Greenspan v. Musk et al Document 55

AMENDED COMPLAINT against All Defendants. Filed by Aaron Jacob Greenspan. (Attachments: # (1) Exhibit A: Plaintiff's Transactions in Tesla, Inc. Securities)(Greenspan, Aaron)

Jump to Document 55 or Attachment 1   Formatted Text Raw Text Page 1 Aaron Greenspan (Pro Se) 956 Carolina Street San Francisco, CA 94107-Phone: +1 415 670 Fax: +1 415 373 E-Mail: aaron.greenspan@plainsite.org UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No. 3:24-cv-04647-MMC AARON GREENSPAN, FIRST AMENDED COMPLAINT FOR: Plaintiff, v. 1. ELON MUSK, TESLA, INC., X CORP., THE ELON MUSK REVOCABLE TRUST DATED JULY 22, 2003, EXCESSION, an individual, LLC, JARED BIRCHALL, MORGAN STANLEY & COMPANY, LLC, OMAR QAZI, SMICK ENTERPRISES, INC., SINGER CASHMAN, LLP, ADAM S. CASHMAN, ALLISON HUEBERT, ADAM G. MEHES, and ALEX SPIRO, 2. 3. 4. 5. 6. 7. 8. Defendants. 9. 10. 11. 12. 13. 14. Violation of Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § Securities Fraud: California Corp. Code §§ 25400, et seq. Fraud Negligent Misrepresentation Defamation Per Se Defamation Violation of Anti-Stalking Statute, Civil Code § 1708.7, et seq. Negligent Infliction of Emotional Distress Fraud on the Court (Malicious Prosecution) Negligence Unjust Enrichment Violation of California Unfair Competition Law, Business and Professions Code § Violation of California False Advertising Law, Business and Professions Code § Declaratory Judgment DEMAND FOR JURY TRIAL FIRST AMENDED COMPLAINT i 3:24-cv-04647-MMCPage 2 TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................ ii INTRODUCTION .......................................................................................................................... A. The Tesla Matryoshka Doll of Nested, Interdependent Frauds .......................................... B. The Plot Against PlainSite .................................................................................................. C. The “Tesla Files” Confirm The Suspicions of Critics, Including Plaintiff ......................... D. Litigation History .............................................................................................................. PARTIES ...................................................................................................................................... JURISDICTION AND VENUE ................................................................................................... AGENCY, JOINT VENTURE, AIDING AND ABETTING, AND CONSPIRACY ................. FACTS COMMON TO ALL CLAIMS FOR RELIEF ................................................................ A. The Tesla “Autopilot” Fraud ............................................................................................ B. The Tesla “Full Self-Driving” Fraud ................................................................................ C. The Tesla Vehicle Quality Fraud ...................................................................................... D. The Tesla Solar Fraud ....................................................................................................... E. The Tesla Stock Inflation Fraud ....................................................................................... a. Accounting Fraud: Cash Balances ........................................................................ i. Earned Interest .......................................................................................... ii. Cash Stuck in China .................................................................................. iii. Accounts Receivable ................................................................................. iv. Accounts Payable ...................................................................................... v. Tax Evasion .............................................................................................. b. Accounting Fraud: “Deliveries” ........................................................................... i. No Actual Definition................................................................................. ii. “Delivery Count New” Versus “Delivery Count Used” ........................... iii. Multiple Undisclosed Dynamic Incorrect Methodologies ........................ iv. Rushed Delivery of Defective Vehicles .................................................... v. Multiple “Deliveries” Per Vehicle ............................................................ vi. Conflicted Overseas Auditors In The Dark .............................................. vii. Contradictions With Known Sales Metrics: New Vehicle Registrations and Google Invoices ........................................................................................ c. Accounting Fraud: Warranty Reserves and Goodwill Repairs ............................. d. Accounting Fraud: Material Weaknesses in Internal Controls ............................. e. Accounting Fraud: Lying In Public to Justify Revenue Recognition ................... FIRST AMENDED COMPLAINT ii 3:24-cv-04647-MMCPage 3 f. Accounting Fraud: Intentionally Underestimating Performance Metrics To Later Beat Them ............................................................................................................. g. Overt Market Manipulation .................................................................................. h. Broadcasting Propaganda on Social Media .......................................................... i. Fraudulent Price Targets ....................................................................................... j. Silencing Critics .................................................................................................... i. Tesla Customer and Shareholder Omar Qazi Responds To A Tesla Model 3 Safety Issue On Elon Musk’s Behalf By Amplifying Dangerous Conspiracy Theories About Plaintiff ........................................................ ii. Qazi Steps Up His Campaign of Criminal Harassment ............................ iii. Omar Qazi Leads a Mob That Tries To Frame Plaintiff for Possession of Child Pornography .................................................................................... iv. Elon Musk Personally Participates In The Harassment Campaign .......... v. Omar Qazi Targets Plaintiff’s Family for Further Harassment ................ vi. Even With Omar Qazi Banned From Twitter, His Libel and Harassment Continues .................................................................................................. vii. The Tesla Cult Fractures, with Omar Qazi Scapegoating Plaintiff .......... F. The “Hardcore Litigation” Fraud ...................................................................................... TOLLING OF THE STATUTES OF LIMITATIONS ................................................................ CLAIMS FOR RELIEF ................................................................................................................ COUNT I Violations of Federal Civil RICO (18 U.S.C. § 1962(c)) ................................................. A. The Atlanteca Enterprise....................................................................................... B. Predicate Offenses .............................................................................................. C. Pattern of Racketeering Activity ......................................................................... COUNT II Violations of Federal Civil RICO (18 U.S.C. § 1962(a)) ............................................... COUNT III Conspiracy to Violate Federal Civil RICO (18 U.S.C. § 1962(d)) ................................. COUNT IV Securities Fraud (California Corporations Code §§ 25400, 25500) ............................... COUNT V Securities Fraud (California Corporations Code §§ 25401, 25501) ............................... COUNT VI Assistance Committing Securities Fraud (California Corporations Code §§ 25403, 25504.1, 25504.2) ........................................................................................................... COUNT VII Fraud ............................................................................................................................... FIRST AMENDED COMPLAINT iii 3:24-cv-04647-MMCPage 4 COUNT VIII Negligent Misrepresentation ........................................................................................... COUNT IX Defamation Per Se .......................................................................................................... COUNT X Defamation Per Se .......................................................................................................... COUNT XI Defamation...................................................................................................................... COUNT XII Violation of the Civil Anti-Stalking Statute (California Civil Code § 1708.7, et seq.) .. COUNT XIII Negligent Infliction of Emotional Distress ..................................................................... COUNT XIV Fraud on the Court (Malicious Prosecution) ................................................................... COUNT XV Negligence ...................................................................................................................... COUNT XVI Unjust Enrichment .......................................................................................................... COUNT XVII Violation of Unfair Competition Law (California Business and Professions Code § 17200) ............................................................................................................................. COUNT XVIII Violation of Unfair Competition Law (California Business and Professions Code § 17200) ............................................................................................................................. COUNT XIX False Advertising (California Business and Professions Code § 17500) ....................... COUNT XX Declaratory Judgment ..................................................................................................... PRAYER FOR RELIEF ............................................................................................................. JURY DEMAND ........................................................................................................................ FIRST AMENDED COMPLAINT iv 3:24-cv-04647-MMCPage 5 Plaintiff, Aaron Greenspan, alleges the following causes of action and requests for relief: INTRODUCTION A. The Tesla Matryoshka Doll of Nested, Interdependent Frauds 1. Tesla Motors, Inc., since re-incorporated twice in Delaware and then Texas as Tesla, Inc. (“Tesla”), was founded on July 1, 2003 by engineers Martin Eberhard and Marc Tarpenning to manufacture electric vehicles. On March 31, 2004, Eberhard and Tarpenning approached dot-com millionaire Defendant Elon Musk to discuss funding Tesla, and Musk ultimately agreed to invest $6.35 million. He then set about taking control of the company, pushing out the co-founders and churning through staff and hundreds of executives. In May 2009, Eberhard sued Musk in the Superior Court of California for San Mateo County, Case No. CIV484400, and as part of a case settlement, Musk obtained the contractual right to describe himself as a Tesla “co-founder.” 2. Tesla began trading on public markets on June 29, 2010. By March 2021, a drug- addled, centi-billionaire Defendant Musk had declared himself “Technoking” of Defendant Tesla as he cultivated a public image of nothing less than humanity’s savior: an iconic entrepreneur simultaneously working to reduce greenhouse gas emissions by selling lithium- and cobalt- hungry cars, and also, in case that didn’t work, to make life “multi-planetary” by colonizing Mars. Tesla’s market capitalization grew that year to a peak of $1.2 trillion, dwarfing the market capitalization of the rest of the global automotive industry combined and making Defendant Musk the wealthiest person on Earth. Tesla was hailed as a “green” American success story. 3. Few realized that the way that Defendant Musk achieved these remarkable financial milestones was by orchestrating what was then the largest corporate fraud in American history (succeeded soon after by Facebook, also known as Meta Platforms, Inc., which achieved a $1.4 trillion market capitalization in 2024 based on similarly fraudulent conduct). Yet the description of Tesla’s valuation as being based on “fraud” is, while accurate, far too simple, because despite the company’s innovative origins pre-dating Musk’s involvement, Tesla is actually a Matryoshka doll of multiple, nested, interdependent frauds: FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 6 The Atlanteca Enterprise Elon Musk Tesla, Inc. “Hardcore Litigation” Fraud Stock Inflation Fraud “Full Self-Driving” Fraud Solar Fraud Vehicle Quality Fraud Accounting Fraud “Autopilot” Fraud Market Manipulation The Elon Musk Revocable Trust Dated July 22, Other Entities & Individuals a) Tesla “Autopilot”: a set of driving automation features that Defendant Musk claimed could enable a Tesla vehicle to drive itself from Los Angeles to New York by 2016, which is still not possible in 2024; b) Tesla “Full Self-Driving” (“FSD”): additional autonomous driving features beyond those offered by “Autopilot,” sold for between $5,000 and $15,000 at various times, and advertised to consumers using false and misleading statements, often via videos created by social media influencers; c) Tesla Solar: fire-prone energy products that Defendant Musk sold as “like having a money printer on your roof,” but embraced only to bail out his cousins and his own teetering financial “pyramid;” d) Tesla Vehicle Quality: severe vehicle quality problems and numerous design defects covered up by non-disclosure agreements and “goodwill” service; e) Tesla Stock Inflation: shares of TSLA came to be the company’s primary product, with its astronomical price based on accounting fraud, countless false FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 7 and misleading statements and omissions made over the course of years, and overt market manipulation carried out with the help of Defendant Morgan Stanley & Company, LLC (“Morgan Stanley”). f) “Hardcore Litigation”: by filing serial fraudulent lawsuits in courts nationwide financed by securities fraud, Defendant Musk found a way to punish critics and undermine democracy while purportedly shielded by litigation privilege. Notably, these nested, interdependent frauds, which involve consumer fraud, securities fraud, and fraud on the court, resulted in dozens of needless and avoidable deaths. More will follow. 4. Defendants Musk and Tesla turned to fraud because without large-scale deception explicitly authorized by Defendant Musk, Tesla would have failed quickly. Musk effectively admitted this on the witness stand during a trial in the Delaware Court of Chancery in July 2021, when he stated that he tried “very hard not to be the CEO of Tesla, but I have to or frankly Tesla is going to die.” Defendant Musk had long valorized Tesla’s many near-“death” experiences and highlighted the dire odds against starting a new American automotive manufacturer to rationalize the need for his purported leadership. On August 18, 2018, Musk wrote on his Twitter account, “Ford & Tesla are the only 2 American car companies to avoid bankruptcy...” See https://x.com/elonmusk/status/1031111742103814144. 5. Defendant Musk has openly admitted that his leadership philosophy is that the ends—here, Tesla’s mission of “accelerating the world’s transition to sustainable energy”— justify the means, or fraudulent and unlawful business practices, so long as they keep a company afloat. See https://www.youtube.com/watch?v=xrVD3tcVWTY&t=3152s. According to Defendant Musk’s preferred public narrative, he is saving humanity from extinction; laws do not matter to him save for the laws of physics. Defendant Musk thinks of the world as a video game, where minor characters, such as his employees, are irrelevant, and doubling down on risky bets can be a winning strategy. 6. To avoid Tesla’s “death” and purportedly save mankind, Defendant Musk needed to convince customers, the media, and the investing public that Tesla was not properly viewed as FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 8 a car company—historically likely to earn low, if not negative, automotive margins—but rather, as a technology company, where margins have historically been limited only by investors’ imaginations. On the Q1 2024 Tesla earnings call, Defendant Musk explicitly admitted as much, stating, “I think Cathie Wood said it best. Like really, we should be thought of as an AI or robotics company. If you value Tesla as just like an auto company, you just have to— fundamentally, it’s just the wrong framework and if you ask the wrong question, then the right answer is impossible. So, I mean, if somebody doesn’t believe Tesla is going to solve autonomy, I think they should not be an investor in the company.” In turn, to convince investors, he needed to do two things: 1) simultaneously spread vast quantities of misinformation, or as Tesla Director Kimbal Musk referred to it on July 14, 2021 under oath, “relentless optimism;” and 2) suppress any and all voices calling for a more rational analysis of the company’s prospects. 7. To spread misinformation, Defendants Musk and Tesla attracted and cultivated a literal cult following, both among his customer base and on Twitter, the social network Defendant Musk purchased in 2022 for $44 billion and renamed X (hereinafter “Twitter”). 8. Defendants Musk and Tesla also spread misinformation in Tesla’s investor disclosures filed with the United States Securities and Exchange Commission (“SEC”). Tesla relied upon dozens of accounting tricks and grandiose promises, detailed below, many of which are now the subject of multiple investigations by federal and state government agencies, to boost its stock price, cement inclusion in the S&P 500, and achieve crucial market capitalization milestones tied to Defendant Musk’s unprecedented—and now rescinded—2018 executive compensation package worth $56 billion. 9. The combined effect of Defendant Musk’s nested and interdependent frauds was that through 2021 or later, Defendant Tesla became the largest Ponzi scheme in history—one that just happened to produce cars. Cash flowing in from new investors replaced outflows from prior investors and cash bleeding from Tesla’s staggering losses, while executives, such as Defendant Musk, were consistently rewarded ever more handsomely through stock-based compensation as the company lost more and more money and covered it up. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 9 Tesla, Inc. Cumulative Financial Metrics 2010- Reported Cumulative GAAP Net Income Reported Cumulative Stock-Based Compensation 6,5, 4,3, Millions of Dollars 2, 1,-1,-2,-3, -4, -6,-7, 10. Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 -5, By 2018, the disconnect between Tesla’s stock price and its financial performance made it of particular interest to Defendant Musk’s collective arch-nemesis: short-sellers, who had a financial interest in unraveling the frauds propping up the company’s valuation. 11. By 2018, Tesla’s stock was also of interest to regulators. In the fall of that year, the SEC charged Defendant Musk with securities fraud. Defendants Musk and Tesla signed binding Consent Decrees, stipulated that they would not do anything “creating the impression that [each] [SEC] complaint is without factual basis,” and each paid a $20 million fine. 12. Defendants Musk and Tesla then immediately violated the terms of the Consent Decrees in multiple ways and amplified the magnitude of securities fraud they committed while also committing securities fraud with increasing frequency. Warned by then-District Judge Alison J. Nathan of the Southern District of New York to put on its “reasonableness pants,” the SEC did nothing regarding Musk or Tesla for years, even while its investigations turned up more evidence of fraud, and even while Musk continued to commit fraud and violate the Consent Decrees in broad daylight. The SEC has since commenced several additional investigations against Defendants Musk and Tesla for violations of securities laws. 13. To suppress critical voices—the second key ingredient in Defendant Musk’s recipe for corporate “death” avoidance—the Defendants collectively scapegoated and targeted short-sellers and journalists, including but not limited to Plaintiff, in a manner closely reminiscent of the eBay cyberstalking affair that resulted in the United States Department of FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 10 Justice filing criminal charges against eBay, Inc. and certain of its employees, as well as collecting a $3 million fine from the company. See “eBay Inc. to Pay $3 Million in Connection with Corporate Cyberstalking Campaign Targeting Massachusetts Couple,” https://www.justice.gov/usao-ma/pr/ebay-inc-pay-3-million-connection-corporate-cyberstalking- campaign-targeting. See also USA v. eBay, Inc., Massachusetts District Court Case No. 1:24-cr- 10003-PBS; USA v. Gilbert et al, Massachusetts District Court Case No., 1:20-cr-10098-WGY; USA v. Baugh et al, Massachusetts District Court Case No. 1:20-cr-10263-PBS. 14. In recent years, Defendant Musk has come to be known as one of the most prolific cyberbullies on Earth, using his social networking website—on which he now has hundreds of millions of followers—to launch personal attacks based on conspiracy theories, broadcast Russian propaganda, antagonize political leaders worldwide, and even incite riots. 15. To achieve this ignominious distinction, Defendant Musk needed help. Using the lure of stock market riches, he found enthusiastic assistance from investment banks and bankers (Defendants Morgan Stanley and Birchall), law firms and lawyers (Defendants Singer Cashman LLP, Cashman, Huebert, Mehes, and Spiro), Tesla customers (Defendants Qazi and Smick Enterprises, Inc. (“Smick”)), and even star-struck regulators. 16. Defendants Qazi and Smick assisted Defendants Musk and Tesla with the suppression of legitimate criticism by short-sellers and journalists, including Plaintiff. Simultaneously, Defendants Excession, LLC (“Excession”), Jared Birchall, and Morgan Stanley assisted Defendant Musk with the direct manipulation of Tesla’s share price in response to that criticism. Defendant Spiro helped cover it up. 17. Defendant Musk admitted on the record in late 2020 that short-sellers had been right all along: that in fact, Tesla had been on the verge of bankruptcy from “mid 2017 to mid 2019,” rendering its investor disclosures, showing adequate cash and lacking any “going concern” statements, totally fraudulent. In response, regulators did nothing. B. The Plot Against PlainSite 18. PlainSite, which Plaintiff co-founded in 2011 with two friends at Stanford FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 11 University, is an open legal information service similar to LexisNexis or Westlaw containing tens of millions of court records about millions of legal entities. Starting in 2018, as headlines blared about securities fraud involving Defendants Tesla and Musk, PlainSite users began to express more interest in Tesla and Elon Musk than virtually any other topic. 19. Plaintiff ensured that records on PlainSite regarding Defendants Tesla and Musk were up to date, and also began writing about related news primarily on the @PlainSite Twitter account, as well as on his personal @AaronGreenspan Twitter account. 20. Plaintiff also began filing Freedom of Information Act (“FOIA”) and state public records requests regarding Defendants Tesla and Musk and posting the resulting documents on PlainSite for public viewing. 21. The @PlainSite Twitter account ultimately amassed a following of approximately 25,000 followers, including journalists at The New York Times, The Wall Street Journal, The Washington Post, Bloomberg News, The Financial Times, CNBC, Reuters, and other major media networks. PlainSite and its disclosures were cited in numerous articles and later, in numerous lawsuits. 22. PlainSite also attracted critics, the most vocal of which were convicted felons upset about their histories of criminal activity being public on court-related websites. One such felon was an especially prolific poster of false and dangerous claims about Plaintiff on-line. 23. In 2019, Plaintiff started being harassed via Twitter, e-mail, telephone, and fax by an on-line mob of Musk and Tesla cult followers led by Defendants Qazi and Smick, who began amplifying the false and dangerous claims about Plaintiff they had found. In so doing they had the explicit approval of Defendants Musk and Tesla. Among other harassing acts, the mob attempted to frame Plaintiff for the crime of possession of child pornography, which Plaintiff reported to police and the Federal Bureau of Investigation (“FBI”). 24. On January 7, 2020, Plaintiff published a detailed PlainSite Reality Check report (the “Reality Check Report”) regarding Defendants Tesla and Musk, similar to previous in-depth reports he had authored and/or co-authored regarding other publicly traded companies. The FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 12 Reality Check Report was 101 pages long with 314 footnotes. 25. After the publication of the Reality Check Report, the harassment campaign against Plaintiff intensified. For years, Plaintiff lived in fear of attacks from Tesla adherents, and especially Defendants Qazi and Smick working on behalf of Defendants Musk and Tesla— simply for publishing and analyzing public records about the company. 26. In 2022, Defendant Musk publicly announced that he was “out for blood” and setting up a “hardcore litigation department.” For its debut, he engaged Defendants Singer Cashman, LLP, Adam S. Cashman, Allison Huebert, and Adam G. Mehes (the “Hardcore Litigation Department”) to file a frivolous lawsuit against Plaintiff (the “Alameda Case”)—the first lawsuit Defendant Musk had ever filed in his individual capacity—in the Superior Court of California for Alameda County in a brazen attempt to silence Plaintiff in retribution for his work to expose Defendants’ fraudulent acts. See Musk v. Greenspan, Case No. 23CV (Alameda County filed February 24, 2023). The lawsuit’s initial and only complaint (the “Alameda Complaint”) was rife with substantive and typographical errors and came to a rapid close in July 2023 after it was voluntarily dismissed with prejudice. 27. On June 13, 2023, X Corp. suspended Plaintiff’s @AaronGreenspan and @PlainSite Twitter accounts, which had become vital resources for journalists covering Defendants Musk and Tesla. Both accounts were suspended simultaneously at approximately 1:15 P.M. for purported violations of the Twitter Terms of Service, but even after filing several so-called “appeals,” Plaintiff was never told precisely what the purported violations were beyond “Violating our rules against posting private information.” Plaintiff was never told how both accounts were found to be in violation at the same time, what the “private information” was, or why Defendant Qazi—accused by Defendant Tesla in writing of “posting its internal information” on Twitter in February 2023—was not similarly suspended. 28. At first, Defendant Qazi claimed not to have any paid relationship with Defendants Musk or Tesla, but evidence of what was at the very least an unusually close relationship steadily relationship manifested over time. Finally, in July 2023, Defendant Qazi FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 13 openly admitted that Defendant Musk was, in fact, paying his company, Defendant Smick, via Defendant X Corp. as part of a revenue sharing program that had been crafted by Defendant Musk specifically for a limited number of Tesla and right-wing propagandists like him. 29. Defendants’ collective actions are part of an overt, disturbing, and at this point extremely well-documented pattern in which Defendants have repeatedly incited on-line mobs against anyone who dares question or criticize them. Defendants smeared and throughout this litigation have continued to smear Plaintiff as a mentally ill person making “implausible” and “unintelligible” claims, a “conspiracy theorist,” a psychiatric patient, a rapist, a pedophile, a child molester, a likely school shooter, a stalker, and more, all in service of one of the largest and most complex frauds in American history. C. The “Tesla Files” Confirm The Suspicions of Critics, Including Plaintiff 30. In late 2021, Plaintiff was contacted by a nameless source who at the time wished to remain anonymous and claimed to be an employee of Defendant Tesla with access to internal documents. Over the course of nearly a year, this source began sending Plaintiff hundreds, and then thousands, of authentic documents from a number of internal Tesla servers. 31. Plaintiff compiled and organized the information provided to the extent possible and offered it to government agencies and professional journalists. 32. The information provided to Plaintiff came in part from Tesla’s accounting systems and contained evidence of numerous types of fraud, much of which Plaintiff had already alleged was taking place in court. The data also contained records confirming that Defendants Qazi and Smick had committed fraud and worked as agents of Defendants Tesla and Musk, and that Defendant Tesla had taken steps to cover up evidence of their agency relationship. Most importantly, it corroborated that Defendants Tesla and Musk made countless false and misleading statements and caused material omissions, in SEC filings and on Twitter, which Tesla has for years treated as an official communications medium for investors. 33. Plaintiff’s source independently decided to share the internal Tesla data he had obtained with the German newspaper Handelsblatt in the hopes that it would publicly reveal FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 14 violations of the European General Data Protection Regulation (“GDPR”). Plaintiff’s source also independently shared portions of the data with certain other individuals. 34. In preparation for publication of its investigative series, entitled the “Tesla Files,” Handelsblatt sent Defendant Tesla a list of detailed questions that exposed the source’s identity by allowing Tesla to search its log files for key data points. 35. coordinating the careful, responsible and lawful release of material portions of the Tesla Files. Against Plaintiff’s will, Handelsblatt also exposed Plaintiff’s involvement 36. The Handelsblatt series focused on consumer complaints regarding Tesla vehicles and Tesla’s GDPR violations, but Handelsblatt’s staff lacked the background, expertise and professionalism needed to understand the vast amount of data. In this regard, Hansdelsblatt was not alone. Many of the most important stories in the “Tesla Files” were never actually published. D. Litigation History 37. Plaintiff first sued Defendants Musk, Tesla, Qazi and Smick in the Northern District of California on May 20, 2020. See Greenspan v. Qazi et al, Case No. 3:20-cv-03426- JD (N.D. Cal. filed May 20, 2020) (“Greenspan I”). A First Amended Complaint, ECF No. 20, was filed pursuant to Federal Rule of Civil Procedure (“Rule”) 15(a)(1). A Second Amended Complaint, ECF No. 70, was filed pursuant to Rule 15(a)(2) with the parties’ consent. A Third Amended Complaint, ECF No. 103, was filed pursuant to Rule 15(a)(2) with the Court’s consent, and was the first version of the complaint reviewed by the Court. District Judge James Donato dismissed the Third Amended Complaint with leave to amend in an order, ECF No. 125, misquoting Plaintiff’s pleading while also failing to analyze each issue raised pursuant to the Private Securities Litigation Reform Act of 1995 (“PSLRA”). Plaintiff’s Fourth Amended Complaint, ECF No. 131, was filed on August 13, 2021 subject to a highly unusual order restricting the number of pages allowed for a PSLRA claim. 38. In Greenspan I, Defendants Musk and Tesla were initially represented by Cooley, LLP (“Cooley”), which withdrew when Defendant Musk fired the entire firm because it had hired an attorney who previously worked on a Musk investigation at the SEC. Cooley was FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 15 replaced by Quinn Emanuel Urquhart and Sullivan, LLP (“Quinn Emanuel”), for which Defendant Spiro works. 39. Both Cooley and Quinn Emanuel frequently relied on the defense that Plaintiff’s allegations were “implausible,” even though they and their clients already knew them to be true. In particular, Quinn Emanuel derided Plaintiff’s warning about the Tesla Files as “implausible,” indicating that at least every allegation so designated in Greenspan I is, in fact, true. 40. Throughout the litigation, Judge Donato and the other parties concealed the fact that Judge Donato’s wife had earned and continues to earn income from Solutus Legal Search, whose notable clients include Cooley and Quinn Emanuel, both of which represented Defendants Musk and Tesla. Judge Donato refused to recuse himself and falsely claimed that his relationship with Cooley, also his former employer, had ended years prior. 41. On May 19, 2022, Judge Donato dismissed Plaintiff’s federal claims in the Fourth Amended Complaint with prejudice and dismissed the state claims without prejudice. Having received the Tesla Files after the filing of the Fourth Amended Complaint, Plaintiff filed a motion pursuant to Federal Rule of Civil Procedure 60(b), describing some of the new information. 42. On June 29, 2022, Defendants Musk and Tesla responded to Plaintiff’s warning about what amounted to the largest known data breach that Tesla has ever suffered by falsely describing Plaintiff’s assertions as a “facial[ly] implausibil[e] [] self-serving tale—which comes from the same person who ‘says he created an early version of Facebook.’” They went on to further cast Plaintiff’s true allegations as “self-serving” and “wholly insubstantial.” When Defendant Tesla finally did report the data breach to the Office of the Maine Attorney General as required by law, it falsely represented both the “Date(s) Breach Occurred” and “Date Breach Discovered” as “May 10, 2023,” nearly a year after it had belittled Plaintiff’s notice. 43. On June 30, 2022, without allowing Plaintiff to reply and without ever holding a single hearing during the entirety of the case, Judge Donato denied the Rule 60(b) motion. On July 25, 2022, Plaintiff timely appealed to the United States Court of Appeals for the Ninth FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 16 Circuit. The appellate court scheduled and then later cancelled oral argument. 44. On February 24, 2023, while the appeal was pending, Defendant Musk filed a frivolous lawsuit against Plaintiff in the Superior Court of California for the County of Alameda, Case No. 23CV028370, based on the false allegation that Plaintiff had masterminded the separate Hothi litigation against Musk also proceeding in that court, which was based on a e-mail conversation between Plaintiff and Defendant Musk subsequently posted on PlainSite. 45. On April 7, 2023, pursuant to California Code of Civil Procedure § 128.7, Plaintiff served a motion for sanctions on counsel for Defendant Musk highlighting numerous material errors in the frivolous lawsuit. The California Code of Civil Procedure § 128.7 21-day safe harbor expired on Tuesday, May 2, 2023 inclusive of the two extra days provided by California Code of Civil Procedure § 1010.6. 46. On Monday, May 1, 2023, realizing that he and his counsel would be sanctioned, Defendant Musk dismissed his frivolous lawsuit against Plaintiff with prejudice. 47. California Code of Civil Procedure § 1010.6 allowed Plaintiff two extra days to carry out “any right or duty to do any act or make any response within any period or on a date certain after the service of the document” when serving filings electronically. Accordingly, on May 3, 2023, Plaintiff electronically filed and served a cross-claim in Case No. 23CV028370 for malicious prosecution, which the Superior Court of California for the County of Alameda initially allowed, issuing summonses. Subsequently, Judge Eumi Lee ruled that the Clerk of Court had acted in error because California precedent artificially stripped the court of its jurisdiction to hear a cross-claim, Section 1010.6 apparently notwithstanding, and thus required a cross-claimant alleging malicious prosecution to file a new, separate civil action and thus to pay a double filing fee. Plaintiff alleged that this violated due process. In her July 11, 2023 General Order, Judge Lee did not address Plaintiff’s arguments regarding Section 1010.6 or the due process implications of requiring a victim of malicious prosecution to pay double filing fees. 48. On February 14, 2024, after the Ninth Circuit appeal had been briefed, Judge Donato issued an Order Re Dismissal, ECF No. 49, in Pauly v. Becker, Northern District of FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 17 California Case No. 3:23-cv-03108-JD, involving the same issue that had formed the crux of Plaintiff’s Ninth Circuit appeal: whether or not the PSLRA applied to individual securities actions. Judge Donato ruled that it does not, for the first time agreeing with Plaintiff on that issue years after Plaintiff had first raised it on August 3, 2020 in an Emergency Motion To Clarify Applicability Of The PSLRA And, If Relevant, Lift Discovery Stay. 49. Judge Donato’s outdated decision in Greenspan v. Qazi was upheld on appeal without oral argument in an unpublished decision that appears to have been written by a staff attorney, not a judge, with the Ninth Circuit’s mandate issued on June 10, 2024. 50. On June 12, 2024, Plaintiff re-filed the state claims in the Superior Court of California for the County of San Francisco and added additional state claims. 51. On July 31, 2024, certain of the defendants—but not Defendant Musk, who failed to appear—purported to remove the case to federal court in the Northern District of California in a defective Notice of Removal based on a false declaration by attorney Anthony P. Alden. 52. Anthony P. Alden’s name appears on ECF No. 181 in Greenspan I on behalf of Defendants Musk and Tesla, and Attorney Alden also represented Defendants Musk and Tesla in the Ninth Circuit appeal, but he did not file a formal appearance with the District Court in Greenspan I in violation of Civil Local Rule 5-1(c)(2)(A). Thus far in this particular action, Attorney Alden does not represent Defendant Musk, nor does any attorney. PARTIES 53. Plaintiff Aaron Greenspan is an individual residing in San Francisco County in the State of California. Plaintiff is not a public figure. Plaintiff graduated from Harvard College with advanced standing in three years and was subsequently a CodeX Fellow at Stanford Law School from 2012-2013. Plaintiff is also a software developer, investor and short-seller who has worked with forensic accountants and journalists to report on accounting and securities fraud at publicly traded companies. Plaintiff purchased Tesla put options in his personal brokerage accounts from September 24, 2018 through March 23, 2020 and lost money through June as Tesla stock skyrocketed higher due to Defendants’ serial unlawful acts. Plaintiff invested in FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 18 Tesla put options because he believed that Defendant Tesla’s business was fundamentally overvalued by the market. When Plaintiff began purchasing Tesla securities he had no knowledge of any alleged fraud involving Defendant Tesla except for limited knowledge from news reports of Defendant Musk’s August 2018 false “funding secured” tweet. Plaintiff is licensed to drive a motor vehicle and frequently drives on roads and interstate highways. 54. Plaintiff’s documented involvement with the origins of Facebook at Harvard College is the source of controversy despite both The New York Times in 2007 and his classmate Mark Zuckerberg in 2009, as part of a legal settlement with Plaintiff, publicly verifying that Plaintiff created the original campus-wide website referred to as “The Facebook,” which counted Zuckerberg as a member and which was the predecessor to Zuckerberg’s unauthorized version. Plaintiff, Plaintiff’s company, Zuckerberg, and Facebook, Inc. reached a confidential settlement in May 2009, before the film The Social Network was released about Facebook’s origins. 55. Despite being omitted from the film, Plaintiff was deposed as part of the ConnectU litigation that The Social Network depicted, where ConnectU was represented by Quinn Emanuel before ConnectU sued Quinn Emanuel for malpractice. The transcript of Plaintiff’s November 29, 2007 deposition was marked “Confidential - Attorneys Eyes Only.” See https://www.plainsite.org/dockets/download.html?id=16332683&a=3&z=785f517e. Yet since the start of this litigation, Defendants, and especially Quinn Emanuel, have sought to abuse the history of the Facebook controversy to portray Plaintiff as unreliable and mentally unstable, furthering the libel and harassment that is the very subject of this lawsuit. 56. Defendant Elon Musk is a self-described centi-billionaire “far right” public figure who controls numerous companies, who frequently works in California, and who lived in California during much of the relevant timeframe. His superlative wealth is derived almost entirely from fraudulent conduct involving Defendant Tesla, of which he is CEO and “Technoking.” Despite also running a defense contractor, in his own words, Defendant Musk regularly “tranq[s] out” and besides tranquilizers abuses LSD, ketamine, cocaine, and various other illegal narcotics according to reporting by The Wall Street Journal. Defendant Musk was FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 19 charged with securities fraud in 2018 in relation to a marijuana joke, paid $20 million to the SEC to settle those charges, has been found to have acted with scienter in multiple civil securities lawsuits, and has generally admitted to market manipulation, having stated “I might pump but I don’t dump” during a conference panel broadcast worldwide on July 21, 2021. On November 29, 2023, on stage at a New York Times DealBook Summit event broadcast live on television, Defendant Musk told X Corp. advertisers, “Don’t advertise… Go fuck yourself.” On January 30, 2024, the Delaware Court of Chancery invalidated Defendant Musk’s 2018 Tesla executive compensation package worth $56 billion, finding that he controls Defendant Tesla and that he misled shareholders leading up to and during a defective voting process. Defendant Musk then attempted to supersede that court’s decision by having Tesla lie to shareholders about Delaware law in a proxy filing and announcing the purported results of a proxy vote to “ratify” his conflicted plan, which cannot be ratified, before the vote was even complete. 57. Defendant Musk is 53 years old, four times separated, and preys on young people. He chooses young men and women to serve as his Chiefs of Staff (Sam Teller, Harvard College Class of 2008; Omead Afshar, UC Irvine Class of 2009), his Chief Financial Officers (Zachary Kirkhorn, University of Pennsylvania Class of 2006), his marketing proxies (Omar Qazi, Santa Clara University Class of 2015; Vivien “Viv” Hantusch, Heinrich-Heine-Universität Düsseldorf Class of 2019) and—in the tradition of his friend, former financial advisor, and now-deceased convicted felon Jeffrey E. Epstein—targets of sexual predation. He preys on young people because they are more likely to be awestruck by fame, and due to their inexperience, they are less likely to ask questions or push back on instructions that are illegal. When they learn too much, he generally pays them to remain silent, keeps them in his network of close friends where they can be monitored and controlled, and finds replacements. According to internal company records, Omead Afshar received an equity grant worth $10 million; Afshar is now an investor in Defendant X Corp. via his fund Afshar Partners, LP. Vivien Hantusch was eventually hired to report to Afshar, and also received stock options. Immediately after being subpoenaed by the SEC on December 5, 2019 in connection with his work for Defendant Musk, Sam Teller began FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 20 working instead at Valor Equity Partners, run by Tesla Director and Musk personal friend Antonio Gracias. And a Space Exploration Technologies Corporation (“SpaceX”) flight attendant—one of many such young women specifically hired for their training in massage therapy—received a $250,000 severance payment after turning down a sexual relationship with, and a horse from, Defendant Musk. Musk and Tesla reimburse SpaceX for jet time and fuel. 58. Defendant Musk treats all his companies as though they are one seamless global conglomerate, as evidenced by related-party transactions, shared staff, shared information technology resources, shared source code, cross-marketing agreements, and confidential documents. Defendant Musk is the principal architect and leader of a cult and criminal enterprise as described herein, which spans the various legal entities he controls and influences: Tesla, Inc.; X Corp.; X.AI Corp.; Excession, LLC; SpaceX; TBC-The Boring Company; Neuralink Corp.; the Musk Foundation; the Elon Musk Revocable Trust Dated July 22, 2003 (the “Musk Trust”); and various other limited liability companies. This cult and criminal enterprise, referred to herein as the “Atlanteca Enterprise,” is coordinated at least in part through the atlanteca.com domain name, which is not directly associated with any of Defendant Musk’s known businesses so as to evade legal process such as discovery obligations and subpoenas. 59. Defendant Tesla, Inc. is a corporation based at all relevant times in California, but now in Texas, with operations in Alameda, Los Angeles, Santa Clara, San Francisco, San Joaquin, and San Mateo Counties in California. Its common stock trades on the NASDAQ Global Select Market under the ticker symbol “TSLA.” Despite its peak market capitalization of approximately $1.2 trillion, Defendant Tesla for years had no permanent General Counsel. Three of its prior General Counsels and an Acting General Counsel resigned from 2017 through mid-2021 (Todd Maron, Dane Butswinkas, Jonathan Chang, Al Prescott), as did two prior Chief Financial Officers (Jason Wheeler, Deepak Ahuja) and two Chief Accounting Officers (Eric Branderiz, Dave Morton). Tesla then burnt through two more General Counsels or equivalent officers (Bill Berry, Dinna Eskin) and another Chief Financial Officer (Zach Kirkhorn). Defendant Musk is an officer, director and employee of Defendant Tesla. Under respondeat FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 21 superior doctrine, Defendant Tesla is liable for the actions of Defendant Musk performed in connection with its business. Since Defendant Omar Qazi is a paid agent of Defendant Tesla working at its direction via his company Defendant Smick, Defendant Tesla is also liable for Defendant Qazi’s and Defendant Smick’s actions. 60. Defendant X Corp., formerly Twitter, Inc., is a Nevada corporation with offices in San Francisco County. In late 2019, after former Twitter CEO Jack Dorsey refused to reinstate the account of Defendant Musk and Tesla’s abusive agent, Defendant Qazi, Defendant Musk began to seriously consider strategies to control Twitter. In 2022, after unlawfully building up a stake in Twitter, Inc. with the help of Defendants Birchall and Morgan Stanley & Company, LLC—an act that is presently the subject of multiple federal investigations by the SEC and United States Department of Justice—and after a lengthy legal battle in the Delaware Court of Chancery, Defendant Musk acquired Twitter, Inc. for the sum of for $44 billion, paid for with his fraudulently inflated Tesla shares. He renamed the company X Corp. and the platform X. Today, Defendant Musk primarily uses the platform to spread pro-Tesla and pro-Russian propaganda, including but not limited to hate speech and messages intended to interfere with the 2024 presidential election. As part of the Atlanteca Enterprise, X Corp. has been used as a weapon against Defendant Musk’s many critics. On March 25, 2024, in X Corp. v. Center for Countering Digital Hate, Inc., Judge Breyer of this Court ruled, “The Court notes, too, that X Corp.’s motivation in bringing this case is evident. X Corp. has brought this case in order to punish CCDH for CCDH publications that criticized X Corp.” Similarly, X Corp. has also sued to punish Media Matters for America and the World Federation of Advertisers, whom Musk considers enemies. 