Case 3:18-cv-04865-EMC Document 398 Filed 04/20/22 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE TESLA, INC. SECURITIES
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`LITIGATION.
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`Case No. 18-cv-04865-EMC
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`ORDER DENYING PLAINTIFF
`LITTLETON’S MOTION FOR
`TEMPORARY RESTRAINING ORDER
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`Docket No. 395
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`Currently pending before the Court is Plaintiff Glen Littleton’s motion for a temporary
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`restraining order (“TRO”). Mr. Littleton asks the Court to temporarily enjoin Defendant Elon
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`Musk from
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`discussing this case and its underlying facts including but not
`limited to: the character, credibility, or reputation of any party or
`witness; the contents of any pretrial materials or evidence in the
`case; the strengths or weaknesses of the case of either party; and any
`other information Defendants or their counsel know or reasonably
`should know is likely to be inadmissible as evidence and would
`create a substantial risk of prejudice if disclosed.
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`Prop. Order at 1-2. Mr. Littleton believes that a TRO is necessary based on recent comments
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`made by Mr. Musk during a TED Talk held on April 14, 2022. During the talk, Mr. Musk stated
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`that funding had been secured to take Tesla private back in July-August 2018. Mr. Musk made
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`these comments after the Court issued its summary judgment order, which found that Mr. Musk’s
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`tweets from August 2018 – claiming, e.g., that funding was secured – were in fact false and made
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`with the requisite scienter.1
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`1 In his papers, Mr. Littleton also refers to Mr. Musk’s attempt to undo the consent decree in the
`case brought against him by the SEC. This activity took place, however, before the Court’s
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`Case 3:18-cv-04865-EMC Document 398 Filed 04/20/22 Page 2 of 4
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`Having considered the parties’ briefs and accompanying submissions, the Court finds the
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`matter suitable for resolution without oral argument. The motion for relief is hereby DENIED.
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`The order requested by Defendant is a form of prior restraint:
`“[c]ourt orders aimed at preventing or forbidding speech ‘are classic
`examples of prior restraints.’” Marceaux v. Lafayette City-Par.
`Consol. Gov't, 731 F.3d 488, 493 (5th Cir. 2013) (quoting Alexander
`v. United States, 509 U.S. 544, 550 (1993)). “Prior restraints on
`speech are disfavored and carry a heavy presumption of invalidity.”
`Greater Los Angeles Agency on Deafness, Inc. v. Cable News
`Network, Inc., 742 F.3d 414, 430 (9th Cir. 2014) (quoting Long
`Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011,
`1023 (9th Cir. 2009)). Due to the dangers they pose, prior restraints
`on speech are subject to strict scrutiny. See Arizona Right to Life
`Political Action Comm. v. Bayless, 320 F.3d 1002, 1008 (9th Cir.
`2003).
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`Doe v. Rose, No. CV-15-07503-MWF-JCx, 2016 U.S. Dist. LEXIS 203529, at *5 (C.D. Cal. Sept.
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`30, 2016).
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`The Ninth Circuit has provided guidance as to when a prior restraint on trial participants is
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`appropriate. A court may issue a “gag order” against trial participants when “(1) the activity
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`restrained poses either a clear and present danger or a serious and imminent threat to a protected
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`competing interest; (2) the order is narrowly drawn; and (3) less restrictive alternatives are not
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`available.” Levine v. U.S. Dist. Ct., 764 F.2d 590, 595 (9th Cir. 1985).
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`The Court finds that, in the instant case, Mr. Littleton has failed to make a satisfactory
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`showing on any of the above elements. For example, on (1), although this Court has a duty to
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`insure the fairness of the trial and there will likely be a fair, or even substantial, amount of
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`publicity at trial, the trial has now been rescheduled for January 2023. See id. at 598 (indicating
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`that publicity during or immediately before trial is more of a concern than “publicity months in
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`advance of trial”); cf. id. at 600 (indicating that voir dire may eliminate bias caused by pretrial
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`publicity). Furthermore, the jury will be drawn from a “large, populous, metropolitan, and
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`heterogeneous” community – a consideration the Ninth Circuit has stated is “critical” when a court
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`considers “the likely effect of pretrial publicity on the jury pool.” Dan Farr Prods. v. U.S. Dist.
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`Ct., 874 F.3d 590, 594 (9th Cir. 2017). Finally, it is worth noting that the substance of Mr. Musk’s
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`summary judgment order.
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`Case 3:18-cv-04865-EMC Document 398 Filed 04/20/22 Page 3 of 4
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`recent comments are consistent with the public positions that he has already taken during this
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`litigation, including at summary judgment.
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`On (2), the proposed TRO appears overbroad in that it restricts Mr. Musk (not just his
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`counsel) from speaking and that it prevents him from speaking to anyone (not just, e.g., media).2
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`Cf. Levine, 764 F.2d at 593 n.1 (pointing out that only defense counsel and not the defendant
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`himself was restricted from having contact with the media); id. at 595 (noting that “[t]he case for
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`restraints on trial participants is especially strong with respect to attorneys”); Farr, 874 F.3d at
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`593 n.3 (noting that, under Levine, “a lower standard applies to prior restraints of attorneys
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`participating in a case, who are officers of the court subject to fiduciary and ethical obligations” –
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`and that this lower standard “does not apply to non-attorney participants”) (emphasis in original).
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`Finally, on (3) as indicated above, voir dire can address bias caused by pretrial publicity.
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`See also Farr, 874 F.3d at 595 (noting that voir dire is not designed to exclude from the jury “all
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`citizens who have read or heard about the case and who keep abreast of current events”; “rather, it
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`screens out ‘those with fixed opinions as to guilt or innocence’”) (emphasis in original). In
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`addition, though “jury instructions are often an ineffective remedy,” Levine, 764 F.2d at 600, the
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`Court finds that unlikely to be true for the instant case where the jury will be told that the Court
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`has already found that the August 2018 tweets were false and made with the requisite scienter.
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`See Farr, 874 F.3d at 593 (stating that “[a] prior restraint to ensure a fair trial is permissible ‘only
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`if its absence would prevent securing twelve jurors who could, with proper judicial protection,
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`render a verdict based only on the evidence admitted during trial’”); id. at 595 (adding that there is
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`“a rebuttable presumption that juries follow jury instructions”).
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`///
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`///
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`///
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`///
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`2 In his motion, Mr. Littleton states that he seeks to enjoin Mr. Musk “from communicating with
`the media, press, news outlets, and the like,” Mot. at 9, but Mr. Littleton’s proposed order is not so
`limited.
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`Case 3:18-cv-04865-EMC Document 398 Filed 04/20/22 Page 4 of 4
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`Accordingly, Mr. Littleton’s motion for a TRO is denied.
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`This order disposes of Docket No. 395.
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`IT IS SO ORDERED.
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`Dated: April 20, 2022
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`______________________________________
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`EDWARD M. CHEN
`United States District Judge
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