Elon Musk must not be too happy with how a securities fraud class-action lawsuit against him is playing out in court.
On Saturday, his lawyers filed a motion asking the judge to declare a mistrial, alleging that misconduct by opposing lawyers and even the court itself has made a fair trial impossible for Musk. The request doesn’t ask for the case to be dismissed outright, but instead for the trial to restart with a brand new jury.
The case stems from a lawsuit accusing Musk of allegedly violating securities law by making misleading public statements in an effort to push Twitter’s stock price down before he ultimately bought the platform in October 2022.
“Twitter deal temporarily on hold pending details supporting calculation that spam/fake accounts do indeed represent less than 5% of users,” wrote Musk in a post on May 13, 2022.
The lawsuit was filed on behalf of shareholders who sold Twitter stock between when that Tweet was posted and early October 2022.
Now, Musk’s lawyers are trying to paint a picture that the trial has gone off the rails. In the motion, they argued that while each issue may “not independently warrant a mistrial,” the “cumulative prejudice requires one.”
First, they accuse the plaintiffs’ lawyers of repeatedly violating a pretrial ruling that barred them from suggesting to the jury that Musk violated securities laws by waiting too long to disclose to regulators that he had acquired his initial 5% stake in Twitter in early 2022. That issue is being litigated in a separate case brought by the U.S. Securities and Exchange Commission. A judge refused to dismiss that case last month.
Another reason Musk’s lawyers say he deserves another shot is that Judge Charles Breyer allegedly exceeded his “supervisory role” during the examination of Twitter’s former CFO Ned Segal and its former CEO Parag Agrawal.
The Daily Journal reported Friday that Musk’s lawyers told the court they wanted it on the record that Breyer told Segal, now San Francisco Mayor Daniel Lurie’s housing and economic policy adviser, to “say hi to the mayor for me” during Thursday’s proceedings.
The motion, however, says that, “Mr. Musk does not take issue with the Court’s out-of-court friendships, but rather objects to the Court’s repeated intervention that inhibited defense counsel’s ability to conduct the examinations.”
Additionally, Musk’s lawyers argued that all of this is heightened by what they describe as community animosity toward Musk.
Bloomberg Law reported in February that Breyer quickly eliminated 40 potential jurors in a pool of 93 who expressed that they could not set their biases aside. The outlet writes:
Musk’s attorney Stephen Broome of Quinn Emanuel Urquhart & Sullivan LLP objected to a number of prospective jurors who claimed they could set aside their negative views on Musk.
“We have so many people in the venire who hate him so much that we’re becoming desensitized,” Broome said. In any other case where a prospective juror said in a questionnaire that they hated the defendant, “there would be no question” that they would be tossed out, Broome said.
“The Court has an obligation to protect Mr. Musk’s right to a fair trial. The duty is all the more important given the animosity in the community toward Mr. Musk apparent during jury selection,” said the motion for a mistrial filed in federal court in San Francisco over the weekend.
Musk’s lawyers did not immediately respond to a request for comment from Gizmodo.
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