61. Defendant Elon Musk Revocable Trust Dated July 22, 2003 (the “Musk Trust”) is a trust that owns the majority of Defendant Musk’s illicit wealth, including millions of shares of Tesla stock. Defendant Musk is the “sole Trustee” of, and controls, the Musk Trust. Defendant Musk also uses the Musk Trust to reward his collaborators in the Atlanteca Enterprise. 62. Defendant Excession, LLC is a Texas Limited Liability Company. It is FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 22 Defendant Musk’s family office, which manages his wealth, including but not limited to the assets of the Musk Trust. Besides Defendant Birchall, Excession has several employees. 63. Defendant Jared Birchall, also known by the alias “James Brickhouse,” is Defendant Musk’s fixer and right-hand man. He resides in Texas, but lived and worked in California during much of the relevant timeframe. Defendant Birchall has a documented history of hiring and paying at least one convicted felon on Defendant Musk’s behalf and was recently deposed by the SEC and the United States Department of Justice in connection with ongoing investigations. Defendant Birchall is the head of Excession, Defendant Musk’s family office, which manages Musk’s wealth in conjunction with the Musk Trust. Defendant Birchall communicates about sensitive and unlawful matters with Defendant Musk via the encrypted messaging application Signal using messages that automatically disappear after a set interval, or in person, typically during weekly Friday meetings. Defendant Birchall was formerly employed by Defendant Morgan Stanley and Merrill Lynch, from which he was fired in 2010. According to discovery documents originating in the separate civil lawsuit Rasella v. Musk, even after being fired, Defendant Birchall conspired with Morgan Stanley employees Jon Neuhaus, Michael Grimes and Kate Claassen as well as former employee Kyle Corcoran to execute deliberately manipulative and/or secret stock trades on Defendant Musk’s behalf while evading Morgan Stanley’s compliance department and the advice of legal counsel in order to help Defendant Musk acquire Twitter, Inc. at an artificially low price. 64. Defendant Morgan Stanley & Company, LLC is a Delaware Limited Liability Company with offices in California. It provides investment banking and illegal market manipulation services to Defendants Musk and Tesla and the Atlanteca Enterprise. Defendant Morgan Stanley faces ongoing probes from the SEC, the Office of the Comptroller of the Currency, and the United States Department of the Treasury in conjunction with its “wealth management” unit, which services Defendant Musk. Defendant Morgan Stanley and its subsidiaries have paid over $600 million in fines to the SEC over the past decade. 65. Defendant Omar Qazi is a Tesla customer, shareholder and contractor who has FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 23 been criminally charged in at least two unrelated cases and who resides at least part-time in San Francisco County. Defendant Qazi also does business in Los Angeles, Santa Clara and San Francisco Counties in California. Defendant Qazi, individually and through his corporation, Defendant Smick Enterprises, Inc., is a ferocious paid propagandist for Defendants Musk and Tesla, having authored and/or coordinated over 330,000 tweets praising Tesla and scapegoating its critics—plus essays, podcasts, and promotional videos touting Tesla’s purported FSD features. For the sake of comparison, Yevgeny Prigozhin, known as “Putin’s Chef,” employed a “troll-factory” that “generated one of the largest known online disinformation campaigns, churning out 71,000 tweets” according to Bellingcat in 2020. Today, Defendant Qazi has over 500,000 followers on Twitter. One of those followers is Defendant Musk, who frequently uses Defendant Qazi’s posts as springboards for official Tesla communications. Defendant Qazi was given “VIP” status by Defendants Tesla and X Corp. at Defendant Musk’s behest. Especially after Defendant Musk disbanded Defendant Tesla’s formal Public Relations team in late 2019, Defendant Qazi filled in for its role, often working as a tag team with Defendant Musk to hurl accusations and falsehoods concerning Plaintiff, among other topics, in order to discredit Plaintiff’s document-based research on Defendants Tesla and Musk. Before Musk purchased it, Defendant Qazi was banned from Twitter due to his harassing conduct toward Plaintiff, but evaded the ban by appropriating various new accounts until Defendant Musk purchased the platform, reversed his ban, and began paying him to post. 66. Defendant Smick Enterprises, Inc. is a Delaware corporation that has failed to register with the California Secretary of State or Franchise Tax Board and does not pay required California taxes, but nevertheless operates in Santa Clara and San Francisco Counties. Defendant Qazi is its Chief Executive Officer. Under respondeat superior doctrine, Defendant Smick is liable for the actions of Defendant Qazi performed in connection with its business. 67. Defendant Singer Cashman, LLP is a California limited liability partnership that represented Defendant Musk in the Alameda Case and willingly filed a false pleading on his behalf in the Superior Court of California for the County of Alameda that it knew or should have FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 24 known was false. On or about June 24, 2024, twelve days after being named in this litigation, the Singer Cashman, LLP website began redirecting to the website of Singer IP, LLP, which no longer featured the profile of prior partner Defendant Adam S. Cashman. 68. Defendant Adam S. Cashman is an attorney licensed in California, State Bar No. 255063, who represented Elon Musk in the Alameda Case. Mr. Cashman was a named partner at Singer Cashman, LLP and is now a partner at BraunHagey & Borden, LLP. He signed the false Alameda Complaint on behalf of Elon Musk naming Plaintiff as a defendant, which he had a legal obligation to review before filing. He also signed the predecessor document to the Alameda Complaint. Defendant Cashman previously worked for Quinn Emanuel. None of Defendant Cashman’s communications with Defendants are protected by attorney-client privilege due to the crime-fraud exception. 69. Defendant Allison Huebert is an attorney licensed in Texas, Bar Card No. 24124694, working for Tesla, Inc., but who represented Elon Musk in the Alameda Case. Her name appears on the false Alameda Complaint naming Plaintiff as a defendant, which she had a legal obligation to review before filing. Defendant Huebert previously worked for Quinn Emanuel. None of Defendant Huebert’s communications with Defendants are protected by attorney-client privilege due to the crime-fraud exception. 70. Defendant Adam G. Mehes is an attorney licensed in Texas, Bar Card No. 24133603, working for X Corp. and/or Tesla, Inc. but who represented Elon Musk in the Alameda Case. His name appears on the false Alameda Complaint naming Plaintiff as a defendant, which he had a legal obligation to review before filing. His name also appears on the false predecessor document to the Alameda Complaint. Defendant Mehes previously worked for Quinn Emanuel. None of Defendant Mehes’s communications with Defendants are protected by attorney-client privilege due to the crime-fraud exception. 71. Defendant Alex Spiro is a Florida-based attorney licensed in New York who works for Quinn Emanuel and caters to celebrity clients. Defendant Spiro represents Tesla, Inc. and Elon Musk, and works on behalf of the entire Atlanteca Enterprise. Defendant Spiro has FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 25 been the subject of a motion for criminal sanctions brought by the State of Florida and routinely practices law in California without a license. Defendant Spiro was also the subject of a sanctions motion in Texas for practicing law in Texas without a license. Defendant Spiro never paid his pro hac vice fees in Greenspan I—part of a pattern evidenced by roughly a dozen other cases in which Defendant Spiro also failed to file required paperwork or pay required fees. At Defendant Musk’s instruction, Defendant Spiro provided legal advice to Defendant Qazi regarding Greenspan I. None of Defendant Spiro’s communications with Defendants are protected by attorney-client privilege due to the crime-fraud exception. JURISDICTION AND VENUE 72. This Court has jurisdiction over the subject matter of this action pursuant to U.S.C. §§ 1331, 1337, and 1338(a), as well as 18 U.S.C. § 1964(a) and (c). This is a civil case arising under the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § and Declaratory Judgment Act, 28 U.S.C. § 2201. 73. Supplemental jurisdiction of this Court is invoked pursuant to 28 U.S.C. § over the state law claims that are so related to the federal claims in this action that they form part of the same case or controversy under Article III of the United States Constitution. 74. Personal jurisdiction and venue are proper because at least one defendant is a corporation headquartered in this district and/or because the improper conduct alleged herein occurred in, was directed from, and/or emanated or exported from California. Substantial acts in furtherance of the alleged fraud or the effects of the fraud have occurred in this judicial district. AGENCY, JOINT VENTURE, AIDING AND ABETTING, AND CONSPIRACY 75. Defendants conspired with currently unidentified co-conspirators in carrying out the wrongful conduct alleged herein. All such unidentified co-conspirators were Defendants’ agents, employees, and/or joint venturers, and were at all times acting within the course and scope of said agency, employment, and/or joint venture. 76. Each Defendant and unidentified co-conspirator took actions that aided and abetted, encouraged, and rendered substantial assistance in accomplishing the wrongful conduct, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 26 wrongful goals, and other wrongdoing alleged herein. In taking these actions, each Defendant and unidentified co-conspirator acted with an awareness of his/her primary wrongdoing and realized his/her conduct would substantially assist the accomplishment of the wrongful conduct, wrongful goals, and other wrongdoing. In addition, each act and omission comprising the aforementioned wrongful conduct, wrongful goals, and other wrongdoing was made known to, and ratified by, each of the Defendants. 77. Each Defendant and unidentified co-conspirator conspired with each other and with others to perpetrate the unlawful scheme on Plaintiff, as alleged herein. In doing so, each Defendant and unidentified co-conspirator have committed acts and omissions, including but not limited to making materially false, misleading, and deceptive statements and omissions, while acting within the scope and in furtherance of the conspiracy alleged herein, and with full knowledge of the goals of that conspiracy. 78. Plaintiff reserves the right to amend this Complaint when he learns the identities of currently unidentified co-conspirators, and Plaintiff intends to sue each Defendant and co- conspirator as participants, alter egos, agents, and conspirators with one another in the wrongful acts, omissions, plans, schemes, and transactions alleged herein. FACTS COMMON TO ALL CLAIMS FOR RELIEF A. The Tesla “Autopilot” Fraud 79. Tesla “Autopilot” 1.0 was introduced in October 2014 as a set of features that began as a project called “advanced driver assistance” to comply with European safety standards. Its features focused on highway driving: automatic braking and lane-keeping (“Autosteer,” automatic lane change and uncommanded lane change). By October 2015, “Autopilot” “7.0” had been released, with Defendant Musk stating as follows at a recorded press event (see https://www.youtube.com/watch?v=73_Qjez1MbI&t=4s): “What I’m going to take you through is how the system learns over time. I think that what’s interesting and unique is that we’re deploying a fleet learning technology, essentially the network of vehicles is—is gonna be constantly learning and um as we release the software and more people enable Autopilot, uh, then the information about how to drive is uploaded to the network. So, so each car—each, each driver is really an FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 27 expert trainer in how the Autopilot should work. Um. And I think you’re good about how that works, but it’s a combination of a variety of systems, um, and um, and it’s never really been done as a connected vehicle. So, and the interesting thing is like, every car made by Tesla from late September last year will overnight have this ability… And the capability will keep improving over time, both from the standpoint of all the expert driving doing approximately a million miles a day of travel and training, but also in terms of the software functionality” (emphasis added). 80. In fact, no vehicle delivered by Tesla in 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, or 2023 came remotely close to having the ability to “learn[] over time” as described by Defendant Musk. Instead, Defendant Tesla relied on human beings—independent contractors with sparse training who were often not even Tesla employees—caught up in another fraud described below, to manually tag portions of images and videos that the company’s supposed “machine learning” algorithms had no hope of identifying on their own. 81. The media relied on Defendant Musk’s false and misleading statements in its coverage of “Autopilot.” The MIT Technology Review captioned its February 23, 2016 article entitled, “Tesla Autopilot” with, “The electric-vehicle maker sent its cars a software update that suddenly made autonomous driving a reality.” This was simply false. 82. On November 28, 2018, among a flurry of articles reporting that Defendant Tesla claimed that its customers had driven 1 billion miles using “Autopilot,” Bloomberg News falsely reported, “The resulting trove of real-world miles acts as a feedback loop to the algorithms that are constantly training the fleet of Tesla vehicles...” See https://www.bloomberg.com/news/articles/2018-11-28/tesla-customers-rack-up-1-billion-milesdriven-on-autopilot. To the extent any training “algorithms” existed, they did not work. 83. On December 16, 2019, a news story began circulating about a boy wearing an orange shirt in Brazil who had been mistaken for a traffic cone by “Autopilot.” While the boy was not hurt, the story continued to raise serious questions about “Autopilot”’s true abilities. 84. By 2020, confidential internal Tesla presentations still noted hundreds of slides worth of manual tagging errors. Such errors frequently labeled discrete, solid objects, such as highway barriers, with a system flag for “road debris,” with one presentation slide noting, “we annotate standalone curbs that separate lanes as road_debris” next to screenshots of manual FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 28 image taggers asking questions like, “Would this be the correct way to annotate this?” 85. Defendant Tesla evaluated its manual image taggers based on “accuracy” as assessed by their human supervisors, but also on speed, evaluating “Time per frame,” abbreviated “T/F,” with supervisor dashboards noting that “lower T/F is better.” This metric incentivized Tesla’s human image taggers to sacrifice accuracy, especially since Tesla compared taggers to each other on each metric. 86. The fact that “Autopilot” had never actually involved a “network of vehicles” that was “constantly learning” from “expert trainer” drivers was emphasized in May 2024 by nVIDIA CEO Jensen Huang, who described such features at Tesla as “really revolutionary” because they were purportedly part of Tesla FSD version 12, released approximately nine years after the October 2015 “Autopilot” “7.0” press conference falsely claiming that they had already been implemented. Huang also stated, “We used to train based on images that are labeled.” Tesla still does exactly this. See https://www.youtube.com/watch?v=ER7iqeYx9HU&t=508s. 87. Today, “Autopilot” has been the subject of nearly 100 lawsuits and/or regulatory actions against Defendant Tesla, including but not limited to Matsko v. Tesla, Inc., Case No. 3:22-cv-05240-RFL (N.D. Cal. filed September 14, 2022), which features detailed background on pages 17-22 of the Consolidated Third Amended Complaint, ECF No. 102. 88. As noted in Matsko, Defendants “Tesla and Musk often use ‘Autopilot’ as an umbrella term to refer to all of Tesla’s A[dvanced ]D[river ]A[ssistance ]S[ystems] technologies and systems, including Autopilot, Enhanced Autopilot, and FSD, and Tesla’s Autopilot team has historically developed all of Tesla’s ADAS technologies and systems.” 89. According to the June 30, 2022 videotaped deposition of Tesla Director of Autopilot Software Ashok Elluswamy from Huang v. Tesla, Inc. et al in the Superior Court of California for the County of Santa Clara, Case No. 19CV346663, Defendant Musk personally ran the “Autopilot” team, which also included Directors Milan Kovac (who no longer works on “Autopilot”), CJ Moore (who has since left Tesla), and Andrej Karpathy (who has since left Tesla). FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 29 90. While he continued to spread lies to the general public about the software’s capabilities, Defendant Musk’s “prime directive” to his “Autopilot” team was “do not crash.” 91. Defendant Tesla repeatedly published false and/or misleading statistics embellishing “Autopilot”’s safety record on the Tesla website which failed to take into account various driving conditions such as time of day, street or highway driving, and weather conditions. 92. Tesla customers and employees believed Defendant Musk’s and Tesla’s lies, and consequently, many lost their lives. As of the date of this pleading, according to the tracking website TeslaDeaths.com, “there are 44 ‘Verified Tesla Autopilot Deaths’ across 39 incidents.” B. The Tesla “Full Self-Driving” Fraud 93. On its own, “Autopilot” was not successful at sufficiently boosting sales of Tesla vehicles—the software’s initial goal, as consumers were still generally wary of electric vehicles—and Defendant Tesla continued to lose billions of dollars. Defendant Musk decided to expand Tesla’s automated driving features from highways to “city streets.” 94. In 2016, Defendant Tesla launched “Enhanced Autopilot” and “Full Self-Driving” at Defendant Musk’s behest, which it sometimes qualified with the terms “Capability” or “Beta.” Tesla published an infamous video entitled “Full Self-Driving Hardware on All Teslas” (see https://www.tesla.com/videos/full-self-driving-hardware-all-tesla-cars) that falsely claimed: “THE PERSON IN THE DRIVER’S SEAT IS ONLY THERE FOR LEGAL REASONS HE IS NOT DOING ANYTHING THE CAR IS DRIVING ITSELF” 95. The video was intentionally deceptive and had implications that reverberated for years. On December 6, 2021, The New York Times published an article based on “interviews with 19 people who worked on the project over the last decade” which made clear that, “The route taken by the car had been charted ahead of time by software that created a three-dimensional digital map, a feature unavailable to drivers using the commercial version of Autopilot, according to two former members of the Autopilot team. At one point during the filming of the video, the car hit a roadside barrier on Tesla property while using Autopilot and had to be repaired, three people who worked on the video FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 30 said.” See https://www.nytimes.com/2021/12/06/technology/tesla-autopilot-elon-musk.html. 96. This strategy of optimizing pre-planned routes would surface again and again with respect to “Autopilot” and FSD. 97. As competition in electric vehicles ramped up, especially from Chinese automotive manufacturers, Defendant Musk increasingly conveyed that FSD represented the key to Tesla’s future. Defendant Musk began to speak about FSD increasingly in the context of Tesla’s stock price, such as on quarterly earnings calls, linking its success or failure to the company’s overall likelihood of success or failure. 98. On November 26, 2018, Defendant Musk made a videotaped admission to Axios that Defendant Tesla “faced a severe threat of death” and was “bleeding money like crazy” such that “in a very short period of time, we would die.” See https://www.axios.com/2018/11/26/elon-musk-tesla-death-bleeding-cash. 99. To attempt to remedy the urgent problem of Tesla’s cash crunch, starting in late 2018, Defendant Tesla began to cultivate a network of social media influencers from its customer base in an effort to convince the public that its FSD features were safe and effective. 100. On April 22, 2019, at “Autonomy Investor Day,” false promises by Defendant Musk regarding the purported Tesla “robotaxi” network—including Musk’s statements that “[T]here will be autonomous robotaxis from Tesla next year...next year for sure, we’ll have over a million robotaxis on the road,” and that Tesla owners would earn “~$30,000 Total gross profit per car per year” for “11 years” based on “Vehicle longevity”—formed the basis of Defendant Tesla’s $2 billion share issuance days later, which was later increased to $2.7 billion. 101. There were no “forward-looking statement” disclosures or meaningful cautionary statements at “Autonomy Investor Day,” only a passing reference to the idea of disclosures in a joke that Defendant Musk used to falsely suggest that his predictions always come true. 102. Defendant Musk knew that his promises about robotaxis were false when he made them. In order to launch a network of autonomous taxis, among other steps, Defendant Tesla FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 31 would have needed to 1) secure regulatory approval from state and local regulators; 2) set up insurance business relationships; 3) developed a mobile application capable of coordinating complex logistics; 4) tested that mobile application in a variety of settings nationwide; and 5) taken steps to protect any relevant intellectual property, such as by filing for patent and/or trademark protection where appropriate. By April 22, 2019, Defendant Tesla had done none of these, nor had it taken first steps to attempt to accomplish any of them. In a June 3, 2020 e-mail to Plaintiff, the California Department of Motor Vehicles (“CADMV”) confirmed that Defendant Tesla had never actually raised the matter of “robotaxis” with its autonomous driving regulators. 103. Defendant Morgan Stanley was one of the underwriters of Defendant Tesla’s May 2019 “robotaxi” capital raise according to Tesla’s SEC Form 424B5 filed May 2, 2019. 104. 24, 2019 promised, The “Tesla First Quarter 2019 Update” filed as part of an SEC Form 8-K on April “A custom-made robotaxi capable of running about a million miles using a single battery pack, with all the sensors and computing power for full autonomy, should cost less than $38,000 to produce. We believe low vehicle cost, low maintenance cost and an expected powertrain efficiency of 4.5 miles per kWh should make this the lowest cost of ownership, and to be the most profitable autonomous taxi on the market.” 105. FSD also provided Defendant Tesla with a mechanism to generate revenue, which was increasingly important for the cash-strapped company. On the dubious theory that its value would triple as the software improved, Defendant Musk raised the price of FSD from $5,000 at Autonomy Investor Day in April 2019 to $15,000 in September 2022. Date April May August July October January September September April FSD Cost $5,$6,$7,$8,$10,$12,$15,$12,$8, 106. A key problem for Defendant Musk was that no matter the price, not enough FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 32 customers were interested in purchasing the flawed and dangerous FSD software, leading to frequent remarks on earnings calls about how the public simply did not “understand” the import of Defendant Tesla’s supposedly ingenious product. 107. A second key problem for Defendant Musk was that Tesla’s lawyers, accountants and auditors knew that his promises often rang hollow, and would not allow the company to recognize all Autopilot or FSD payments as revenue up-front because the products were so speculative. On August 25, 2020, Tesla Head of SEC Reporting Janice Yeung created general ledger account 411114, “Vehicle Sales - FSD Def Rev,” with a note that the account was for “Autopilot deferred revenue.” On September 7, 2020, Ms. Yeung created a general ledger account 471114, “FSD Revenue - Def Rev Release,” with a note that the account was for “Autopilot deferred revenue recognized.” Both were assigned to the Microsoft Dynamics FSLI-L2 “Revenues” category. A corresponding liability general ledger account 223230, “Deferred Revenue - Autopilot,” had already been on the books since Defendant Tesla started using Microsoft Dynamics 360 in July 2018. 108. Revenue recognition thus became a driving force behind purported FSD development and feature releases. Defendant Musk repeatedly declared broken and dangerous software to be a technological breakthrough so that the company’s lawyers, accountants and auditors would allow the recognition of additional revenue that had been stored in general ledger account 411114 without yet appearing on the company’s statement of operations as revenue. 109. Five years after Defendant Musk and Tesla raised nearly $3 billion on the basis of the false promise that 1 million robotaxis would be on the road by 2020, they next promised that the Tesla robotaxi network would be unveiled at an event on August 8, 2024. That event was cancelled and postponed until November, emphasizing the dishonesty of the 2019 claims. 110. By 2020, Defendant Tesla was so desperate for cash that it simply began stealing customer funds. Defendant Tesla modified its mobile application to exploit “dark patterns,” or user interface designs that made it more likely for customers to make mistakes, such as the inadvertent approval of large expenditures on FSD software packages they did not actually want. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 33 For example, Defendant Tesla updated its mobile app to add FSD upgrades to each user’s shopping cart by default and re-designed the “purchase” button not to look like a button at all. Defendant Tesla referred to these stolen funds as “customer deposits” or “cash” on its financial statements and recognized the converted funds as revenue. 111. Once FSD had been “purchased” for thousands of dollars, Tesla typically refused to issue refunds. This dynamic was described by several Tesla customers on social media: a) On January 15, 2020, Nassim Nicholas Taleb wrote in a Twitter post: “The purchase was non-intentional. I unintentionally hit the buy button while the app was in my pocket and do not know of any app that makes you do a purchase of $4,333 with[out] confirmation/password or something of the sort.” Although Taleb, who is famous, reportedly received a refund after complaining publicly, many less-famous Tesla customers did not. b) Twitter user @CamBirch wrote on January 28, 2020, “I just had this happen. Called Tesla (hard to do) and talked to a support person. It took them a week and the refund is now displayed on my card. Getting the free mud flaps had more confirmations and proof of purchase than a nearly $10k purchase.” c) Twitter user @mpj510 described the experience on March 9, 2020: “hi Elon! We were having a problem getting a refund for full self drive that we didn’t authorize last 1/13/2020 and that costs $7,542.50! Kindly help us.” d) Twitter user @Maykou1st described her experience on April 10, 2020: “In Jan I noticed an addition in the ph app about upgrades so I looked and noticed I ‘bought’ a full self driving upgrade in 8/2019 for $3k which I never did and they refused to refund.” e) At least one other similar public request was deleted as a condition of receiving a refund. 112. When Tesla customers made FSD upgrade purchases through the Tesla mobile application deliberately or inadvertently, purchases prior to October 2021 were recorded as FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 34 revenues in general ledger account 470001 designated for “OTA Upgrade Revenue” and in approximately October 2021 or later in general ledger account 471115 designated for “FSD Revenue – Subscription”. 113. On the June 30, 2021 Q2 2021 Tesla earnings call, Defendant Musk admitted, “We need to make Full Self-Driving work in order for it to be a compelling value proposition” (emphasis added). The call ended soon thereafter with no further questioners permitted. Despite the admission that Tesla’s FSD features did not yet “work,” Defendant Tesla recognized tens of millions of dollars of deferred revenue on the basis of their purported functionality. 114. An internal Tesla spreadsheet, below, reveals that by Q3 2021, the FSD subscription upgrade refund rate was extremely high: over 26.5% for July 2021 ( refunds/2,652 upgrades), 26.7% for August 2021 (589 refunds/2,202 upgrades), and 15.9% for September 2021 (520 refunds/3,268 upgrades). 115. To more widely disseminate false and misleading marketing promoting FSD, in or around September 2021, Defendant Tesla launched the FSD Early Access Program (“EAP”) for social media influencers including but not limited to Defendant Qazi, Galileo Russell, and others, who wanted to be able to access early versions of FSD software to create demonstration videos. 116. E-mails sent to EAP applicants stated that, “The Early Access program is invitation-only and participants are specifically chosen for evaluation. Therefore it’s not open FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 35 enrollment. If one is eligible, we will contact them directly, but we cannot promise that all FSD customers will receive an invitation.” 117. Tesla retained editorial control over all EAP participants and their unbranded Tesla commercials. On September 19, 2021, EAP contractor Galileo Russell, who regularly collaborates on and appears in Tesla-related videos with Defendant Qazi, posted a video of himself to YouTube in which he admitted that Tesla exercises direct control over EAP contractors. See https://www.youtube.com/watch?v=gvgsoRPiWA8&t=2m14s. In Russell’s words, “Um, but yeah, Tesla doesn’t want us sharing all of the clips of the videos, um, just like when it looks good, because they know people take it out of context” (emphasis added). 118. By the time the EAP came into existence, Defendant Tesla was already in litigation in Greenspan I, in which Plaintiff explicitly alleged that Defendants Qazi and Smick acted as Musk and Tesla’s agents. Therefore, to attempt to insulate Tesla from liability and cover up the fact that EAP participants were, in fact, acting as Tesla’s agents, the Tesla legal department drafted terms and conditions entitled the “Tesla Early Access Program Agreement” that appeared to explicitly disclaim any agency relationship. 119. After Defendant Qazi electronically signed Defendant Tesla’s EAP Agreement purportedly disclaiming any agency relationship, Defendant Tesla sent Defendant Qazi a contractual rider that re-established the agency relationship. The rider was entitled “EAP Guidelines” and read as follows: FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 36 120. By stating that “there are a lot of people that want Tesla to fail; don’t let them mischaracterize your feedback and media posts,” Defendant Tesla explicitly authorized EAP participants including but not limited to Defendant Qazi to act as its agents and attack critics on Tesla’s behalf, including but not limited to Plaintiff. 121. Further cementing the agency relationship between Defendant Tesla and EAP participants, after Defendant Musk’s acquisition of Twitter in 2022, Tesla EAP participants were added to a “VIP” list of only a few dozen Twitter users eligible to earn income from their Twitter posts. Unlike other revenue share programs, such as those offered by Google and YouTube, the revenue share program offered by Defendant X Corp. was initially not open to the public. 122. On July 13, 2023, Defendant Qazi posted a screenshot of Defendant Smick’s Stripe account reflecting a $6,206.00 payment from Defendant X Corp. for his participation in its FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 37 VIP revenue-sharing program—the first of many such payments of varying amounts. See https://x.com/WholeMarsBlog/status/1679593569114533888. Each payment amount was nominally based on the impressions and engagement that the @WholeMarsBlog Twitter account received on all of the account’s posts since its inception. 123. Many of the impressions and engagements that Defendant Qazi was paid for were for impressions and engagements of Twitter posts that libeled and/or harassed Plaintiff. 124. Tesla social media influencer Alexandra Merz, also known as @TeslaBoomerMama on Twitter, posted a spreadsheet of her earnings from the X Corp. VIP revenue-sharing program on Google Sheets. Ms. Merz’s spreadsheet reflected the fact that starting on August 7, 2023, Defendant X Corp. made and continues to make payments to participants on a bi-weekly basis. Ms. Merz’s smallest bi-weekly payment was reportedly $142.55 (“11/10 - 11/23/2023”) and her largest was reportedly $2,859.52 (“6/7 - 6/20/2024”). 125. For a time, Ms. Merz’s Google Sheet also contained hidden worksheets for other Tesla social media influencers, including but not limited to Kristen Yamamoto, known on Twitter as @Kristennetten or “K10,” and Sawyer Merritt, another Tesla social media influencer. 126. Defendant Qazi produced hundreds of videos posted on both Twitter and YouTube purporting to depict the flawless operation of Defendant Tesla’s FSD software. Yet Defendant Qazi’s videos were fraudulent in three different ways: FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 38 a) Defendant Qazi deliberately withheld material information about his own Tesla vehicle’s service problems, including a persistent “screeching noise,” from his followers. He then edited his videos to remove evidence that his Tesla vehicle was not functioning properly. On November 10, 2020, Defendant Tesla’s service systems recorded “Jim Qazi” using Defendant Qazi’s cell phone number ending in 37 writing via text message, “if you’re driving at a low speed and turning the wheel left you should be able to hear the screeching sound. it is so bad and just keeps getting worse and worse. very sad that nobody is able to tell me what it is[.]” On the same day, Defendant Tesla acknowledged that Defendant Qazi “mentioned this concern previously and we were not able to verify it.” On March 28, 2021, Defendant Qazi followed up, writing via the Tesla mobile application, “would like someone to look at berkeley even if no repair is ultimately needed, or if they could just burnish the brakes or do whatever to get it go away temporarily that would make me happy too. trying to make videos of this new FSD software without the car making loud high pitched screeching noises” (emphasis added). b) According to a July 9, 2024 report in Business Insider, Defendant Tesla prioritized the review and tagging of camera images for Defendant Musk’s and its EAP participants’ routes. See https://www.businessinsider.com/tesla- prioritizes-musk-vip-data-self-driving-2024-7. c) Defendant Qazi produced hundreds of YouTube videos for his hundreds of thousands of followers showcasing his Tesla Model 3’s purported FSD features, but withheld information about his use of a Comma device that suppressed safety warnings until he admitted to its persistent use on June 7, 2024. See https://x.com/WholeMarsBlog/status/1799276775912153403. 127. Defendant Qazi’s videos were intended to both increase vehicle sales and increase Tesla’s stock price. In one video, he exclaimed, “I’ll sell them all fuckin’ Teslas. I’ll pull in FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 39 those referrals!” See https://www.youtube.com/watch?v=VSOayMTw5Zw&t=1396s. In another post, he wore a T-shirt of Tesla’s nearly vertical stock graph. 128. In order to mass market FSD, Defendant Musk ordered Defendant Tesla’s lawyers to devise a strategy to avoid regulatory scrutiny. Consequently, knowing that U.S. regulators only claimed jurisdiction over “Level 3” and higher systems on the Society of Automotive Engineers (“SAE”) Levels of Driving Automation scale (first published in a paper entitled SAE J3016 Recommended Practice: Taxonomy and Definitions for Terms Related to Driving Automation Systems for On-Road Motor Vehicles and later revised in 2016, 2018, and 2021), Defendant Tesla exploited justifiable confusion over the various SAE “Levels” and claimed in communications with regulators, obtained by Plaintiff via public records requests, that FSD only constituted a “Level 2” system. 129. While exploiting confusion over the SAE “Levels,” Defendant Tesla also created its own. In a November 20, 2020 letter from its counsel Eric C. Williams to Miguel Acosta, Chief of the Autonomous Vehicles Branch of the CADMV, Defendant Tesla wrote, “City Streets continues to firmly root the vehicle in SAE Level 2 capability and does not make it autonomous under the DMV’s definition.” See https://www.plainsite.org/documents/242a2g/california-dmv- tesla-robotaxi--fsd-emails/. At approximately the same time, the Tesla Insurance Autonomous Vehicle Protection Package in Texas included an “additional definition” stating, “‘Autonomous vehicle’ means any vehicle equipped with a level two or higher driving automation system as defined by SAE International Standard J3016.’” See https://www.plainsite.org/documents/uhbpli/redpoint-county-mutual-insurance-company-serff- tracking-no-misf132484596-filing-package/. Thus, Defendant Tesla informed different regulators that its FSD software was both autonomous and not autonomous simultaneously. 130. Whether or not FSD was actually a “Level 2” system at the outset—which did not necessarily mean it remained so as the software changed—by maintaining that FSD’s capabilities had their “root” in a “Level 2” classification, for years Defendant Tesla evaded the jurisdiction of the CADMV and the National Highway Traffic Safety Administration (“NHTSA”). FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 40 131. No regulator performed ongoing independent analysis of FSD’s capabilities for the purposes of determining the proper SAE Level classification. Each instead relied on technology manufacturers such as Defendant Tesla to self-assess their respective SAE Levels. 132. On August 12, 2021, NHTSA issued Standing General Order 2021-01, which required manufacturers of Level 2 driver assistance systems to report vehicle crashes. 133. On August 17, 2021, a member of the public recorded a Tesla sales representative at a Tesla showroom at 4545 La Jolla Village Drive, Unit C17, San Diego, CA representing that FSD operates at “Level 3 of 5 levels in total of full self-driving.” See https://www.youtube.com/watch?v=Ii_UvYiO1x0. 134. Meanwhile, Defendant Musk repeatedly stated that FSD would achieve “Level 5” soon virtually every year starting on April 22, 2019 at Autonomy Investor Day. On December 1, 2020, while accepting the Axel Springer Award in Germany, Defendant Musk claimed that FSD would achieve “Level 5” in 2021. 135. In response to a public records request by Plaintiff, CADMV produced a March 9, 2021 “Memo to File” that stated, “DMV asked CJ [Moore, Tesla’s former Director, Autopilot Software] to address, from an engineering perspective, Elon’s messaging about L5 capability by the end of the year. Elon’s tweet does not match engineering reality per CJ.” CJ Moore was no longer employed by Defendant Tesla soon after this disclosure to Plaintiff. 136. According to Defendant Tesla’s Tesladex database, as of March 22, 2022—two months after Defendant Tesla claimed, “We successfully increased the number of FSD Beta vehicles from a couple of thousand in Q3 to nearly 60,000 vehicles in the US today,” in its “Q and FY 2021 Update”—there were only actually 42,128 “delivered” Tesla vehicles produced in North America and Europe that were configured for active use of FSD Beta. This was according to a query for all vehicles with the “GUI_fsdControlEnabled” flag set to “true”, which means that matching vehicles had an enabled Graphical User Interface panel for FSD Beta on the center console. Tesladex also indicated as of that date that 434,460 “delivered” vehicles were FSD- capable and 218 “delivered” vehicles had had FSD Beta suspended. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 41 137. On July 28, 2022, the CADMV initiated two legal proceedings against Defendant Tesla for committing fraud with respect to its FSD software in yet another way: by using the terms “Autopilot” and “Full Self-Driving” at all. In the First Amended Accusation of Case Nos. 21-02188 and 21-02189 (with minor changes between them to account for the charges relating to Tesla’s vehicle dealer, as opposed to manufacturer, license), CADMV alleged, “Respondent made or disseminated statements that are untrue or misleading, and not based on facts, in advertising vehicles as equipped, or potentially equipped, with advanced driver assistance system (ADAS) features. On at least five dates between May 28, 2021 and July 12, 2022, specifically May 28, 2021, June 3, 2022, June 14, 2022, June 28, 2022, and July 12, 2022, Tesla advertised ADAS features in written marketing materials primarily on Tesla’s internet website using the product label and descriptions: A. ‘Autopilot’ B. ‘Full Self-Driving Capability’ C. The phrase: ‘The system is designed to be able to conduct short and long-distance trips with no action required by the person in the driver's seat.’ D. The claims: ‘From Home - All you will need to do is get in and tell your car where to go. If you don't say anything, your car will look at your calendar and take you there as the assumed destination. Your Tesla will figure out the optimal route, navigating urban streets, complex intersections and freeways. To your Destination- When you arrive at your destination, simply step out at the entrance and your car will enter park seek mode, automatically search for a spot and park itself. A tap on your phone summons it back to you.’ FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 42 Instead of simply identifying product or brand names, these ‘Autopilot’ and ‘Full SelfDriving Capability’ labels and descriptions represent that vehicles equipped with the ADAS features will operate as an autonomous vehicle, but vehicles equipped with those ADAS features could not at the time of those advertisements, and cannot now, operate as autonomous vehicles. These advertisements are a deceptive practice under Civil Code § 1770(a)(5). Tesla has published disclaimers including one observed June 28, 2022, stating in part: ‘The currently enabled features require active driver supervision and do not make the vehicle autonomous.’ However, the disclaimer contradicts the original untrue or misleading labels and claims, which is misleading, and does not cure the violation. Respondent advertised statements not based on facts in violation of Cal. Code Regs. Title 13, § 260.00. Respondent made untrue or misleading statements in advertisements in violation of Vehicle Code § 11713(a). Respondent’s acts, omissions, or conduct constitutes cause to discipline a manufacturer license pursuant to Vehicle Code § 11705(a)(10).” CADMV further alleged, “Respondent continued to use the product labels ‘Autopilot’ and ‘Full Self-Driving Capability,’ from January 1, 2023, to the present, and at least on September 1, 2023, through October 4, 2023, and those labels describe partial driving automation features using language that implies or would otherwise lead a reasonable person to believe that the features allow the vehicle to function as an autonomous vehicle. Respondent thereby violated Vehicle Code § 24011.5(b) and Vehicle Code § 11713(a) as those sections interact. Respondent’s acts, omissions, or conduct constitutes cause to discipline a manufacturer license pursuant to Vehicle Code § 11705(a)(10).” 138. On July 6, 2023, Defendant Musk claimed at the World Artificial Intelligence Conference in Shanghai that FSD would achieve “Level 4 or 5” by the end of 2023. All of these claims were false and Defendant Musk knew them to be false when he made them. 139. In March 2024, Defendant Tesla dropped the “Beta” suffix after “Full Self- Driving” and replaced it with the term “(Supervised)” in marketing materials. 140. Tesla’s motions to dismiss the CADMV proceedings were denied on June 10, 2024 by California Office of Administrative Hearings Administrative Law Judge Juliet E. Cox. Both CADMV enforcement proceedings remain pending. 141. On or around August 23, 2024, Defendant Tesla suddenly deleted dozens of posts from its website from 2016-2019, including but not limited to a October 19, 2016 post entitled, “All Tesla Cars Being Produced Now Have Full Self-Driving Hardware.” FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 43 C. The Tesla Vehicle Quality Fraud 142. For years, Defendant Tesla has known that, on average, its vehicle quality does not meet industry standards. In one internal chat discussing a customer complaint, Tesla Senior Regional Parts Manager / Senior Supply Chain Field Operations Manager, Material Planning - Service and Energy Greg Dolgner wrote, “If you want a better quality seat, the customer should go buy a Mercedes or BMW.” 143. The persistent defects prevalent in Tesla vehicles are a direct result of choices made by Defendant Musk, such as the decision to build vehicles in an outdoor tent at the company’s Fremont factory, and the decision to use electrical tape from home improvement stores to fix manufacturing defects. See https://www.cnbc.com/2019/07/15/tesla-workers-in- ga4-tent-describe-pressure-to-make-model-3-goals.html. See also https://www.cnbc.com/2018/10/19/tesla-ceo-elon-musk-extreme-micro-manager.html. While many of these choices have been widely reported, Defendant Tesla has gone to considerable lengths to cover up the downstream effects and hide them from customers and investors. 144. Defendant Tesla forced many customers to sign non-disclosure agreements in order to have their vehicles repaired. 145. In 2018, Defendant Musk was referred to the Federal Trade Commission by NHTSA for making false claims about the Model 3’s safety record. Defendant Tesla’s manufacturing practices arguably made the Model 3’s safety considerably worse. 146. Like all automotive manufacturers, Tesla is routinely sued in “lemon lawsuits” under the Magnuson-Moss Warranty Act and similar state statutes. However, per vehicle sold, records on PlainSite offer a rough estimate that Tesla is sued two to three times as often as its major competitors such as General Motors, Ford, and Toyota. 147. Defendant Tesla never disclosed to investors the existence of Case No. 20- 123464TVI-OTIR/04 in Norwegian Oslo District Court, brought by RAC Norway A/S (“RAC Group”), the local manager of the AVIS car rental brand. RAC Group sued Defendant Tesla for the repair costs to its fleet of almost 100 Tesla vehicles, used as Tesla’s loaner fleet for car FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 44 repairs, after Defendant Tesla stopped paying RAC Group’s invoices worth approximately million NOK. The lawsuit ended with a court-ordered settlement of 11.8 million NOK paid by Tesla in March 2021, which was personally approved by Tesla CFO Zachary Kirkhorn. 148. This omission later had an impact when car rental company Hertz announced a supposed order for 100,000 Tesla vehicles in October 2021, sending Tesla’s stock soaring to the tune of about $400 billion in market capitalization, despite the fact that no such order actually existed. Nonetheless, Defendant Musk’s personal wealth increased by about $45 billion as a result—enough to purchase Twitter, Inc. the following year. Investors were unaware that Tesla had encountered so much trouble maintaining a fleet of under 100 rental cars in a relatively small country that it ended up being sued and settling the case, with repair costs accruing to Tesla. 