By Matthew Russell Lee, Patreon Maxwell Book
BBC-Guardian UK - Honduras - ESPN NY Mag
SDNY COURTHOUSE, Sept 15 – In JP Morgan Chase's lawsuit against Tesla, about Elon Musk's tweet saying he would take Tesla private, the bank asked to file a motion for judgment on the pleadings.
On May 4 U.S. District Court for the Southern District of New York Judge Paul G. Gardephe convened an in-person proceeding, which Inner City Press attended and live tweeted it, below.
In September 2022 in a joint letter Musk's Tesla complained that JPM Chase "contrived to manufacture a purported 'impasse' as a pretext to file [a] motion." On September 12, Chase asked that the whole matter evade Judge Gardephe and go to Magistrate Ona T. Wang. [While amid jury selection in the criminal trial of Tesla-competitor Nikola's Trevor Milton, which saw the dismissal of a prospective juror for links to Tesla.]
From May 4: Judge Gardephe said, in essence, that Chase's claim is not susceptible to judgment on the pleadings. He is entering a case management plan and will meet again with the parties in 90 days - pending letter(s) from the parties. Inner City Press' live tweeted #MaximumMusk thread:
Judge Gardphe: Tesla has asserts a counter-claim. JPM Chase has filed a pre-motion letter seeking to file a motion for judgment on the pleading. I don't think the case is appropriate for that. Expert discovery will be needed.
Judge Gardephe: I asked JPM Chase to let me know if in a week if, despite what I've said, they desire to file the motion and why.
Judge Gardephe: The agreements do not define commercially-reasonable methods.... Musk tweeted, "Am considering taking Tesla private... funding secured."
[Funny to be transcribing this on Twitter, for which Musk also says, seemingly with basis, "funding secured"]
Judge Gardephe: Tesla published a blog post attributed to Musk reversing position. JPM Chase revised the strike price after the blog post, and gave Tesla notice of the adjustment. Tesla objected to both. Tesla seeks a declaration that JPM Chase violated its duty.
Judge Gardephe: JPM Chase says it is entitled to a judgment as a matter of law. Assuming arguendo that the tweet constituted an "announcement event" under the agreement - I will focus on whether JPM Chase can show it was commercially reasonable as a matter of law
Judge Gardephe: Expert testimony on what is commercially reasonable in the industry is likely necessary. Tesla disputes the reasonableness of Chase's methodology.
Judge Gardephe: This issue not susceptible to judgment on the pleadings. [Citing a State Street case before the 2d Circuit in 2013]. Chase cited a case that does not turn on commercial reasonableness.
Judge Gardephe: I do not believe that a motion for judgment on the pleadings is productive. So I intend to answer a case management plan. I will meet with you again in about 90 days time to make sure discovery is proceeding. Chase's lawyer: I respectfully disagree
JPM Chase's lawyer [from David Polk] This is a unique case. Usually answers say very little, But here Tesla made counter claims, and so asserted facts. [Judge Gardephe has already read out his view, so it's not clear how effective this presentation is going to be Judge Gardephe: Sorry, we have a jury out, I got a note [in Hezbollah case of US v. Saab, which Inner City Press is covering here - as well as a Lebanese money laundering case with a proposed suretor from JPM Chase in Tampa, here
Tesla / Musk's lawyer from Quinn Emanuel : This case isn't subject to judgment on the pleadings. Full disclosure: Quinn Emanuel, pro bono, has written to UN (and emailed the US State Department ) seeking to get Inner City Press back into UN - no answer, video Q here.
Judge Gardephe: I haven't rule per se. I look for a letter from JPM Chase, the defense [Telsa] could put in a letter too.
On May 17 a case management plan was submitted and endorsed: "Counsel for the parties have conferred and their present best estimate of the length of trial is: 5 days. Deposition due by 9/14/2022. Fact Discovery due by 9/14/2022. Expert Discovery due by 12/2/2022. Pretrial Conference set for 10/6/2022 at 10:45 AM in Courtroom 705, 40 Centre Street, New York, NY 10007 before Judge Paul G. Gardephe. (Signed by Judge Paul G. Gardephe on 5/17/2022) In addition to the issues raised by the Court at the pre-motion conference, the parties' briefs should address whether judgment on the pleadings may be granted only as to certain issues. SO ORDERED by Judge Paul G. Gardephe on 5/17/2022
But on September 15, alongside testimony in the Trevor Milton / Nikola trial about tweets AT Elon Musk, the October 2022 pretrial conference was pushing into April 2023: "STIPULATION AND ORDER REGARDING CASE DEADLINES: ACCORDINGLY, IT IS HEREBY STIPULATED AND AGREED by and between the undersigned attorneys for the Parties that the following case deadlines shall apply: Deposition due by 6/30/2023., Expert Discovery due by 6/30/2023., Fact Discovery due by 3/24/2023., Motions due by 7/28/2023., Responses due by 8/8/2023, Pretrial Conference set for 4/27/2023 at 11:00 AM in Courtroom 705, 40 Centre Street, New York, NY 10007 before Judge Paul G. Gardephe. The discovery deadlines are extended as set forth above. The conference currently scheduled for October 6, 2022 is adjourned to April 27, 2023 at 11:00 a.m. in Courtroom 705 of the Thurgood Marshall U.S. Courthouse, 40 Foley Square, New York, New York. And as set forth herein. SO ORDERED., Motions terminated: [52] JOINT LETTER MOTION for Conference addressed to Judge Paul G. Gardephe from Lawrence Portnoy and Jonathan E. Pickhardt dated September 9, 2022. filed by JPMorgan Chase Bank, National Association, London Branch, [51] LETTER MOTION for Oral Argument addressed to Judge Paul G. Gardephe from Lawrence Portnoy dated July 21, 2022. filed by JPMorgan Chase Bank, National Association, London Branch, [53] JOINT LETTER MOTION for Extension of Time to Complete Discovery Fact Discovery addressed to Judge Paul G. Gardephe from Lawrence Portnoy and Jonathan E. Pickhardt dated September 12, 2022. filed by JPMorgan Chase Bank, National Association, London Branch. (Signed by Judge Paul G. Gardephe on 9/15/2022)."
Inner City Press is tracking the docket. Watch this site.
The case is JPMorgan Chase Bank, National Association, London Branch v. Tesla, Inc., 21-cv-9441 (Gardephe)
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