicity and his celebrity
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`status. Screening out potential jurors and admonishing jurors to consider only the admissible
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`evidence presented at trial is an insufficient remedy unlikely to cure the harm if Mr. Musk is able
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`to continue to provide on the record quotes deliberately intended to sway the jury and public
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`opinion. No less restrictive alternatives will “alleviate the harm to the integrity of the judicial
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`process caused by the extrajudicial statements of trial participants.” See Levine, 764 F.2d at 600.
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`Such an order limiting the speech of Defendants will significantly enhance the likelihood of a fair
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`trial. See, e.g., Levine, 764 F.2d at 599–601.
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`Specifically, Plaintiff seeks an order prohibiting Mr. Musk from communicating with the
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`media, press, news outlets, and the like about the case and its underlying facts. This includes but is
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`- 9 -
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
`
`
`
`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 11 of 12
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`not limited to: the character, credibility, or reputation of any party or witnesses; the contents of any
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`pretrial materials or evidence in the case; the strengths or weaknesses of the case of either party;
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`and any other information Mr. Musk or his counsel knows or reasonably should know is likely to
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`be inadmissible as evidence and would create a substantial risk of prejudice if disclosed. Levine,
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`764 F.2d at 599; Younger v. Smith, 30 Cal. App. 3d 138, 167– 69 (1973).
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`V.
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`CONCLUSION
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`Mr. Musk candidly stated his intent for this trial during his November 5, 2021 deposition,
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`which was to “clear the record” and explain why he agreed to the “terrible SEC settlement” even
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`though he “never lied to shareholders.” He has used his fame and notoriety to sway public opinion
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`in his favor, waging battle in the press having been defeated in the courtroom. Mr. Musk’s
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`demonstrated proclivity to publicity warrants the relief being requested. See, e.g., Levine, 764 F.2d
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`at 597-98 (“this court finds it quite reasonable to expect that such publicity has been and will
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`become even more pervasive, creating in effect a lobbying effort by counsel on behalf on their
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`clients. The public has a right to expect a fairer trial than that.”).
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`Dated: April 15, 2022
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`Respectfully submitted,
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`LEVI & KORSINSKY, LLP
`
` s/ Adam M. Apton .
`Adam M. Apton (SBN 316506)
`Adam C. McCall (SBN 302130)
`75 Broadway, Suite 202
`San Francisco, CA 94111
`Tel.: (415) 373-1671
`Email: aapton@zlk.com
`Email: amccall@zlk.com
`
`-and-
`
`Nicholas I. Porritt
`Elizabeth K. Tripodi
`Alexander A. Krot III
`LEVI & KORSINSKY, LLP
`1101 30th Street N.W., Suite 115
`Washington, D.C. 20007
`Tel.: (202) 524-4290
`
`- 10 -
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
`
`
`
`Case 3:18-cv-04865-EMC Document 395-1 Filed 04/15/22 Page 12 of 12
`
`
`Email: nporritt@zlk.com
`Email: akrot@zlk.com
`(admitted pro hac vice)
`
`
`-and-
`
`
`Joseph Levi
`Eduard Korsinsky
`LEVI & KORSINSKY, LLP
`55 Broadway, 10th Floor
`New York, New York 10006
`Tel.: (212) 363-7500
`Fax: (212) 363-7171
`Email: jlevi@zlk.com
`Email: ek@zlk.com
`(admitted pro hac vice)
`
`Attorneys for Plaintiff and Counsel for the Class
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`- 11 -
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` PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
`CASE NO. 3:18-CV-04865-EMC
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