149. Defendant Tesla has been investigated by NHTSA for numerous safety defects, including but not limited to problems with the suspension in Model S and X vehicles, sudden unintended acceleration events, phantom braking, and numerous other recalls the bases for which Defendant Tesla has attempted to deny and cover up for years. D. The Tesla Solar Fraud 150. SolarCity was founded in 2006 by Lyndon and Peter Rive, Defendant Musk’s cousins. Musk himself was the Chairman of the SolarCity Board of Directors, having reportedly provided the initial impetus to start the company. By that point, Musk had been an investor in Tesla for three years and had been leading SpaceX for four. 151. Defendant Tesla, SolarCity and SpaceX sometimes engaged in undisclosed related-party transactions, such as SolarCity buying cars from Tesla, or SpaceX purchasing solar panels from SolarCity. In the words of former Tesla Director Brad Buss in Delaware Court of Chancery Case No. 12711-VCS, “We would just—you know, we might buy solar panels for something. They may be buying batteries and stuff from our perspective. You know, I think they bought some cars.” 152. By 2016, SolarCity’s CEO, Lyndon Rive, was starting to panic. SolarCity required a bridge loan to avoid defaulting on its revolving debt and no one was willing to provide FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 45 it. Defendant Musk and his cousins had strategized a buyout over a conversation at Lyndon Rive’s second home at Lake Tahoe in February 2016. Rive attempted to tell Defendant Musk how dire the situation was, but Musk seemed distracted by other issues. When discussing whether SolarCity should raise equity by May 2016, Defendant Musk asked, “Can it wait a month?” Any buyout would have needed to be approved by shareholders, made challenging by the horrific financials and the conflicts of interest between the Board members. 153. Because SpaceX owned 77% of SolarCity’s bonds, a SolarCity bankruptcy would have had material negative consequences for SpaceX, and in turn, Defendants Musk and the Musk Trust. The damage to Defendant Musk’s reputation alone would have also materially affected cash-strapped Tesla, causing a cascade of events that could have plausibly led to Defendant Musk’s personal bankruptcy and long-term alienation from banks and capital markets. Defendant Musk was therefore motivated to take extreme measures. 154. Musk schemed with his cousins and both Boards of Directors to make it appear as though his plan for a vertically integrated energy company was widely supported and had made perfect sense all along. In reality, the Tesla, SolarCity, and even SpaceX Boards were all against a Tesla-SolarCity merger. Defendant Tesla stood to acquire a large amount of debt from SolarCity, and there was virtually no overlap between manufacturing, selling and financing solar panels and manufacturing and selling electric vehicles. 155. That the deal made no sense was widely known. As Linette Lopez wrote in Business Insider, “[T]he merger that Musk called a ‘no-brainer’ appeared to be anything but. No other company was bidding to buy SolarCity, and according to internal emails, it was also struggling to find financing for a $200 million bridge loan that it needed immediately.” As Lyndon Rive wrote about one of SolarCity’s loan facilities, “If we breach [K]ronor, we’re dead.” 156. According to Defendant Tesla’s own General Counsel at the time, Todd Maron, the deal was worse than nonsensical: it would actually harm Tesla. As he wrote, “[T. Rowe Price] said what Tesla is trying to accomplish in the automotive space is very complex and to add SolarCity to the mix raises the operational and financial risk profile of the company, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 46 especially given SolarCity’s financial challenges as a company.” 157. Advisors Evercore Partners LLC and Lazard also insisted that the deal was problematic, even looking at numbers that painted an overly optimistic picture due to an enormous mathematical error. Both Goldman Sachs and Defendant Morgan Stanley refused to lend money on the basis that SolarCity had failed credit checks. Even the Board of SpaceX “said no” to investing, according to unredacted testimony by SolarCity CEO Rive. 158. The pliant Tesla Board finally cracked under pressure from Defendant Musk. Virtually all of the Directors were conflicted. Kimbal Musk—who claimed under oath that he didn’t perceive any conflict at all—is Defendant Musk’s brother and business partner of decades. Steve Jurvetson and his funds owned 1.67 million shares of SolarCity stock. Ira Ehrenpreis was invested in SpaceX through a Special Purpose Vehicle—the only one of his firm’s investments that apparently necessitated one. Antonio Gracias vacationed with Musk’s family in Mexico. 159. Defendant Musk devised a solution to save himself and his family: a fake product demonstration. He would announce and launch a “Solar Roof Tile,” purportedly proving that the supposed vertical integration between SolarCity and Tesla had always been meant to be. On October 26, 2016, the demonstration took place on the set of the television show Desperate Housewives, carefully orchestrated to keep the press from catching onto the fact that the entire presentation was a hoax. The product did not work, did not really exist, and was not hooked up to the electric grid. It was all for show to induce shareholders to approve the deal. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 47 160. When Tesla and SolarCity shareholders voted on the merger deal, they were falsely told that Elon Musk had been “recused” from the decision-making process—a lie. Defendant Musk guided the process at every step along the way, even as every other party saw the clear danger in what he proposed. Investors were not told, however, that SolarCity was at risk of breaching key loan covenants, that it had been rejected by at least two major investment banks for credit, that the Board had been informed about cash concerns for months, that every financial advisor asked had advised against the deal, or that SolarCity solar panels might be using defective components that would need to be recalled to avoid fire risk. Despite lacking this crucial information and trying to keep it sealed, confidential, and redacted in court, Defendant Tesla’s Board maintained that shareholders were fully informed. 161. Shareholders voted to approve the deal. Defendant Tesla was saddled with billions of dollars of SolarCity’s debt. 162. Soon after the merger was approved, Tesla was in crisis, with barely enough cash to survive and Defendant Musk pushing to manufacture the new Model 3 en masse. In June 2019 deposition testimony regarding the merger, Elon Musk asserted that while “we certainly believed that the long-term growth of megawatts deployed would be very significant,” “ if I did not take everyone off of solar and focus them on the Model 3 program to the detriment of solar, then Tesla would have gone bankrupt. So I took everyone from solar, and said, ‘Instead of working on solar, you need to work on the Model 3 program.’” 163. Defendant Musk’s ex post facto rationalization—that unless Tesla acquired SolarCity for its labor pool, Tesla would go out of business—contradicts what investors were told in 2016. At no point did Tesla disclose that it would require thousands of new employees to make the Model 3 program work, let alone that the only way to hire them would be to acquire a company whose staff had no experience whatsoever with vehicle manufacturing or sales. 164. In mid-2018, a secret project codenamed “Project Titan” was devised to replace faulty Amphenol H4 solar panel connectors that SolarCity had deployed across the United States, as well as SolarEdge optimizers, both of which were starting fires. Then, in August of 2019, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 48 Walmart sued Defendant Tesla for negligence in maintaining its solar panel installations on the rooves of stores, which had also resulted in multiple fires. See https://www.nytimes.com/2019/08/20/business/walmart-tesla-lawsuit-fires.html. 165. Once the merger was complete, Defendant Tesla faced the challenge of actually manufacturing the fake product that Defendant Musk had demonstrated on the set of Desperate Housewives: the Solar Roof Tile. Defendant Tesla inherited from SolarCity and its Silevo, LLC subsidiary a subsidized solar panel manufacturing arrangement with the State of New York, coordinated by Empire State Development Corporation, Fort Schuyler Management Corporation, and the Research Foundation for the State University of New York that was intended to create New York manufacturing jobs. New York State spent approximately $1 billion to build Defendant Tesla’s Buffalo factory (the “Buffalo Factory”), which its auditors later wrote off. 166. Post-merger, Defendant Musk frequently focused on the topic of solar power to market Defendant Tesla to potential customers and investors and to manufacture purported evidence for litigation surrounding the merger. On August 18, 2019, Defendant Musk posted on Twitter, “Tesla Solar just relaunched. [Let me know] what you think… Tesla.com/solar With the new lower Tesla pricing, it’s like having a money printer on your roof if you live a state with high electricity costs. Still better to buy, but the rental option makes the economics obvious.” See https://x.com/elonmusk/status/1163025594180726784. On October 10, 2019, Defendant Musk wrote on Twitter, “All Tesla Supercharger stations in regions affected by California power outages will have Tesla Powerpacks within next few weeks. Just waiting on permits.” He then added, “Also adding Tesla Solar to our Supercharger stations as fast as possible. Goal is 24/ clean power with no blackouts.” See https://x.com/elonmusk/status/1182089703039700993. 167. Defendant Musk has a degree in physics from the University of Pennsylvania, boasted on the May 3, 2018 Q1 2018 earnings call, “I actually studied physics in college,” and knew or should have known that adding solar functionality to electric vehicle charging stations in a practical and economical manner, i.e. not requiring multiple football fields worth of solar panels per station, would defy the laws of physics. Tesla Supercharger stations were never FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 49 equipped with permanent batteries or solar power. 168. On or around August 21, 2020, the Office of the New York State Comptroller released Audit Report 2017-S-60. It states in part, “Since 2017, publicly available Tesla reports have indicated potential setbacks with Tesla’s solar roof... However, in November 2018, Tesla reported it was still refining the product design and installation processes and, as a result, production would not significantly increase until the first half of 2019.” 169. Initially, Defendant Tesla, its Tesla Energy Operations, Inc. subsidiary and Panasonic Solar North America (“Panasonic”) planned to manufacture “version 2.0” of the Tesla Solar Roof Tile at the Buffalo Factory using equipment purchased from Von Ardenne GmbH in Germany. Fort Schuyler Management Corporation paid for a $5,634,000 “Solar Roof Tile” upgrade from Von Ardenne on February 6, 2019, which required heavy machinery to be shipped from Germany to New York. On July 29, 2019, Defendant Musk posted on Twitter, “Spooling up production line rapidly. Hoping to manufacture ~1000 solar roofs/week by the end of this year.” See https://x.com/elonmusk/status/1156005185656782848. As reported by the Wall Street Journal on July 6, 2023, this did not go according to plan: “New York state paid to build a quarter-mile-long facility with 1.2 million square feet of industrial space, which it now owns and leases to Tesla for $1 a year. It bought $million worth of solar-panel manufacturing equipment. Musk had said that by 2020 the Buffalo plant each week would churn out enough solar-panel shingles to cover 1,roofs. The Tesla solar-energy unit behind the plan, however, is averaging just 21 installations a week, according to energy analysts at Wood Mackenzie who reviewed utility data. The building houses some factory workers, but also hundreds of lower-paid desk-bound data analysts working on other Tesla business. The suppliers that Cuomo predicted would flock to a modern manufacturing hub never showed up. The only new nearby business is a Tim Horton’s coffee shop. Most of the solar-panel manufacturing equipment bought by the state has been sold at a discount or scrapped. A state comptroller’s audit found just 54 cents of economic benefit for every subsidy dollar spent on the factory, which rose on the site of an old steel mill. External auditors have written down nearly all of New York’s investment.” See https://www.wsj.com/articles/elon-musk-tesla-buffalo-new-york-solar-plant-1b634b9e. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 50 170. Instead of creating the full-time manufacturing jobs promised at the Buffalo Factory, Defendants Musk and Tesla largely contracted temporary workers from Imagine Staffing Technology, Inc. These hires were justified in Tesla’s WARP Payables system with a note stating, “Having these contractors allows the Workplace team to more effectively and efficiently support site-wide operations across all of our customer buckets. Paid at competitive market rate for cost efficiencies compared to hiring direct.” In sum, Defendant Tesla went out of its way to avoid hiring full-time employees in New York despite its promise to do the opposite. 171. The “version 2.0” Solar Roof Tiles never ended up being produced, and the manufacturing equipment was ultimately packed up and stored in a nearby warehouse, paid for by New York State. So in late 2019, Tesla began purchasing “version 3.0” of its Solar Roof Tiles from a Chinese manufacturer, Changzhou Almaden Co. Ltd. (“Changzhou Almaden”). 172. Nonetheless, on page 9 of its Q4 2019 Investor Update published January 29, 2020, Defendant Tesla falsely stated, “Solarglass tiles are made in our Gigafactory New York.” After the factory’s publicly-financed equipment was crated up and warehoused nominally due to the COVID-19 pandemic, Tesla began advertising that it would hire temporary workers to handle manual tagging of images to train “Autopilot” and FSD, meaning that the Buffalo Factory started out as part of one scam, but ended up as part of two more. In this way, Defendant Tesla could falsely claim to have met New York’s job creation milestones. 173. Defendant Tesla continued to make false claims about the Buffalo Factory. While Tesla disclosed on page 9 of its Q1 2020 Investor Update (created on April 29, 2020 by Martin Viecha) that, “In Q1, Gigafactory New York reached a significant milestone. In a single week, Solar Roof production exceeded 4MW…” by the time this disclosure was made, Panasonic manufacturing employees working with Tesla had been laid off for nearly two months and Tesla’s publicly-financed solar manufacturing equipment had already been boxed up. There was no “Solar Roof production” taking place at the Buffalo Factory at all. 174. A March 6, 2020 United States Department of Labor (“DOL”) Petition for Trade Adjustment Assistance (TAA) Form ETA-9042 filed by Defendant Tesla’s manufacturing FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 51 partner Panasonic states that 403 layoffs were necessary as of that date at the Buffalo Factory due to “Tesla’s switch to purchasing solar products from China.” 175. According to the DOL Office of Trade Adjustment Assistance, the federal government spent at least $371,541 in “Training Expenditures” for 84 laid-off Panasonic employees in the United States due to Defendant Tesla’s decision to import Chinese solar panels that it falsely told investors were still being manufactured in New York. 176. Changzhou Almaden shipped its “version 3.0” Solar Roof Tiles direct from the factory in China to Hayward, California, as indicated by labels on the boxes at work sites. Some of these products appeared to have “MADE IN USA” stickers on the back, along with clearly labeled cables from Zhejiang Jiaming Tianheyuan Photovoltaic Technology Co. Ltd. 177. To sell solar products, Defendant Tesla also committed fraud. Its salespeople targeted elderly non-English speakers and promised that by installing solar panels, they would save on their energy bills. Instead, Tesla was sued repeatedly for elder abuse as energy bills went up. Many of its solar installations also caused major damage to customers’ rooves, leading to water damage and mold. Other installations caught on fire. In all, Defendant Tesla was sued more than 150 times over its solar products. See https://www.plainsite.org/tags/tesla-solar/. E. The Tesla Stock Inflation Fraud 178. The 201-page January 30, 2024 Post-Trial Opinion in Tornetta v. Musk et al, Delaware Court of Chancery Case No. 2018-0408-KSJM, begins as follows: “Was the richest person in the world overpaid? The stockholder plaintiff in this derivative lawsuit says so. He claims that Tesla, Inc.’s directors breached their fiduciary duties by awarding Elon Musk a performance-based equity-compensation plan. The plan offers Musk the opportunity to secure 12 total tranches of options, each representing 1% of Tesla’s total outstanding shares as of January 21, 2018. For a tranche to vest, Tesla’s market capitalization must increase by $50 billion and Tesla must achieve either an adjusted EBITDA target or a revenue target in four consecutive fiscal quarters. With a $55.8 billion maximum value and $2.6 billion grant date fair value, the plan is the largest potential compensation opportunity ever observed in public markets by multiple orders of magnitude—250 times larger than the contemporaneous median peer compensation plan and over 33 times larger than the plan’s closest comparison, which was Musk’s prior compensation plan. This post-trial decision enters judgment for the plaintiff, finding that the compensation plan is subject to review under the entire fairness standard, the defendants bore the burden of proving that the compensation plan was fair, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 52 and they failed to meet their burden” (emphasis added). 179. Defendant Musk’s unprecedented 2018 executive compensation plan, whose “ total tranches of options” depended on Defendant Tesla’s stock going up precipitously to vest, provided him with an unprecedented incentive to commit securities fraud. 180. In response to that incentive, Defendant Musk did in fact commit securities fraud many times over, ultimately becoming the wealthiest person alive according to press reports. 181. In response to Defendant Musk pressuring his executives to commit securities fraud on a routine basis for years, and especially the years 2018-2021, dozens of executives quit their employment with Defendant Tesla. 182. Zachary Kirkhorn, who later quit, was previously Defendant Tesla’s Chief Financial Officer despite having little experience in finance when he assumed the role to replace the prior CFO who had quit. For years, Mr. Kirkhorn, former Vice President, Investor Relations Martin Viecha, former Musk Chief of Staff Omead Afshar, and current Chief Financial Officer Vaibhav Taneja received daily or weekly “Short Interest Reports” by e-mail from Head of Investor Relations Travis Axelrod concerning short-seller activity. 183. Defendant Tesla manipulated its balance sheet, statement of operations (otherwise known as a profit and loss statement), and statement of cash flows in a variety of ways including but not limited to complex accounting fraud and overt market manipulation. Defendant Tesla also manipulated material proprietary metrics relied upon by investors, the media and analysts that did not directly appear on its financial statements. In this way, Defendant Tesla defrauded the market, artificially inflated the price of its stock, and harmed short-sellers such as Plaintiff, who justifiably expected the stock to go down. a. Accounting Fraud: Cash Balances 184. “Cash, cash equivalents and investments” refers to the amount of cash a company has on hand in its bank accounts. i. Earned Interest 185. According to a March 5, 2019 Financial Times article, the actual cash interest FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 53 yield reported by Defendant Tesla indicates that the company began exaggerating cash balances starting in Q4 2016, and continued exaggerating them by $1.5 billion or more through 2018. See https://ftalphaville.ft.com/2019/03/05/1551787633000/How-much-does-Tesla-have-in-the-bank-/. The article’s conclusions are further supported by Defendant Musk’s own videotaped admission to Axios on November 26, 2018 that Defendant Tesla “faced a severe threat of death” and was “bleeding money like crazy” such that “in a very short period of time, we would die”— disclosures totally absent from the Q3 2018 SEC Form 10-Q filed just 26 days prior, which misleadingly reported an ample “$2,967,504[,000]” of unrestricted cash on hand. 186. Defendants Musk and Tesla knew or should have known that they were reporting false and misleading information regarding cash holdings. Based on earned interest, average cash balances were approximately 90% lower than reported throughout 2019 and part of 2020: $ in Millions of Dollars FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 54 187. Under oath at trial in Case No. 12711-VCS in the Delaware Court of Chancery, Defendant Musk testified on July 12, 2021 that, “We had weekly cash meetings at Tesla too,” referring to the weekly cash meetings he had required and attended when SolarCity was in financial distress. Defendant Musk did not explicitly deny attending Tesla’s weekly cash meetings, claiming he could not “recall” attendance. 188. At many companies, quarter-end and year-end cash balances are manipulated through the use of credit lines to make accounts appear for a brief moment to have more funds in them than they normally do. When Morgan Stanley analyst Adam Jonas explicitly asked Tesla CFO Kirkhorn about the present-day cash balance—not the quarter-end balance—on the Q 2020 earnings call, Kirkhorn’s statement that, “I don’t have any additional color” was false given that as CFO he had full access to Defendant Tesla’s financials. Mr. Kirkhorn’s refusal to elaborate was an admission to quarter-end cash balance manipulation. 189. On November 3, 2020, Defendant Musk further admitted via Twitter that the closest Defendant Tesla had come to bankruptcy “was about a month” from “mid 2017 to mid 2019”—an admission that Defendant Tesla filed and Defendant Musk signed false financial statements in violation of the Sarbanes-Oxley Act of 2002 since the company’s disclosures at no point offered any suggestion of bankruptcy or disclosed “going concern” warnings. See https://x.com/elonmusk/status/1323640901248393217. 190. On December 22, 2020, Defendant Musk further admitted via Twitter that “[d]uring the darkest days of the Model 3 program” he had even e-mailed Apple, Inc. CEO Tim Cook offering to sell Tesla to Apple—a fact also never disclosed to investors—but that he never received a response. See https://x.com/elonmusk/status/1341485211209637889. 191. Investors were left in the dark with no knowledge of Tesla’s cash crisis, while Defendants Musk and Tesla always had knowledge of Tesla’s true cash position with weekly resolution at least. Just as with SolarCity, Defendant Musk was ready to sell Tesla to another company (Apple), but did not inform investors at the time, indicating that he knew exactly how dire the situation was but actively chose to conceal that fact. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 55 ii. Cash Stuck in China 192. Defendant Tesla’s general ledger, multiple versions of which Plaintiff obtained via the Tesla Files, reveals that Tesla has historically had approximately 500 bank accounts worldwide denominated in various currencies. Yet some of its Chinese accounts have strict restrictions on withdrawals that are unacknowledged on the balance sheet. 193. Exhibit EX-10.85 attached to the 2019 SEC Form 10-K filed February 13, 2020, the “English Convenience Translation” of the Tesla (Shanghai) Co., Ltd. Fixed Asset Syndication Loan Agreement dated December 18, 2019 with numerous Chinese banks, includes clause 11, translated as “Revenue Collection Account Management,” which restricts transfers of revenue collected in China to any other account unless the “transfer is used for the purpose of repaying any of its working capital loans” from the Chinese banks. In effect, Defendant Tesla cannot move cash collected in China to the United States until the loans are repaid unless the Chinese bank lenders pre-approve such a transfer. 194. As summarized by Lawrence Fossi, a corporate attorney and writer who has also been targeted for harassment by Defendants Musk, Tesla, Qazi and Smick, “Near the time of the Grant Contract, the Chinese government arranged for a generous financing package for Tesla Shanghai from state-controlled banks. The financing, which was re-arranged [in] December[ of 2019], includes a factory loan of up to $1.26 billion with a five-year term and a $315 million working capital loan with a one-year term. Tesla Shanghai sells its production through another Tesla subsidiary, Tesla (Beijing) Co, Ltd.…which also imports into China Fremont-made vehicles. Last year, the Chinese government also arranged financing for Tesla Beijing: An RMB 5 billion ($700 million) loan facility, secured by the cars in Tesla Shanghai’s inventory and by funds on deposit in a collection account… Under the terms of the Tesla Shanghai loan agreements, until all loans have been fully repaid, no funds can leave the control accounts at Chinese banks except for expenditures related to Tesla’s Shanghai operations. In other words, even if Tesla were to be cash flow positive in Shanghai, the cash would be unavailable to Tesla’s operations throughout the rest of the world for years to come” (emphasis added). See https://seekingalpha.com/article/4369297-tesla-investors-are-flying-blind-in-china. 195. Since it began doing business in China in or around 2019, Defendant Tesla has FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 56 deliberately failed to comply with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 280, which would require Tesla to enumerate financial metrics for each “economic environment” in which it conducts business. 196. As Fossi explains in the same article, Tesla meets the ASC 280 criteria necessary to trigger such reporting requirements with regard to China: “What constitutes an operating segment? Per ASC 280 10 50-1, an operating segment has the following characteristics: (1) It engages in activities from which it earns revenues and incurs expenses, (2) it has operating results regularly reviewed by the company’s chief operating decision maker, and (3) it has discrete financial information available. Tesla’s Chinese operations plainly meet the definition of an operating segment, so the next question is: Under what circumstances is the company required to report separately information about that segment? The answer, found in ASC 280 50-10, is when the assets, profit or loss, or revenue of that segment meet the quantitative threshold set forth in ASC 280 10 50-12, which is 10%. Tesla’s revenues from its China operations in Q2 totaled $1.4 billion, which is more than 23% of its total revenues of just over $6 billion. So, the separate reporting requirement is triggered.” 197. Nonetheless, Defendant Tesla has refused to provide investors with detailed disclosures about its cash holdings or sales broken down by geographic region. Its competitors, such as Toyota and BMW, do provide detailed disclosures broken down by geographic region. 198. When asked in 2020 why Defendant Tesla’s financial disclosures are so limited by one of his cult followers, Defendant Musk responded, “People read too much into this level of detail. It’s not useful for predicting the future, nor can we ourselves accurately predict what issues we will encounter on a short-term, fine-grained level.” See https://x.com/elonmusk/status/1299924292709224448. In fact, by hiding “this level of detail,” Defendants Musk and Tesla ensured that no one can examine what actually happened in the past, covering up the company’s massive and multi-faceted accounting fraud. iii. Accounts Receivable 199. Starting in Q3 2018, Defendant Tesla’s Accounts Receivable balance sheet line item jumped from $570 million to $1.155 billion and exceeded $1 billion thereafter. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 57 200. In December 2019, “Tesla went over why its accounts receivable has been elevated, attributing it to a large gap in timing between vehicle delivery and cash received from banks in Europe” per Deutsche Bank summarizing statements made by Tesla’s then-Head of Investor Relations Martin Viecha, in violation of Regulation FD, 17 C.F.R. § 243.100. 201. “While our AR balance is usually about 20 per cent of revenue, it can fluctuate depending upon a number of factors. First, overall, less than 30 per cent of our receivables is associated with new car sales. Second, due to payment terms associated with financing and enterprise customers, settlement times for certain methods of cash payments and geographic mix of our deliveries, our cash balance and associated receivables are impacted significantly by how many cars are delivered in the final weeks and days of the quarter. Third, roughly 40 per cent of the balance is attributed to payment terms on regulatory credit sales and statutory EV incentive programs, both of which have been increasing.” 202. On the July 22, 2020 Q2 2020 Tesla earnings call, CFO Kirkhorn then stated: Defendant Tesla has provided at least five different explanations over time (and only four in public) for why it had and has an extremely large accounts receivable balance of over $1 billion, none of which are consistent with each other or with reality. 203. Given Defendant Tesla’s business model, which involves up-front cash payments for physical products, this unusually high and persistent balance attracted notice from prominent investors such as David Einhorn, who publicly questioned Defendant Musk about it twice, and from journalists with accounting degrees and experience, such as Francine McKenna. In Ms. McKenna’s words, “They should not have this big of an accounts receivable balance.” 204. Defendant Tesla’s accounts receivable balance began to balloon in Q3 (having increased about half a billion dollars from Q2 2018), at the same time that its self- reported “delivery” figures began to diverge from vehicle registration data. This would suggest that Tesla reported to investors that it expected to be paid for cars that it never actually sold. 205. By Q2 2020, Defendant Tesla reported Accounts Receivable as $1.5 billion. 206. By Q4 2021, Defendant Tesla reported Accounts Receivable as $1.9 billion. iv. Accounts Payable 207. One of Defendant Musk’s strategies for dealing with cash shortages at his FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 58 businesses is to simply stop paying vendors. At least 40 lawsuits have been filed against Defendant Tesla for this reason. See https://www.plainsite.org/tags/tesla-vendor-nonpayment/. 208. Defendant Tesla’s persistent failure to pay vendors led to an unusually high reported Accounts Payable balance of over $10 billion in its Q4 2021 Investor Update, or more than half of its reported $17.58 billion cash and cash equivalents on hand. 209. $3.6 billion at a time when it reported cash and cash equivalents on hand of $8.6 billion. In Q2 2020, Defendant Tesla reported a still-high Accounts Payable balance of v. Tax Evasion 210. Tesla is a multi-national corporation with numerous international subsidiaries. Various expenses associated with United States-based customers, prospective customers and/or invoices have been attributed to Tesla’s subsidiary in The Netherlands. 211. Defendant Tesla has historically only sold its Solar Roof to consumers in the United States. According to the Tesla Files, invoices from Changzhou Almaden to Defendant Tesla for glass tiles were billed to “Tesla, Inc.” (internal entity ID 3000) with Tesla’s Accounts Payable e-mail address, “AccountsPayable@tesla.com”. Yet inside Tesla’s WARP Payables accounting system, these expenditures were re-assigned to Tesla Motors Netherlands BV (internal entity ID 4081)—even with “Ship To” addresses in Hayward, California or Sparks, Nevada in the United States for work orders to be carried out in the United States. 212. There is no legitimate reason why Tesla Motors Netherlands BV would assume financial liability for transactions involving Tesla Solar Roof installations in the United States. 213. Defendant Tesla re-assigned transactions taking place entirely in the United States to international subsidiaries in order to evade federal income tax and state taxes. 214. For years, Defendant Tesla engaged in a pattern and practice of delaying the filing of vehicle registration paperwork for its customers in order to avoid the accrual of corresponding tax obligations within the same fiscal quarter as each sale, especially around the end of each quarter when most deliveries took place. The result was an artificial boost in quarterly profit since liabilities associated with each sale did not accrue until the following quarter or later. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 59 215. Defendant Musk has abused his purported non-profit organization, the Musk Foundation, to give himself substantial tax breaks. According to The New York Times, “Mr. Musk’s philanthropy has been haphazard and largely self-serving — making him eligible for enormous tax breaks and helping his businesses. Since 2020, he has seeded his charity with tax-deductible donations of stock worth more than $7 billion at the time, making it one of the largest in the country. The foundation that houses the money has failed in recent years to give away the bare minimum required by law to justify the tax break, exposing it to the risk of having to pay the government a substantial financial penalty.” See https://www.nytimes.com/2024/03/10/us/elon-musk-charity.html. b. Accounting Fraud: “Deliveries” 216. While most publicly traded companies report “sales” of products in their financial disclosures, with regard to electric vehicles, Defendant Tesla does not. Instead, Defendant Tesla reports the number of “deliveries” of its vehicles, but it has intentionally never actually defined what the term “deliveries” means in order to grant itself maximum reporting flexibility. 217. Its lack of definition notwithstanding, the “deliveries” metric is among the most important metrics used by Wall Street analysts who follow Tesla’s stock. In addition to articles about “deliveries” in financial media, this fact is also reflected in analyst notes, which have for years featured headlines such as, “Tesla 1Q Deliveries Disappoint: How Much Cash in the Bank?” (Morgan Stanley, April 4, 2019), “Tesla, Inc.: 4Q22 deliveries miss, could spark lower mid-term expectations” (RBC Capital Markets, LLC, January 3, 2023), and “Tesla Inc. (TSLA): 1Q23 deliveries increased 36% yoy to about 423k” (Goldman Sachs, April 2, 2023). i. No Actual Definition 218. Defendant Tesla has customarily issued a press release at the beginning of each quarter containing its “deliveries” metrics for the prior quarter. The press release is then attached to a SEC Form 8-K that is filed with the SEC generally the same day. 219. At all relevant times, Defendant Tesla’s quarterly “deliveries” press releases contained substantially the same disclaimer: “Our net income and cash flow results will be announced along with the rest of our FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 60 financial performance when we announce [quarterly] earnings. Our delivery count should be viewed as slightly conservative, as we only count a car as delivered if it is transferred to the customer and all paperwork is correct. Final numbers could vary by up to 0.5% or more. Tesla vehicle deliveries represent only one measure of the company’s financial performance and should not be relied on as an indicator of quarterly financial results, which depend on a variety of factors, including the cost of sales, foreign exchange movements and mix of directly leased vehicles” (emphasis added). (the “Deliveries Disclaimer”). 220. The Deliveries Disclaimer does not actually define what it means for a car to be delivered, allowing Defendant Tesla to claim that the term means whatever it wants it to mean. While the Deliveries Disclaimer does state, “we only count a car as delivered if it is transferred to the customer and all paperwork is correct,” the Deliveries Disclaimer does not explain what “paperwork” it is referring to, what it means to be “correct,” and how Tesla defines a “transfer[] to the customer,” which may or may not involve actual payment. The Deliveries Disclaimer further fails to define what a “customer” is, since in many instances, Defendant Tesla transfers vehicles to its own subsidiaries around the world. In some instances, it even registers vehicles to them, meaning that it “delivers” and registers vehicles to itself. 221. It is clear that Defendant Tesla believes “deliveries” to have a distinct meaning from “sales.” In its quarterly slide decks, Defendant Tesla’s “Forward-Looking Statements” disclaimer has repeatedly referred to “our ability to grow our sales, delivery, installation, servicing and charging capabilities.” The necessary implication is that regardless of what “delivery” means, just because a car has been “delivered” does not mean it has been “sold.” 222. Tesla has historically stated, “A majority of our automotive sales revenue is recognized when control transfers upon delivery to customers” in its SEC filings, such as its SEC Form 10-K for fiscal year 2018 on page 78. Yet the questions of when and how Tesla recognizes sales revenue are independent from what constitutes a “delivery to customers” in the first place. ii. “Delivery Count New” Versus “Delivery Count Used” 223. Defendant Tesla’s software engineers created database schemas used internally that distinguish between deliveries of used cars and deliveries of new cars. Through the use of an enumerated data type field that allows a user to toggle between “Delivery Count New” and FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 61 “Delivery Count Used,” Defendant Tesla designed its information technology systems to allow used car deliveries to be improperly classified as new car deliveries. 224. The Tesla Files reveal that Defendant Tesla did, in fact, improperly classify used car deliveries as “Delivery Count New” deliveries in certain instances. 225. Defendant Tesla was constantly handling errors regarding deliveries, as reflected by JIRA tickets with titles such as, “ITBI-10769: Incorrect Delivery Type Count,” “BA-604: investigate and correct title status, delivery count type,” “ITBI-9222: Delivery Count Type Updates,” and “SFDC-12806: Change Delivery Count Type for Reserved Model S/X Used.” FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 62 iii. Multiple Undisclosed Dynamic Incorrect Methodologies 226. Over time, Defendant Tesla transitioned systems that tracked sales and deliveries from Salesforce to internal systems based on the WARP software architecture that Defendant Tesla adopted from SpaceX. Even once Defendant Tesla had standardized on WARP, it still maintained multiple information technology systems, some of which ran on Microsoft SQL Server and others of which ran on MySQL—two widely used but incompatible back-end database platforms, requiring additional work to integrate them. 227. Other JIRA tickets, such as “SFDC-7040: Update to Logic of Delivery Count Type field” and “SFDC-7716: Update to Delivery Count Type Logic” indicate that the definition of what constituted a “delivery” changed frequently within Tesla, even before the company switched from Salesforce (the “SF” in “SFDC”) to its own proprietary database platform. 228. depending upon a variety of factors including database systems, software errors discussed in JIRA tickets, auditor requirements, and which of the company’s many Chief Financial Officers was signing required paperwork. From quarter to quarter, Tesla’s definition of “deliveries” has constantly changed, iv. Rushed Delivery of Defective Vehicles 229. Historically, not each “delivered” vehicle has necessarily been a finished, working FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 63 product. In 2018, Defendant Tesla began using the term “factory gated” to convince investors that it was meeting “delivery” targets, again, without ever actually defining it. Many “factory gated” vehicles suffered from severe quality defects. 230. In December 2020, China-based PingWest noted, “Tesla is doing whatever it can to hit the production goal, including lowering its quality standards,” by loading “defective parts…onto production vehicles.” “‘Let’s say, in the past, our vehicles need 80 points in order to leave the factory, now it’s only 60.’” v. Multiple “Deliveries” Per Vehicle 231. After switching from Salesforce, Defendant Tesla designed its own database systems to allow one unique vehicle, as designated by a Vehicle Identification Number (“VIN”) to have multiple Tesla Reservation Numbers (“RN”) assigned. In practice, depending upon the database query used, the same car could thus be counted as “delivered” multiple times. 232. As alleged above, Defendant Tesla routinely defrauded its customers with regard to service, which was often due to poor manufacturing practices and resulting low vehicle quality. These practices often led to “delivered” vehicles with serious defects in order to achieve “delivery” goals by quarter-end. Whether such vehicles were returned in the same quarter or a subsequent quarter, they would be repaired and “delivered” again, giving Defendant Tesla a perverse incentive to lower vehicle quality. 233. For example, Defendant Tesla associates the following VINs with multiple RNs: a) VIN 5YJ3E1EA6JF048613: (1) RN113380206, (2) RN113388015, (3) RN113405702, (4) RN113408626; b) VIN 5YJ3E1EA6JF049731: (1) RN110289177, (2) RN111286062; c) VIN 5YJ3E1EA6JF059689: (1) RN109697530, (2) RN110253111; d) VIN 5YJ3E1EA6JF178293: (1) RN113268829, (2) RN113290943, (3) RN113362454, (4) RN113384557, (5) RN113440580, (6) RN113448409, (7) RN113511889; e) VIN 5YJ3E1EA6KF304492: (1) RN110291383, (2) RN112286048; FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 64 f) VIN 5YJ3E1EA6KF415639: (1) RN109697729, (2) RN112261424; g) VIN 5YJ3E1EA6KF430853: (1) RN113354066, (2) RN113370365, (3) RN113381175, (4) RN113397314, (5) RN113434572, (6) RN113496456; h) VIN 5YJ3E1EA6KF447409: (1) RN113379821, (2) RN113386959. 234. price to increase, harming Plaintiff while he held short positions in TSLA directly or indirectly. Defendant Tesla’s artificially high quarterly “delivery” numbers caused its stock vi. Conflicted Overseas Auditors In The Dark 235. Defendant Tesla’s auditor, PricewaterhouseCoopers, LLP (“PwC”), also conducts business with other members of the Atlanteca Enterprise, rendering objective auditing impossible. For example, SpaceX’s 2015 subsidy application to the California Alternative Energy and Advanced Transportation Financing Authority (“CAEATFA”), among other materials, was prepared for SpaceX by Christopher Sharpe of PwC at the same time that PwC was purportedly auditing Tesla’s books. This arrangement was still in place as recently as 2020. PwC also does CAEATFA (and presumably other tax) work for TBC-The Boring Company. 236. If PwC proves too troublesome for one Atlanteca Enterprise member, it is possible that Defendant Musk could end its contracts with all Atlanteca Enterprise members. 237. Defendant Musk has not hesitated to fire vendors in the past, such as when he fired law firm Cooley because it hired one former SEC attorney who investigated him. 238. On March 28, 2024, the United States Public Company Accounting Oversight Board (“PCAOB”) fined PwC $2.75 million for “quality control violations related to auditor independence” according to Reuters. 239. Defendant Tesla has never disclosed that PwC’s “audit” work in the United States is at least partially carried out in Argentina, where standards are lower. In 2023, PwC failed to note a $4 billion discrepancy at client Americanas SA in South America, resulting in a scandal. 240. On January 18, 2022, German Cuadra Distefano e-mailed Shyama Narayanan, Program Manager, IT Internal Audit at Defendant Tesla with “a few clarifying questions” regarding Tesla’s “billing engine configuration.” His e-mail signature stated that he worked for FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 65 “Pricewaterhousecoopers Service Delivery Center (Argentina) S.R.L.” in Buenos Aires. 241. PwC has never reviewed the information technology systems that generate Defendant Tesla’s “delivery” disclosures for accuracy, as PwC only examines the entirely separate set of paper records that customers sign upon physical delivery of each vehicle. vii. Contradictions With Known Sales Metrics: New Vehicle Registrations and Google Invoices 242. In theory, Defendant Tesla’s “delivery” metrics should have aligned with vehicle registration statistics available from all of the departments and/or bureaus of motor vehicles where the company does business. They did not. 243. After conducting a detailed analysis of known vehicle registration data, Plaintiff pressed the Tesla Board of Directors and PwC from 2020 through 2021 for an explanation as to the precise meaning of a “delivery,” yet Plaintiff received no response. As Plaintiff wrote to the Tesla Board of Directors and PwC on April 29, 2020, “I believe Tesla’s delivery numbers from 2017 to present are fake. Interpreted as ‘sales,’ which is how the market interprets ‘deliveries’—a misinterpretation Tesla management has actively encouraged—the numbers are impossible to achieve. Based on DMV vehicle registration data from numerous states, including most of the states where Tesla sells the most vehicles, you are short by about 166,000 sales (the black bars in the graph below minus estimated sales for locations where data is unavailable thus far).” 244. Prior to 2018, Defendant Tesla entered into a contract with Google, LLC in order FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 66 to make use of Google Maps in its on-board navigation systems. The terms of the agreement required Tesla to pay a license fee for each “existing car” and each “new car,” providing a more accurate view of new vehicle sales than Tesla’s public reports of “deliveries.” According to Google’s monthly invoices to Defendant Tesla, from July 2018 through June 2020, Tesla sold 660,600 new vehicles while it “delivered” 734,550, a material difference of 73,950, or 11.2%. 245. At all relevant times, the market interpreted “deliveries” to mean “sales” and stock analysts and journalists reported on Tesla’s “delivery” numbers, impacting the stock. 246. Defendant Tesla’s inflation of its “delivery” numbers by anywhere from 73,950 to 166,000 vehicles was intended to, and did, inflate Tesla’s stock price. c. Accounting Fraud: Warranty Reserves and Goodwill Repairs 247. Tesla service technicians routinely fix vehicles with problems that are common among Tesla vehicles. In addition to Technical Service Bulletins (“TSB”), Tesla maintains an internal knowledge base, “confidential” and “attorney-client work product” guides (even where no attorney involvement is clearly evident), numerous JIRA tickets, and Microsoft Teams discussion boards where various known defects in vehicles are discussed. 248. To attempt to placate often-dissatisfied customers who are typically unaware of quality issues until it is too late, Tesla offers “goodwill” service that neither requires customer payment nor affects the vehicle warranty. For customers, this is a benefit that permits for free repairs even outside of the warranty period on occasion and signifies that the company cares about their experience. However, because goodwill repairs are not billed to the warranty reserve for vehicles, frequent use has the effect of minimizing the apparent cost of repairs by inflating the remaining warranty reserve for each affected vehicle. In other words, frequent abuse of “goodwill” repairs allows Tesla to overstate its remaining warranty reserve to investors, and this in turn artificially increases the company’s reported profit. 