The United States Securities and Exchange Commission (SEC) has responded to allegations made by Tesla and Elon Musk about the regulator harassing them following a $40 million settlement.

Let’s recall that, back in September 2018, the SEC announced that Elon Musk has agreed to settle the securities fraud charge brought by the SEC against him. The SEC also charged Tesla with failing to have required disclosure controls and procedures relating to Musk’s tweets, a charge that Tesla has agreed to settle.

According to the SEC’s complaint against him, Musk tweeted on August 7, 2018 that he could take Tesla private at $420 per share — a substantial premium to its trading price at the time — that funding for the transaction had been secured, and that the only remaining uncertainty was a shareholder vote.

The SEC’s complaint alleged that, in truth, Musk knew that the potential transaction was uncertain and subject to numerous contingencies. Musk had not discussed specific deal terms, including price, with any potential financing partners, and his statements about the possible transaction lacked an adequate basis in fact. According to the SEC’s complaint, Musk’s misleading tweets caused Tesla’s stock price to jump by over six percent on August 7, and led to significant market disruption.

Earlier this week, according to the letter signed by Alex Spiro, a representative of Elon Musk, the SEC faced accusations of failing to comply with its promise to pay Tesla’s shareholders the $40 million it collected as part of the settlement in these cases and that it purports to be holding for them.

Instead, according to the defendants, the SEC has been devoting its formidable resources to endless, unfounded investigations into Mr Musk and Tesla.

On February 18, 2022, the SEC filed a letter with the New York Southern District Court responding to the accusations against it.

The SEC notes that Mr. Spiro’s letter is the first time the regulator has seen Tesla and Mr. Musk express any concerns regarding the distribution of the penalties Mr. Musk and Tesla paid to settle this litigation.

The Commission’s Distributions staff petitioned the Court to establish a fair fund and to appoint a tax administrator and distribution agent. The SEC says its staff has been working closely with the distribution agent and the Commission’s Division of Economic and Risk Analysis to develop a methodology to compensate investors who were harmed by the misconduct alleged in the Commission’s Complaints against Tesla and Mr. Musk.

The Commission explains that, given the complexity of the distribution, it has taken time to develop the plan of allocation. That process is nearing completion and, barring any unforeseen circumstances, the Distributions staff expects to submit the proposed plan of distribution for the Court’s approval by the end of March 2022.

Mr. Spiro also complains that the Commission’s enforcement staff has been communicating with Tesla and Mr. Musk regarding certain of Mr. Musk’s tweets since the Amended Judgments were signed by the Court. Specifically, Mr. Spiro claims that “Mr. Musk and Tesla understood that settling with the SEC would … make this Court, and not the SEC alone, the monitor over any perceived compliance issues going forward.”

The SEC argues that the Court did not order any such monitoring process by the Court. To the contrary, during the April 4, 2019 contempt hearing, the Court encouraged the parties to make good faith efforts to meet and confer before raising with the Court any issues about compliance with the Amended Judgments. The Commission’s enforcement staff have, accordingly, sought to meet and confer with counsel for Tesla and Mr. Musk to address any concerns regarding Tesla and Mr. Musk’s compliance with the Court’s Amended Judgments.

Finally, the SEC says that Mr. Spiro’s letter incorrectly implies that the Commission staff have issued subpoenas in this litigation. The Commission says its staff have not issued any subpoenas in this litigation. If Tesla and Mr. Musk have legitimate objections with the SEC’s processes outside this litigation, they should pursue those objections in the appropriate forum, the Commission says.