Joshua Brown fatally crashed into a tractor trailer turning in front of his Tesla Model S on autopilot almost exactly two months ago, but we only found out about it on Thursday evening. That’s when Tesla first told the public about the crash, nearly two months after they sold $2 billion in stock.
What’s surprising, for people who aren’t well-versed in financial matters, is this is probably not illegal. Mostly because Securities and Exchange Commission regulations are so fraught with loopholes, the definitions of what is “material information” and when it needs to be distributed to all investors at which times is incredibly vague.
What we’re discovering now is that how the information about the crash spread is more than a little questionable.
In its official statement from last week, Tesla stated that it informed the National Highway Safety Administration “immediately” after the crash, which means that NHTSA sat on the information until trickling it out to the press the Thursday before July 4th weekend. Coming from NHTSA, one of America’s most bumbling government divisions, that’s not exactly shocking.
But it is a shock that Tesla sold $2 billion in stock without breathing a word about their fatal crash to the press, the public, or their investors, as Fortune points out in a contentious story today.
On May 18th, Tesla and Elon Musk himself sold $2 billion worth of Tesla at $215 a share without mentioning anything about the fatal autopilot crash, which Fortune notes sure seems like a “very material fact,” something that any company would be legally required to disclose in relation to such a sale.
But Tesla, in an act of extreme boldness, argued that this is incorrect and told Fortune to shut up, in so many words.
While you or I might think that, obviously, a fatal crash in a Model S cruising on Autopilot, Tesla’s vaunted semi-autonomous system considered a major selling point of the company’s flagship vehicle, would be relevant information to any potential investor, Tesla argued that the market backs up their opinion that it isn’t. Tesla’s stock actually went up by the end of the trading day on Friday, though it had dipped in the morning as Thursday night’s news break hit the market.
And that’s what a Tesla spokesperson pointed out to Fortune yesterday, arguing that the stock price backs up their position that the crash was not legally-required material information. But then Elon Musk himself chimed in to call Fortune misleading, as Fortune reports, emphasis mine:
Then Elon Musk himself suddenly entered the email conversation. He first thought, mistakenly, that Fortune was criticizing the price at which Tesla and he had sold stock. This writer replied that was not the case and that the issue was the non-disclosure of a material fact. That, Musk replied in a second e-mail, “is not material to the value of Tesla.”
He continued, “Indeed, if anyone bothered to do the math (obviously, you did not) they would realize that of the over 1M auto deaths per year worldwide, approximately half a million people would have been saved if the Tesla autopilot was universally available. Please, take 5 mins and do the bloody math before you write an article that misleads the public.”
Indeed, Tesla’s autopilot system is statistically safer that a human driver. But the crash may show that there could be a deadly blind spot in Tesla’s sensor array. Tesla itself acknowledged that the system could not “see” the truck that killed Joshua Brown, and we may be looking at a specific technical flaw at fault for this crash.
But it’s also possible that Brown was simply recklessly over-relying on Tesla’s autopilot system. Hell, he might have been watching Harry Potter at the time of the crash. This kind of behavior could well be common among Tesla owners, and questions like this would certainly have come up in relation to Tesla’s big stock sale in May had Tesla released all of its information as it had it.
Fortune notes that it may end up a question for the courts if Tesla withholding information about the crash before its stock sale was illegal.
Even if it’s legal, it’s not a good look for Tesla. It’s an infuriating and baffling omission even for those of us without a financial stake in the company.
Author: Raphael Orlove