249. Out of 30 public lawsuits involving Tesla where documentation of service incidents was attached, all 30 involved some sort of “goodwill” repair listed on an invoice. See https://www.plainsite.org/tags/tesla-goodwill-service/. Internal Tesla documents make clear why FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 67 this is. First, corporate policy prohibits service technicians from assigning any service mandated by government to the warranty reserve. Therefore, even if the government mandates that a problem covered by the Tesla warranty should be fixed, the warranty reserve is unaffected. Second, Defendant Tesla has had numerous conflicting goodwill policies over a period of years, some requiring management approval in varying conditions, which have led to service technicians not always knowing when they can and cannot offer goodwill service. 250. Tesla’s policies surrounding “goodwill” service are complex and involve various levels of corporate approval, suggesting that the company is reluctant to offer such concessions on a frequent basis. Yet the “goodwill” designation is routinely abused due to the frequency with which vehicles encounter quality defects, often straight from the factory. 251. Tesla was aware that its employees were approving too much “goodwill” service. Usage of “goodwill” is tracked closely in dozens of the company’s Business Intelligence dashboards. One of Tesla’s many confusing sources on “goodwill” procedures, the Goodwill Guide PDF, even includes “APPENDIX: CUSTOMER TALKING POINTS” such as: “Why did my friend get a free service when I was charged for mine? Goodwill is reserved for specific situations and circumstances and applied on a case-by- case basis. Can Tesla Goodwill be used in place of my warranty? Tesla Goodwill should not be used in place of a warranty, service plan or any other kind of service that the customer would ordinarily have to pay for” (emphasis in original). d. Accounting Fraud: Material Weaknesses in Internal Controls 252. On January 3, 2021, Goldman Sachs published an investor briefing noting Defendant Tesla’s “internal control environment” as a risk factor. 253. The WARP system that tracks vehicle ownership records the chain of successive owners for each vehicle starting from its manufacturing date. Yet that chain often contains broken or nonsensical links. Within WARP, it is possible for a vehicle to have no owner at all (a “null” owner in database parlance) for a period of time, or for the end date of row A in the chain FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 68 not to match the start date of row B. It is also possible within WARP for a vehicle to have two owners or more at the same time, and not just in situations where, for example, a married couple may want to maintain joint ownership of a vehicle. 254. There is no legitimate reason for Defendant Tesla’s software to allow such errors. 255. Within WARP, numerous vehicles worldwide are registered to various fake country-based “Tesla Marketing” “owners” who are assigned GMail e-mail addresses. For example, in Germany, Tesla Marketing uses the GMail address teslademarketing@gmail.com. In Norway, Tesla Marketing uses teslamarketingeu+NO@gmail.com. (The “+NO”, referring to Norway’s country code, is an SMTP filter for the teslamarketingeu@gmail.com e-mail address.) In China, the owner “marketing TeslaCN” has the GMail address TeslaCNmarketing@gmail.com. Another GMail address of teslamotorsprototype@gmail.com, for “Tesla Motors Pre-Runner,” is also the assigned owner for some vehicles. 256. While WARP clearly has a “Customer Type” field to distinguish a typical “Owner” from internal inventory vehicles, these fake owners are not associated with system flags for internal inventory vehicles. At least in Norway, many of these vehicles with fake owner email addresses appear in government records as registered to Tesla Motors Norway A/S. 257. A fake customer associated with yet another GMail address was given a mailing address of Palo Alto, CA in the United Kingdom, which WARP should not have permitted. 258. According to photographs taken by whistleblower Martin Tripp, at Defendant Tesla’s Nevada factory, employees were able to modify inventory and scrap material figures by manually editing the MySQL database underlying WARP using the freely available MySQL FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 69 Workbench software application and/or using an SQL UPDATE query. Any business logic built into WARP restricting types of entries based on certain rules could therefore be bypassed. The identity of users updating specific records could also be possibly forged or omitted. This is perhaps why employees working in Tesla’s financial division, such as Scott Smith, wondered, in writing, if the data that they were looking at from company reports was even “real.” 259. Given the substantial uncertainty internally over the validity of inventory, work- in-progress and Non-Conforming Material (NCM) figures from 2018, Tesla’s 2018 financial disclosures should be restated for this reason alone. Internal e-mails express confusion about inventory timestamps, which may have been overwritten by both batch software programs and manual database editing, as shown above. In e-mails, Defendant Tesla’s database engineers did not seem to be familiar with how MySQL timestamp fields work: the first timestamp column is automatically updated for a given row when the row is changed, but not subsequent fields. 260. As of 2022, Defendant Tesla’s WARP Payables system did not track payment methods, causing each corporate credit card to be improperly entered as a separate vendor, e.g. “CitiBank P Card,” which was assigned vendor ID 140394. Even more alarmingly, the line items from such purchasing cards were not entered into WARP individually, but grouped together and totaled in association with a single general ledger account, even when it was a near certainty that not every purchase on the card should have been ascribed to the same general ledger account, let alone the same vendor, as shown below for a mischaracterized, purported “$2,590,484.79” purchase that was actually many separate purchases from many separate FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 70 vendors charged to the purchasing card. 261. In the criminal matter of USA v. Parulekar, Northern District of California Case No. 5:18-cr-00550-LHK, a former Tesla Group Manager, Global Supply Management was able to forge signatures on payment documents without any internal controls leading to the payment of $9.3 million to the wrong vendor. e. Accounting Fraud: Lying In Public to Justify Revenue Recognition 262. Like many assets, gas and electric motor vehicles depreciate in value over time. 263. During an April 12, 2019 podcast interview, Defendant Musk stated, “I think the most profound thing is that if you buy a Tesla today, I believe you are buying an appreciating asset—not a depreciating asset.” 264. Upon information and belief, this statement was intended to allow Defendant Tesla to recognize revenue, and therefore boost reported profits, by affecting lease accounting for certain leases whose profitability depended upon whether the final resale value of the vehicle exceeded the buyback price determined in advance. In sum, if Defendant Tesla insisted that its vehicles were “appreciating” in value, it could potentially record up-front revenue sooner. 265. In or around April, 2019, Defendant Tesla was still in the period of “mid 2017 to FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 71 mid 2019” during which Defendant Musk later admitted the company was at risk of filing for bankruptcy, providing a powerful motivation for recognizing extra revenue. 266. In August 2018, in a different interview referring to technology products in general, Defendant Musk stated, “[W]ith each successive design iteration...it actually gets better and cheaper. But, it’s like, a natural progression of any new technology,” admitting that Defendant Musk knew that technology products depreciate. f. Accounting Fraud: Intentionally Underestimating Performance Metrics To Later Beat Them 267. By January 5, 2022, Defendant Tesla had held approximately 4,637 private calls with approximately 1,500 institutional investors including but not limited to Springs Capital, SFG Asset Advisors, Samlyn, Ashler Capital, Myriad Asset Management, Atika Capital, Arosa Capital, Alyeska Investment, Balyasny, Palestra Capital, Point72, Holocene Advisors, Graticule Asset Management, and Baron Capital. 268. Upon information and believe, Defendant Tesla shared material non-public information with institutional investors on these private calls in violation of Regulation FD. 269. On a regular basis, Vice President, Investor Relations Martin Viecha e-mailed Wall Street analysts with material nonpublic information, such as “consensus” figures regarding future estimates of Tesla’s “deliveries” and/or earnings per share, as shown below: FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 72 These figures were not shared with the general investing public, also in violation of Regulation FD, 17 C.F.R. § 243.100. 270. Analyst estimates were derived in part from information provided by Defendant Tesla, which upon information and belief would provide intentionally low estimates in advance, making a “beat” of those estimates more likely when the final number was actually disclosed. g. Overt Market Manipulation 271. Defendant Morgan Stanley has helped Defendants violate securities laws on a continuous basis for years. As alleged in the First of Amended Complaint of Rasella v. Musk, New York Southern District Court Case No. 1:22-cv-03026-ALC-GWG, ECF No. 99, Morgan Stanley helped Defendant Musk purchase shares of Twitter, Inc. in an unlawful, manipulative manner intended to keep the price of TWTR down and to deliberately evade Morgan Stanley’s compliance team, or as Morgan Stanley Managing Director, Private Wealth (likely Jon Neuhaus) put it, “No one knows what is going on and why . . . Not [Morgan Stanley] compliance not anyone.” The allegations in Rasella, based on documents obtained during discovery, including but not limited to text messages, are damning: “On February 2, 2022, [likely Neuhaus] privately assured Defendant Birchall that ‘it will take time but it should if you want to get in under the radar and establish a position.’ Birchall agreed and later confirmed that ‘we should opportunistically ramp up if given the chance. . . . if there are some interesting premarket blocks [near] or at the close, we should look to take advantage.’ [likely Neuhaus] responded that they would “Buy into weakness and higher volume . . . But not press the price.’ Fearful of letting ‘anyone sniff anything out,’ warned that they could do ‘a slightly larger block trade Provided ONLY If we keep it absofuckinglutely Quiet And We execute it well’” (emphasis in original). FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 73 272. On Friday, May 4, 2018 at 6:02 A.M., Defendant Musk posted on Twitter, “Oh and uh short burn of the century comin [sic] soon. Flamethrowers should arrive just in time.” 273. When deposed by the SEC, Defendant Birchall testified under oath that he had weekly meetings with Defendant Musk on Fridays. 274. On Friday, May 4, 2018 at 5:09 P.M., Defendant Musk posted on Twitter, “Looks like sooner than expected. The sheer magnitude of short carnage will be unreal. If you’re short, I suggest tiptoeing quietly to the exit …” 275. Upon information and belief, at least as early as May 4, 2018, Defendant Musk conspired with Defendant Birchall and/or Defendant Morgan Stanley to devise a strategy to harm short-sellers of Tesla stock. 276. Upon information and belief, in turn, Defendant Birchall enlisted Defendant Morgan Stanley, which engaged in trading activity on Defendant Musk’s behalf with the specific intent to illegally manipulate the price of Tesla stock upward. 277. According to Defendant Musk’s SEC Form 4 disclosures, Defendants Birchall, Excession, Must Trust and/or Morgan Stanley exploited thin trading volume during before-hours and after-hours trading sessions to increase Tesla’s stock price. 278. On Monday, May 7, 2018—the next business day after Defendant Musk had FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 74 publicly warned of the “short burn of the century comin [sic] soon” the previous Friday— Defendant Tesla filed its Q1 2018 SEC Form 10-Q. The same day, Defendant Musk filed a SEC Form 4 describing eight groups of TSLA share purchases by Defendant Musk Trust, all reportedly on May 7, 2018. 279. Based on publicly available price data, many of the purchase trades reported on Defendant Musk’s SEC Form 4 could not have taken place during regular trading hours when Musk would have been able to take advantage of the most efficient market price. However, the first group of trades for 5,903 shares worth $1.74 million is completely consistent with trades made hours before market open, when trading was thin and pricing was inefficient. 280. In all, Defendant Musk’s reported May 7, 2018 stock purchases were worth approximately $9.85 million. 281. Defendant Musk’s stock purchases were an effort to “paint the tape,” intended to artificially and deliberately increase the price of TSLA by creating the false impression of high trading activity, especially during extended hours—not to secure the best price. 282. Upon information and belief, Defendants Musk, Birchall, Excession, LLC, Musk Trust and Morgan Stanley repeated this scheme on additional trading days from 2018 to present. 283. Upon information and belief, Defendants Birchall, Excession, LLC, Musk Trust and Morgan Stanley also used one or more Morgan Stanley trading accounts to mask trades in TSLA actually being executed on Defendant Musk’s behalf, as they did with TWTR. h. Broadcasting Propaganda on Social Media 284. Beginning in late 2018, Defendant Tesla began to deliberately cultivate social media influencers and small blogs lacking journalistic standards to promote false narratives encouraging viewers to purchase the company’s electric vehicles, stock, and later, after the SolarCity merger, solar products. Each influencer group was especially active on Twitter and YouTube, posting tens of thousands of text messages and videos in aggregate: a) “Now You Know” YouTube Channel: Zac Cataldo incorporated Now You Know Productions, LLC in Massachusetts on July 24, 2019. The channel FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 75 located at https://www.youtube.com/@NowYouKnowChannel and run by Mr. Cataldo recommended purchasing Tesla stock to its “95,000+ subscribers and 17,000,000+ views” for years. Cataldo’s “Creative Director” since May was Tesla Massachusetts Regional Manager Steven Salowsky. Per Mr. Salowsky’s LinkedIn profile, the channel “Currently hold[s] the top position in the world for referring and selling Tesla vehicles.” See https://www.linkedin.com/in/ssalowsky/. Mr. Cataldo never clearly disclosed the direct involvement of Defendant Tesla with his channel. b) “HyperChange” YouTube Channel: A YouTube channel run by social media influencer Galileo Russell at https://www.youtube.com/@HyperChangeTV. In a video published on September 20, 2019 entitled “Model 3: The Self- Driving Electric Smartcar,” Russell predicted, “hundreds of millions in annual revenue, and extremely high profit margins, or even billions” for Defendant Tesla based on nothing except his own unfounded speculation, while Defendant Tesla lost money on every car sold. Russell frequently recommended purchasing Tesla stock and was permitted to ask questions of Defendant Musk on at least one Tesla earnings call as though he were a professional stock analyst. c) “Third Row Tesla” YouTube Channel: A channel located at https://www.youtube.com/@ThirdRowTesla/ promoting Tesla products starting in late 2019. Kristen Yamamoto, an Oregon-based coffee shop owner going by @Kristennetten or “K10” on Twitter, became one of the core members of “Third Row Tesla” along with Defendant Qazi (@OmarQazi [banned], @tesla_truth [banned], and @WholeMarsBlog), Vivien Hantusch (@flcnhvy), Sofiaan Fraval (@Sofiaan), and Vincent Yu (@vincent13031925). Yu was affiliated with Tesmanian, LLC, a collection of companies he runs with George Szeto, who is also connected to Tesmanian, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 76 Inc., Tesmanian Asset Management LLC, VGT Group, Inc. and VGT Investment LLC. Together, all of these individuals participated in corporate propaganda broadcasts promoting Tesla, some of which took place in one of Defendant Musk’s homes where they interviewed Elon and Kimbal Musk. d) “Electrek” Blog: A blog located at https://electrek.co operated by controversial amateur Canadian securities analyst Fred Lambert that for many years received preferential media treatment from Defendant Tesla. e) “Teslarati” Blog: A website located at https://www.teslarati.com describing itself as “Tesla news, rumors and reviews” that received preferential media treatment from Defendant Tesla. f) “CleanTechnica” Blog: A website located at https://cleantechnica.com describing itself as “independent cleantech journalism” that often published false stories and received preferential media treatment from Defendant Tesla. g) Frunkpuppy, LLC: Dr. Earl Banning and former Morgan Stanley Digital Marketing Assistant Vice President Julissa Bonilla incorporated Frunkpuppy, LLC in Ohio on January 30, 2019 as part of a social media influence campaign. The “Frunkpuppy” concept of photographing puppies in the front trunks, or “frunks,” of Tesla vehicles was heavily promoted by Dr. Banning on his @28delayslater Twitter account. h) Lex Fridman/MIT: On April 5, 2019, citing a paper by Lex Fridman, Defendant Musk wrote on Twitter, “‘...drivers in this dataset use Autopilot for 34.8% of their driven miles, and yet appear to maintain a relatively high degree of functional vigilance.’” The widely-criticized Fridman paper, entitled “Human Side of Tesla Autopilot: Exploration of Functional Vigilance in Real-World Human- Machine Collaboration,” was removed from MIT’s websites on an unknown date after May 2020. All references were removed from Fridman’s personal website between May 12, 2020 and August 11, 2020. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 77 The Fridman paper’s findings were contradicted by subsequent MIT research, which Defendant Musk did not share. See https://dl.acm.org/doi/10.1145/3409120.3410644. 285. On April 29, 2019, Mr. Musk wrote, “We don’t buy advertising” (see https://x.com/elonmusk/status/1122817103373881344) and on July 20, 2020 he wrote, “At some point, we should probably do advertising as art/communication/entertainment & to support high quality media” (see https://x.com/elonmusk/status/1285443997654122496). Emphasizing the point, on April 27, 2021, Mr. Musk wrote, “Other companies spend money on advertising & manipulating public opinion, Tesla focuses on the product.” (see https://x.com/elonmusk/status/1387172830094233601). 286. On October 25, 2021, Vivien Hantusch, whom Defendant Musk had hired to his “Office of the CEO” within Tesla in secret, posted on Twitter: Page 88 of Tesla’s 2018 SEC Form 10-K disclosed “marketing, promotional and advertising FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 78 costs of $70.0 million, $66.5 million and $48.0 million in the years ended December 31, 2018, 2017 and 2016, respectively.” Page 80 of Tesla’s 2019 SEC Form 10-K disclosed “marketing, promotional and advertising costs of $27 million, $32 million and $37 million in the years ended December 31, 2019, 2018 and 2017, respectively, of which the majority is related to promotional activities.” These figures do not match each other for 2017 and 2018, and they do not match the false claims on Twitter that “Tesla doesn’t advertise.” Additionally, a records request response from the Las Vegas Convention and Visitors Authority revealed that Defendant Tesla offered to build free charging stations in Las Vegas for TBC-The Boring Company, another Atlanteca Enterprise member, which amounted to a hidden advertising expense for Tesla, Inc. 287. Despite representing that “rental car companies” would enjoy “unequivocal” “economic advantages” from owning a “fleet” of Tesla vehicles, Ms. Hantusch, based in Germany, did not mention the RAC Group litigation in Europe proving the opposite. 288. DEPT is an international public relations firm based in The Netherlands that boasts of its large technology company clients on its home page (https://deptagency.com/en-us/): Apple, Google, Samsung, Sony PlayStation, Spotify, and Defendant Tesla, among others. The DEPT website features a page clearly stating that it offers Influencer Marketing services, at https://www.deptagency.com/en-us/service/brand-campaigns-content/influencer-marketing/. 289. Internal Tesla documents demonstrate that Tesla hired DEPT through Tesla’s subsidiary in The Netherlands to facilitate a stealth advertising campaign based in Finland targeted at customers in the United States and the rest of North America. The result was a YouTube video entitled “FIRST DAY IN FINLAND (drifting Teslas)” posted by “Kara and Nate,” a couple from Tennessee who have 2.71 million followers on YouTube at present. See https://www.youtube.com/watch?v=r5nCw_zEpTU. The video’s description on YouTube explicitly states, “(BTW Tesla did not pay us to be here, even though it might seem that way with our excitement levels!) Haha.” This was false. Internally at Tesla, this campaign was referred to as the “2019 Tesla Winter Experience.” 290. Hotel invoices from Finland billed to Tesla demonstrate that in fact, Tesla did pay FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 79 for Kara and Nate’s stay, in Room 512 of Hotellii Merihovi, from March 12, 2019 through March 14, 2019. Their Tesla advertisement was posted to YouTube on May 14, 2019. 291. DEPT is not the only advertising agency Tesla has made use of, despite Defendant Musk’s and Tesla’s persistent representations that the company does not spend on advertising. Other marketing vendors in Tesla’s WARP Payables system include APCO Worldwide, CP2 Fieldmarketing BV, MWW, Professional Public Relations, and Strategies 360. MWW in particular was hired under the direction of Dave Arnold to secretly spy on Tesla employee Facebook groups for $150.00 per hour or more in order to prevent unionization efforts, a task which possibly violated labor laws. 292. Prior to DEPT’s involvement, Tesla “Director US-East” Jeremy Snyder was responsible for “relationships to create an influencer marketing strategy” according to his LinkedIn profile. See https://www.linkedin.com/in/snyderjeremy. i. Fraudulent Price Targets 293. Defendant Musk and Tesla’s proxies on financial media networks have long been Catherine “Cathie” D. Wood of ARK Investment Management, LLC (“ARK”) and Ross Gerber of Gerber Kawasaki, Inc. Both are investment managers that have shilled for Defendants Tesla and Musk through good times and bad, and both are investors in X Corp., directly (in the case of Ross Gerber) or indirectly (via both funds, but via ARK Venture Private Holdings, LLC in Wood’s case). Wood, who famously touted a $4,000-per-share price target for Tesla’s stock on CNBC, sold off a significant portion of ARK’s Tesla holdings at around $320 per share in 2019, less than 10% of her target price. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 80 294. Cathie Wood upped ARK’s price target for Tesla to $6,000 per share at the start of August 2019. Beginning in mid-October, without again changing its price target or its laughably broken “model,” ARK began selling large quantities of Tesla shares. 295. Ms. Wood claimed that her prognostications were based on models, but ARK’s supposed models contained stunning errors, such as using Microsoft Excel’s formatting functions to remove 0s from cell values instead of using the correct numbers. In this way, one material figure in an ARK model was off by a factor of one million. 296. ARK’s selling activity was omitted from Cathie Wood’s media appearances where she continued to exude optimism about Tesla and technology generally. In Q4 2019, ARK offloaded about $127.6 million worth of Tesla stock and purchased just over $4 million worth. In other words, while Cathie Wood insisted that Tesla was a screaming “buy” destined to soar, her funds disposed of around $123 million worth of shares, net. 297. On December 9, 2019, Ms. Wood appeared on CNBC once again to discuss Tesla. Although she was more than willing to talk on live television for nearly seven full minutes about the Cybertruck (analyzed from “many different angles”), her perception of Tesla’s competitive advantages, her “bear price” of $700, market share, and the supposed fact that “Tesla is not an auto company,” what she did not mention was that her firm had just “re- allocated” $100 million away from Tesla stock. In addition, CNBC displayed a screen about ARK’s Tesla holdings falsely claiming that ARK did not have a stake “>1%.” 298. The distribution of material non-public information to select individuals tasked with pumping up a stock price is unlawful. Yet Wood and Gerber repeatedly met with Defendant Musk privately. Gerber and Wood enjoyed perks such as exclusive factory tours, access to Musk for interviews, and special event invitations, all while they maintained a uniquely ecstatic outlook in public. Yet behind the scenes, ARK was selling weekly. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 81 299. In 2024, the SEC and United States Department of Justice charged and criminally prosecuted short-seller Andrew Left—who publicly flipped from being short Tesla stock to being long on October 23, 2018—for the practice of proclaiming high price targets in public and then quietly selling his stakes, among other allegedly unlawful acts. 300. Gerber claims to have a degree from Musk’s alma mater in “Business Law,” but according to the University of Pennsylvania, Gerber never received such a degree. j. Silencing Critics 301. Under Defendant Musk’s leadership, Defendant Tesla has never hesitated to make false statements. Former Tesla Senior Director, Global Communications Dave Arnold quit immediately when litigation revealed that he had planted a false story in the Huffington Post accusing former Tesla engineer Cristina Balan of having engaged in “criminal conduct.” i. Tesla Customer and Shareholder Omar Qazi Responds To A Tesla Model 3 Safety Issue On Elon Musk’s Behalf By Amplifying Dangerous Conspiracy Theories About Plaintiff 302. In April 2018, Diego MasMarques, Jr., an individual convicted of murder and attempted murder in Spain and charged with other crimes domestically, made threats directed at Plaintiff over the fact that MasMarques’s convictions were public on PlainSite. On various websites, Mr. MasMarques, who has a documented history of mental illness, posted thousands of libelous fabrications falsely alleging that Plaintiff and his family members had committed a wide variety of crimes ranging from setting up a “fraudulent” non-profit organization, to tax evasion, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 82 to extortion, to the hacking of his e-mail account. Once Mr. MasMarques began making death threats, Plaintiff applied for and was granted a two-year restraining order against him. See Greenspan v. MasMarques, Santa Clara County Superior Court Case No. 18CH008067 (the “Civil Harassment Case”). See also Greenspan v. MasMarques et al, Massachusetts District Court Case No. 1:23-cv-10134-DJC. 303. In December 2018, a Tesla critic named Paul Huettner received a thinly-veiled death threat via anonymous fax purporting to be from “Elon Musk.” He reported it to the FBI. 304. On or around January 13, 2019, a Tesla customer recorded a video of a Tesla Model 3 center console that was unresponsive while driving on “Autopilot” on the highway at high speed. Plaintiff posted on Twitter from the @PlainSite account warning Defendants Musk and Tesla, “You have a legal and ethical obligation to fix this before someone else gets killed in an avoidable accident. This mirrors complaints on the $TSLA forum about freezing center consoles.” Plaintiff’s post embedded the video. 305. Defendants Musk and Tesla did not respond, but the next day, January 14, 2019, a Twitter account, “@tesla_truth” (posing as “Steve Jobs”) did, falsely writing, “Aaron, the center touch screen has nothing to do with driving the car,” and ending with, “Good luck in court on Tuesday for violating that restraining order,” even though Plaintiff had not violated any order. 306. Upon information and belief, on January 14, 2019, Mr. MasMarques and/or one of his sympathizers began feeding Defendant Qazi false information concerning Plaintiff on Twitter, and the @tesla_truth account amplified that misinformation without bothering to verify its accuracy. At approximately the same time as @tesla_truth first responded, a since-deleted Twitter account, @Tom34079930, replied to a @tesla_truth post falsely stating in part, “Aaron Greenspan went last year to a judge and lied to get a restraining order on Diego. The judge was pissed when she found out he lied. Now the restraining order is on Aaron and he violated it.” The @Tom34079930 account also falsely wrote to @tesla_truth, “Greenspan is a tax cheat.” 307. Plaintiff did not at any point solicit feedback from @tesla_truth. Its owner attacked Plaintiff over a public safety concern, much as it had previously attacked journalists. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 83 308. The @tesla_truth account then began re-posting and linking to many more of the libelous and deranged posts that were the subject of the unrelated Civil Harassment Case, some of which featured Plaintiff’s parents’ home address, a photograph of their home, and the name of their synagogue, alongside serious and false accusations about Plaintiff and his family. 309. The owner of the @tesla_truth account admitted, “I haven’t researched many details about all the complaints against Aaron,” displaying reckless disregard for the truth. 310. An attempt via Direct Message (“DM”) to discuss the seriousness of the matter and the associated safety concerns with @tesla_truth’s owner was not fruitful. The owner of the account refused to stop and continued making public antagonizing statements on Twitter, including, “Jail all shorts,” echoing Defendant Musk’s notorious scapegoating of short-sellers. 311. Plaintiff sent a link via DM to the @tesla_truth account owner to a PDF file hosted on his personal website of Twitter posts concerning the Civil Harassment Case. When the account owner clicked on the link, Plaintiff’s server logs yielded the account owner’s DNS hostname and IP address: c-73-71-59-42.hsd1.ca.comcast.net and 73.71.59.42, respectively. Given the alarming safety concerns associated with the Civil Harassment Case, Plaintiff searched PlainSite’s server logs for any associated usage history, and found that a user with the same IP address had searched for “smick enterprises,” a company run by Defendant Qazi. 312. Given the number of people the account owner had already harassed, Plaintiff publicized a redacted form of this information to warn of the danger Defendant Qazi posed. 313. Defendant Qazi later admitted to using the @tesla_truth Twitter account. 314. The same day, still concerned about the danger posed to his family and others at synagogues mentioned in some of the posts, Plaintiff attempted to contact Defendant Qazi by phone at his employer’s office as determined by his LinkedIn profile, but was unable to reach him. Plaintiff informed an unknown female supervisor that he had asked Defendant Qazi to stop and considered his conduct dangerous, harassing and libelous. At the time, Plaintiff did not know that Defendant Qazi’s “employer” was actually Qazi’s father’s company. Plaintiff did not ask to speak with Defendant Qazi’s father or any of his family members when he called. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 84 Plaintiff simply conveyed that Defendant Qazi’s dangerous conduct should cease immediately. ii. Qazi Steps Up His Campaign of Criminal Harassment 315. The next day, on January 15, 2019 at 7:01 P.M. (all times herein are Pacific Time unless otherwise specified) Plaintiff received a harassing phone call from a blocked telephone number. The anonymous male caller impersonated a service technician who initially only said he was calling from “the phone company,” and asked for Plaintiff’s home address. Since the caller refused to identify “the phone company,” and since AT&T does not customarily call from blocked numbers for service appointments, Plaintiff refused to divulge any information. Defendant Qazi later admitted to placing this harassing phone call both privately and publicly. 316. The @tesla_truth Twitter account, posing as “Steve Jobs,” was eventually suspended by Twitter for violating its terms of service. It was permitted to continue operating only by renaming itself to “Steve Jobs [sic] Ghost” and by falsely identifying as a so-called “parody” account, even though the account’s primary purpose was not to parody Steve Jobs, but to promote Defendants Musk and Tesla by abusing the imprimatur of Apple, Inc.’s co-founder. 317. In mid-July 2019, the @tesla_truth account once again began posting false and misleading information about Plaintiff and the Civil Harassment Case. Such posts continued through late October 2019 and inspired harassment from others. 318. On August 2, 2019 at 11:24 P.M., via the @PlainSite Twitter account, Plaintiff reported on a public video posted by Defendant Qazi on the @tesla_truth account advertising Tesla’s so-called “Autopilot” functionality. The video depicted a black Tesla Model 3 driving through a red stoplight on Autopilot without the driver’s hands on the steering wheel as required. Although Defendant Qazi later claimed not to be the driver, he has not denied that the vehicle was his, and he claimed to own the video’s copyright. iii. Omar Qazi Leads a Mob That Tries To Frame Plaintiff for Possession of Child Pornography 319. The next day, on August 3, 2019 starting at 7:49:32 A.M., an internet user with the DNS hostname ip72-203-123-36.oc.oc.cox.net in or around Rancho Palos Verdes, California accessed documents hosted on PlainSite from the Civil Harassment Case. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 85 320. Less than 20 minutes later, on August 3, 2019 at 8:07 A.M., the @tesla_truth Twitter account posted an altered and false version of Form CH-100 from Plaintiff’s Civil Harassment Case, replacing the “Person From Whom Protection Is Sought” with the name “Little Billy Watkins” and an age of “5” (referring to a fictional five-year-old child). The altered document also contained Plaintiff’s phone and fax number alongside the text: “BREAKING: Aaron Greenspan of Plainsite has been arrested after trying to beat up a group of kids in the playground after a failed child abduction. The kids ended up doing a number on him and now he has filed a restraining order against them. Should’ve known they would fight back.” 321. Fifteen minutes later, on August 3, 2019 at 8:22 A.M., at the same phone number posted by Defendant Qazi as part of the altered Form CH-100, Plaintiff received several text messages from an unknown telephone number, +1 408 767 6349, shown below: These text messages falsely alleged that Plaintiff had “child pornography” and “[pornographic] images of underage kids” on his computer and threatened to “call the police” accordingly. 322. Seven minutes later, on August 3, 2019 at 8:29 A.M., Plaintiff received a fax on the fax number posted by Defendant Qazi as part of the altered Form CH-100 from an unknown fax number, +1 415 969 2047, purporting to be from “Kids R Us” with a cover page message of, “Aaron, let me know if you need more. Full price this time please.” The cover page style matched that of the fax cover page that had been sent to Paul Huettner. The next page contained a monochrome pornographic image of a teenage young woman. Plaintiff immediately reported the harassing text messages and pornographic fax to the FBI. 323. Eight minutes later, on August 3, 2019 at 8:37 A.M., Defendant Qazi used the @tesla_truth Twitter account to post regarding Plaintiff, “he was just posting some stuff about me in his feed so I wanted to mess with him a little bit.” FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 86 324. In light of these events, on August 7, 2019 at 3:27 P.M., Plaintiff e-mailed the Tesla Board of Directors, including Defendant Musk, with questions and concerns about Defendant Tesla’s relationship with Defendant Qazi. Plaintiff never received a response. 325. On August 7, 2019 at 6:38 P.M., Defendant Qazi admitted to further harassment and to the destruction of evidence by posting from his @OmarQazi Twitter account: “I did make the joke post about Aaron getting beat up by kids or whatever with his contact info I got from PlainSite. Did it for fun because he posted tweeted [sic] about me. Deleted it later that day. Nothing personal against Aaron.” 326. In a DM conversation with a third party from September 27, 2019, Defendant Qazi admitted, “[I] take responsibility for what my followers do too and [I] take it seriously.” 327. On August 8, 2019 at 11:13 P.M., Defendant Musk responded to e-mailed, on- the-record questions from Plaintiff with a screenshot of false information stemming from libelous posts by Diego MasMarques, Jr., along with the words, “Your true colors …” 328. Especially after Plaintiff was able to lawfully obtain previously confidential court documents from Delaware Court of Chancery Case No. 12711-VCS, In Re Tesla Motors, Inc. Stockholder Litigation (the “SolarCity Case”), including deposition transcripts of Defendant Musk, on a nearly daily basis, the @tesla_truth account posted dozens of false statements— hundreds in aggregate—regarding Plaintiff, his family, and his non-profit organization. These harassing statements were read by a wide audience of at least 10,000-35,000 followers. Virtually all were published to promote Defendant Tesla’s stock, its products, and Defendant Musk. 329. On or around September 28, 2019, an internet user with the same last two cell phone digits as Defendant Qazi (37) created a Twitter account with the username @PlainShite (and a name of “Plain Shit”) that made use of the PlainSite name and logo without permission. 330. On the morning of October 9, 2019, Bloomberg Businessweek published an article by Zachary Mider referring to Defendant Musk, profiling Defendant Qazi, and stating: “The billionaire CEO, who declined to be interviewed for this story, replied to his fan [Defendant Qazi via e-mail] the same day [in August 2019]. ‘Your Twitter is awesome!’ he said, before adding a warning: ‘Please be wary of journalists. They will sweet talk you and then wack [sic] you with a baseball bat.’ Musk cc’d me on the message. Tesla also declined to comment.” FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 87 The article contained a photograph of Defendant Qazi next to his black Tesla Model 3 and referred to the @tesla_truth account as a “bottomless font of Muskolatry.” 331. On October 9, 2019 at 2:53 P.M., Plaintiff published a copy of a Twitter DM conversation in which Defendant Qazi admitted that he had an “out of control revenge impulse” and that he had made the harassing telephone call to Plaintiff from a blocked number on January 15, 2019 “to fuck with him,” though Defendant Qazi misrepresented the call’s contents in several respects. In this same conversation, Defendant Qazi also made reference to an unknown “Jim” who had contributed to or provided input for the @tesla_truth account in January 2019. 332. To the extent that Defendant Qazi at any point denies having authored statements attributed to him on @tesla_truth or other social media accounts, they were authored by other employees and/or agents of Defendant Tesla with Defendant Qazi’s supervision and approval. 333. On October 9, 2019 at 3:09 P.M., regarding Plaintiff, the @tesla_truth Twitter account posted: “i’m going to drag his name through the mud until the day he does [sic]. I want everyone to know the true facts about who he really is...” iv. Elon Musk Personally Participates In The Harassment Campaign 334. On October 9, 2019 at 3:34 P.M., Plaintiff e-mailed a Notice of Intent to Sue and Evidence Preservation Notice to Defendant Musk, attorneys at Defendant Tesla and SpaceX, Defendant Qazi, SpaceX Communications Director James Gleeson, and SEC Regional Director Erin Schneider. 335. Also at 3:48 P.M., Defendant Musk replied by e-mail to all parties, including the SEC, with the message, “Does the psych ward know you have a cell phone? Just curious.” (the “Musk Reply”). Defendant Musk then replied to all parties again, in reference to Defendant Qazi’s response, with two laugh/crying emojis. None of the responses had any substantive bearing on the Notice of Intent to Sue and Evidence Preservation Notice whatsoever and were accordingly not pre-litigation communications. Nor did either of Defendant Musk’s responses pertain to an active legal proceeding or a particular legal matter then under review. 336. Also at 3:48 P.M., Defendant Qazi posted on the @tesla_truth Twitter account a FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 88 screenshot of the e-mail containing Plaintiff’s Notice of Intent to Sue and Evidence Preservation Notice to Elon Musk, without redacting any of Plaintiff’s contact information. 337. At 3:51 P.M., Defendant Qazi further posted a screenshot of Elon Musk’s response, falsely suggesting that Plaintiff resided in a “psych ward.” 338. At 3:56 P.M., Defendant Qazi posted an image of the screenshot of the Notice of Intent to Sue and Evidence Preservation Notice zoomed in on Plaintiff’s contact information alongside the text, “If you would like to contact Aaron for pranks you can email or call him using the info listed below. Remember that all pranks will be recorded, so give it your best shot.” 339. As a result of Defendants’ actions, Plaintiff received unwanted telephone calls, e- mails and messages, and hundreds of additional libelous messages were posted publicly. v. Omar Qazi Targets Plaintiff’s Family for Further Harassment 340. The following day, on October 10, 2019 at approximately 11:00 A.M., Defendant Qazi created a fake Twitter account impersonating Plaintiff’s father, Dr. Neil S. Greenspan. The Twitter account’s handle, deliberately intended to confuse others, was @greenspan_neil. The account did not identify itself as a parody account and was not a parody account. 341. Via Twitter, Defendant Qazi admitted that he used and/or uses the “catch all” feature on Google Apps (since renamed to Google Workspace) to receive all e-mails addressed to smick.com, including e-mails connected to numerous fake accounts on Twitter. 342. Defendant Smick uses and/or owns the domain name smick.com. 343. On Thursday, October 10, 2019, Plaintiff filed a Digital Millennium Copyright Act (“DMCA”) takedown request with Twitter, Inc. regarding the copyrighted photograph Mr. Qazi used to impersonate Plaintiff’s father. Consequently, Twitter removed the photograph. Defendant Qazi replaced it with a different copyrighted photograph of Plaintiff’s disabled brother and changed the name on the account to Plaintiff’s brother’s name, Simon Greenspan. Plaintiff reported Defendants’ harassment to the San Francisco Police Department (“SFPD”). The SFPD desk officer decided of his own volition to focus on the pornographic fax sent to Plaintiff and accordingly classified his police report as relating to child pornography. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 89 344. On Friday, October 11, 2019, among other messages, Defendant Qazi wrote, “I hate my brother” from the fake @greenspan_neil account now posing as “Simon Greenspan.” In a separate exchange on the same day with Twitter account @enL3X1, who asked, “Are you a parody or actually his brother?” Defendant Qazi wrote, “yeah I’m his little brother haha.” 345. Plaintiff’s brother is not active on Twitter and never has been. 346. On October 11, 2019, Defendant Qazi created websites using servers owned or leased by Defendant Smick Enterprises, Inc. (the “Smick Sites”) containing copyrighted photographs of Plaintiff and his family members with the bold headline, “It’s plain to see: This fraudulent charity is FULL OF SHIT.” The text continued in part: “Have you been harassed, intimidated, threatened or targeted for extortion by Aaron Greenspan, his fraudulent ‘Think Foundation’ ‘Charity’, or board members Neil Greenspan or Judy Greenspan? You are not alone.” The website’s source code contained the hidden HTML, “”. 347. The Smick Sites mainly echoed Mr. MasMarques’s allegations: that Plaintiff’s non-profit organization was a “fraudulent charity” and that Plaintiff and his family “harassed, intimidated, or targeted for extortion” individuals. Defendant Qazi claimed to have engaged “Lantham & Watkins” and wrote “56 people” had submitted “verified testimonies” to the site(s). 348. On October 15, 2019, the Smick Sites were updated to copy the appearance of the PlainSite website and the misspelled reference to Latham & Watkins was removed. Defendant Qazi updated the bold headline to: “Have you been a victim of harassment, intimidation, extortion, sexual assault, identity theft, or cyberstalking by Aaron Greenspan? You are not alone. The victims of Aaron Greenspan Foundation is gathering evidence of Aaron Greenspan’s crimes to finally bring this criminal to justice.” The supposed “Victims of Aaron Greenspan Foundation” does not exist and never has. Defendant Qazi changed the false number of people who had submitted “testimonies” to “956,” corresponding to Plaintiff’s home address. 349. Later iterations of the Smick Sites increased the number of submitted “testimonies” to various numbers in the thousands, added HTML page titles such as “PlainSite :: Fake Charity Comitting [sic] Securities Fraud” and included other libelous hidden comments. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 90 350. On October 15, 2019 at approximately 10:52 P.M., Defendant Qazi contacted Plaintiff’s disabled brother via Facebook Messenger. 351. On October 16, 2019, Defendant Qazi removed the PlainSite source code from the Smick Sites, but left posted the bold headline accusing Plaintiff of several crimes and the copyrighted photographs of Plaintiff’s family members, including Plaintiff’s brother. 352. On Friday, October 18, 2019 at 7:06 P.M., one of Defendant Qazi’s harassing Twitter accounts, @PlainShite—intended to impersonate and disparage Plaintiff’s company’s trademarked brand, PlainSite—publicly accused Plaintiff of “attacking and slandering” others. 353. On October 18, 2019 at 7:34 P.M., Plaintiff wrote to Defendant Qazi via e-mail stating, “If I’ve said anything objectively false I’d like to know what so that I can correct the record.” At 8:24 P.M., Defendant Qazi responded via e-mail, stating, “Thanks for writing. I will write back to you tomorrow, or Sunday if I don’t get time tomorrow.” He never responded further, despite later falsely claiming in public that Plaintiff had failed to engage. 354. Defendant Qazi solicited information about Plaintiff’s supposed “crimes” from thousands of followers, but only two “testimonies” initially appeared on the Smick Sites: “M’s TESTIMONY,” and “P’S TESTIMONY,” a haphazard PDF compilation of Mr. MasMarques’s false allegations submitted by Defendant Qazi’s friend, a conspiracy theorist and Elon Musk obsessive named Amelia “Mia” Tracey of Sydney and Melbourne, Australia, but posted anonymously. Neither of these posts described any actual crime committed by Plaintiff or his family members, let alone any actual “victim” of Plaintiff, as none exist. vi. Even With Omar Qazi Banned From Twitter, His Libel and Harassment Continues 355. Defendant Qazi’s harassment of Plaintiff led to the temporary suspension of Defendant Qazi’s accounts. On or around October 22, 2019, Defendant Musk wrote an e-mail to Twitter, Inc. CEO Jack Dorsey in support of Defendant Qazi while disparaging Plaintiff. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 91 356. On or about October 24, 2019, Twitter permanently banned Defendant Qazi, disabling @OmarQazi, @tesla_truth, @PlainShite, @greenspan_neil, and @SmickTrump. 357. On October 31, 2019, Defendant Qazi posted an essay on wholemars.org, a domain name and server controlled by Defendant Smick, entitled, “Steve Jobs is dead.” In it, Defendant Qazi admitted that his @tesla_truth account was suspended repeatedly for various legal violations including impersonation, and that it was registered to teslatruth@smick.com. 358. In response, Defendant Qazi set up open-source software called Mastodon on a server belonging to Defendant Smick. On November 1, 2019, Defendant Qazi published an essay on wholemars.org thanking his supporters and inviting them to use Mastodon, where he posted false and libelous statements about Plaintiff without fear of Twitter intervening. (At various points in time, Smick’s “wholemars” domain names have redirected to each other.) 