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Attorneys for shareholders who defeated Elon Musk’s $56bn Tesla pay package have asked a Delaware state court to award them shares in the electric vehicle maker worth nearly $6bn as payment.
In a filing with the Delaware Court of Chancery on Friday, Bernstein Litowitz Berger & Grossmann, the lead counsel for the plaintiff shareholders, conceded such an award was “unprecedented” in absolute value. However, they noted the implied percentage of value won for shareholders remained “conservative” and in line with previous Delaware awards.
“This structure has the benefit of linking the award directly to the benefit created and avoids taking even one cent from the Tesla balance sheet to pay fees,” the filing said, regarding the choice to take the carmaker’s stock instead of a cash award. “We are prepared to ‘eat our cooking’.”
The request follows a landmark ruling last month in which Kathaleen McCormick, the judge overseeing the case, rescinded a 2018 pay package the Tesla board had granted to Musk, which included multiple tranches of stock that vested after the company hit aggressive operating and financial milestones.
McCormick ruled the Tesla board was insufficiently independent of Musk, and that the governance process leading to the grant as well as the value of the shares had been “unfair” to other shareholders.
Lawyers who bring civil suits typically work on a contingency basis — rather than billing clients on hours worked, they will instead take on the odds of winning a case or securing a settlement, and seek a cut of the winning pot. The Musk pay case is more complex as no cash changed hands in the share-grant nullification.
Bernstein wrote in its filing that it believed it could have fairly asked for a third of the “benefit conferred” from the $56bn cancelled award, based on past precedent. It said the benefit came out to 267mn of the 304mn shares that Musk had earned — the difference reflecting the cost to Musk of exercising the options.
Bernstein pointed to a Delaware case from 2012 in which plaintiffs’ lawyers were awarded a fee of nearly $300mn, or 15 per cent of the shareholder recovery, which had been the record for that court.
It noted its request represented just 11 per cent of the recovery, less than the 15 per cent in the previous case. Bernstein also requested that it be allowed to freely sell the Tesla shares without a mandated holding period — for that concession, it said, it was willing to accept the lower 11 per cent fee.
Based on Tesla’s closing price on Friday, 11 per cent of 267mn shares comes out to roughly 29mn shares, which would be worth $5.9bn. If granted by the Delaware court, Bernstein would be among the 10 largest shareholders of the company. The law firm wrote in the filling that a fee paid in shares would also be tax deductible for the carmaker.
Musk can challenge the fee request. He is also expected to appeal against the pay nullification decision. Lawyers for Musk did not immediately respond to request for comment. Greg Varallo, the lead attorney from Bernstein declined to comment beyond the filing.
Bernstein emphasised how difficult it believed the case was to litigate on a contingent fee basis, describing the saga as a “steep uphill climb” where it “shouldered significant risk in marching forward against elite defence counsel”.
After the February decision, Musk complained about the Delaware corporate law court and exhorted other companies to move their domicile to Nevada and Texas. Since then, he has shifted incorporation of two of his companies away from Delaware — SpaceX to Texas, and Neuralink to Nevada.
In its filing on Friday, Bernstein noted there had been two larger jury awards made in past US civil lawsuits — both of which were in Texas.