359. On Saturday, November 2, 2019, Sascha Pallenberg, formerly of Daimler AG, wrote from his Twitter account, “Let me just be crystal clear about Omar Qazi. He harassed me, colleagues and dozens of people in the industry over various fake accounts!” Pallenberg is one of several automotive industry consultants and professional journalists who contacted Plaintiff to FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 92 confirm that Defendant Qazi had harassed them as well. 360. Also on November 2, 2019, an unknown individual created a profile using Plaintiff’s name and e-mail address without permission on the pornographic website Pornhub. 361. On November 6, 2019, an unknown individual using the Wikipedia username “Cihwcihw” made their first edit to Wikipedia since signing up five years prior: the alteration of an article about Plaintiff, in order to supposedly “be more impartial and includ[e] additional details.” In fact, this user only changed and added false content about Plaintiff, referencing Defendant Qazi’s website while parroting his false claims about Plaintiff. vii. The Tesla Cult Fractures, with Omar Qazi Scapegoating Plaintiff 362. On April 29, 2020, Defendant Musk erupted into an angry tirade on Defendant Tesla’s Q1 2020 earnings call, calling local public health officials “fascist.” At one point, Defendant Musk was disconnected from his own earnings call, possibly by his own lawyers. 363. On May 9, 2020, Defendant Musk ignited further controversy by threatening to sue, and days later suing, Alameda County over its implementation of the multi-county Shelter- In-Place Order concerning COVID-19, which curtailed Tesla’s manufacturing in Fremont. Defendant Musk then instructed his employees to violate the Shelter-In-Place Order and return to work and risk death, or in the alternative, risk losing unemployment benefits. Soon after, Musk posted an image on Twitter falsely implying that he had defied the Shelter-In-Place Order. 364. Many supporters of Defendants Musk and Tesla were, for once, appalled by Musk’s erratic behavior and disregard for human life. On May 12, 2020, Electrek editor Frederic Lambert wrote an editorial critical of Musk and the “toxic” Twitter account @thirdrowtesla: the channel led by Defendant Musk’s most ardent supporters, including Defendant Qazi. See https://electrek.co/2020/05/12/tesla-super-fandom-becomes-toxic-negative-electric-revolution-op-ed/. 365. Signaling the vital importance of his work harassing Tesla’s critics, Defendant Musk appeared with Defendant Qazi in a 3.5-hour Third Row Tesla video interview filmed at one of Defendant Musk’s Los Angeles homes and published on February 9, 2020. See https://www.youtube.com/watch?v=J9oEc0wCQDE. The below photograph depicts Defendant FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 93 Qazi (far right) with Defendant Musk (far left) and Tesla Director Kimbal Musk (second from right with cowboy hat) at the recording session: 366. Also pictured is Vivien Hantusch, seated to the right of Defendant Musk, who secretly began working for Tesla full-time in the “Office of the CEO” starting in or around 2020, in a position with salary and lucrative stock options. 367. Even as she worked for Tesla and Musk, Hantusch steadfastly refused to admit her formal association, posting thousands of messages promoting Tesla and other Musk businesses from her @flcnhvy Twitter account with over 100,000 followers by 2021. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 94 368. Due in part to the criticism from even friendly bloggers like Lambert, who had now labeled Third Row Tesla “toxic,” Hantusch disapproved of Qazi’s handling of the Third Row Tesla Twitter account, leading to a rift in the group. 369. Defendant Qazi ultimately admitted authorship of Third Row Tesla’s Twitter posts, thereby also admitting that he had deliberately contravened Twitter’s lifetime ban. 370. The fallout from the rift between Electrek and Third Row Tesla, both of which had served as cheerleaders for Defendant Tesla, led Defendant Qazi to author a 17,600-word screed on his website hosted by Defendant Smick, published on May 17, 2020 (the “Qazi Screed”). Entitled “Response to Frederic,” it oddly invoked Plaintiff’s name at least 47 times. 371. Virtually every statement concerning Plaintiff in the Qazi Screed was false or misleading. In some cases, Defendant Qazi cropped images to deliberately mislead his readers. Defendant Qazi also linked events that were chronologically impossible and omitted key facts. 372. On May 20, 2020, Plaintiff filed Greenspan I against Defendants Qazi, Smick, Musk, and Tesla. 373. On or around May 23, 2020, Defendant Qazi returned to Twitter once more via a proxy account, @WholeMarsLog, later renamed @WholeMarsBlog, set up for him by Tesla fan Scott Woods to assist with evasion of his lifetime ban. Defendant Qazi repeatedly made half- baked attempts to deflect blame onto Mr. Woods for his posts in the months that followed. 374. On May 24, 2020, Third Row Tesla published “Episode 17” recorded on May 15, 2020, depicting Defendant Qazi wearing a shirt imprinted with a graph of TSLA’s share price next to the text “Tesla $420.00,” referring to Defendant Musk’s false “funding secured” claim that led to securities fraud charges by the SEC. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 95 375. On May 25, 2020, a federal holiday, Plaintiff’s father received a phone call at 3:14 P.M. Eastern Daylight Time from a “Private Caller” on caller ID. The male caller identified himself only as working for the law firm Quinn Emanuel in connection with Greenspan I and calling on behalf of Defendants Musk and Tesla. The caller asked whether Plaintiff’s father served on the Board of Directors of Plaintiff’s non-profit organization and asked for his address. 376. At 3:12 P.M. Eastern Daylight Time, two minutes prior to the call, Defendant Qazi’s @WholeMarsLog Twitter account had posted, “It’s time for the board of Plainsite to face justice for their crimes,” among other libelous statements. 377. On June 8, 2020, Defendant Qazi boasted about his “Nikola shorts,” indicating that despite his professed hatred of short-sellers, he had decided to become one himself because Nikola Corporation’s purported hydrogen-powered truck competed with Tesla’s purported electric truck. 378. On July 16, 2020, Defendant Qazi referred to the mugshot (below right) associated with his arrest in Brevard County, Florida in connection with Case No. 05-2018-CF- 010519-AXXX-XX for felony possession of a controlled substance (LSD) and misdemeanor possession of cannabis—as “my photo” from the @WholeMarsBlog account (below left), which established that Defendant Qazi controlled @WholeMarsBlog, and not Scott Woods. 379. On or around July 25, 2020, Defendant Qazi posted a third document entitled “F’S TESTIMONY” and a link thereto on his Smick Sites purporting to be “testimony” from a “victim” of Plaintiff. The document was yet another compilation of Diego MasMarques, Jr.’s posts authored once again by Amelia Tracey, who had also fabricated “P’S TESTIMONY.” FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 96 380. In or around August 2020, Defendant Qazi interviewed Nikola Corporation former CEO Trevor Milton and toured Nikola’s headquarters in order to report insights back to Defendants Musk and Tesla on one of their potential competitors. 381. On August 5, 2020, Defendant Qazi falsely and publicly accused Plaintiff of posting Defendant Qazi’s phone number and e-mail address on the “Dark Web.” 382. On August 22, 2020, in order to cause Plaintiff worry and anxiety, Defendant Qazi began posting by name on his @WholeMarsBlog account about a female Harvard University dean who Defendant Qazi erroneously believed was a college classmate of Plaintiff’s. 383. On August 25, 2020, Defendant Qazi made a photograph of Plaintiff’s parents from a newspaper article the banner image for his @WholeMarsBlog account. 384. After Plaintiff filed his Second Amended Complaint in Greenspan I on August 26, 2020, Defendant Qazi began a full-scale assault on Plaintiff’s reputation to “drag his name through the mud” as promised, using at least twelve different websites: among them, Twitter, Hacker News, Mastadon, Quora, Reddit, Wikipedia, Amazon.com, SoundCloud, Anchor.fm, as well as sites owned by Defendants Qazi and/or Smick. 385. On August 28, 2020, Defendant Qazi appeared on the “Inside Transportation” podcast. As of July 31, 2021, the podcast had been listened to approximately 1,700 times. The interview contained a litany of lies about Plaintiff and the admission at 13:30 that Defendant Musk was “very pissed” about Defendant Qazi being banned by Twitter in October 2019. 386. On September 19, 2020, attempting to cause Plaintiff worry and anxiety, Defendant Qazi posted threats concerning law enforcement on his @WholeMarsBlog account, warning that Plaintiff’s house was “completely bugged” due to a “warrant for a wiretap.” 387. On September 22, 2020, Defendant Qazi referred to Plaintiff as “twice as evil as Trevor [Milton]” on the @WholeMarsBlog account, twelve minutes after he had referred to Milton as someone who had “mollested [sic] his 15 year old cousin after a funeral.” 388. On September 24, 2020, Defendant Qazi posted links on his @WholeMarsBlog Twitter account to content authored by Diego MasMarques, Jr. and others on various gripe sites. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 97 Plaintiff had previously informed both Defendant Qazi and his counsel of the serious danger associated with the Civil Harassment Case, and again notified Qazi’s counsel accordingly. 389. On September 26, 2020, the @WholeMarsBlog Twitter account wrote “what aaron does to people is worse than murder IMHO”, followed by a suggestion that Defendant Qazi was contemplating suicide. Three days later, another cryptic suggestion appeared on @WholeMarsBlog falsely stating that Plaintiff would be responsible for Defendant Qazi’s death. 390. On October 1, 2020, a photograph of Plaintiff’s mother appeared as the background image on the @WholeMarsBlog Twitter account. 391. On October 2, 2020, Plaintiff reported Defendant Qazi to SFPD a second time for internet harassment as the frequency of his harassing posts increased. 392. On October 4, 2020, Defendant Qazi wrote that Plaintiff was “10x worse than [alleged child molester] Trevor Milton” and called him a “Truly sick person.” Defendant Qazi’s Third Row Tesla colleague and confidant, Kristen Yamamoto, echoed Defendant Qazi’s false allegations, writing, “—so you’re [sic] daughter comes to you saying Trevor molested her & you tell her ‘I have a bigger problem, Aaron Greenspan.’ photograph of Plaintiff’s disabled brother as the banner image of his @WholeMarsBlog account. 393. .” Defendant Qazi also posted a On October 6, 2020, it was widely reported that at the direction of Defendant Musk, Defendant Tesla had shut down its entire Public Relations department months prior, leaving Defendant Musk and Qazi’s Twitter accounts as the primary sources of information on social media about Defendant Tesla, nominally valued at hundreds of billions of dollars. 394. On October 9, 2020 at 11:43 P.M., from the @WholeMarsBlog Twitter account, Defendant Qazi wrote, “So it turns out nobody is really suspicious of a Tesla driving around Fremont / someone actually nodded and waved from security” as he photographed Defendant Tesla’s factory, which is private property. In contrast, on April 19, 2019, Randeep Hothi, a researcher of similar age and skin tone to Defendant Qazi, was subject to a Workplace Violence Civil Harassment Order filed by Defendant Tesla for observing the exact same factory by day. 395. On October 17, 2020, Defendant Qazi retweeted a post by the @OfficialABQ FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 98 Twitter account containing the text “Here’s a message for Greenspam” above a cartoon image of one stick figure kicking another in the groin, causing it to collapse. Twitter later removed this post for violating its rules prohibiting users from advocating violent conduct. 396. On October 19, 2020, an unknown party created an unverified Anchor.fm account in Plaintiff’s name using Plaintiff’s e-mail address, and then used the unverified account to send Defendant Qazi a recorded message not from Plaintiff, which Defendant Qazi then falsely and publicly cited as evidence of “harassment” by Plaintiff on his @WholeMarsBlog account. 397. In late October 2020, Twitter, Inc. published a “Ban evasion policy” now at https://help.x.com/en/rules-and-policies/ban-evasion, clarifying that Defendant Qazi was violating the Twitter Terms of Service by continuing to use the platform, directly or indirectly. 398. On December 6, 2020, Defendant Qazi attempted to contact a friend of Plaintiff’s via LinkedIn for an unknown reason. 399. Upon information and belief, on December 8, 2020, Defendant Qazi used the Cihwcihw Wikipedia account to exclusively edit three pages involving Plaintiff. The edits contained a misspelling that consistently appears in Defendant Qazi’s writing. 400. Also on or about December 8, 2020, Defendant Qazi created a new page on his personal website for “The Story,” referring to his involvement with Plaintiff. He promised readers that the saga would be told in installments, starting with an introduction that he published on December 15, 2020. Between December 8th and 15th, Defendant Qazi published nine additional posts he referred to as “Apetizers” [sic] containing false and misleading statements about Plaintiff. Each post, whether an “Apetizer” or formally part of “The Story,” contained banner advertisements intended to produce financial gain for Defendant Qazi, as well as prominent links encouraging readers to donate to Defendant Qazi’s legal defense funds via GoFundMe and PayPal. The “Apetizers” alone were collectively 200 printed pages long. 401. From December 9-11, 2020, the Cihwcihw Wikipedia account continued to smear Plaintiff on various Wikipedia articles by inserting false and misleading changes. 402. On December 13, 2020, Defendant Qazi began publishing his series, “The Story,” FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 99 full of innumerable false and misleading statements and material omissions concerning Plaintiff. By January 11, 2021, the existing portions of “The Story” required 303 pages to print. 403. Above and beyond those already enumerated, Defendant Qazi wrote over pages of additional essays containing countless false statements about Plaintiff, including but not limited to the grotesque falsehood that Plaintiff incited violence against Defendant Qazi. 404. highs, Defendant Qazi celebrated his work, posting, “holy fucking shit we’re all rich as fuck!!!” On January 7, 2021, with the price of TSLA common shares at or near all-time 405. The SEC recognizes social media as a potential manipulative “device” pursuant to the Securities and Exchange Acts. Social media was been instrumental to Defendants’ unprecedented “pump” of Tesla’s stock price, which culminated in a peak market capitalization of over $1.2 trillion in November 2021: about twenty times the peak market capitalization of Enron, and more than the combined valuation of the rest of the automotive industry, e.g. Toyota, Volkswagen, Mercedes, General Motors, BMW, Honda, Fiat-Chrysler, Ford, Nissan and Suburu. 406. Through thousands of false and misleading statements and material omissions broadcast directly to millions, and indirectly to millions more through the media, Defendants successfully and unlawfully “pumped” the stock price of TSLA common shares from an average of $167.66 per share during the period of June 29, 2010 (the date of Defendant Tesla’s Initial Public Offering) through September 23, 2018 (the day before Plaintiff first purchased put options) to $6,217.50 per share (split-adjusted) as of November 1, 2021, a 3,608% increase. 407. After Defendants Musk and Tesla manipulated successive quarterly financial statements to make it appear as though Tesla had turned a profit, which then qualified Tesla for inclusion in the S&P 500 index on December 21, 2020, Tesla’s stock peaked in November and then began to fall. Today, it trades at approximately 50% of its peak value. F. The “Hardcore Litigation” Fraud 408. Since Defendant Musk first announced publicly on May 20, 2022 via Twitter that, “Tesla is building a hardcore litigation department where we directly initiate & execute lawsuits. The team will report directly to me,” followed by “Looking for hardcore streetfighters, not FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 100 white-shoe lawyers like Perkins or Cooley who thrive on corruption. There will be blood,” he has filed at least five frivolous and vexatious lawsuits, which are often Strategic Lawsuits Against Public Participation (“SLAPP”), in state and federal courts. 409. These lawsuits were financed by the proceeds of securities fraud and involved the use of Defendant Tesla’s litigation attorneys, namely, Defendants Huebert and Mehes. 410. Defendant Musk has attempted to use his frivolous and vexatious litigation strategy to undermine democracy by serially defrauding the courts with the hopes of delegitimizing the regulators who are charged with keeping the various components of the Atlanteca Enterprise in check, including Defendant Tesla, and punishing critics such as Plaintiff. 411. When he is on the defense, Defendant Musk—whose only argument in court is often a misplaced invocation of the First Amendment—routinely abuses the California Anti- SLAPP Statute, California Code of Civil Procedure § 425.16, to attempt to silence critics by bankrupting them via the statute’s mandatory fee-shifting clause. This ironic strategy ran into trouble, however, when the California Court of Appeals ruled unanimously that Defendant Musk was not entitled to anti-SLAPP protection because, there was “no ‘functional relationship’ between the alleged issues of public interest and Musk’s statements. For example, Musk’s comment that Hothi harassed employees and hit and almost killed employees does not relate to the reliability of Hothi’s information. Nor does the statement refute Hothi’s comments about Tesla or assert Tesla’s past treatment of Hothi was appropriate… Accordingly, the statement does not ‘`contribute to the public debate`’ regarding any of the matters of public interest identified by Musk.” Hothi v. Musk, Case No. A162400, Cal. Ct. App (December 20, 2021). TOLLING OF THE STATUTES OF LIMITATIONS 412. To the extent that there are any statutes of limitations applicable to Plaintiff’s claims, the running of the limitations periods have been tolled by various doctrines and rules, including but not limited to equitable tolling, the delayed discovery rule, equitable estoppel, and the fraudulent concealment rule. Tolling is supported by the following facts. 413. Litigation in the frivolous Alameda Case filed by Defendant Musk did not end until July 11, 2023 and Defendants Singer Cashman, LLP, Cashman, Huebert and Mehes FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 101 continued to violate various rules and laws through at least June 14, 2023. 414. Plaintiff has learned the facts herein progressively and on an ongoing basis. 415. Plaintiff discovered the details of Defendant Birchall’s relationship with Defendant Morgan Stanley in approximately June 2024. 416. Plaintiff discovered that Defendant Qazi had been using his Comma defeat device to deceive viewers of his FSD promotional videos on or after June 8, 2024. 417. Plaintiff discovered that Defendant Tesla had pre-optimized routes for EAP participants such as Defendant Qazi on July 9, 2024. 418. Acting on behalf of Defendants Musk and Tesla, Defendants Qazi and Smick have continued to libel and harass Plaintiff on an ongoing basis. The most recent known instance of libel took place on August 27, 2024. 419. Defendants have admitted that they believe that this action relates back to the claims alleged in Greenspan I. CLAIMS FOR RELIEF COUNT I Violations of Federal Civil RICO (18 U.S.C. § 1962(c)) Against All Defendants Except Morgan Stanley 420. Plaintiff incorporates by reference the foregoing allegations. 421. When driving, especially in California, Plaintiff is forced to share the road with Tesla vehicles equipped with faulty and dangerous “Autopilot” and/or FSD software that threatens not only the safety of each Tesla vehicle’s occupants, but everyone on the road in front of, behind, and to the side of them, including but not limited to Plaintiff. 422. Plaintiff has no ability to prohibit Tesla vehicles from sharing the road with him. 423. Plaintiff has been forced against his will to drive in a more dangerous manner in order to avoid driving near Tesla vehicles whenever possible. 424. On May 16, 2022, Tesla employee Hans Von Ohain was driving a 2021 Tesla Model 3 with “Autopilot” activated. “Autopilot” malfunctioned, the car crashed, and Von Ohain was killed. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 102 425. Plaintiff is not a Tesla employee. Plaintiff has not consented and does not consent to being a tester of Defendant Tesla’s faulty and dangerous software. 426. NHTSA has recorded 1,354 crashes involving Tesla vehicles equipped with its “Level 2” “Autopilot” and/or FSD software, more than 10 times as many crashes reported by the next-most-frequent “Level 2” system manufacturer, American Honda Motor Co. See https://www.nhtsa.gov/laws-regulations/standing-general-order-crash-reporting (“Level ADAS-Equipped Vehicles” organized by “Reporting Entity (ADAS)”). Plaintiff has a reasonable fear of Tesla “Autopilot” and/or FSD software causing imminent physical injury. 427. The federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), U.S.C. §§ 1962, 1964, provides a private right of action for plaintiffs to recover against defendants who harm them by conducting an enterprise through a pattern of racketeering activity, as well as defendants who conspire to do so. A. The Atlanteca Enterprise 428. Each of the Defendants is a “person” within the meaning of 18 U.S.C. § 1961(3), because each is “capable of holding a legal or beneficial interest in property,” and at all relevant times were employed by and/or associated with Defendant Musk. 429. At all times relevant hereto, without Plaintiffs’ knowledge or consent, the Defendants and others associated together to form an ongoing informal organization for the purposes of carrying out the wrongful activities set forth herein and thus have constituted an association-in-fact “enterprise” within the meaning of 18 U.S.C. § 1961(4). 430. As used herein, the term “Atlanteca Enterprise” shall refer to the association-in- fact enterprise consisting of the Defendants and others working with them to carry out the wrongful activities set forth herein. 431. The Atlanteca Enterprise included entities that were controlled by Defendant Musk, including but not limited to Alani Kalea, LLC, Bastooks, LLC, Brick Store, LLC, Bushwhacker, LLC, Callisto 100, LLC, Camellia Ranch, LLC, Domino Solar, Ltd. (Cayman Islands), Duck Duck Goose 100, LLC, Europa 100, LLC, Falcon Landing, LLC, Firehorn Solar FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 103 1, LLC (Cayman Islands), Foundation Security, Ganymede November, LLC, Gatsby, LLC, Horse Ranch, LLC, Jadejams Property, LLC, Musk Foundation, Musk Industries, LLC, Musk Ventures, LLC, Muskrat Ventures, LLC, N158X, LLC, Neuralink Corporation, New World Industries, LLC, Otoro Partners, LLC, Pravda Corp., Rose Garden 100, LLC, Sadjam Property, LLC, SpaceX, Starlink, Inc., TBC-The Boring Company, Weisshorn Solar 1, LLC (Cayman Islands), Wyoming Steel, LLC, X Holdings I, Inc., X Holdings II, Inc., and X.ai Corporation, as well as entities that were not, such as Quinn Emanuel, Cooley, and 700 Holdings, LLC. It included individuals who were associated with Defendant Musk as well as those who were not Defendant Musk’s employees or agents. The Atlanteca Enterprise engaged in and affected interstate and foreign commerce. 432. The Atlanteca Enterprise made use of the domain name atlanteca.com, which was at all relevant times unknown in association with Defendants, to shield its communications from legal process. 433. The Atlanteca Enterprise also makes use of the term “Muskonomy” to refer to itself, as shown in the confidential xAI Discussion Materials for potential investors promising “Proprietary Access to the Muskonomy” promulgated by X.ai Corporation and described by Axios. See https://www.axios.com/2024/05/18/elon-musk-xai-fundraising. 434. From at least 2018 through 2023, the Atlanteca Enterprise joined together for a common purpose of defrauding customers and regulators of Defendant Musk’s companies regarding “Autopilot” and FSD software; hiding compromising information from litigants; spreading optimistic false narratives about Defendant Musk, his companies, “Autopilot” and FSD; attacking critics of Defendant Musk, his companies, “Autopilot” and FSD; increasing the financial wealth of each Atlanteca Enterprise member beyond what each member might have achieved individually; enriching the Musk family; and promoting the political and financial interests of the Russian Federation, Saudi Arabia, and the People’s Republic of China. 435. Each of the Defendants was employed by or associated with the Enterprise. 436. While each of the Defendants were employed by or associated with the FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 104 Enterprise, the Enterprise and its purposes were distinct and separate from the Defendants. 437. Defendant Musk, who is colloquially known as one of the heads of the “PayPal Mafia,” leads the Atlanteca Enterprise, assisted at various times by his former and current Chiefs of Staff: Sam Teller, followed by Omead Afshar. Financial matters were coordinated primarily through Defendant Birchall, Matilda Simon-Ferrigno, Zachary Kirkhorn, Janice Yeung, and Danielle Matsumoto. While some individuals affiliated with the Atlanteca Enterprise, including but not limited to Jared Birchall, Sam Teller, Emma Gallagher, Elissa Butterfield, Reyna Ortiz, and Jehn Balajadia, were provided with atlanteca.com e-mail addresses, not all were. 438. Defendant Spiro provided and continues to provide legal advice to the Atlanteca Enterprise, along with his law firm, Quinn Emanuel. Defendants Cashman, Huebert, and Mehes left Quinn Emanuel to eventually work for the Atlanteca Enterprise as attorneys. Starting in August 2022, Defendant Mehes technically worked as an attorney for Tesla, and in June switched to working as an attorney for X Corp., but also represented Defendant Musk in his personal capacity while at both jobs, illustrating that Defendant Mehes actually worked and works for the Atlanteca Enterprise. 439. Some individuals have worked for multiple Atlanteca Enterprise members at the same time. For example, Charles Kuehmann has worked for Defendant Tesla and SpaceX simultaneously since 2015. Vivien Hantusch has also worked for both simultaneously. 440. Not every person or organization who worked for the Atlanteca Enterprise necessarily knew of its existence. The atlanteca.com domain name was never publicly disclosed by any of its members and the vast majority of Defendant Musk’s tens of thousands of employees across his various businesses were at all times unaware of it. 441. The atlanteca.com domain name’s DNS MX record was and is set up to use Google Workspace to handle e-mail, separate and apart from the Microsoft-based e-mail servers deployed at Defendant Tesla and SpaceX, thereby largely concealing its existence and operation even from information technology administrators at those companies. 442. Each of the Defendants conducted or participated in, directly or indirectly, the FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 105 conduct of the Enterprise’s affairs. 443. Each Defendant’s participation was through a pattern of racketeering activity. 444. Each Defendant benefitted from the infusion of racketeering income and knowingly agreed to facilitate the scheme of the RICO Atlanteca Enterprise. B. 445. The racketeering activity, as that term is defined in 18 U.S.C. § 1961(1), referred to above includes, but is not limited to, the following predicate offenses: Predicate Offenses Wire Fraud, 18 U.S.C. § Date From To July 2, November 20, November 20, December 3, August 17, September 16, September 16, September 16, September 16, September 16, September 16, September 16, September 16, September 16, September 16, September 16, September 16, September 16, September 16, September 18, September 18, September 18, September 18, September 18, September 18, December 1, December 11, December 29, February 13, Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Method / Invoice No. 62519-QUINN 101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101-101- Amount $100,000.$461,214.$99,164.$99,807.$246,032.$273,742.$208,992.$163,355.$109,813.$104,426.$89,833.$85,248.$84,284.$54,545.$45,854.$19,617.$18,053.$13,881.$12,096. $ FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 106 March 3, Tesla, Inc. Quinn Emanuel March 30, March 30, March 30, March 30, April 14, April 14, Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel May 6, May 11, May 11, June 10, June 10, June 10, June 10, June 10, June 10, June 23, June 23, June 29, July 9, Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel August 2, August 2, August 16, August 16, August 16, September 13, November 8, November 8, July 13, Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. X Corp. July 13, August 7, August 8, August 18, September 1, September 15, September 29, October 13, October 27, November 10, November 24, December 8, X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Smick Enterprises, Inc. Sawyer Merritt Farzad Mesbahi Sawyer Merritt Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz FIRST AMENDED COMPLAINT 101000012172020A 101-101-0000099185A 101-101-101-0000102679A 101000012172020C 101-101-101-101-0000109079A 101-101-101-101-101-101-0000105111A 101-101-101000012172020B 101-101-101-101-101-0000110722A 101-101-101-ACH via Stripe $230,861. ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe $6,454.$1,881.$4,249.$204.$651.$249.$166.$204.$191.$143.$142.$541. $186.$150,000.$61,912.$35,950.$3,466.$230,861.$3,637.$60,866.$60,866.$3,127.$1,999.$401.$21,668.$63,072.$21,668.$314.$4,428.$124.$231,130.$1,562.$1,827.$666.$1, 3:24-cv-04647-MMCPage 107 December 22, January 5, January 19, February 2, February 16, March 1, March 15, March 29, April 12, April 26, May 10, May 24, June 7, June 21, July 5, July 19, August 2, August 16, X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe $600.$430.$356.$458.$394.$171.$285.$186.$806.$1,551.$1,051.$1,275.$1,211.$2,859.$926.$1,047.$862.$997. C. Pattern of Racketeering Activity 446. Defendants committed multiple predicate acts of wire fraud which are indictable under the provisions of the U.S. code enumerated in 18 U.S.C. § 1961(1)(B). Defendants did knowingly, willfully, and unlawfully conduct or participate, directly or indirectly, in a pattern of racketeering activity within the meaning of 18 U.S.C. § 1961(5). 447. Defendants conspired with or aided and abetted other Defendants in committing at least two predicate acts of wire fraud constituting a continuous course of conduct spanning a period from at least 2018 to the present. The temporal duration and the number of predicate acts are so extensive as to constitute a pattern of racketeering activity with, at minimum, closedended continuity, though on information and belief, such conduct is continuing—e.g., Defendants are continuously forming new for-profit entities and continuing to promote their fraudulent products, namely, Tesla “Autopilot” and FSD software—and there exists a specific threat it will persist indefinitely, constituting a pattern of racketeering activity that is open-ended. 448. In order to implement their scheme, Defendants used the interstate wires to reward their co-conspirators for defrauding customers, defrauding courts, defrauding regulators, and attacking anyone who could expose their scheme, as alleged herein. Such acts not only FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 108 shared a common or related result, participants, and victims, but also shared a common method of commission. Defendants’ acts of racketeering were all committed for the purpose of defrauding as many people as necessary to sell electric vehicles containing faulty and dangerous “Autopilot” and FSD software. 449. The Atlanteca Enterprise harmed Plaintiff’s business by enlisting Defendant X Corp. to take action against Plaintiff due to Plaintiff’s criticism of Defendants Musk, Tesla, Qazi and Smick and Plaintiff’s refusal to be intimidated by Defendants Musk, Tesla, Qazi, Smick, Spiro, Singer Cashman, LLP, Cashman, Huebert, and Mehes. 450. As a direct and proximate cause of the Defendants’ actions, Plaintiff has been injured, and continues to be injured, in his business by reason of the violations of 18 U.S.C. § 1962 in an amount to be proven at trial. 451. By reason of these RICO violations, Plaintiffs are entitled to damages in an amount to be proven at trial and all civil remedies afforded by 18 U.S.C. § 1964(c), including treble damages, reasonable attorneys’ fees, and the costs of this litigation. COUNT II Violations of Federal Civil RICO (18 U.S.C. § 1962(a)) Against All Defendants Except Morgan Stanley 452. Plaintiff incorporates by reference the foregoing allegations. 453. Each of the Defendants participated in the pattern of racketeering set forth above. 454. Defendants are persons who received income from the pattern of racketeering set forth above. 455. Defendants each invested or used all or part of that income in the establishment, operation, and maintenance of the Atlanteca Enterprise. 456. The Atlanteca Enterprise was engaged in and affected interstate and foreign commerce. 457. Plaintiffs’ business and property was injured by reason of each Defendant’s use or investment of their income in the Atlanteca Enterprise in an amount to be proven at trial. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 109 COUNT III Conspiracy to Violate Federal Civil RICO (18 U.S.C. § 1962(d)) Against All Defendants Except Morgan Stanley 458. Plaintiff incorporates by reference the foregoing allegations. 459. Defendants have undertaken the fraudulent acts described above as part of a common scheme. Defendants willfully, knowingly, and unlawfully conspired, confederated, and agreed together and with others to violate 18 U.S.C. § 1962(c), in violation of 18 U.S.C. § 1962(d). Defendants intentionally concealed their fraudulent conduct, which prevented Plaintiff from discovering their scheme, notwithstanding his exercise of due diligence. 460. Defendants were aware of the illegal activity. Defendants knew that they had made false and/or misleading representations to Tesla customers, regulators, courts, and the general public regarding “Autopilot” and FSD, and that doing so would cause customers and the public to lose money, property, and in some cases, people’s lives. Defendants knew of and agreed to facilitate the operation of the Atlanteca Enterprise their scheme. 461. Defendant Musk directed and caused the Atlanteca Enterprise to engage in the racketeering activity alleged hereinabove. 462. Each Defendant understood that he or it was committing numerous RICO predicate acts and participating in a racketeering scheme, evidenced among other things, by his or its overt acts and involvement in repeatedly promulgating false and/or misleading representations via wire transmissions, including email correspondence, online transmittal, and social media posts, and receiving financial and other contributions, including wired funds, based on those fraudulent communications. In addition, the Defendants understood they were facilitating and/or aiding and abetting Defendant Musk’s self-dealing and furthering the scheme by helping to conceal their fraudulent conduct. 463. The participation and agreement of each Defendant was necessary to the scheme. Defendants knew their predicate acts were part of a pattern of racketeering activity and agreed to the commission of those acts to further the scheme, and agreed and conspired to conduct and participate in the affairs of the Atlanteca Enterprise through a consistent and continual pattern of FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 110 racketeering activity. Further evidence of the agreement among Defendants is peculiarly within their knowledge and control. 464. As a direct and proximate result of Defendants’ conspiracy and violations of U.S.C. § 1962(d), Plaintiff has been injured in his business and property, as alleged herein, and is entitled to treble damages, attorneys’ fees, and costs of suit. COUNT IV Securities Fraud (California Corporations Code §§ 25400, 25500) Against Defendants Musk, Tesla, Excession, Musk Trust, Birchall, Qazi, Smick and Morgan Stanley 465. Plaintiff incorporates by reference the foregoing allegations. 466. Defendants made false statements in order to artificially raise the price of Tesla 467. Defendants engaged in fraudulent transactions in order to artificially raise the price of Tesla stock. 468. Defendants took steps to conceal their unlawful actions. 469. As described in Exhibit A, Plaintiff lost at least $59,310.22 on his investment in stock. Tesla put options due to Defendants’ unlawful acts. 470. Pursuant to California Corporations Code §§ 25400 and 25500, Defendants are obligated to restore to Plaintiff all consideration paid for TSLA securities, plus interest at the legal rate. COUNT V Securities Fraud (California Corporations Code §§ 25401, 25501) Against Defendants Musk, Tesla, Excession, Musk Trust, Birchall, Qazi, Smick and Morgan Stanley 471. Plaintiff incorporates by reference the foregoing allegations. 472. Plaintiff does not know the identity of the legal entity or entities that sold him the TSLA put options that resulted in Plaintiff’s losses. 473. Pursuant to California Corporations Code §§ 25401 and 25501, Defendants are obligated to restore to Plaintiff all consideration paid for TSLA securities, plus interest at the legal rate. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 111 COUNT VI Assistance Committing Securities Fraud (California Corporations Code §§ 25403, 25504.1, 25504.2) Against Defendants Excession, Musk Trust, Birchall, Qazi, Smick, Morgan Stanley and Spiro 474. Plaintiff incorporates by reference the foregoing allegations. 475. Defendant Birchall served as a vital conduit for Defendant Musk’s and Defendant Tesla’s interactions with Defendant Morgan Stanley, so that unlawful proceeds of securities transactions could flow to Defendants Excession and Musk Trust on Defendant Musk’s behalf. 476. Defendants Qazi and Smick willingly assisted Defendants Musk and Tesla with the artificial inflation of Tesla stock. 477. Plaintiff does not contest Defendant Morgan Stanley’s First Amendment right to publish its views, grounded in fact, on any particular stock. Nonetheless, Defendant Morgan Stanley selectively disclosed its views to different groups of investors, depending on whether those views were positive or negative, in a manner intended to aid and abet the securities fraud carried out by the other Defendants. 478. When Morgan Stanley analyst Adam Jonas had positive news to share about Tesla, he published frequent, extremely optimistic written research notes that were widely disseminated to financial media and, in turn, the public. When Jonas had negative news to share, he held private client calls where his views were intended to stay private. 479. One such call was recorded on May 22, 2019 by Paul Huetter, who published a transcript on-line. See https://www.dropbox.com/scl/fi/1iglhsa6tgso11arqemnu/Morgan_Stanley_Tesla_Call_2019_05_ 22.pdf?rlkey=8q0c0lr0ypw8k5tks02pfag5q&e=1&dl=0. On the call, Defendant Morgan Stanley, through Adam Jonas, described Defendant Tesla—whose stock offering Morgan Stanley had just underwritten days before—as a “distressed credit story and a restructuring story.” 480. Defendant Tesla’s SEC Form 424B5 filed May 2, 2019 with Morgan Stanley’s name on it did not disclose that the stock being issued was for a “distressed” issuer. Instead, it stated, “We intend to use the net proceeds from this common stock offering and our concurrent FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 112 convertible notes offering to further strengthen our balance sheet, as well as for general corporate purposes,” falsely suggesting that Defendant Tesla’s balance sheet was already strong. 481. Defendant Morgan Stanley approved the language of the May 2, 2019 SEC Form 482. Defendant Morgan Stanley knew that Defendant Tesla was in distress prior to 424B5. May 2, 2019. On March 12, 2019, Jonas cut Morgan Stanley’s price target on TSLA to $260 per share due to what it called a possible “air pocket in demand that is coming earlier than we expected” in a published note, but did not use the same dire language he used in private in May. 483. Defendant Morgan Stanley agreed to publish “buy” recommendations, publish artificially high earnings per share projections, suppress the negative information it knew about Defendant Tesla’s business, and/or add Tesla stock to its model portfolio in order to earn fee revenue from underwriting Defendant Tesla’s stock offerings, keep the continued business of Defendant Musk himself, and/or to ensure its loans to Defendant Musk would not sour. 484. Morgan Stanley admits that it had a possible “conflict of interest” in a disclaimer on its research reports. 485. Defendant Morgan Stanley has also fraudulently published nonsensical gibberish in the guise of “research” to justify high price targets on Defendant Tesla’s stock. While Morgan Stanley has the right to sell gibberish to its clients if they are willing to pay for it, no investment bank has the right to do so with fraudulent intent. 486. Defendant Morgan Stanley had fraudulent intent due to its conflicts of interest. For example, on December 2, 2018, Adam Jonas was the lead contributor on a “bluepaper” called “Flying Cars: Investment Implications of Autonomous Urban Air Mobility” that began, “Autonomous flying cars aren’t π in the sky” while noting, “Tesla CEO Elon Musk is regularly asked about flying cars.” On December 15, 2023, Adam Jonas wrote regarding Tesla, “Tesla sits at the epicenter of a potential Cambrian Explosion of technology ushering in a new morphological era…” and “The other night I was observing my son (somewhat past his bedtime) drawing a picture FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 113 of dragon with a crayon. He showed me how by pressing hard against the paper he could make the color a darker, richer shade of green. As he pressed with all his might, the crayon disintegrated onto the page…” Nominally, these passages were intended to describe the potential of Defendant Tesla’s as-yetunreleased “Optimus” robot, which was introduced to the public as a person in a skintight suit dancing The Robot since the product as described did not and does not actually exist. When these passages were written, TSLA traded at $239.29 per share but Morgan Stanley’s price target was $380.00 per share, 59% higher. 487. Even Defendant Musk’s cheerleaders recognize that the “Optimus” project at Tesla is utter nonsense. On August 23, 2024, Ross Gerber, who formerly appeared on financial networks to support Defendants Tesla and Musk, was quoted as saying, “Nobody wants a robot from Elon Musk. Why? Who would trust it?... The last thing I need is some robot built by Elon Musk in my house, so I don’t know if they thought about the marketing of this at all yet.” See https://www.youtube.com/watch?v=HMF0GWfSRNQ&t=480s. 488. Also on August 23, 2024, Defendant Morgan Stanley announced that it was reducing its holdings of Tesla stock in its model portfolio. 489. Defendant Spiro made at least one false statement to the SEC on behalf of Defendants Musk, Tesla, Excession and/or Musk Trust. Specifically, on December 19, 2019, in response to SEC subpoenas as part of Investigation No. SF-04322, Defendant Spiro informed the SEC that “until recently, Tesla’s systems may not have automatically summarized cash balance information on a daily basis” according to an SEC Division of Enforcement summary. This statement was false. 490. Defendant Spiro was the point person for Defendant Musk, Tesla, Excession and/or Musk Trust in response to the SEC for Investigation No. SF-04322. In that role, Defendant Spiro deliberately withheld discoverable materials from the SEC that would have implicated his clients in criminal activity. One SEC document production round, 20200320_H52749_VOL001.zip, was merely 830KB compressed—seven pages of data in all (“This production contains documents bearing Bates labels [redacted] 4322_00000001- FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 114 [redacted]_SEC_SF_4322_00000007.”). A prior SEC document production round, 20200228_H52448_VOL005.zip, was only 34.7MB compressed. Before that, on January 24, 2020, Defendant Tesla produced only 78 pages in response to the SEC’s subpoena, which Defendant Spiro requested confidential treatment for the same day. 491. In contrast, PwC sent the SEC an entire laptop with years worth of data for Investigation No. SF-04322. 492. Defendants Excession, Must Trust, Birchall, Qazi, Smick, Morgan Stanley and Spiro acted with knowledge and provided substantial assistance to Defendants Musk and Tesla in committing the violations of the California Corporate Securities Laws set forth above. Defendants Excession, Musk Trust, Birchall, Qazi, Smick, Morgan Stanley and Spiro are therefore liable as aiders and abettors of Defendant Musk within the meaning of California Corporations Code §§ 25403, 25504.1, and/or 25504.2. COUNT VII Fraud Against Defendants Musk, Tesla, Qazi and Smick 493. Plaintiff incorporates by reference the foregoing allegations. 494. Defendants Musk, Tesla, Qazi, and Smick carried out fraudulent acts with regard to Tesla “Autopilot” and FSD intended to deceive consumers into purchasing faulty and dangerous software, thereby putting Plaintiff’s physical safety while driving at risk. 495. Defendants Musk and Tesla carried out fraudulent acts with regard to Tesla vehicle quality, thereby putting Plaintiff’s physical safety while driving at risk. 496. On an ongoing basis, Plaintiff is unable to drive in a normal manner due to the presence of defective Tesla vehicles with dangerous “Autopilot” and FSD software on the road. 497. Defendants Musk, Tesla, Qazi, and Smick filed false and misleading documents in Greenspan I in order to defraud the court, which had the material effect of leading to the improper dismissal of Greenspan I. Specifically: a) Defendants Musk and Tesla falsely alleged that Plaintiff had invented an “implausible” self-serving story about the Tesla Files data breach, when in FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 115 fact, Plaintiff’s allegations were true and altered Defendants Musk and Tesla to the largest data breach in the company’s history; b) Defendants Musk and Tesla falsely alleged that aspects of their securities fraud as alleged by Plaintiff were “implausible,” when in fact they knew that Plaintiff’s allegations were true; c) Defendant Qazi signed a declaration under penalty of perjury in which he claimed the risk of “significant financial hardship,” while omitting that he had actually signed the declaration while on vacation in Hawaii. ECF No. 136-1. COUNT VIII Negligent Misrepresentation Against Defendants Musk, Tesla, Qazi, Smick and Morgan Stanley 498. Plaintiff incorporates by reference the foregoing allegations. 499. For years, Defendants Musk, Tesla, Qazi, Smick and Morgan Stanley misrepresented a) the capabilities of Tesla “Autopilot” and FSD software and the financial condition of Defendant Tesla to investors, regulators, courts, and the general public by claiming that the software was both less capable—to evade regulation—and more capable—to boost sales and Tesla’s stock price—than it really was, depending on the context; and b) that Defendant Tesla was more financially stable than it really was. 500. Defendants had no reasonable grounds for believing their representations were true and not misleading or deceptive when they made them. 501. Investors, regulators, courts and the general public reasonably relied on Defendants’ misrepresentations, nondisclosure, and/or concealment, and were actually misled and deceived thereby, and were induced by Defendants’ wrongful conduct to purchase or lease vehicles containing “Autopilot” and FSD software and/or shares of Tesla stock that they would not otherwise have purchased or leased in the absence of Defendants’ wrongful conduct. 502. Plaintiff was damaged by Defendants’ misrepresentations and the reliance of investors, regulators, courts and the general public was a substantial factor in causing that harm. 503. As a result of Defendants’ negligent misrepresentation and the harm caused FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 116 thereby, Plaintiff seeks and is entitled to (a) damages in an amount to be determined at trial and (b) all other available relief prayed for below. COUNT IX Defamation Per Se Against Defendants Qazi and Smick 504. Plaintiff incorporates by reference the foregoing allegations. 505. Starting on January 14, 2019 and even after the date of his ban by and from Twitter, Defendants Qazi and Smick made use of several Twitter accounts to publish constant, deliberate misinformation about Plaintiff and Plaintiff’s family. 506. From October 11, 2019 through present day, Defendants Qazi and Smick have employed a variety of domain names and websites, including but not limited to wholemars.com, wholemars.net, and wholemars.org to publish deliberate misinformation about Plaintiff and Plaintiff’s family. 507. Defendant Qazi made these false statements thousands of times with the hope that tarnishing Plaintiff’s reputation and discrediting both Plaintiff’s work and unrelated third-party court filings located by Plaintiff would increase or prevent any decrease in the value of TSLA shares. Qazi was successful: TSLA shares increased in value, he was profiled in a major financial publication in connection with Defendant Musk, many of his followers began repeating his false claims about Plaintiff, and many refused to believe anything published by Plaintiff. 508. Via Twitter and the Smick Sites, Defendants Qazi and Smick Enterprises, Inc. explicitly encouraged others to spread false statements and disinformation about Plaintiff. 509. Defendant Qazi explicitly encouraged others to “harass” and “prank” Plaintiff. 510. Defendant Qazi threatened, “any attempts to silence us will only make us louder.” 511. Defendants Qazi and Smick placed banner advertisements alongside their libelous statements about Plaintiff in order to derive further profits from their lies. 512. Although Defendant Qazi published falsehoods, misleading barbs and reputation- damaging accusations over a period of more than two years such that it is impossible to enumerate each and every one, select representative examples include: FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 117 Example No. / Date 1. Public Statement by Defendant Qazi “Strange how Aaron mentions that he think [sic] Diego wants to ‘get in his pants’. Sounds like may be revealing some deeper desires there” Plaintiff never said any such thing in any context or via any medium. This January 14, statement falsely suggested a sexual attraction to Plaintiff’s stalker. That “Aaron mention[ed]” this statement on the particular website discussed in the post is provably false. 2. “Aaron Greenspan has child This statement explicitly and falsely pornography at his house. I do accused Plaintiff of possessing child September 28, not.” pornography, which would be a crime. The statement is provably false. 3. “To conclude, is anyone surprised This statement again explicitly Aaron Greenspan is a complete mentioned Plaintiff and falsely September 30, fraud? Every $tslaq I have looked accused him of fraud, and by into has committed serious crimes. referring to short-sellers including Plaintiff, “serious crimes.” This Aaron, know you have anger issues statement also falsely stated that and like to ‘do something’ when Plaintiff suffers from a medical you’re mad but retaliating against condition. Plaintiff has never been me for reporting your fraud will diagnosed with “anger issues” or any make it worse” similar medical condition. Defendant Qazi twisted a lone remark Plaintiff made at a memorial service for his deceased friend, Aaron Swartz. 4. “How will Aaron Greenspan, a This post explicitly mentioned criminal guilty of felony tax fraud Plaintiff and stated that he is a October 9, 2019 with no lawyer, do in court against “criminal guilty of felony tax fraud,” two guys with a lot more money which is false. Plaintiff has hired than him?” lawyers in various contexts over many years. 5. “Have you been a victim of This headline appeared on at least harassment, intimidation, extortion, four of the known Smick Sites, October 15, 2019 sexual assault, identity theft, or directly and falsely implicating cyberstalking by Aaron Greenspan? Plaintiff in numerous crimes. The Smick Sites have zero actual You are not alone. The victims of accounts of Plaintiff committing any Aaron Greenspan Foundation is of the listed crimes because Plaintiff gathering evidence of Aaron never committed them. Greenspan’s crimes to finally bring this criminal to justice” 6. “he extorted $250,000 from Mark This statement is part of an essay on Zuckerburg [sic]” Defendant Qazi’s website that November 1, explicitly names Plaintiff. Plaintiff FIRST AMENDED COMPLAINT False / Misleading Aspects 3:24-cv-04647-MMCPage 118 7. May 25, 8. June 23, 9. June 23, 10. July 10, 11. As board members they presided over Plainsite’s tax fraud, harassment of Tesla customers, and short and distort fraud.” “Aaron Greenspan abuses his charity to inure private benefit to himself. His tax exempt status should and will be revoked, and he must pay back the taxes he illegally avoided.” “Aaron Greenspan is a cyberstalker who has been threatening and harassing Omar & others for years. A common tactic used by cyber stalkers is false accusations and false victimization. “Yes, Aaron Greenspan, Neil Greenspan, and Judith Greenspan. The harasser will try and make it look like they are the victim and use that to incite hate.” “I’m sad. Greenspan has stalked me and tried to hurt me so much, it can’t even fit in a tweet. He rapes his victims, entering their mind and shattering their peace when they least expect it. You can’t imagine it unless you’ve seen it first hand.” “Aaron Greenspan had servers in New Jersey. July 11, The same place the death threat @JohnnaCrider0 got this week came from.” 12. “Even though Greenspan himself FIRST AMENDED COMPLAINT did not extort Mark Zuckerberg or anyone else, making this statement provably false. Also posted on the @WholeMarsLog Twitter account, this statement falsely accused Plaintiff and his parents of various crimes. From the @WholeMarsBlog Twitter account, where Defendant Qazi again falsely alleged that Plaintiff has committed tax crimes. The IRS did not identify any taxes that were “illegally avoided” in its recent audit of Think Computer Foundation, making the statement provably false. From the @WholeMarsBlog Twitter account, Defendant Qazi again falsely alleged that Plaintiff committed the crime of stalking while projecting his own actions onto Plaintiff. That Plaintiff has ever threatened Defendant Qazi with anything other than the instant litigation is provably false. From the @WholeMarsBlog Twitter account, where Defendant Qazi falsely claimed that Plaintiff is a rapist. Here, Defendant Qazi falsely implied that Plaintiff had sent a Tesla super-fan a death threat across state lines, a criminal act, because Plaintiff’s company once maintained a co-located server in New Jersey in 2003, which was provably decommissioned and disconnected in March 2007. From Defendant Qazi’s personal 3:24-cv-04647-MMCPage 119 July 12, 13. July 17, published the book, he didn’t like people reading what he has to say because it establishes that he’s been angry at the world and suffering from paranoid delusions since high school (or perhaps earlier).” “Aaron Greenspan is a serial rapist. He enters his victims [sic] lives unannounced and unexpected, and rapes them while they’re going about their lives, with their friends You can’t understand it unless you’ve been targeted by him. I will fight for all his victims — past and future.” “saying that he harasses and threatens people just doesn’t communicate the kind of person he is he’s a rapist and the world will know the truth, no matter how hard he fights to keep it quiet” “Aaron Greenspan stalks and harasses colleged [sic] aged girls! Creepy! Leave her alone! 14. July 17, 15. July 18, @jack @Twitter Safety” 16. August 3, Added to the Greenspan criminal activity file…” “Scary. someone tried to hack into Omar’s iCloud account, so it got locked and he had to reset the password. 17. “Motives and profile of a Cyberstalker like Aaron FIRST AMENDED COMPLAINT website in his “Aaron Greenspan Tries To Remove Book Review: How Evil People Abuse The DMCA To Silence Critics” post, in which he falsely describes Plaintiff as mentally ill. From the @WholeMarsBlog Twitter account, where Defendant Qazi falsely claimed that Plaintiff is a serial rapist. From the @WholeMarsBlog Twitter account, Defendant Qazi again falsely claimed that Plaintiff is a rapist and insisted that it was the “truth.” In this post, Defendant Qazi accused Plaintiff of harassment and stalking and flagged Twitter’s safety team because Plaintiff wrote a single comment on the absurdity of a Third Row Tesla member publicly defending billionaire Jack Dorsey against outrage over Twitter (and @ElonMusk) being hacked. Defendant Qazi falsely accused Plaintiff of breaking into his iCloud account and of being a “criminal” as a result. Plaintiff has never made any attempt of any kind to break into Defendant Qazi’s accounts on any platform. This statement is provably false based upon server log evidence. In this post, Defendant Qazi again falsely accused Plaintiff of the crime 3:24-cv-04647-MMCPage 120 August 21, Greenspan” [image of excerpt from “Motives and profile” section of Wikipedia article at https://en.wikipedia.org/wiki/ Cyberstalking] 18. “Based on his cyberstalking and false police reports we have a good case to put him away for 5 and a half years” August 21, 19. “His rants are starting to sound like that of a Mass Shooter [sic].” October 26, 20. “Recently Martin Tripp has been working with Aaron Jacob November 30, Greenspan to threaten, harass and doxx Tesla customers.” 21. December 7, 22. December 8, 23. December 8, “While researching the Aaron Greenspan story we’ve uncovered shocking evidence of massive fraud.” “we’re talking about major organized criminal activity… this is some messed up stuff” “Harvard Shut Down Aaron Greenspan’s Website For Stealing Student Passwords” Defendant Qazi falsely claimed that Plaintiff was stealing passwords, a possible violation of 18 U.S.C. § 1030, and that Harvard shut down Plaintiff’s product. In reality, the product was secure and the university did not shut it down. Harvard administrators were misinformed by an overzealous student. “I am trying to diagnose his various From Defendant Qazi’s personal mental conditions, and believe he website in his “Harvard Shut Down may have narcissistic personality Aaron Greenspan’s Website For disorder…” Stealing Student Passwords” post, in which Defendant Qazi, who is “What a psychopath.” neither a doctor nor qualified to offer a diagnosis in any way, again falsely FIRST AMENDED COMPLAINT of “stalking” for a variety of completely inapplicable reasons. This is yet another example of Defendant Qazi projecting his own pathological obsession with and stalking of Plaintiff. In this post, Defendant Qazi again falsely accused Plaintiff of the crimes of “stalking” and filing a false police report, suggesting that Plaintiff would be incarcerated as a result. No criminal case against Plaintiff even exists. Defendant Qazi retweeted a post referring to Plaintiff by Twitter user @tesla_grl. This statement is baseless and false in several ways: Plaintiff has not ever “worked” with Martin Tripp, nor has Plaintiff ever taken any action against “Tesla customers.” In two separate posts, both of which readers understood to refer to Plaintiff, Defendant Qazi falsely accused Plaintiff of unspecified “major organized criminal activity” and “massive fraud.” 3:24-cv-04647-MMCPage 121 24. December 8, 25. December 9, “Aaron Greenspan clearly has serious mental health and anger issues that continue to this day.” “Given what we know about Aaron obsessively logging and storing all activity on his servers to try and use as blackmail, you can bet students were compromised the minute they signed up.” “Greenspan has also admitted to anger issues that are completely out of control, driving him to seek revenge for even small or imagined slights.” 26. December 9, “Well Aaron…FaceCash was shut down for violating financial regulations.” 27. January 13, 28. March 13, 29. April 6, “Aaron Greenspan has admitted that he is willing to resort to violence to silence us if his attempts at non-violent retaliation fail.” “Breaking — Aaron Greenspan spotted angrily crying outside Zuckerberg hospital in San Francisco with piss streaming down one of his pant legs as he hurls feces at the building from a plastic bag.” “Aaron Greenspan… He’s like, you know, this very mentally ill guy…” 30. June 13, “Aaron Greenspan: ‘Adolph [sic] Hitler was a great founder’” FIRST AMENDED COMPLAINT portrays Plaintiff as mentally ill. In this post, Defendant Qazi falsely accuses Plaintiff of having committed the crime of blackmail. In this post, Defendant Qazi again falsely portrays Plaintiff as mentally ill. This is textbook projection based on Defendant Qazi’s self-described “out of control revenge impulse.” There was no such admission by Plaintiff. Here, Defendant Qazi falsely suggests that Plaintiff violated U.S.C. § 1960. In fact, Plaintiff’s company voluntarily shut down FaceCash before any violation could occur to ensure compliance with the law. This assertion is completely false as no such admission or anything resembling such an admission was ever made. This was a total fabrication intended to cast Plaintiff as mentally ill. Defendant Qazi made this false verbal statement on a YouTube video podcast viewed approximately 1,700 times and hosted by a 13-yearold child. Plaintiff is Jewish and does not believe that Adolf Hitler was “great” in any way. This quotation fabricated by Defendant Qazi falsely summarized a satirical post by Plaintiff highlighting the “just 3:24-cv-04647-MMCPage 122 31. June 14, 32. July 18, 33. May 19, 34. May 21, 35. following orders” mentality pervasive in technology companies. “that’s what a lot of people are This statement from the concerned about” @WholeMarsBlog Twitter account affirming “He sounds like a future mass murderer” in response to the above post about Hitler falsely suggests Plaintiff’s intent to commit murder. “Aaron Greenspan has gone to This statement from the insane lengths to make sure nobody @WholeMarsBlog Twitter account learns the truth about the falsely suggests Plaintiff’s Greenspan crime family and their involvement in a conspiracy to fraudulent charity. They’re ready to commit murder. harass Omar for years if they have to. Telling people what’s happening is the only thing keeping them from killing him” “After more than two years, Tesla Greenspan is not a “cyber stalker.” short-seller and cyber stalker Aaron The lawsuit in question was not Greenspan’s illegal SLAPP-suit found by any judge in any court to against @elonmusk and Omar Qazi be a Strategic Lawsuit Against has been dismissed with prejudice. Public Participation, or “SLAPP.” Greenspan filed more than 4,The filing of the lawsuit in question pages of nonsense with the court to was not “illegal” and Greenspan try and extort Omar. It was all BS violated no laws by filing it. The & lies.” lawsuit was not dismissed with prejudice; the state law claims, including claims against Mr. Qazi, were explicitly dismissed without prejudice. Plaintiff did not at any point attempt to “extort Omar.” Extortion is a crime. “Aaron Greenspan has got to be There were and are no grounds for sweating that they might find the United States Department of grounds to charge him criminally / Justice, which Mr. Qazi was Rumor has it Block was acting as referring to, to charge Greenspan the balance sheet (funding) for his criminally. Complainant never has short activism and harassment had any financial relationship campaign.” directly or indirectly with shortseller Carson Block whatsoever, and Complainant has never run a “harassment campaign,” let alone sought funding for one. “After more than two years of This is false. No judge ever issued Greenspan filing thousands of any such ruling. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 123 June 4, 36. June 4, 37. July 3, 38. July 6, 39. August 24, 40. August 24, 41. August 24, 42. August 25, pages of documents in an attempt to extort Qazi, the judge ruled that there was absolutely no truth or merit to any of Greenspan’s absurd allegations.” “Aaron, you’ve filed 67 lawsuits against hundreds of victims.” “Greenspan is probably going to appeal … Started stalking us a year or two before that. He’s told us he’s going to stalk us until the day he died or gets locked up.” “For the past two years since then Greenspan has been attempting to extort me into silence…” “I could not in good conscience pay off such a deranged and evil criminal…” “this nut job aaron greenspan litigated the case for years and filed thousands of documents with the court and the judge ruled he was completely full of shit and that he did not invent Facebook.” “I make money writing software. Something Greenspan doesn’t understand never working a day in his life. Harassment & extortion isn’t a job!” “more than a [] few screws loose…completely nuts…harassed and threatened the guy and his wife for not putting him in the movie…a real nut job…very offended by the story of Facebook because he was left out of it but the reality is that he had nothing to do with Facebook.” “Is @RealDanODowd committing tax fraud by using a non-profit to inure private benefit to himself? I can’t believe it… he set up a fake charity to benefit himself financially just like Aaron FIRST AMENDED COMPLAINT This is false. Beginning with the word “started,” Mr. Qazi’s statement is a total fabrication. These statements falsely accuse Plaintiff of the crime of extortion. This is a total fabrication. Many of the documents filed in court were hundreds of pages of falsehoods and/or doctored photographs authored and created by Defendant Qazi regarding Plaintiff. This is false. Plaintiff has worked in various roles since approximately 1994 and has never harassed or extorted anyone. These characterizations from the “Dr. Know-it-all” podcast at https://www.youtube.com/watch?v= crMHh7yPyzE are false, the assertion that Plaintiff harassed Ben Mezrich is false, and the assertion that Plaintiff had “nothing to do with Facebook” is false. This is false. Plaintiff did not set up a “fake charity,” for any reason. 3:24-cv-04647-MMCPage 124 43. December 1, 44. December 3, 45. December 3, 46. December 4, 47. January 13, 48. February 6, Greenspan!” “this is a criminal harassment issue, with Greenspan abusing the courts to extort me for a large cash payment & insane demands that I stay silent about his harassment” “I never would have picked up this 40 year old online stalker i’ve never met who has been following and threatening me for 4+ years now / he sued me and elon to hide the fact that he was committing fraud and harassing people / We won the case, and then won again and had it dismissed with prejudice but now he’s appealing. He will never stop obsessing over me as long as he’s alive until he faces justice.” “he sued me and elon to hide the fact that he was committing fraud and harassing people” “He’s let Greenspan drag this bullshit case through courts for years while failing to explain to the judge that this is a criminal harassment issue, with Greenspan abusing the courts to extort me for a large cash payment & insane demands that I stay silent about his harassment.” “Woah, this is crazy. My stalker Aaron Greenspan & his goons submitted thousands of fraudulent 50 cent donations on stolen credit cards to my donation page for legal defense against his SLAPP-suit against me and @elonmusk.” “I was doxxed by Tesla short sellers on Twitter before Elon bought it. First Greenspan called my employer, but we own the company so I didn’t get fired. Each part of this statement is false except for Plaintiff’s age, having turned 40 after the time of publication. The state law claims against Defendant Qazi were dismissed without prejudice. This statement falsely alleges that Plaintiff committed the crime of fraud. Each part of this statement is false. This is false. The acts described, wire fraud, conversion, and identity theft—none of which Greenspan committed—are crimes. These statements falsely allege that Plaintiff committed the crimes of harassment and stalking. He harassed, stalked and tormented FIRST AMENDED COMPLAINT This statement again falsely accuses Plaintiff of “abusing the courts,” the crime of extortion, and the crime of harassment. 3:24-cv-04647-MMCPage 125 49. May 4, 50. July 26, 51. August 27, 52. August 27, 513. me for years, and still to this day. It’s no joke.” “Baby reindeer reminded me a lot of my experience with my TSLAQ stalker Aaron Greenspan” Stalking is a crime. “Baby Reindeer” is a Netflix production concerning a female convict who physically harassed a male comedian and was sentenced to prison for it. “If we are investigating short Shorting stocks with an intent to sellers, I suggest @SECGov look distort price is a crime that Plaintiff into my stalker Aaron Jacob has never engaged in, yet Defendant Greenspan. I want to know who has Qazi suggested that the SEC and been funding his years long short USDOJ should investigate and and distort and harassment charge Plaintiff civilly and campaign against myself and many criminally. Plaintiff has never made others. Charging Greenspan any such “vow” and has no criminally will not take back the “victims.” harm he caused but it will begin to make things right. This is perhaps the most egregious and over the top short & distort example I have ever seen. Greenspan has vowed to torment me until the day he dies. Until he is put away his victims will never be able to find peace.” “When I made an anonymous Defendant Qazi unilaterally violated account and started calling out their a confidentiality agreement during BS for what it was, they attacked. settlement negotiations in Greenspan My stalker Aaron Greenspan (who I for which his former attorney, Karl was furious I laughed at him for Kronenberger, apologized. Then thinking he invented Facebook) Defendant Qazi falsely doxxed me and called my employer mischaracterized those negotiations to try and get me fired for my on Twitter as “extortion” and tweets. He started blackmailing me “blackmail,” which he reiterates to try and keep me silent.” here. “yeah my stalker Aaron Greenspan Every part of this statement is is a truly insane person. As long as entirely false. he’s alive he will always be trying to hurt me. I’m not his first victim either.” On or around July 6, 2022, Defendant Qazi posted on his @WholeMarsBlog Twitter account a copy of his purported response to a subpoena issued to him in the criminal case of United States of America v. Milton, New York Southern District Court Case No. 1:21-cr00478-ER. Trevor Milton is the former CEO of purported electric truck manufacturer Nikola FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 126 Corporation. Mr. Qazi once visited the headquarters of Nikola Corporation to interview Mr. Milton with other Tesla enthusiasts and was thus subpoenaed in that case. In his subpoena response, rather than directly addressing any requests posed to him, Defendant Qazi instead launched into a lengthy diatribe against Plaintiff, writing: a) “Greenspan filed false DMCA notices with Twitter;” b) “…filed multiple false police reports with the San Francisco police department claiming I was in possession of child pornography;” c) “For the past two years since then Greenspan has been attempting to extort me into silence;” d) “I could not in good conscience pay off such a deranged and evil criminal…;” e) “…knowing that he had filed 64 similar lawsuits against numerous victims…” f) “the case has now been dismissed with prejudice;” g) “Greenspan was abusing the pro se designation to extort me into silence;” h) “Greenspan is extremely deceptive, thinks he’s smarter than the authorities, and will do everything he can to escape justice.” All of these statements are false and/or contain falsehoods. None of these statements in any way whatsoever pertain to Trevor Milton or the United States of America v. Milton criminal proceedings and are thus not covered by litigation privilege. 514. Defendant Qazi’s website appears prominently in search engine results for queries based on Plaintiff’s name. 515. From Twitter and his Smick Sites, Defendant Qazi published links to libelous and/or pornographic material with the intent of poisoning search results concerning Plaintiff. 516. Defendant Qazi’s @WholeMarsBlog Twitter account has over 500,000 followers, including Tesla executives who frequently “like” its content, and is on a short-list of VIP Twitter accounts that receive special treatment from Twitter’s owner, Defendant Musk. 517. Defendant Qazi’s @WholeMarsBlog Twitter account is a collaboration with several other anonymous individuals who contribute content, over which Defendant Qazi has FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 127 immediate control. 518. Defendant Qazi’s statements via the @tesla_truth Twitter account, that he would “drag [Plaintiff’s] name through the mud until the day he [dies]” and that “[a]fter he dies I’ll keep telling people he sucked,” as well as his repeated posting of Plaintiff’s contact information, as well as his explicit encouragement that several thousand individuals “contact Aaron for pranks,” all demonstrate considerable malice and reckless disregard for the truth. 519. Defendant Qazi’s persistent lies kicked off a chain of libel by his followers, whom Qazi assumed responsibility for, and who publicly referred to Plaintiff as a “psychopathic incel” and a likely “mass shooter.” 520. Defendant Qazi’s written and verbal false statements were made with actual malice because Qazi knew the statements were false and made the statements with reckless disregard for whether the statements were false or not, even after the filing of Greenspan I. 521. On October 19, 2019, Defendant Qazi stated, “I want everyone to know the true facts about who he really is,” and on August 24, 2020, Defendant Qazi admitted that he frequently posts material on his Twitter accounts intended to be interpreted as fact, writing, “I trust you guys to be smart enough to figure out what’s fact and speculation.” 522. Defendant Qazi’s thousands of aspersions demonizing Plaintiff—none of which addressed a single one of Plaintiff’s substantive concerns regarding Defendant Tesla’s business practices—were interpreted by readers statements of fact. On October 9, 2020, one reader even replied to a @WholeMarsBlog post with a video clip of man holding up a sign that simply reads “#FACTS.” See https://x.com/SjvTesla/status/1314685422497411074. 523. In addition to using a Twitter account containing the word “truth” to make statements concerning Plaintiff, Defendant Qazi also repeatedly exhorted his followers on Twitter and via the Smick Sites to complete IRS Form 13909 in order to file false reports echoing the conspiracy theories already submitted by Diego MasMarques, Jr. 524. Communications with the IRS are regulated by federal law and are required to be factual. Defendant Qazi also frequently tagged law enforcement Twitter accounts in posts. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 128 525. On January 29, 2021, Defendant Qazi posted a heavily altered photograph of Plaintiff with a modified nose, mouth, eyes, and eyebrows that elicited replies from readers such as “ugly as shit” and “Stay safe out there!” Defendant Qazi posted it again on February 25, 2021, April 29, 2021, and June 8, 2021, each time labeling the photograph with Plaintiff’s name. 526. Defendant Qazi’s false and misleading statements concerning Plaintiff, whether written or verbal, were not in service of and failed to further any public debate. 527. Defendant Qazi’s false and misleading statements, written and verbal, have irreparably harmed Plaintiff’s reputation by providing disinformation for others to re-post in an endless loop of defamation. COUNT X Defamation Per Se Against Defendants Musk and Tesla 528. Plaintiff incorporates by reference the foregoing allegations. 529. Since 2019, Defendants Musk, Tesla and X Corp. have treated Defendants Qazi and Smick in such a manner as to cause any reasonable observer to believe that Qazi and Smick are actual or ostensible agent of Defendants Musk and/or Tesla, and that Qazi is more than just a casual friend—as falsely alleged by counsel in Greenspan I—as exhibited by: a) paying, through Defendant X Corp. on or about July 14, 2023 in the amount of $6,206.00, Defendant Qazi via Defendant Smick’s Stripe account, as part of a select group of eligible users, for his Twitter posts (the first of several payments); b) Defendant Qazi’s reasonable expectation of future employment with Defendant Tesla given its hiring of his Third Row Tesla colleague Vivien Hantusch; c) Defendant Musk authorizing and endorsing Qazi’s harassing conduct toward his critics, including but not limited to Plaintiff, by e-mailing Qazi, “Your Twitter is awesome!” alongside advice for handling journalists (as a Tesla Public Relations employee would) in an August 2019 e-mail to Qazi after the Tesla Board of Directors, including Defendant Musk, had been warned about Qazi’s harassment; d) having reportedly shut down Tesla’s Public Relations department, and out of his FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 129 then-over 59 million followers, Defendant Musk consistently using Defendant Qazi’s Twitter accounts as springboards to make material disclosures to investors; e) Defendant Qazi admitting from the @WholeMarsBlog Twitter account, “Many people don’t know that Tesla actually reads everything we post on Twitter. Even if Elon doesn’t respond to you, they will get the feedback to the appropriate team. It’s someone’s job I think,” prompting a former Tesla employee to write “Can confirm” and another observer to write, “They have this instead of a pr team.”; f) permitting Defendant Qazi to attend exclusive, invite-only Tesla events where Defendant Musk presented new products; g) prior to the EAP, granting Defendant Qazi early access to Tesla FSD beta software—an honor bestowed upon only “25…non-employees” globally “based on…their safe driving record” according to Tesla attorney Eric C. Williams’s December 14, 2020 letter to the CADMV—despite Qazi’s history of criminal charges for violating the California Vehicle Code, including an alleged but later dismissed violation of § 23222(B): Possession of Marijuana While Driving, as well as Defendant Qazi publicly posting to Twitter images of substantial amounts of alcohol reportedly consumed before driving his Tesla vehicle; h) entering into a contract, the EAP Agreement, with Defendant Qazi that restricted his discussions with the media about Tesla beta software and gave Tesla editorial control over content; i) allowing Defendant Qazi access to Tesla’s private property in the same fashion that has resulted in Tesla filing for restraining orders against others; j) permitting Defendant Qazi to use the TESLA registered trademark in his @tesla_truth Twitter handle with no legal consequence; k) granting Defendant Qazi over three hours of Defendant Musk’s time to conduct an in-person interview promoting Defendant Tesla’s products and narratives; l) providing Defendant Qazi with access to material non-public information and FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 130 other leaked news tips from inside Tesla; m) Defendant Musk autographing the interior of Defendant Qazi’s Model 3; n) encouraging and/or allowing Tesla management, such as former Senior Global Director, Public Policy and Business Development Rohan Patel, to follow and “like” Defendant Qazi’s Twitter posts regardless of the substantial controversy surrounding Qazi’s misconduct; o) Defendant Musk petitioning Twitter, Inc. CEO and fellow billionaire Jack Dorsey for special treatment for Defendant Qazi after Qazi was suspended from Twitter so that he could continue to promote Defendant Tesla’s stock and products; p) promoting Defendant Qazi’s legal defense fund for Greenspan I; q) allowing Defendant Qazi to correspond with Defendant Musk’s preferred attorney, Defendant Spiro, about Greenspan I; r) relying on Defendant Qazi for intelligence regarding competitors obtained at meetings and tours where official Tesla employees would not be permitted; s) regularly corresponding with Defendant Qazi about business matters via e-mail and Twitter DM; t) actively ignoring written concerns expressed to the Board of Directors about Defendant Qazi’s conduct; u) Defendant Qazi admitting on video that he performs work, compensated through stock ownership and referral bonuses, for Defendant Tesla, by exclaiming, “I’ll sell them all fuckin’ Teslas. I’ll pull in those referrals!” v) Defendant Qazi appearing to work nearly 24 hours per day, every day, to exclusively promote the interests of Defendants Musk and Tesla on social media; w) Defendant Qazi admitting that he is a Tesla shareholder; x) Ensuring that Defendant Qazi’s Twitter account would not be suspended even after he posted internal Tesla information. 530. Defendants Musk and Tesla are vicariously liable for all defamatory statements FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 131 published by Defendant Qazi concerning Plaintiff from at least as early as 2019. 531. Had Defendants Musk or Tesla instructed Defendant Qazi to stop defaming Plaintiff, Defendant Qazi would have obeyed and stopped because his defamatory statements were made in service of Defendants Musk and Tesla. At no time did Defendants Musk or Tesla instruct Defendant Qazi to stop. 532. Defendant Musk and his agents’ conduct was malicious, oppressive and done with a willful disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. COUNT XI Defamation Against Defendant X Corp. 533. Plaintiff incorporates by reference the foregoing allegations. 534. Plaintiff does not dispute that Defendant X Corp. has the right to make editorial decisions about content published on its website by third parties and that pursuant to 47 U.S.C. § 230 it is immune from suit for allegations pertaining specifically to those editorial decisions. 535. Plaintiff does not dispute Defendant X Corp.’s right to suspend Twitter accounts. Plaintiff alleges only that after his accounts were suspended, Defendant X Corp. defamed Plaintiff by making false statements broadcast to thousands of users about the purported reason(s) why the accounts were suspended. 47 U.S.C. § 230 does not immunize Defendant X Corp. in this regard. 536. When Defendant X Corp. suspended Plaintiff’s Twitter accounts on June 13, 2023, thousands of visitors to those accounts’ former pages were informed that “Twitter suspends accounts that violate the Twitter Rules,” falsely indicating that Plaintiff had, in some way, violated the Twitter Rules. 537. In fact, Plaintiff did not violate the Twitter Rules. Prior to Twitter, Inc. being owned by Defendant Musk, Plaintiff’s accounts had been reported numerous times by various users who followed Defendants Qazi and/or Musk, but Twitter, Inc. examined those reports and found no violation. In one instance, when Twitter, Inc. did purportedly find a violation reported in bad faith by Diego MasMarques, Jr., it quickly admitted an error and corrected that error. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 132 538. Today, X Corp. states, “X suspends accounts that violate the X Rules” when third parties attempt to visit Plaintiff’s former profile pages. However, Plaintiff never agreed to the X Rules and was never bound by them. The implication that Plaintiff violated the X Rules, meriting suspension, is false. 539. Plaintiff’s accounts were not suspended because they “violated the X Rules.” Plaintiff’s accounts were suspended in retribution for criticizing Defendant Musk, in order to silence Plaintiff. 540. On and after June 13, 2023, due the account suspensions, Plaintiff suffered harm. The on-line mob that Defendant Qazi had led for years expressed scorn and ridicule directed at Plaintiff, interpreting the suspensions as validation of the hundreds, if not thousands, of lies that Defendants Musk, Tesla, Qazi and Smick had spread about Plaintiff. 541. On or around February 28, 2023, Defendant Tesla informed Defendant Qazi by e- mail that he had posted “its internal information on public platforms,” referring to Twitter. Yet Defendant X Corp. did not suspend the @WholeMarsBlog account operated by Defendant Qazi and Smick, and in fact, began paying Defendant Smick to post starting in July 2023. 542. At least as early as July 17, 2024, Defendant Musk stated via Twitter that X Corp. only suspends accounts that violate laws, falsely suggesting that Plaintiff’s accounts had been suspended because it violated a law. COUNT XII Violation of the Civil Anti-Stalking Statute (California Civil Code § 1708.7, et seq.) Against Defendant Qazi 543. Plaintiff incorporates by reference the foregoing allegations. 544. Per California Civil Code § 1708.7(a)(1), starting on January 14, 2019, Defendant Qazi began following, alarming, and harassing Plaintiff through a pattern of conduct involving his use of multiple Twitter accounts, prank telephone calls, false accusations regarding rape and possession of child pornography, and republication of deliberately altered court documents. These actions also led to the transmission of additional false allegations regarding child FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 133 pornography via text message and fax to Plaintiff. 545. Per California Civil Code § 1708.7(a)(2)(A) and (B), Defendant Qazi’s amplification of posts by Diego MasMarques, Jr. made it more likely that his mob of followers would locate posts that identified Plaintiff’s parents home by its address and photograph as well as posts that identified Plaintiff’s parents’ synagogue. 546. Per California Civil Code § 1708.7(a)(3)(A), as early as January 14, 2019, Plaintiff requested that Defendant Qazi stop his harassing conduct, writing “Please stop.” at 12:36 P.M. With no other way to reach him, and hoping that a verbal conversation would diffuse the situation, Plaintiff also asked Defendant Qazi to stop by leaving a message for him to stop at his nominal employer’s office on the same day, unaware that Defendant Qazi’s “employer” was his father’s company and that Qazi did not really work there on a full-time basis. 547. Per California Civil Code § 1708.7(a)(3)(A), as early as January 17, 2019, in writing, Defendant Qazi admitted his intent to “fuck with” Plaintiff to an unknown third party. 548. On February 9, 2021, Twitter found that the @WholeMarsBlog account had violated the Twitter Rules “against promoting or encouraging suicide or self-harm” regarding Plaintiff. Previously, Twitter had removed content the account posted as it advocated violence. 549. Per California Civil Code § 1708.7(a)(3)(A), from 2019 onward, Defendant Qazi posted credible threats directed at Plaintiff suggesting that he and/or Defendants Musk and Tesla (“we,” as written on the @WholeMarsBlog account) had referred Plaintiff to law enforcement and that based on these “criminal referrals,” “the FBI and law enforcement” were “very interested.” 550. These threats were credible because law enforcement tends to respond far more quickly to complaints from wealthy individuals and large corporations such as Defendants Musk and Tesla whether or not the underlying substance is true or false. Furthermore, Defendants Musk and Tesla have a documented history of referring their critics to criminal law enforcement as a means of squelching criticism. On or around June 25, 2018, working on behalf of Defendants Musk and Tesla, Hueston Hennigan LLP submitted a “[Redacted] CRIMINAL FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 134 REFERRAL” labeled “Privileged & Confidential” and “Attorney-Work Product” to the Office of the Nevada Attorney General regarding a former employee, Martin Tripp, who had leaked accurate information critical of Defendants Musk and Tesla to the press. The same baseless referral was also submitted to the FBI and the United States Attorney’s Office for the District of Nevada. Representatives of Defendants Musk and Tesla further met personally with the Attorney General of Nevada to encourage criminal prosecution of a critic. 551. Criminal prosecution would pose a significant threat to Plaintiff’s health and safety for a variety of reasons, including but not limited to increased COVID-19 risk. 552. On August 5, 2021 at 10:15 A.M., Defendant Qazi posted on the @WholeMarsBlog Twitter account, writing, “Please write to Case Western university [sic] and Neil Greenspan to ask him to stop this harassment… I worry he’s a danger to students at Case.” He later repeated this false claim against Dr. Greenspan on August 7, 2021. 553. On August 5, 2021 at 10:20 A.M., Plaintiff’s father received a harassing e-mail from johndoe510150@gmail.com also addressed to the general e-mail account for his employer, the Case Western Reserve University School of Medicine. The e-mail stated in part, “STOP HARRASSSING [sic] WHOLEMARSBLOG and DOXXING PEOPLE online!!!” 554. On August 7, 2021 at 12:59 P.M., Defendant Qazi posted on the @WholeMarsBlog Twitter account, “If Greenspan files a fifth revision of his lawsuit on Friday, Chapter 8 will be published continuing the story” in an attempt to intimidate Plaintiff into withholding this document from the Court in violation of 18 U.S.C. § 1512(b). Defendant Qazi repeated this threat on August 10, 2021 on his personal website. 555. Defendant Qazi’s conduct caused Plaintiff and Plaintiff’s family members to suffer substantial emotional distress due to the real threat of malicious prosecution and/or firing from deliberate smearing of Plaintiff as a supposed likely mass murderer harboring child pornography, and of Plaintiff’s father as supposedly posing a “danger to students.” 556. As a result of Defendant Qazi’s public conduct and his apparent contact with the restrained party in the Civil Harassment Case, Plaintiff reasonably feared for his and his family’s FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 135 safety after receiving messages, text messages and calls that he and others perceived as threats. As a result, Plaintiff reported Defendant Qazi to the FBI and to SFPD twice. 557. Defendant Qazi facilitated the violation of Plaintiff’s civil harassment restraining order against Diego MasMarques, Jr., which prohibits direct and indirect harassment, of which he was aware as early as January 14, 2019, and further admitted to altering, misconstruing and publicly posting Form CH-100 from the Civil Harassment Case for the express purpose of harassing Plaintiff. 558. Even after Plaintiff restricted his personal Twitter account in July 2020 due to Defendant Qazi’s ceaseless harassment—the digital equivalent of locking a door—Defendant Qazi still used a proxy to follow it and to post screenshots and metadata to his followers, brazenly displaying the padlock icon next to Plaintiff’s name in numerous images. 559. Defendant Qazi posted harassing messages on social media regarding Plaintiff and Plaintiff’s family on the order of 1,000 times from different accounts, causing a cascade of harassment that has yet to cease. For example, on October 1, 2019, @HaidarAns wrote, “@AaronGreenspan you sure have a very punchable face [laugh/crying emoji]”. With tens of millions of followers, Defendant Musk cemented the effect with only a few posts. 560. Defendant Qazi has admitted that he thinks harassing Plaintiff is “funny.” 561. Had Defendants Musk or Tesla instructed Defendant Qazi to stop harassing Plaintiff, Defendant Qazi would have obeyed and stopped. At no time did Defendants Musk or Tesla instruct Defendant Qazi to stop. 562. Plaintiff seeks equitable relief, including but not limited to damages in the form of general damages, special damages and punitive damages pursuant to Cal. Civil Code § 3294. 563. Plaintiff respectfully requests an injunction requiring: a) all Defendants to cease and desist making and/or publishing further harassing statements concerning Plaintiff or Plaintiff’s family via any published medium, written or oral; b) all Defendants to cease and desist contacting or trying to contact Plaintiff, his family members, his friends, and any person mentioned by name as having known Plaintiff in Plaintiff’s public writing; c) all Defendants to FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 136 cease and desist impersonating others; d) the immediate cessation of the operation of the Smick Sites and/or transfer of the Smick Site domain names to Plaintiff; e) Defendant Qazi to cease and desist using Twitter, directly or indirectly; and f) Defendant Qazi to permanently remove any and all of his content mentioning Plaintiff from any and all websites under his control. COUNT XIII Negligent Infliction of Emotional Distress Against Defendants Musk and Tesla 564. Plaintiff incorporates by reference the foregoing allegations. 565. Over time, Defendant Tesla has had a number of workplace policies that have been periodically revised and have at times pertained to overlapping subject matter. 566. As an officer, director and employee of Defendant Tesla, Defendant Musk is bound by Defendant Tesla’s workplace policies. 567. Defendants Musk and Tesla have frequently used the existence of Defendant Tesla’s workplace policies to justify the shielding of Defendant Musk’s purportedly private information and to excuse Defendant Musk’s failure to respond to inquiries involving service of process, thus admitting that Defendant Tesla’s policies are binding upon Defendant Musk. 568. Defendants Musk and Tesla owed Plaintiff a duty of care because starting in 2016, Tesla’s Anti-Harassment/Discrimination policy explicitly states that it applies to “visitors who enter onto Tesla’s premises” unconditionally and without regard to whether harassment, such as “[v]erbal abuse,” physically takes place on Tesla’s premises. 569. That policy was updated several times. Tesla’s July 2018 Policy Against Discrimination & Harassment in the Workplace (U.S. Locations) states: “At Tesla, we believe it’s essential to provide all employees with a respectful and safe working environment. As a result, we don’t tolerate discrimination, harassment or any mistreatment of employees in the workplace or work-related situations, whether based on a protected class under applicable law or otherwise. Because the intent of this Policy Against Discrimination & Harassment in the Workplace (the ‘Policy’) is to deter conduct that is unwanted, unreasonable, and demeaning, Tesla may consider an employee’s conduct to be in violation of this Policy even if it falls short of unlawful conduct under applicable law. When determining whether conduct violates this Policy, we consider whether a reasonable person could conclude that the conduct FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 137 contributed to or created an intimidating, hostile, degrading or demeaning work environment. Tesla does not consider conduct in violation of this Policy to be within the course and scope of employment and does not sanction such conduct on the part of any individual or employee, including people leaders. This Policy applies to everyone who works for Tesla and any of its subsidiaries. Everyone – including individual contributors and people leaders – is responsible for following and upholding this Policy. Additionally, we don’t tolerate conduct in violation of this Policy by employees towards non-employees (e.g., contingent workers or contractors, guests, vendors, customers, etc.), nor do we tolerate such conduct by nonemployees towards employees.” 570. Workplace (U.S. Locations) reiterates the above paragraphs and further states: “Other types of prohibited harassment may include behavior similar to the examples above pertaining to sexual harassment. It can also include, but is not limited to: • Verbal conduct including taunting, jokes, threats, epithets, derogatory comments or slurs based on an individual’s status in a Protected Class; • Visual and/or written conduct including derogatory posters, photographs, calendars, cartoons, drawings, websites, emails, text messages or gestures based on an individual’s status in a Protected Class; or • Physical conduct including assault, unwanted touching or blocking normal movement because of an individual’s status in a Protected Class. Tesla’s November 28, 2018 Policy Against Discrimination & Harassment in the The list of examples in this Policy is not exhaustive, and there may be other behaviors that are unacceptable under this Policy. ‘I was joking’ or ‘I didn’t mean it that way’ are not defenses to allegations of harassment or violations of this Policy. Nor is being under the influence of alcohol or other substances. This Policy applies to conduct at work, in work areas (even when off duty) including in the Company parking lot, and at work-related social events, office parties, off-sites, and customer entertainment events. Employees are expected to be particularly careful about what they say and do in these circumstances. You do not need to be the subject of the conduct to be negatively impacted; rather, it is sufficient for you to have personally witnessed such offensive conduct. Harassment does not include a reasonable action taken by Tesla relating to the supervision and direction of an employee or the workplace.” 571. Pursuant to Defendant Tesla’s November 28, 2018 Policy Against Discrimination FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 138 & Harassment in the Workplace (U.S. Locations), Defendant Musk is a “people leader” “who works for Tesla.” 572. Pursuant to Defendant Tesla’s November 28, 2018 Policy Against Discrimination & Harassment in the Workplace (U.S. Locations), Plaintiff is a “non-employee” “guest.” 573. On December 29, 2018, Plaintiff visited Tesla property, namely, the Tesla Showroom and Service Center at 999 Van Ness Avenue in San Francisco to look into purchasing a Tesla Model 3, at which point a duty of care attached in regard to Plaintiff in perpetuity. 574. Plaintiff was harassed by Defendants Musk and Tesla and their agents from through present day for expressing serious concerns about the Tesla Model 3 and Tesla in general, in a way that was “unwanted, unreasonable, and demeaning.” 575. In violation of Defendant Tesla’s policies, Defendant Musk himself published the following statements about Plaintiff on his Twitter account, read by millions worldwide: Date / Medium October 9, E-Mail and Twitter via Qazi October 12, Twitter July 3, Twitter Written Statement by Defendant Musk “Does the psych ward know you have a cell phone? Just curious.” “@DrPatSoonShiong, are you aware that one of your senior journalists (Russ Mitchell) is openly funding a fake charity run by an online bully?” “Greenspan is crackers, bananas, barky & ten cards short of a full deck” 576. Plaintiff informed the Tesla Board of Directors, including Defendant Musk, via e- mail that he was being harassed on August 7, 2019. Plaintiff received no response. The harassment continued. 577. Plaintiff filed a formal “Tesla Integrity Line” complaint on October 22, 2021. Plaintiff received no response. The harassment continued. 578. On December 1, 2022, Defendant Qazi posted on his @WholeMarsBlog Twitter account, “So if anyone has any ideas for next legal steps or has a good law firm that they think can really kick Aaron’s ass and make him cry let me know. He’s having too much fun. He needs to face justice for what he’s done, and pay back everyone who has donated to stop him.” 579. One week later, on December 8, 2022, Defendant Musk attempted to drag FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 139 Plaintiff into the Hothi v. Musk litigation via a frivolous and vexatious proposed cross-compliant. 580. Defendant Musk’s request to file the proposed cross-compliant was denied. Instead, on February 24, 2023, he filed the Alameda Case, a frivolous and vexatious lawsuit with no factual or legal basis against Plaintiff, and spent two months attempting to serve Plaintiff. 581. On April 4, 2023, Defendant Cashman issued a wildly overbroad, vexatious subpoena to Plaintiff on Defendant Musk’s behalf. 582. On April 7, 2023, Defendant Cashman issued a wildly overbroad, vexatious subpoena to Plaintiff’s company on Defendant Musk’s behalf. 583. Defendant Musk has a history of harassing critics with subpoenas. On October 28, 2019, Magistrate Judge Jacqueline Scott Corley described Defendant Musk’s attempt to subpoena then-BuzzFeed journalist Ryan Mac as pertaining to “irrelevant and harassing topics,” noting “the record suggests Mr. Musk feels animus toward non-party Mr. Mac.” See Unsworth v. Musk, Northern District of California Case No. 3:19-mc-80224-JSC, ECF No. 32. 584. Once he had purchased Twitter, Inc., on or around June 13, 2023, Defendant Musk ordered Defendant X Corp. to terminate not only Plaintiff’s business account, @PlainSite, but his personal account, @AaronGreenspan, as well. 585. All of these actions violated Defendant Tesla’s anti-harassment policies. 586. On or around July 26, 2024, Defendant Qazi had the approval of Defendants Musk and Tesla when he wrote on his @WholeMarsBlog Twitter account to approximately 500,000 followers that “@SECGov look into my stalker Aaron Jacob Greenspan” for “short and distort and harassment” crimes. 587. Due to the harassment, Plaintiff suffered a degree of emotional distress that no person should reasonably be forced to endure. Plaintiff reported being harassed to local and federal law enforcement repeatedly. For years, Plaintiff described the harassment to a journalist as it was happening in real-time so that if he were to be physically harmed, there would be a witness who understood the situation. Plaintiff also enhanced his home security. Plaintiff is thus entitled to punitive damages. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 140 COUNT XIV Fraud on the Court (Malicious Prosecution) Against Defendants Musk, Singer Cashman, LLP, Cashman, Huebert and Mehes 588. Plaintiff incorporates by reference the foregoing allegations. 589. Establishing his pattern of vexatious litigation that has now become familiar to this Court, Defendant Musk set out in 2022 to file a frivolous “case in order to punish [Plaintiff] for [Plaintiff’s] publications that criticized [Defendant Musk and his businesses].” X Corp. v. Center for Countering Digital Hate, Inc., Case No. 3:23-cv-03836-CRB (N.D. Cal. March 25, 2024). This constituted an ulterior motive that was not a proper impetus for litigation. 590. On December 8, 2022, Defendant Musk attempted to file the Alameda Case in the form of a cross-complaint in another lawsuit then pending in Alameda County, Hothi v. Musk— in which Defendant Musk was sued for libel by short-seller Randeep Hothi based on a public email conversation from 2019 between Plaintiff and Musk re-published on PlainSite. Musk did so for the primary purpose of harassing Plaintiff, or in Musk’s words, seeking Greenspan’s “blood” because he believed Greenspan to be “evil.” 591. When Judge Julia Spain denied Defendant Musk’s request for leave to file the proposed cross-compliant, the same claims were filed as a complaint in the new, separate Alameda Case on February 24, 2023 (the “Alameda Complaint”). 592. The Alameda Complaint and the proposed cross-compliant preceding it constituted a willful fraud on the Superior Court of California for the County of Alameda, in violation of numerous State Bar Rules of Professional Conduct in California and in Texas. 593. The Alameda Complaint contained numerous falsehoods: a) The Alameda Complaint stated that “Mr. Greenspan has made a career out of threatening and harassing individuals and businesses.” This is false. b) The Alameda Complaint stated that Plaintiff’s “first major target was Facebook.” This is false. Plaintiff has never had any “targets.” Mark Zuckerberg openly admits that Plaintiff developed the initial version of “The Facebook” at Harvard College in 2003, of which Zuckerberg was a member. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 141 Had Plaintiff “threaten[ed] and harass[ed]” Zuckerberg and/or Facebook as claimed by Mr. Musk, they would not have settled with Plaintiff and Plaintiff’s company in 2009. See https://about.fb.com/news/2009/05/ facebook-and-think-computer-corporation-resolve-trademark-dispute/. c) The Alameda Complaint stated that “Mr. Greenspan’s own website had been shut down for privacy violations because it improperly collected Harvard university account passwords from students.” This is false. In 2003, Harvard University administrators lacking technological savvy were concerned about the way that Greenspan’s houseSYSTEM student portal stored passwords, which they did not understand, but at no point was any password ever compromised as Greenspan used appropriate technologies to safeguard passwords for the time. Nor was houseSYSTEM ever “shut down” due to any issues involving passwords. The possibility was merely discussed. d) The Alameda Complaint stated that Greenspan filed a frivolous lawsuit “because he was not included as a character in The Accidental Billionaires.” This is false. The lawsuit in question was not frivolous; the same defendants settled a similar defamation claim from another party for $1 million before it was filed in court. Greenspan was included in both the 2009 and editions of The Accidental Billionaires, which is to say, all editions. This fact is easily verifiable using, for example, Google Books, which allows any person to instantly search text within numerous books free of charge. e) The Alameda Complaint stated that Greenspan’s company “was forced to shut down” because of “consumer protection law violations.” This is false. Greenspan’s company 1) did not shut down; 2) did not violate any consumer protection laws; and 3) was never even accused of violating any consumer protection laws. The facts surrounding Greenspan’s company’s dispute with the then-California Department of Financial Institutions over the FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 142 constitutionality of the 2010 California Money Transmission Act—including the fact that Greenspan shut down the company’s payment system voluntarily to prevent any legal violations—are a matter of public record. Moreover, Greenspan’s company was named as a defendant in the Complaint in the Alameda Case, so any reasonable attorney would have questioned the basis for the allegation given that the “shut down” company was still operating. f) The Alameda Complaint stated that Plaintiff “acted with actual malice because, among other reasons, he caused Mr. Musk’s statement to be publicized precisely in order to help support Mr. Hothi’s claim for reputational damages in response to Mr. Musk’s initial private, and true, statement.” This is false. Plaintiff did not believe that Mr. Hothi had any claim for reputational damage at the time, and the response from Defendant Musk was in no way private, nor was it completely true. g) The Alameda Complaint stated that Plaintiff “did not publicize Defendant Musk’s private email via PlainSite.org or Twitter until after having first communicated with Mr. Hothi’s counsel.” This is false. Musk’s e-mail was not private, as he knew or should have known that Plaintiff intended to publish it. Plaintiff waited to publish because Defendant Musk failed to respond as promised, causing Plaintiff to decide to allow him additional time. h) The Alameda Complaint stated that Plaintiff “reached out to Mr. Hothi and recommended that he retain plaintiff lawyer Gill Sperlein and his fellow $TSLAQ member, Mr. Fossi, to defend Mr. Hothi in the restraining order proceedings.” This is false as Plaintiff did not know who Gill Sperlein was. i) The Alameda Complaint stated that Plaintiff filed “vexatious lawsuits.” This is false. Plaintiff is not now and never has been a vexatious litigant in California or any other state. No lawsuit he has ever filed has been “vexatious.” A motion filed by Diego MasMarques, Jr. to have Plaintiff FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 143 deemed a vexatious litigant was flatly denied by a Superior Court of Santa Clara County judge in 2019. A second attempt by Mr. MasMarques in the District of Massachusetts to have Plaintiff deemed a vexatious litigant was denied by District Judge Denise J. Casper in March 2024. j) The Alameda Complaint stated that Plaintiff had filed “more than 60 lawsuits” in his career. This is false. Plaintiff has not filed anywhere close to lawsuits in his career, directly or indirectly. k) The Alameda Complaint stated that Plaintiff had “over 100 victims.” This is false. Plaintiff has never been charged with a crime let alone convicted of one, naming a defendant in a civil lawsuit is not a criminal act, and dozens of the defendants named in Plaintiff’s lawsuits were merely alter egos or subsidiaries of other defendants. l) The Alameda Complaint stated that “Mr. Greenspan did not engage in any due diligence.” This is false. Plaintiff was known to Defendant Musk precisely because of his ability to conduct due diligence, which he did prior to contacting Mr. Musk in August 2019. 594. The Alameda Complaint was authored and/or reviewed by Mr. Musk’s three attorneys: Defendant Cashman, Defendant Huebert, and Defendant Mehes. 595. The Alameda Complaint was reviewed or should have been reviewed by Defendant Musk, on whose behalf it was filed. 596. The inclusion of the false and libelous statements concerning Plaintiff was deliberate and done with actual malice and reckless disregard for the truth. 597. The false and libelous statements in the Alameda Complaint were not included in the December 8, 2022 proposed cross-complaint filed in Hothi v. Musk. They were specifically added for the filing of the document as a separate, independent complaint. 598. The false and libelous statements in the Alameda Complaint were not covered by litigation privilege as Plaintiff’s time at Harvard, history with Facebook and Mark Zuckerberg, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 144 litigation over state money transmission laws, and litigation history in general all have absolutely nothing to do with, are not connected with, and have no logical relation to, Elon Musk libeling Randeep Hothi. The false and libelous statements were completely extraneous to the lawsuit. 599. The Alameda Case was filed as part of a much longer and broader campaign of defamation and harassment by Defendants. 600. Not until April 10, 2023 was Plaintiff or Plaintiff’s company properly served with any subpoenas in the Hothi v. Musk matter. 601. Had Defendant Musk and his Hardcore Litigation Department been interested in filing a new, separate complaint based on actual facts, they would have waited until after receiving and carefully evaluating the documents provided by Plaintiff or Plaintiff’s company in response to the Hothi subpoenas before proposing, let alone filing, any type of new pleading. 602. Given that the Alameda Complaint had already been filed based on Mr. Musk’s conspiracy theories and fabrications, the Hothi subpoenas served no actual purpose and were merely another instrument of harassment. 603. The subpoenas, signed by Defendant Cashman, were sweepingly broad, written with the apparent goal of learning which journalists Plaintiff had spoken with regarding Tesla since 2018 and learning exactly what they had spoken about, even though the vast majority of such communications had absolutely nothing to do with the Hothi litigation. 604. The Alameda Complaint had no factual basis. Defendants fabricated purported facts to justify the filing of the Alameda Complaint. 605. Defendant Musk and the members of the Hardcore Litigation Department all knew or should have known that the Alameda Complaint had no factual basis. 606. The Alameda Complaint was conceptually based on two misapprehensions by the Hardcore Litigation Department. Having been ordered by Defendant Musk to find evidence for his paranoid conspiracy theory that Plaintiff had orchestrated the Hothi litigation—even though Tesla was the first party to take action by applying for a restraining order against Randeep Hothi on false pretenses—the Hardcore Litigation Department attorneys: FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 145 a) misread an e-mail that Plaintiff sent to Randeep Hothi, presumably obtained from discovery in the Hothi matter, warning Mr. Hothi not to engage Gill Sperlein instead as a purported command to hire Gill Sperlein, when the e- mail said nothing of the sort; b) falsely assumed that Plaintiff had corresponded with Lawrence Fossi because Mr. Fossi had previously represented Randeep Hothi, when Mr. Hothi had nothing to do with Plaintiff’s decision to correspond with Mr. Fossi. 607. The Alameda Complaint had no legal basis as it amounted to a Strategic Lawsuit Against Public Participation. 608. The members of the Hardcore Litigation Department all knew or should have known that the Alameda Complaint had no legal basis. 609. Defendant Musk acted with malice. Defendant Musk boasted that he was “out for blood” and stated “There will be blood” in May 2022. 610. Defendant Musk explicitly described his plan in writing on Twitter—of using attorneys at Tesla to target “evil” short-sellers—on April 4, 2023. See https://x.com/elonmusk/status/1643335710840070148. Defendant Huebert and Defendant Mehes are or were Tesla attorneys. 611. Defendants Singer Cashman, LLP, Cashman, and Huebert refused to substantiate the legal basis for Mr. Musk’s Complaint pursuant to California Code of Civil Procedure § 430.41(a)(1) when asked during a recorded meet and confer session on April 28, 2023, citing a litany of excuses, including but not limited to “I’ll get back to you,” “I don’t understand what you mean,” and not having citations “handy at the moment.” See http://www.aarongreenspan.com/writing/musk/20230428.muskmeetandconfer.mp3. 612. Defendant Huebert also admitted that her lack of familiarity with California law had caused her to misrepresent Mr. Musk’s position and that she had spoken “too soon.” 613. On the same call, Defendant Huebert stated, “If you’re right, you’re right, and you know, maybe next week we’ll be like, yep, sorry, Aaron, you’re right, we looked at this and you FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 146 totally got us.” Indeed, on the next business day (the following week), Defendant Musk’s Hardcore Litigation Department unilaterally filed its Request For Dismissal with prejudice with regard to Defendants’ frivolous and vexatious Alameda Complaint. 614. Defendant Huebert stated that “unfortunately, one of the reasons you’re in this is, uh, you know, you sent the…Elon’s response to Fossi and Hothi before it was publicized.” This allegation was and is false. Plaintiff did not send Defendant Musk’s e-mail responses to Randeep Hothi before they were publicized. On August 8, 2019 at 10:08 A.M., Bloomberg News journalist Dana Hall had asked Plaintiff “Did you share this with ska?” referring to the Musk e- mail conversation up to that point and @skaboosha, Randeep Hothi’s Twitter account. Plaintiff responded, “Not yet. I am planning to release it all today to everyone at once when Elon responds again. I’ll give him another couple hours.” Thus, Defendants’ assumption that Randeep Hothi had received special treatment from Plaintiff was false. 615. While Defendants assumed that Plaintiff sent Defendant Musk’s e-mail responses to attorney and short-seller Lawrence Fossi because of his representation of Randeep Hothi in the Tesla, Inc. v. Hothi case, this assumption was false, and this false assumption, at least according to Defendant Huebert, was Defendant Musk’s primary basis for filing the Alameda Complaint. In fact, Plaintiff sent Mr. Musk’s e-mail responses to Mr. Fossi because having himself been harassed by Defendant Musk in 2018, Mr. Fossi was uniquely positioned to suggest additional questions to ask Mr. Musk. 616. On August 8, 2019 at 6:46 A.M., Plaintiff wrote by e-mail to three journalists and Mr. Fossi, “I’ve been forwarding to press so you all have a head start and to you Lawrence because you kicked this all off a year ago.” By “kicked this all off a year ago,” Plaintiff was referring to the 2018 episode in which Defendant Musk revealed Mr. Fossi’s pseudonym, “Montana Skeptic,” as a form of harassment and revenge for posting informed criticism. 617. Even if Plaintiff had somehow sent Mr. Fossi Defendant Musk’s e-mail responses prior to publication because Mr. Fossi represented Randeep Hothi—which was not why he sent them—this would not have conferred any particular benefit or advantage on Mr. Hothi at all, as FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 147 the messages were published hours later anyway and no litigation was pending at the time. 618. Plaintiff was forced to expend a considerable amount of time, energy and money defending himself against Defendants’ false claims in court, as well as Defendant Musk’s overly broad and unduly burdensome subpoenas. 619. The Hardcore Litigation Department knew in advance that Plaintiff intended to file a demurrer in the Alameda Case on Monday, May 1, 2023, and that doing so would incur filing fees. Defendant Cashman did not definitively answer the question as to whether the Alameda Complaint was being voluntarily dismissed until after Plaintiff’s demurrer had already been filed on that day. Even if the demurrer had not been filed, however, conducting legal research, drafting the motion for sanctions and the demurrer, and securing legal representation for Plaintiff’s company took a great deal of time and money. 620. After Plaintiff served all Defendants except Qazi with a Cross-Complaint on May 3, 2023 pursuant to the parties’ mutual agreement to electronic service, Ms. Huebert sent an e- mail dated May 12, 2023 at 6:34 P.M. Pacific Time, stating in part: “Any previous agreement regarding electronic service—which, in any event, would have applied only to service on Mr. Musk—was extinguished with the dismissal of the action in question. To avoid any doubt, however, we are also providing notice to you today that we affirmatively rescind any prior agreement to accept service electronically on behalf of Mr. Musk, or for any purpose with respect to the instant matter and Hothi v. Musk. With respect to myself and the other named defendants you reference, in the unlikely event the Court issues summonses for your defective suit, we do not agree to accept service electronically.” 621. Defendant Huebert’s May 12, 2023 attempt to electronically renege on her and Defendant Musk’s agreement to accept electronic service of process violated Section 128.5 of the California Code of Civil Procedure, which forbids “bad faith” “tactics” “that are frivolous or solely intended to cause unnecessary delay.” It also plainly violated Rule 3.02 of the Texas Disciplinary Rules of Professional Conduct, entitled “Minimizing the Burdens and Delays of Litigation.” This Rule explicitly states: “[A] client may seek to have a lawyer delay a proceeding primarily for the purpose of harassing or maliciously injuring another. Under this Rule, a lawyer is obliged not to FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 148 take such an action. See also Rule 3.01. It is not a justification that similar conduct is often tolerated by the bench and the bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay undertaken for the purpose of harassing or malicious injuring.” Her conduct also violated Rule 3.27(a) of the Local Rules of the Alameda County Superior Court, which states in part: “Represented parties and other represented persons must participate in electronic filing (e-filing) using a court-approved electronic service provider (EFSP) and must serve and accept service electronically, except by court order or if other service is required by law.” 622. There was no legitimate reason to suddenly insist on service of process by mail or in person as of May 12, 2023 at 6:34 P.M. Defendant Huebert’s goal was to delay Plaintiff. 623. Defendant Huebert’s goal of impeding the litigation that she started with her colleagues was affirmed in her 6:58 P.M. follow-up e-mail, which stated: “Are you represented by counsel in this dispute? If you are, we are not permitted to communicate with you directly, so please forward us their contact information if that’s the case.” 624. Defendants continued to make false representations via e-mail in connection with the Alameda Case through at least June 14, 2023, with Defendant Huebert claiming, “there is no pending case in which you may serve discovery” and “I just received your other email, which was filtered in my spam again due to an unverified DNS associated with your email address,” both of which were false statements. In fact, the Alameda Case remained open until July 11, 2023, and as Plaintiff indicated to Defendant Huebert at the time, “I double-checked and as I thought, the plainsite.org domain does in fact have a valid DNS SPF record in place—and has the entire time that we have corresponded.” 625. Defendant Musk and his agents’ and counsel’s conduct was malicious and oppressive and done with a willful and conscious disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. 626. With a net worth at times reportedly in excess of $200 billion, Defendant Musk is one of the wealthiest individuals on Earth and did not need to seek funds from Plaintiff or anyone to attempt to offset his potential legal liability in the Hothi action. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 149 627. Defendant Musk caused the Alameda Complaint to be filed for the improper purpose of harassing Plaintiff and harming Plaintiff financially, or in his words, to draw “blood.” 628. Defendant Musk caused the Alameda Complaint to be filed based on the libelous and unsubstantiated statements of Defendant Qazi. 629. Defendant Qazi’s language, “67 lawsuits against hundreds of victims,” was echoed almost verbatim by Defendant Musk in ¶ 4 of the Alameda Complaint. 630. Defendant Qazi obtained much of the false information he repeated against Plaintiff from Diego MasMarques, Jr., whose ComplaintsBoard post Defendant Musk cited in the 2019 e-mail conversation that was the purported basis for the Alameda Complaint. 631. Defendant Musk caused the Alameda Complaint to be filed against Plaintiff and Plaintiff’s company—even though he either believed that Plaintiff was acting independently or as an employee of his company—in order to waste Plaintiff’s resources. 632. Defendant Musk caused the Alameda Complaint to be filed in a venue where neither he nor Plaintiff resided. 633. Defendant Musk’s claims were substantively resolved in Plaintiff’s favor as they were unilaterally and voluntarily dismissed by Defendant Musk just two weeks and two days after service was effective on Plaintiff, on the last possible day for Mr. Musk to avoid the filing of Plaintiff’s motion for sanctions under Sections 128.7 and 1010.6 of the California Code of Civil Procedure, indicating that the reason for dismissal was substantive. 634. Defendant Musk did not at any point reach a settlement agreement with Plaintiff. 635. Defendant Musk and his agents’ and counsel’s conduct was malicious and oppressive and done with a willful disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. COUNT XV Professional Negligence Against Defendants Musk, Singer Cashman, LLP, Cashman, Huebert and Mehes 636. Plaintiff incorporates by reference the foregoing allegations. 637. The Hardcore Litigation Department and its client, Defendant Musk, owe a duty FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 150 of the care to any court they file in and/or to any tribunal before which they appear. 638. Defendant Musk and the Hardcore Litigation Department were grossly negligent and acted with reckless disregard in preparing and filing the Alameda Complaint. 639. In preparing the Alameda Complaint, Defendant Musk and the Hardcore Litigation Department relied on a combination of incorrect data from Google searches; false, unverified statements that originated on a Wikipedia page that redirects from “Aaron Greenspan;” at least one court decision based on a material typographical error sourced from https://wiki.answers.com; and conspiratorial allegations passed through Defendant Qazi that originated with a convicted murderer with a documented history of mental illness. 640. Defendant Musk is a known associate of eugenicists, child molesters, and sex traffickers Jeffrey E. Epstein (deceased) and Ghislaine Maxwell, both convicted felons—a fact about which he has lied in public repeatedly. Defendant Musk also used Defendant Birchall as an intermediary to pay a British convicted felon $50,000 for false information. See https://www.buzzfeed.com/ryanmac/elon-musk-hired-felon-james-howard-higgins-dirt-pedo- guy. Given this history, the Hardcore Litigation Department had an obligation to ensure that Musk was not again relying on or paying for false information from yet another convicted felon. 641. Defendant Musk himself distrusts Wikipedia. On July 29, 2022, he posted “Wikipedia is losing its objectivity @jimmy_wales” on his @elonmusk Twitter account. 642. The Alameda Complaint is replete with indicia of overall gross negligence: a) The Alameda Complaint falsely states that Plaintiff lives and works in Mountain View—information that was eight years out of date—even though Plaintiff’s filings in the Northern District of California from 2020 onward, dozens in all, and all in the possession of Musk’s counsel, state on the first page of every document that Plaintiff lives and works in San Francisco. b) The footer in the Alameda Complaint stated that it is the “COMPLAINT OF DEFENDANT ELON MUSK,” even though Defendant Musk is the plaintiff in that filing because defendants are not filers of complaints by definition, as FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 151 should be obvious to any attorney. The Hardcore Litigation Department was so sloppy when preparing the Alameda Complaint that all of its members apparently forgot to change the footer from their rejected proposed cross- complaint, where Elon Musk was the defendant. c) Heading I(A)(1) in the Alameda Complaint, “1. Greenspan’s Association With $TSLAQ,” is orphaned. There is no subsequent heading I(A)(2). 643. These errors and the substantive issues with the Alameda Complaint did not phase the Hardcore Litigation Department because they all exhibited reckless disregard for the truth, and because their primary goal was not to achieve any sort of justice involving Plaintiff, but simply to further smear his reputation and harass him. 644. The errors and substantive issues with the Alameda Complaint have harmed and will continue to harm Plaintiff by providing a permanent record of damaging, false information that many, if not most, readers—including attorneys—will assume to be true. 645. As an entrepreneur in Silicon Valley, the existence of such false records and the associated false allegations coming from a notable billionaire is likely to preclude Plaintiff from being able to raise the same type of venture capital funding that Plaintiff’s peers have been able to secure, and which at one point was necessary for Defendant Musk to launch his own career. 646. The existence of such false records impacted Plaintiff’s ability to secure legal representation. 647. Defendant Musk and his agents’ and counsel’s conduct was malicious and oppressive and done with a willful and conscious disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. COUNT XVI Unjust Enrichment Against Defendants Qazi and Smick 648. Plaintiff incorporates by reference the foregoing allegations. 649. Defendants Qazi and Smick earned an unjust benefit from the Atlanteca Enterprise in an amount of at least $6,206.00 due to their unlawful conduct regarding Plaintiff. FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 152 650. Defendants Qazi and/or Smick earned an unjust benefit from Google AdSense banner advertising placed on web pages containing libelous statements about Plaintiff. 651. Defendants Qazi and/or Smick earned an unjust benefit from the Tesla referral program. 652. On the basis of his hundreds of libelous statements about Plaintiff and false statements about Greenspan I, Defendants Qazi and/or Smick unfairly raised over $150,000 in donations from fans of Defendants Musk and Tesla to mount a bad-faith defense against Plaintiff in Greenspan I, which ultimately failed to dismiss all of Plaintiff’s claims with prejudice. 653. On December 12, 2023, Defendant Qazi posted on Twitter, “Today, the majority of my income actually comes from social media, with only a minority coming from software development. Huge thanks to the X team for making this possible. My income comes from advertising revenue share on X and YouTube, $3 a month X subscriptions from people who like my content, tips from my X profile, and sponsorships from companies who want me to help get the word out about their product or service… Some people have said recently that I have too much money, so people shouldn’t support Whole Mars… You might not think social media is a serious job and laugh at me and call me pathetic but this is the primary way I feed myself and take care of basic needs. My parents didn’t take it seriously either until they saw that there was real interest from sponsors and meaningful ad revenue share.” See https://x.com/WholeMarsBlog/status/1734429337682940309. All of Defendant Qazi’s stated “income” is derived from libeling Plaintiff and fraud harming Plaintiff. 654. Plaintiff is entitled to restitution plus interest. COUNT XVII Violation of Unfair Competition Law (California Business and Professions Code § 17200) Against Defendants Qazi and Smick 655. Plaintiff incorporates by reference the foregoing allegations. 656. Plaintiff and Defendants Qazi and Smick compete in the field of news distribution and software development. 657. Defendant Qazi harmed Plaintiff by unlawfully impersonating his family FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 153 members. 658. On June 4, 2022, on behalf of Defendants Musk and Tesla, Defendant Qazi wrote from his @WholeMarsBlog Twitter account, “Greenspan and the directors of his fraudulent charity @Plainsite must reimburse Qazi $200k in fees + $1 million of damages or they will face a countersuit.” In sum, Defendant Qazi demanded $1.2 million from Plaintiff to avoid a frivolous lawsuit. 659. Defendant Qazi posted screenshots of correspondence with Defendant Musk and his attorney, Defendant Alex Spiro, involving at least one planned lawsuit against Plaintiff. 660. An unknown individual purporting to work for Quinn Emanuel on behalf of Defendant Musk contacted Plaintiff’s father at his home in 2020. 661. Plaintiff interpreted Defendant Qazi’s extortionate threat to be serious. 662. Plaintiff refused to pay Defendant Qazi $1.2 million. 663. Defendant Qazi’s conduct was unlawful in violation of California Penal Code § 524, “Attempted Extortion.” 664. Defendant Musk attempted to file the Alameda Case against Plaintiff approximately six months later, and persisted in filing it even after his initial motion for leave to file was denied. 665. Plaintiff incurred court costs in excess of $450.00 to defend against the frivolous lawsuit threatened by Defendant Qazi and actually filed by Defendant Musk, not including the additional costs of filing related claims. 666. Plaintiff incurred PACER and state court fees for legal research related to the Alameda Complaint’s baseless claims and Defendants’ campaign of defamation and harassment. 667. Plaintiff’s company incurred legal fees and court costs of over $1,000.00 to defend against the frivolous lawsuit threatened by Mr. Qazi and filed by Mr. Musk. 668. Plaintiff’s company’s finances pass through to his personal tax return as his company is a Subchapter S corporation. 669. Defendant Musk and his agents’ and counsel’s conduct was malicious and FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 154 oppressive and done with a willful and conscious disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. COUNT XVIII Violation of Unfair Competition Law (California Business and Professions Code § 17200) Against Defendants Musk, Tesla, Singer Cashman, LLP, Cashman, Huebert, Mehes and Spiro 670. Plaintiff incorporates by reference the foregoing allegations. 671. Defendants engaged in unlawful and unfair business practices intended to artificially inflate Tesla’s reported profits. 672. Plaintiff has lost money due to Defendant Tesla’s persistent perjury, which was intended to artificially inflate Tesla’s reported profits. Defendant Musk and/or Representatives of Defendant Tesla perjured themselves in violation of California Penal Code § 118 when: a) Defendant Musk falsely stated under oath during his June 1, 2019 deposition in Delaware Court of Chancery Case No. 12711-VCS that he was “sure [he] thought it was correct” that “SolarCity [was] headed to cash flow positive situation for the next three to six months at the outside” even as it was drowning in losses and debt. When warned about “penalty of perjury,” Musk responded by saying, “This is unreasonable” and “you just keep trying to ask all of these tricky questions.” See https://www.plainsite.org/dockets/ download.html?id=289302298&a=3&z=f7555350 at 161-165. Musk used the phrase “I don’t recall” at least 65 times. Musk also falsely claimed that he believed Tesla’s “growth of megawatts deployed would be very significant” even as he intended to and then did assign virtually all of SolarCity’s employees to work on the Model 3. Id. at 37. b) Mark Olson, former Tesla Senior Director, U.S. Tax, submitted false and incomplete application materials to CAEATFA under penalty of perjury when he responded “None” to a question that required him to “Disclose any legal or regulatory action or investigation that may have a material impact on the FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 155 financial viability of the project or the Applicant.” c) When Tesla applied to start a regulated insurance company with the California Department of Insurance, under penalty of perjury an unknown employee answered the question “Has the business entity or any of its partners, members, controlling persons, officers, directors, managers or any shareholders owning 10% or more interest in the business entity, ever been notified by any jurisdiction to which you are applying of any delinquent tax obligation that is not the subject of a repayment agreement?” by checking “No.” Tesla was sued for failing to pay taxes on March 10, 2017. See County of Orange, Treasurer-Tax Collector v. Tesla Inc, Superior Court of California for the County of Orange, Case No. 30-2017-00909290-SC-SC-CJC. d) On the same California Department of Insurance application, under penalty of perjury an unknown employee answered, “Has the business entity or any of its partners, members, controlling persons, officers, directors, managers or any share- holders owning 10% or more interest in the business entity, a party to, or ever been found liable in any lawsuit or arbitration proceeding involving allegations of fraud, misappropriation or conversion of funds, misrepresentation or breach of fiduciary duty?” by checking “No.” Elon Musk and Tesla, Inc. were sued for securities fraud by the SEC and settled the case, after which Musk was charged with contempt of court for violating the agreement. Separately, Musk admitted that he concocted a “bait and switch” scheme involving Roadster deposits, and Kimbal Musk admitted that Elon had misappropriated Roadster deposit funds. 673. Defendants Musk and Tesla encouraged Tesla employee Vivien Hantusch to post promotional materials on her nominally-independent @flcnhvy Twitter account without any disclaimers explaining her formal business relationship with Tesla, in violation of the FTC Act. 674. Defendants Tesla has willfully violated 16 C.F.R. § 465 on an ongoing basis FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 156 through its FSD EAP. 675. Defendant Tesla has willfully violated of California Vehicle Code §§ 24011.5 and 11713 on an ongoing basis through its marketing of “Autopilot” and FSD. 676. Defendant Spiro unlawfully represented Defendants Musk and Tesla in California, where he is unlicensed, in violation of California Business and Professions Code § 6125, including in Greenspan I. 677. Defendants Singer Cashman, LLP, Cashman, Huebert and Mehes willfully violated Section 128.5 of the California Code of Civil Procedure, Rule 3.2 of the California Rules of Professional Conduct, Rule 3.02 of the Texas Disciplinary Rules of Professional Conduct, and Rule 3.27(a) of the Local Rules of the Alameda County Superior Court. 678. Defendants Singer Cashman, LLP, Cashman, Huebert, Mehes, and Spiro have willfully violated Rule 3.3 of the California Rules of Professional Conduct and Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct on an ongoing basis. 679. Plaintiff spent money on PACER fees for legal research as a consequence of Defendant Spiro’s unlicensed practice of law. 680. Plaintiff spent hundreds of dollars on fees for service of process that, but for Defendants’ violations of law, would have been unnecessary. 681. Plaintiff suffered a monetary loss of at least $60,000.00 due to Defendants’ myriad violations of law and unfair business practices. 682. Defendants’ conduct was malicious and oppressive and done with a willful and conscious disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. COUNT XIX False Advertising (California Business and Professions Code § 17500) Against Defendants Musk, Tesla and X Corp. 683. Plaintiff incorporates by reference the foregoing allegations. 684. Defendants engaged in false advertising with regard to Tesla “Autopilot,” FSD, “robotaxis,” and numerous other products and topics. 685. On July 17, 2024, Defendant Musk wrote on Twitter, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 157 “𝕏 is a free speech platform that aspires to give equal voice to all, within the bounds of the law.” and “You can do anything on this platform that doesn’t violate or probably violate the law.” These statements were and are false. At all times, Plaintiff’s use of Twitter fell well “within the bounds of the law,” and did not “violate the law,” yet Plaintiff’s @PlainSite and @AaronGreenspan accounts were suspended. 686. On August 27, 2024, Defendant Musk wrote on Twitter, “Just want to reiterate that this platform really is meant to support all viewpoints within the bounds of the laws of countries, even those of people with whom I vehemently disagree and personally dislike. If that doesn’t seem to be happening, please yell at me (ideally on 𝕏).” This statement was and is false. At all times, Plaintiff’s use of Twitter fell well “within the bounds of the laws of countries,” yet Plaintiff’s @PlainSite and @AaronGreenspan accounts were suspended because Plaintiff is a person that Defendant Musk “personally dislike[s].” COUNT XX Declaratory Judgment Against Defendants Singer Cashman, LLP, Cashman, Huebert and Mehes 687. Plaintiff incorporates by reference the foregoing allegations. 688. The Declaratory Judgment Act provides that in “a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 689. After May 1, 2023, even after the Alameda Case had been voluntarily dismissed, Defendants Singer Cashman, LLP, Cashman, Huebert and Mehes asserted that a cross-claim could not be filed against them for malicious prosecution. 690. Pursuant to California precedent, victims of malicious prosecution must presently file a separate civil suit after the conclusion of the underlying suit in the victim’s favor. 691. Under California law, a filing fee is due both for the plaintiff at the time of filing, FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 158 and for each defendant at the time that a first responsive pleading is filed. 692. Thus, California’s fee schedule and prohibition on filing a cross-claim for malicious prosecution in the same malicious action violates the victim’s due process rights by requiring the victim to pay a filing fee twice: first to first respond to the malicious lawsuit, and then again to file the claim for malicious prosecution. 693. Plaintiff seeks a Declaratory Judgment clarifying that the Fifth Amendment forbids such an arrangement and that California courts must retain limited jurisdiction after a malicious lawsuit has been dismissed in the victim’s favor to hear any potential cross-claim for malicious prosecution, just as California courts retain jurisdiction to hear any motion for attorney’s fees and/or costs. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment as follows: A. Judgment against Defendants on all counts of the First Amended Complaint; B. A permanent injunction enjoining all Defendants from making further libelous statements, contacting Plaintiff or his family, impersonating others, and requiring the immediate cessation of the operation of Defendant Qazi’s and/or Smick’s websites regarding Plaintiff; C. Recovery from all Defendants of damages, including pre-judgment interest Plaintiff sustained and will sustain, and any income, gains, profits, and advantages obtained by Defendants as a result of their unlawful, unfair, fraudulent and deceptive acts alleged hereinabove, in an amount not yet known, to be assessed at the time of trial; D. Treble damages pursuant to 18 U.S.C. § 1964(c); E. Actual and punitive damages, including costs and attorneys’ fees (should Plaintiff engage counsel); F. Compensatory, consequential and punitive damages resulting from Defendant’s violation of California Civil Code §§ 1708.7 and 3294; G. Plaintiff’s reasonable costs and expenses of this action, including any attorneys’ fees FIRST AMENDED COMPLAINT 3:24-cv-04647-MMCPage 159 and costs (should Plaintiff engage counsel), in accordance with applicable law; H. Such equitable/injunctive or other relief as the Court may deem just and proper. JURY DEMAND Plaintiff demands a trial by jury for all issues so triable. Dated: August 28, Aaron Greenspan 956 Carolina Street San Francisco, CA 94107-Phone: +1 415 670 Fax: +1 415 373 E-Mail: aaron.greenspan@plainsite.org FIRST AMENDED COMPLAINT 3:24-cv-04647-MMC PDF Page 1 PlainSite Cover Page PDF Page 2 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 1 of 159 1 2 3 4 Aaron Greenspan (Pro Se) 956 Carolina Street San Francisco, CA 94107-3337 Phone: +1 415 670 9350 Fax: +1 415 373 3959 E-Mail: aaron.greenspan@plainsite.org 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 6 7 8 9 10 Case No. 3:24-cv-04647-MMC AARON GREENSPAN, FIRST AMENDED COMPLAINT FOR: Plaintiff, 11 12 13 14 15 16 17 18 19 v. 1. ELON MUSK, TESLA, INC., X CORP., THE ELON MUSK REVOCABLE TRUST DATED JULY 22, 2003, EXCESSION, an individual, LLC, JARED BIRCHALL, MORGAN STANLEY & COMPANY, LLC, OMAR QAZI, SMICK ENTERPRISES, INC., SINGER CASHMAN, LLP, ADAM S. CASHMAN, ALLISON HUEBERT, ADAM G. MEHES, and ALEX SPIRO, 2. 3. 4. 5. 6. 7. 8. Defendants. 9. 20 10. 11. 12. 21 22 23 13. 24 25 14. 26 Violation of Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964 Securities Fraud: California Corp. Code §§ 25400, et seq. Fraud Negligent Misrepresentation Defamation Per Se Defamation Violation of Anti-Stalking Statute, Civil Code § 1708.7, et seq. Negligent Infliction of Emotional Distress Fraud on the Court (Malicious Prosecution) Negligence Unjust Enrichment Violation of California Unfair Competition Law, Business and Professions Code § 17200 Violation of California False Advertising Law, Business and Professions Code § 17500 Declaratory Judgment DEMAND FOR JURY TRIAL 27 28 FIRST AMENDED COMPLAINT 28 i 3:24-cv-04647-MMC PDF Page 3 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 2 of 159 1 TABLE OF CONTENTS 2 TABLE OF CONTENTS................................................................................................................ ii 3 INTRODUCTION .......................................................................................................................... 1 4 A. The Tesla Matryoshka Doll of Nested, Interdependent Frauds .......................................... 1 B. The Plot Against PlainSite .................................................................................................. 6 5 C. The “Tesla Files” Confirm The Suspicions of Critics, Including Plaintiff ......................... 9 6 D. Litigation History .............................................................................................................. 10 7 PARTIES ...................................................................................................................................... 13 8 9 JURISDICTION AND VENUE ................................................................................................... 21 AGENCY, JOINT VENTURE, AIDING AND ABETTING, AND CONSPIRACY ................. 21 FACTS COMMON TO ALL CLAIMS FOR RELIEF ................................................................ 22 10 A. The Tesla “Autopilot” Fraud ............................................................................................ 22 11 B. The Tesla “Full Self-Driving” Fraud ................................................................................ 25 C. The Tesla Vehicle Quality Fraud ...................................................................................... 39 D. The Tesla Solar Fraud ....................................................................................................... 40 E. The Tesla Stock Inflation Fraud ....................................................................................... 47 12 13 14 a. 15 16 Accounting Fraud: Cash Balances ........................................................................ 48 i. Earned Interest .......................................................................................... 48 ii. Cash Stuck in China .................................................................................. 51 iii. Accounts Receivable ................................................................................. 52 17 iv. Accounts Payable ...................................................................................... 53 18 v. Tax Evasion .............................................................................................. 54 19 b. 20 Accounting Fraud: “Deliveries” ........................................................................... 55 i. No Actual Definition................................................................................. 55 ii. “Delivery Count New” Versus “Delivery Count Used” ........................... 56 21 iii. Multiple Undisclosed Dynamic Incorrect Methodologies ........................ 58 22 iv. Rushed Delivery of Defective Vehicles .................................................... 58 23 v. Multiple “Deliveries” Per Vehicle ............................................................ 59 vi. Conflicted Overseas Auditors In The Dark .............................................. 60 vii. Contradictions With Known Sales Metrics: New Vehicle Registrations and Google Invoices ........................................................................................ 61 24 25 26 27 c. Accounting Fraud: Warranty Reserves and Goodwill Repairs ............................. 62 d. Accounting Fraud: Material Weaknesses in Internal Controls ............................. 63 e. Accounting Fraud: Lying In Public to Justify Revenue Recognition ................... 66 28 FIRST AMENDED COMPLAINT 28 ii 3:24-cv-04647-MMC PDF Page 4 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 3 of 159 1 2 f. Accounting Fraud: Intentionally Underestimating Performance Metrics To Later Beat Them ............................................................................................................. 67 g. Overt Market Manipulation .................................................................................. 68 3 h. Broadcasting Propaganda on Social Media .......................................................... 70 4 i. Fraudulent Price Targets ....................................................................................... 75 5 j. Silencing Critics .................................................................................................... 77 6 i. Tesla Customer and Shareholder Omar Qazi Responds To A Tesla Model 3 Safety Issue On Elon Musk’s Behalf By Amplifying Dangerous Conspiracy Theories About Plaintiff ........................................................ 77 ii. Qazi Steps Up His Campaign of Criminal Harassment ............................ 80 iii. Omar Qazi Leads a Mob That Tries To Frame Plaintiff for Possession of Child Pornography .................................................................................... 80 iv. Elon Musk Personally Participates In The Harassment Campaign .......... 83 v. Omar Qazi Targets Plaintiff’s Family for Further Harassment ................ 84 vi. Even With Omar Qazi Banned From Twitter, His Libel and Harassment Continues .................................................................................................. 86 vii. The Tesla Cult Fractures, with Omar Qazi Scapegoating Plaintiff .......... 88 7 8 9 10 11 12 13 14 F. The “Hardcore Litigation” Fraud ...................................................................................... 95 TOLLING OF THE STATUTES OF LIMITATIONS ................................................................ 96 15 CLAIMS FOR RELIEF ................................................................................................................ 97 16 COUNT I Violations of Federal Civil RICO (18 U.S.C. § 1962(c)) ................................................. 97 17 A. The Atlanteca Enterprise....................................................................................... 98 18 B. Predicate Offenses .............................................................................................. 101 19 C. Pattern of Racketeering Activity ......................................................................... 103 20 COUNT II Violations of Federal Civil RICO (18 U.S.C. § 1962(a)) ............................................... 104 21 22 COUNT III Conspiracy to Violate Federal Civil RICO (18 U.S.C. § 1962(d)) ................................. 105 23 COUNT IV Securities Fraud (California Corporations Code §§ 25400, 25500) ............................... 106 24 COUNT V Securities Fraud (California Corporations Code §§ 25401, 25501) ............................... 106 25 26 27 28 COUNT VI Assistance Committing Securities Fraud (California Corporations Code §§ 25403, 25504.1, 25504.2) ........................................................................................................... 107 COUNT VII Fraud ............................................................................................................................... 110 FIRST AMENDED COMPLAINT 28 iii 3:24-cv-04647-MMC PDF Page 5 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 4 of 159 1 2 3 COUNT VIII Negligent Misrepresentation ........................................................................................... 111 COUNT IX Defamation Per Se .......................................................................................................... 112 4 COUNT X Defamation Per Se .......................................................................................................... 124 5 6 COUNT XI Defamation...................................................................................................................... 127 7 COUNT XII Violation of the Civil Anti-Stalking Statute (California Civil Code § 1708.7, et seq.) .. 128 8 COUNT XIII Negligent Infliction of Emotional Distress ..................................................................... 132 9 10 11 12 13 14 15 16 17 18 COUNT XIV Fraud on the Court (Malicious Prosecution) ................................................................... 136 COUNT XV Negligence ...................................................................................................................... 145 COUNT XVI Unjust Enrichment .......................................................................................................... 147 COUNT XVII Violation of Unfair Competition Law (California Business and Professions Code § 17200) ............................................................................................................................. 148 COUNT XVIII Violation of Unfair Competition Law (California Business and Professions Code § 17200) ............................................................................................................................. 150 COUNT XIX False Advertising (California Business and Professions Code § 17500) ....................... 152 19 COUNT XX Declaratory Judgment ..................................................................................................... 153 20 PRAYER FOR RELIEF ............................................................................................................. 154 21 JURY DEMAND ........................................................................................................................ 155 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 iv 3:24-cv-04647-MMC PDF Page 6 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 5 of 159 1 Plaintiff, Aaron Greenspan, alleges the following causes of action and requests for relief: 2 3 4 INTRODUCTION A. The Tesla Matryoshka Doll of Nested, Interdependent Frauds 1. Tesla Motors, Inc., since re-incorporated twice in Delaware and then Texas as 5 Tesla, Inc. (“Tesla”), was founded on July 1, 2003 by engineers Martin Eberhard and Marc 6 Tarpenning to manufacture electric vehicles. On March 31, 2004, Eberhard and Tarpenning 7 approached dot-com millionaire Defendant Elon Musk to discuss funding Tesla, and Musk 8 ultimately agreed to invest $6.35 million. He then set about taking control of the company, 9 pushing out the co-founders and churning through staff and hundreds of executives. In May 10 2009, Eberhard sued Musk in the Superior Court of California for San Mateo County, Case No. 11 CIV484400, and as part of a case settlement, Musk obtained the contractual right to describe 12 himself as a Tesla “co-founder.” 13 2. Tesla began trading on public markets on June 29, 2010. By March 2021, a drug- 14 addled, centi-billionaire Defendant Musk had declared himself “Technoking” of Defendant Tesla 15 as he cultivated a public image of nothing less than humanity’s savior: an iconic entrepreneur 16 simultaneously working to reduce greenhouse gas emissions by selling lithium- and cobalt- 17 hungry cars, and also, in case that didn’t work, to make life “multi-planetary” by colonizing 18 Mars. Tesla’s market capitalization grew that year to a peak of $1.2 trillion, dwarfing the market 19 capitalization of the rest of the global automotive industry combined and making Defendant 20 Musk the wealthiest person on Earth. Tesla was hailed as a “green” American success story. 21 3. Few realized that the way that Defendant Musk achieved these remarkable 22 financial milestones was by orchestrating what was then the largest corporate fraud in American 23 history (succeeded soon after by Facebook, also known as Meta Platforms, Inc., which achieved 24 a $1.4 trillion market capitalization in 2024 based on similarly fraudulent conduct). Yet the 25 description of Tesla’s valuation as being based on “fraud” is, while accurate, far too simple, 26 because despite the company’s innovative origins pre-dating Musk’s involvement, Tesla is 27 actually a Matryoshka doll of multiple, nested, interdependent frauds: 28 FIRST AMENDED COMPLAINT 28 1 3:24-cv-04647-MMC PDF Page 7 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 6 of 159 1 The Atlanteca Enterprise Elon Musk 2 3 4 5 Tesla, Inc. “Hardcore Litigation” Fraud Stock Inflation Fraud 6 7 “Full Self-Driving” Fraud Solar Fraud Vehicle Quality Fraud Accounting Fraud “Autopilot” Fraud 8 Market Manipulation 9 10 11 The Elon Musk Revocable Trust Dated July 22, 2003 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Other Entities & Individuals a) Tesla “Autopilot”: a set of driving automation features that Defendant Musk claimed could enable a Tesla vehicle to drive itself from Los Angeles to New York by 2016, which is still not possible in 2024; b) Tesla “Full Self-Driving” (“FSD”): additional autonomous driving features beyond those offered by “Autopilot,” sold for between $5,000 and $15,000 at various times, and advertised to consumers using false and misleading statements, often via videos created by social media influencers; c) Tesla Solar: fire-prone energy products that Defendant Musk sold as “like having a money printer on your roof,” but embraced only to bail out his cousins and his own teetering financial “pyramid;” d) Tesla Vehicle Quality: severe vehicle quality problems and numerous design defects covered up by non-disclosure agreements and “goodwill” service; e) Tesla Stock Inflation: shares of TSLA came to be the company’s primary product, with its astronomical price based on accounting fraud, countless false 28 FIRST AMENDED COMPLAINT 28 2 3:24-cv-04647-MMC PDF Page 8 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 7 of 159 1 and misleading statements and omissions made over the course of years, and 2 overt market manipulation carried out with the help of Defendant Morgan 3 Stanley & Company, LLC (“Morgan Stanley”). 4 f) “Hardcore Litigation”: by filing serial fraudulent lawsuits in courts nationwide 5 financed by securities fraud, Defendant Musk found a way to punish critics 6 and undermine democracy while purportedly shielded by litigation privilege. 7 Notably, these nested, interdependent frauds, which involve consumer fraud, securities fraud, 8 and fraud on the court, resulted in dozens of needless and avoidable deaths. More will follow. 9 4. Defendants Musk and Tesla turned to fraud because without large-scale deception 10 explicitly authorized by Defendant Musk, Tesla would have failed quickly. Musk effectively 11 admitted this on the witness stand during a trial in the Delaware Court of Chancery in July 2021, 12 when he stated that he tried “very hard not to be the CEO of Tesla, but I have to or frankly Tesla 13 is going to die.” Defendant Musk had long valorized Tesla’s many near-“death” experiences and 14 highlighted the dire odds against starting a new American automotive manufacturer to rationalize 15 the need for his purported leadership. On August 18, 2018, Musk wrote on his Twitter account, 16 “Ford & Tesla are the only 2 American car companies to avoid bankruptcy...” See 17 https://x.com/elonmusk/status/1031111742103814144. 18 5. Defendant Musk has openly admitted that his leadership philosophy is that the 19 ends—here, Tesla’s mission of “accelerating the world’s transition to sustainable energy”— 20 justify the means, or fraudulent and unlawful business practices, so long as they keep a company 21 afloat. See https://www.youtube.com/watch?v=xrVD3tcVWTY&t=3152s. According to 22 Defendant Musk’s preferred public narrative, he is saving humanity from extinction; laws do not 23 matter to him save for the laws of physics. Defendant Musk thinks of the world as a video game, 24 where minor characters, such as his employees, are irrelevant, and doubling down on risky bets 25 can be a winning strategy. 26 27 6. To avoid Tesla’s “death” and purportedly save mankind, Defendant Musk needed to convince customers, the media, and the investing public that Tesla was not properly viewed as 28 FIRST AMENDED COMPLAINT 28 3 3:24-cv-04647-MMC PDF Page 9 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 8 of 159 1 a car company—historically likely to earn low, if not negative, automotive margins—but rather, 2 as a technology company, where margins have historically been limited only by investors’ 3 imaginations. On the Q1 2024 Tesla earnings call, Defendant Musk explicitly admitted as much, 4 stating, “I think Cathie Wood said it best. Like really, we should be thought of as an AI or 5 robotics company. If you value Tesla as just like an auto company, you just have to— 6 fundamentally, it’s just the wrong framework and if you ask the wrong question, then the right 7 answer is impossible. So, I mean, if somebody doesn’t believe Tesla is going to solve autonomy, 8 I think they should not be an investor in the company.” In turn, to convince investors, he needed 9 to do two things: 1) simultaneously spread vast quantities of misinformation, or as Tesla Director 10 Kimbal Musk referred to it on July 14, 2021 under oath, “relentless optimism;” and 2) suppress 11 any and all voices calling for a more rational analysis of the company’s prospects. 12 7. To spread misinformation, Defendants Musk and Tesla attracted and cultivated a 13 literal cult following, both among his customer base and on Twitter, the social network 14 Defendant Musk purchased in 2022 for $44 billion and renamed X (hereinafter “Twitter”). 15 8. Defendants Musk and Tesla also spread misinformation in Tesla’s investor 16 disclosures filed with the United States Securities and Exchange Commission (“SEC”). Tesla 17 relied upon dozens of accounting tricks and grandiose promises, detailed below, many of which 18 are now the subject of multiple investigations by federal and state government agencies, to boost 19 its stock price, cement inclusion in the S&P 500, and achieve crucial market capitalization 20 milestones tied to Defendant Musk’s unprecedented—and now rescinded—2018 executive 21 compensation package worth $56 billion. 22 9. The combined effect of Defendant Musk’s nested and interdependent frauds was 23 that through 2021 or later, Defendant Tesla became the largest Ponzi scheme in history—one 24 that just happened to produce cars. Cash flowing in from new investors replaced outflows from 25 prior investors and cash bleeding from Tesla’s staggering losses, while executives, such as 26 Defendant Musk, were consistently rewarded ever more handsomely through stock-based 27 compensation as the company lost more and more money and covered it up. 28 FIRST AMENDED COMPLAINT 28 4 3:24-cv-04647-MMC PDF Page 10 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 9 of 159 Tesla, Inc. Cumulative Financial Metrics 1 2010-2020 Reported Cumulative GAAP Net Income 2 Reported Cumulative Stock-Based Compensation 6,000 5,000 3 4,000 3,000 4 Millions of Dollars 2,000 5 6 1,000 0 -1,000 -2,000 -3,000 7 -4,000 8 -6,000 -7,000 9 10 10. Q1 2010 Q2 2010 Q3 2010 Q4 2010 Q1 2011 Q2 2011 Q3 2011 Q4 2011 Q1 2012 Q2 2012 Q3 2012 Q4 2012 Q1 2013 Q2 2013 Q3 2013 Q4 2013 Q1 2014 Q2 2014 Q3 2014 Q4 2014 Q1 2015 Q2 2015 Q3 2015 Q4 2015 Q1 2016 Q2 2016 Q3 2016 Q4 2016 Q1 2017 Q2 2017 Q3 2017 Q4 2017 Q1 2018 Q2 2018 Q3 2018 Q4 2018 Q1 2019 Q2 2019 Q3 2019 Q4 2019 Q1 2020 Q2 2020 Q3 2020 Q4 2020 -5,000 By 2018, the disconnect between Tesla’s stock price and its financial performance 11 made it of particular interest to Defendant Musk’s collective arch-nemesis: short-sellers, who 12 had a financial interest in unraveling the frauds propping up the company’s valuation. 13 11. By 2018, Tesla’s stock was also of interest to regulators. In the fall of that year, 14 the SEC charged Defendant Musk with securities fraud. Defendants Musk and Tesla signed 15 binding Consent Decrees, stipulated that they would not do anything “creating the impression 16 that [each] [SEC] complaint is without factual basis,” and each paid a $20 million fine. 17 12. Defendants Musk and Tesla then immediately violated the terms of the Consent 18 Decrees in multiple ways and amplified the magnitude of securities fraud they committed while 19 also committing securities fraud with increasing frequency. Warned by then-District Judge 20 Alison J. Nathan of the Southern District of New York to put on its “reasonableness pants,” the 21 SEC did nothing regarding Musk or Tesla for years, even while its investigations turned up more 22 evidence of fraud, and even while Musk continued to commit fraud and violate the Consent 23 Decrees in broad daylight. The SEC has since commenced several additional investigations 24 against Defendants Musk and Tesla for violations of securities laws. 25 13. To suppress critical voices—the second key ingredient in Defendant Musk’s 26 recipe for corporate “death” avoidance—the Defendants collectively scapegoated and targeted 27 short-sellers and journalists, including but not limited to Plaintiff, in a manner closely 28 reminiscent of the eBay cyberstalking affair that resulted in the United States Department of FIRST AMENDED COMPLAINT 28 5 3:24-cv-04647-MMC PDF Page 11 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 10 of 159 1 Justice filing criminal charges against eBay, Inc. and certain of its employees, as well as 2 collecting a $3 million fine from the company. See “eBay Inc. to Pay $3 Million in Connection 3 with Corporate Cyberstalking Campaign Targeting Massachusetts Couple,” 4 https://www.justice.gov/usao-ma/pr/ebay-inc-pay-3-million-connection-corporate-cyberstalking- 5 campaign-targeting. See also USA v. eBay, Inc., Massachusetts District Court Case No. 1:24-cr- 6 10003-PBS; USA v. Gilbert et al, Massachusetts District Court Case No., 1:20-cr-10098-WGY; 7 USA v. Baugh et al, Massachusetts District Court Case No. 1:20-cr-10263-PBS. 8 9 14. In recent years, Defendant Musk has come to be known as one of the most prolific cyberbullies on Earth, using his social networking website—on which he now has hundreds of 10 millions of followers—to launch personal attacks based on conspiracy theories, broadcast 11 Russian propaganda, antagonize political leaders worldwide, and even incite riots. 12 15. To achieve this ignominious distinction, Defendant Musk needed help. Using the 13 lure of stock market riches, he found enthusiastic assistance from investment banks and bankers 14 (Defendants Morgan Stanley and Birchall), law firms and lawyers (Defendants Singer Cashman 15 LLP, Cashman, Huebert, Mehes, and Spiro), Tesla customers (Defendants Qazi and Smick 16 Enterprises, Inc. (“Smick”)), and even star-struck regulators. 17 16. Defendants Qazi and Smick assisted Defendants Musk and Tesla with the 18 suppression of legitimate criticism by short-sellers and journalists, including Plaintiff. 19 Simultaneously, Defendants Excession, LLC (“Excession”), Jared Birchall, and Morgan Stanley 20 assisted Defendant Musk with the direct manipulation of Tesla’s share price in response to that 21 criticism. Defendant Spiro helped cover it up. 22 17. Defendant Musk admitted on the record in late 2020 that short-sellers had been 23 right all along: that in fact, Tesla had been on the verge of bankruptcy from “mid 2017 to mid 24 2019,” rendering its investor disclosures, showing adequate cash and lacking any “going 25 concern” statements, totally fraudulent. In response, regulators did nothing. 26 B. 27 The Plot Against PlainSite 18. PlainSite, which Plaintiff co-founded in 2011 with two friends at Stanford 28 FIRST AMENDED COMPLAINT 28 6 3:24-cv-04647-MMC PDF Page 12 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 11 of 159 1 University, is an open legal information service similar to LexisNexis or Westlaw containing 2 tens of millions of court records about millions of legal entities. Starting in 2018, as headlines 3 blared about securities fraud involving Defendants Tesla and Musk, PlainSite users began to 4 express more interest in Tesla and Elon Musk than virtually any other topic. 5 19. Plaintiff ensured that records on PlainSite regarding Defendants Tesla and Musk 6 were up to date, and also began writing about related news primarily on the @PlainSite Twitter 7 account, as well as on his personal @AaronGreenspan Twitter account. 8 9 10 11 20. Plaintiff also began filing Freedom of Information Act (“FOIA”) and state public records requests regarding Defendants Tesla and Musk and posting the resulting documents on PlainSite for public viewing. 21. The @PlainSite Twitter account ultimately amassed a following of approximately 12 25,000 followers, including journalists at The New York Times, The Wall Street Journal, The 13 Washington Post, Bloomberg News, The Financial Times, CNBC, Reuters, and other major 14 media networks. PlainSite and its disclosures were cited in numerous articles and later, in 15 numerous lawsuits. 16 22. PlainSite also attracted critics, the most vocal of which were convicted felons 17 upset about their histories of criminal activity being public on court-related websites. One such 18 felon was an especially prolific poster of false and dangerous claims about Plaintiff on-line. 19 23. In 2019, Plaintiff started being harassed via Twitter, e-mail, telephone, and fax by 20 an on-line mob of Musk and Tesla cult followers led by Defendants Qazi and Smick, who began 21 amplifying the false and dangerous claims about Plaintiff they had found. In so doing they had 22 the explicit approval of Defendants Musk and Tesla. Among other harassing acts, the mob 23 attempted to frame Plaintiff for the crime of possession of child pornography, which Plaintiff 24 reported to police and the Federal Bureau of Investigation (“FBI”). 25 24. On January 7, 2020, Plaintiff published a detailed PlainSite Reality Check report 26 (the “Reality Check Report”) regarding Defendants Tesla and Musk, similar to previous in-depth 27 reports he had authored and/or co-authored regarding other publicly traded companies. The 28 FIRST AMENDED COMPLAINT 28 7 3:24-cv-04647-MMC PDF Page 13 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 12 of 159 1 2 Reality Check Report was 101 pages long with 314 footnotes. 25. After the publication of the Reality Check Report, the harassment campaign 3 against Plaintiff intensified. For years, Plaintiff lived in fear of attacks from Tesla adherents, and 4 especially Defendants Qazi and Smick working on behalf of Defendants Musk and Tesla— 5 simply for publishing and analyzing public records about the company. 6 26. In 2022, Defendant Musk publicly announced that he was “out for blood” and 7 setting up a “hardcore litigation department.” For its debut, he engaged Defendants Singer 8 Cashman, LLP, Adam S. Cashman, Allison Huebert, and Adam G. Mehes (the “Hardcore 9 Litigation Department”) to file a frivolous lawsuit against Plaintiff (the “Alameda Case”)—the 10 first lawsuit Defendant Musk had ever filed in his individual capacity—in the Superior Court of 11 California for Alameda County in a brazen attempt to silence Plaintiff in retribution for his work 12 to expose Defendants’ fraudulent acts. See Musk v. Greenspan, Case No. 23CV028370 13 (Alameda County filed February 24, 2023). The lawsuit’s initial and only complaint (the 14 “Alameda Complaint”) was rife with substantive and typographical errors and came to a rapid 15 close in July 2023 after it was voluntarily dismissed with prejudice. 16 27. On June 13, 2023, X Corp. suspended Plaintiff’s @AaronGreenspan and 17 @PlainSite Twitter accounts, which had become vital resources for journalists covering 18 Defendants Musk and Tesla. Both accounts were suspended simultaneously at approximately 19 1:15 P.M. for purported violations of the Twitter Terms of Service, but even after filing several 20 so-called “appeals,” Plaintiff was never told precisely what the purported violations were beyond 21 “Violating our rules against posting private information.” Plaintiff was never told how both 22 accounts were found to be in violation at the same time, what the “private information” was, or 23 why Defendant Qazi—accused by Defendant Tesla in writing of “posting its internal 24 information” on Twitter in February 2023—was not similarly suspended. 25 28. At first, Defendant Qazi claimed not to have any paid relationship with 26 Defendants Musk or Tesla, but evidence of what was at the very least an unusually close 27 relationship steadily relationship manifested over time. Finally, in July 2023, Defendant Qazi 28 FIRST AMENDED COMPLAINT 28 8 3:24-cv-04647-MMC PDF Page 14 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 13 of 159 1 openly admitted that Defendant Musk was, in fact, paying his company, Defendant Smick, via 2 Defendant X Corp. as part of a revenue sharing program that had been crafted by Defendant 3 Musk specifically for a limited number of Tesla and right-wing propagandists like him. 4 29. Defendants’ collective actions are part of an overt, disturbing, and at this point 5 extremely well-documented pattern in which Defendants have repeatedly incited on-line mobs 6 against anyone who dares question or criticize them. Defendants smeared and throughout this 7 litigation have continued to smear Plaintiff as a mentally ill person making “implausible” and 8 “unintelligible” claims, a “conspiracy theorist,” a psychiatric patient, a rapist, a pedophile, a 9 child molester, a likely school shooter, a stalker, and more, all in service of one of the largest and 10 most complex frauds in American history. 11 C. 12 The “Tesla Files” Confirm The Suspicions of Critics, Including Plaintiff 30. In late 2021, Plaintiff was contacted by a nameless source who at the time wished 13 to remain anonymous and claimed to be an employee of Defendant Tesla with access to internal 14 documents. Over the course of nearly a year, this source began sending Plaintiff hundreds, and 15 then thousands, of authentic documents from a number of internal Tesla servers. 16 17 18 31. Plaintiff compiled and organized the information provided to the extent possible and offered it to government agencies and professional journalists. 32. The information provided to Plaintiff came in part from Tesla’s accounting 19 systems and contained evidence of numerous types of fraud, much of which Plaintiff had already 20 alleged was taking place in court. The data also contained records confirming that Defendants 21 Qazi and Smick had committed fraud and worked as agents of Defendants Tesla and Musk, and 22 that Defendant Tesla had taken steps to cover up evidence of their agency relationship. Most 23 importantly, it corroborated that Defendants Tesla and Musk made countless false and 24 misleading statements and caused material omissions, in SEC filings and on Twitter, which Tesla 25 has for years treated as an official communications medium for investors. 26 27 33. Plaintiff’s source independently decided to share the internal Tesla data he had obtained with the German newspaper Handelsblatt in the hopes that it would publicly reveal 28 FIRST AMENDED COMPLAINT 28 9 3:24-cv-04647-MMC PDF Page 15 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 14 of 159 1 violations of the European General Data Protection Regulation (“GDPR”). Plaintiff’s source 2 also independently shared portions of the data with certain other individuals. 3 34. In preparation for publication of its investigative series, entitled the “Tesla Files,” 4 Handelsblatt sent Defendant Tesla a list of detailed questions that exposed the source’s identity 5 by allowing Tesla to search its log files for key data points. 6 7 35. coordinating the careful, responsible and lawful release of material portions of the Tesla Files. 8 9 Against Plaintiff’s will, Handelsblatt also exposed Plaintiff’s involvement 36. The Handelsblatt series focused on consumer complaints regarding Tesla vehicles and Tesla’s GDPR violations, but Handelsblatt’s staff lacked the background, expertise and 10 professionalism needed to understand the vast amount of data. In this regard, Hansdelsblatt was 11 not alone. Many of the most important stories in the “Tesla Files” were never actually published. 12 D. 13 Litigation History 37. Plaintiff first sued Defendants Musk, Tesla, Qazi and Smick in the Northern 14 District of California on May 20, 2020. See Greenspan v. Qazi et al, Case No. 3:20-cv-03426- 15 JD (N.D. Cal. filed May 20, 2020) (“Greenspan I”). A First Amended Complaint, ECF No. 20, 16 was filed pursuant to Federal Rule of Civil Procedure (“Rule”) 15(a)(1). A Second Amended 17 Complaint, ECF No. 70, was filed pursuant to Rule 15(a)(2) with the parties’ consent. A Third 18 Amended Complaint, ECF No. 103, was filed pursuant to Rule 15(a)(2) with the Court’s consent, 19 and was the first version of the complaint reviewed by the Court. District Judge James Donato 20 dismissed the Third Amended Complaint with leave to amend in an order, ECF No. 125, 21 misquoting Plaintiff’s pleading while also failing to analyze each issue raised pursuant to the 22 Private Securities Litigation Reform Act of 1995 (“PSLRA”). Plaintiff’s Fourth Amended 23 Complaint, ECF No. 131, was filed on August 13, 2021 subject to a highly unusual order 24 restricting the number of pages allowed for a PSLRA claim. 25 38. In Greenspan I, Defendants Musk and Tesla were initially represented by Cooley, 26 LLP (“Cooley”), which withdrew when Defendant Musk fired the entire firm because it had 27 hired an attorney who previously worked on a Musk investigation at the SEC. Cooley was 28 FIRST AMENDED COMPLAINT 28 10 3:24-cv-04647-MMC PDF Page 16 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 15 of 159 1 replaced by Quinn Emanuel Urquhart and Sullivan, LLP (“Quinn Emanuel”), for which 2 Defendant Spiro works. 3 39. Both Cooley and Quinn Emanuel frequently relied on the defense that Plaintiff’s 4 allegations were “implausible,” even though they and their clients already knew them to be true. 5 In particular, Quinn Emanuel derided Plaintiff’s warning about the Tesla Files as “implausible,” 6 indicating that at least every allegation so designated in Greenspan I is, in fact, true. 7 40. Throughout the litigation, Judge Donato and the other parties concealed the fact 8 that Judge Donato’s wife had earned and continues to earn income from Solutus Legal Search, 9 whose notable clients include Cooley and Quinn Emanuel, both of which represented Defendants 10 Musk and Tesla. Judge Donato refused to recuse himself and falsely claimed that his 11 relationship with Cooley, also his former employer, had ended years prior. 12 41. On May 19, 2022, Judge Donato dismissed Plaintiff’s federal claims in the Fourth 13 Amended Complaint with prejudice and dismissed the state claims without prejudice. Having 14 received the Tesla Files after the filing of the Fourth Amended Complaint, Plaintiff filed a 15 motion pursuant to Federal Rule of Civil Procedure 60(b), describing some of the new 16 information. 17 42. On June 29, 2022, Defendants Musk and Tesla responded to Plaintiff’s warning 18 about what amounted to the largest known data breach that Tesla has ever suffered by falsely 19 describing Plaintiff’s assertions as a “facial[ly] implausibil[e] [] self-serving tale—which comes 20 from the same person who ‘says he created an early version of Facebook.’” They went on to 21 further cast Plaintiff’s true allegations as “self-serving” and “wholly insubstantial.” When 22 Defendant Tesla finally did report the data breach to the Office of the Maine Attorney General as 23 required by law, it falsely represented both the “Date(s) Breach Occurred” and “Date Breach 24 Discovered” as “May 10, 2023,” nearly a year after it had belittled Plaintiff’s notice. 25 43. On June 30, 2022, without allowing Plaintiff to reply and without ever holding a 26 single hearing during the entirety of the case, Judge Donato denied the Rule 60(b) motion. On 27 July 25, 2022, Plaintiff timely appealed to the United States Court of Appeals for the Ninth 28 FIRST AMENDED COMPLAINT 28 11 3:24-cv-04647-MMC PDF Page 17 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 16 of 159 1 2 Circuit. The appellate court scheduled and then later cancelled oral argument. 44. On February 24, 2023, while the appeal was pending, Defendant Musk filed a 3 frivolous lawsuit against Plaintiff in the Superior Court of California for the County of Alameda, 4 Case No. 23CV028370, based on the false allegation that Plaintiff had masterminded the 5 separate Hothi litigation against Musk also proceeding in that court, which was based on a 2019 6 e-mail conversation between Plaintiff and Defendant Musk subsequently posted on PlainSite. 7 45. On April 7, 2023, pursuant to California Code of Civil Procedure § 128.7, 8 Plaintiff served a motion for sanctions on counsel for Defendant Musk highlighting numerous 9 material errors in the frivolous lawsuit. The California Code of Civil Procedure § 128.7 21-day 10 safe harbor expired on Tuesday, May 2, 2023 inclusive of the two extra days provided by 11 California Code of Civil Procedure § 1010.6. 12 13 14 46. On Monday, May 1, 2023, realizing that he and his counsel would be sanctioned, Defendant Musk dismissed his frivolous lawsuit against Plaintiff with prejudice. 47. California Code of Civil Procedure § 1010.6 allowed Plaintiff two extra days to 15 carry out “any right or duty to do any act or make any response within any period or on a date 16 certain after the service of the document” when serving filings electronically. Accordingly, on 17 May 3, 2023, Plaintiff electronically filed and served a cross-claim in Case No. 23CV028370 for 18 malicious prosecution, which the Superior Court of California for the County of Alameda 19 initially allowed, issuing summonses. Subsequently, Judge Eumi Lee ruled that the Clerk of 20 Court had acted in error because California precedent artificially stripped the court of its 21 jurisdiction to hear a cross-claim, Section 1010.6 apparently notwithstanding, and thus required a 22 cross-claimant alleging malicious prosecution to file a new, separate civil action and thus to pay 23 a double filing fee. Plaintiff alleged that this violated due process. In her July 11, 2023 General 24 Order, Judge Lee did not address Plaintiff’s arguments regarding Section 1010.6 or the due 25 process implications of requiring a victim of malicious prosecution to pay double filing fees. 26 27 48. On February 14, 2024, after the Ninth Circuit appeal had been briefed, Judge Donato issued an Order Re Dismissal, ECF No. 49, in Pauly v. Becker, Northern District of 28 FIRST AMENDED COMPLAINT 28 12 3:24-cv-04647-MMC PDF Page 18 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 17 of 159 1 California Case No. 3:23-cv-03108-JD, involving the same issue that had formed the crux of 2 Plaintiff’s Ninth Circuit appeal: whether or not the PSLRA applied to individual securities 3 actions. Judge Donato ruled that it does not, for the first time agreeing with Plaintiff on that 4 issue years after Plaintiff had first raised it on August 3, 2020 in an Emergency Motion To 5 Clarify Applicability Of The PSLRA And, If Relevant, Lift Discovery Stay. 6 49. Judge Donato’s outdated decision in Greenspan v. Qazi was upheld on appeal 7 without oral argument in an unpublished decision that appears to have been written by a staff 8 attorney, not a judge, with the Ninth Circuit’s mandate issued on June 10, 2024. 9 10 11 50. On June 12, 2024, Plaintiff re-filed the state claims in the Superior Court of California for the County of San Francisco and added additional state claims. 51. On July 31, 2024, certain of the defendants—but not Defendant Musk, who failed 12 to appear—purported to remove the case to federal court in the Northern District of California in 13 a defective Notice of Removal based on a false declaration by attorney Anthony P. Alden. 14 52. Anthony P. Alden’s name appears on ECF No. 181 in Greenspan I on behalf of 15 Defendants Musk and Tesla, and Attorney Alden also represented Defendants Musk and Tesla in 16 the Ninth Circuit appeal, but he did not file a formal appearance with the District Court in 17 Greenspan I in violation of Civil Local Rule 5-1(c)(2)(A). Thus far in this particular action, 18 Attorney Alden does not represent Defendant Musk, nor does any attorney. 19 20 PARTIES 53. Plaintiff Aaron Greenspan is an individual residing in San Francisco County in 21 the State of California. Plaintiff is not a public figure. Plaintiff graduated from Harvard College 22 with advanced standing in three years and was subsequently a CodeX Fellow at Stanford Law 23 School from 2012-2013. Plaintiff is also a software developer, investor and short-seller who has 24 worked with forensic accountants and journalists to report on accounting and securities fraud at 25 publicly traded companies. Plaintiff purchased Tesla put options in his personal brokerage 26 accounts from September 24, 2018 through March 23, 2020 and lost money through June 2020 27 as Tesla stock skyrocketed higher due to Defendants’ serial unlawful acts. Plaintiff invested in 28 FIRST AMENDED COMPLAINT 28 13 3:24-cv-04647-MMC PDF Page 19 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 18 of 159 1 Tesla put options because he believed that Defendant Tesla’s business was fundamentally 2 overvalued by the market. When Plaintiff began purchasing Tesla securities he had no 3 knowledge of any alleged fraud involving Defendant Tesla except for limited knowledge from 4 news reports of Defendant Musk’s August 2018 false “funding secured” tweet. Plaintiff is 5 licensed to drive a motor vehicle and frequently drives on roads and interstate highways. 6 54. Plaintiff’s documented involvement with the origins of Facebook at Harvard 7 College is the source of controversy despite both The New York Times in 2007 and his classmate 8 Mark Zuckerberg in 2009, as part of a legal settlement with Plaintiff, publicly verifying that 9 Plaintiff created the original campus-wide website referred to as “The Facebook,” which counted 10 Zuckerberg as a member and which was the predecessor to Zuckerberg’s unauthorized version. 11 Plaintiff, Plaintiff’s company, Zuckerberg, and Facebook, Inc. reached a confidential settlement 12 in May 2009, before the film The Social Network was released about Facebook’s origins. 13 55. Despite being omitted from the film, Plaintiff was deposed as part of the 14 ConnectU litigation that The Social Network depicted, where ConnectU was represented by 15 Quinn Emanuel before ConnectU sued Quinn Emanuel for malpractice. The transcript of 16 Plaintiff’s November 29, 2007 deposition was marked “Confidential - Attorneys Eyes Only.” 17 See https://www.plainsite.org/dockets/download.html?id=16332683&a=3&z=785f517e. Yet 18 since the start of this litigation, Defendants, and especially Quinn Emanuel, have sought to abuse 19 the history of the Facebook controversy to portray Plaintiff as unreliable and mentally unstable, 20 furthering the libel and harassment that is the very subject of this lawsuit. 21 56. Defendant Elon Musk is a self-described centi-billionaire “far right” public figure 22 who controls numerous companies, who frequently works in California, and who lived in 23 California during much of the relevant timeframe. His superlative wealth is derived almost 24 entirely from fraudulent conduct involving Defendant Tesla, of which he is CEO and 25 “Technoking.” Despite also running a defense contractor, in his own words, Defendant Musk 26 regularly “tranq[s] out” and besides tranquilizers abuses LSD, ketamine, cocaine, and various 27 other illegal narcotics according to reporting by The Wall Street Journal. Defendant Musk was 28 FIRST AMENDED COMPLAINT 28 14 3:24-cv-04647-MMC PDF Page 20 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 19 of 159 1 charged with securities fraud in 2018 in relation to a marijuana joke, paid $20 million to the SEC 2 to settle those charges, has been found to have acted with scienter in multiple civil securities 3 lawsuits, and has generally admitted to market manipulation, having stated “I might pump but I 4 don’t dump” during a conference panel broadcast worldwide on July 21, 2021. On November 5 29, 2023, on stage at a New York Times DealBook Summit event broadcast live on television, 6 Defendant Musk told X Corp. advertisers, “Don’t advertise… Go fuck yourself.” On January 7 30, 2024, the Delaware Court of Chancery invalidated Defendant Musk’s 2018 Tesla executive 8 compensation package worth $56 billion, finding that he controls Defendant Tesla and that he 9 misled shareholders leading up to and during a defective voting process. Defendant Musk then 10 attempted to supersede that court’s decision by having Tesla lie to shareholders about Delaware 11 law in a proxy filing and announcing the purported results of a proxy vote to “ratify” his 12 conflicted plan, which cannot be ratified, before the vote was even complete. 13 57. Defendant Musk is 53 years old, four times separated, and preys on young people. 14 He chooses young men and women to serve as his Chiefs of Staff (Sam Teller, Harvard College 15 Class of 2008; Omead Afshar, UC Irvine Class of 2009), his Chief Financial Officers (Zachary 16 Kirkhorn, University of Pennsylvania Class of 2006), his marketing proxies (Omar Qazi, Santa 17 Clara University Class of 2015; Vivien “Viv” Hantusch, Heinrich-Heine-Universität Düsseldorf 18 Class of 2019) and—in the tradition of his friend, former financial advisor, and now-deceased 19 convicted felon Jeffrey E. Epstein—targets of sexual predation. He preys on young people 20 because they are more likely to be awestruck by fame, and due to their inexperience, they are 21 less likely to ask questions or push back on instructions that are illegal. When they learn too 22 much, he generally pays them to remain silent, keeps them in his network of close friends where 23 they can be monitored and controlled, and finds replacements. According to internal company 24 records, Omead Afshar received an equity grant worth $10 million; Afshar is now an investor in 25 Defendant X Corp. via his fund Afshar Partners, LP. Vivien Hantusch was eventually hired to 26 report to Afshar, and also received stock options. Immediately after being subpoenaed by the 27 SEC on December 5, 2019 in connection with his work for Defendant Musk, Sam Teller began 28 FIRST AMENDED COMPLAINT 28 15 3:24-cv-04647-MMC PDF Page 21 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 20 of 159 1 working instead at Valor Equity Partners, run by Tesla Director and Musk personal friend 2 Antonio Gracias. And a Space Exploration Technologies Corporation (“SpaceX”) flight 3 attendant—one of many such young women specifically hired for their training in massage 4 therapy—received a $250,000 severance payment after turning down a sexual relationship with, 5 and a horse from, Defendant Musk. Musk and Tesla reimburse SpaceX for jet time and fuel. 6 58. Defendant Musk treats all his companies as though they are one seamless global 7 conglomerate, as evidenced by related-party transactions, shared staff, shared information 8 technology resources, shared source code, cross-marketing agreements, and confidential 9 documents. Defendant Musk is the principal architect and leader of a cult and criminal 10 enterprise as described herein, which spans the various legal entities he controls and influences: 11 Tesla, Inc.; X Corp.; X.AI Corp.; Excession, LLC; SpaceX; TBC-The Boring Company; 12 Neuralink Corp.; the Musk Foundation; the Elon Musk Revocable Trust Dated July 22, 2003 (the 13 “Musk Trust”); and various other limited liability companies. This cult and criminal enterprise, 14 referred to herein as the “Atlanteca Enterprise,” is coordinated at least in part through the 15 atlanteca.com domain name, which is not directly associated with any of Defendant Musk’s 16 known businesses so as to evade legal process such as discovery obligations and subpoenas. 17 59. Defendant Tesla, Inc. is a corporation based at all relevant times in California, but 18 now in Texas, with operations in Alameda, Los Angeles, Santa Clara, San Francisco, San 19 Joaquin, and San Mateo Counties in California. Its common stock trades on the NASDAQ 20 Global Select Market under the ticker symbol “TSLA.” Despite its peak market capitalization of 21 approximately $1.2 trillion, Defendant Tesla for years had no permanent General Counsel. 22 Three of its prior General Counsels and an Acting General Counsel resigned from 2017 through 23 mid-2021 (Todd Maron, Dane Butswinkas, Jonathan Chang, Al Prescott), as did two prior Chief 24 Financial Officers (Jason Wheeler, Deepak Ahuja) and two Chief Accounting Officers (Eric 25 Branderiz, Dave Morton). Tesla then burnt through two more General Counsels or equivalent 26 officers (Bill Berry, Dinna Eskin) and another Chief Financial Officer (Zach Kirkhorn). 27 Defendant Musk is an officer, director and employee of Defendant Tesla. Under respondeat 28 FIRST AMENDED COMPLAINT 28 16 3:24-cv-04647-MMC PDF Page 22 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 21 of 159 1 superior doctrine, Defendant Tesla is liable for the actions of Defendant Musk performed in 2 connection with its business. Since Defendant Omar Qazi is a paid agent of Defendant Tesla 3 working at its direction via his company Defendant Smick, Defendant Tesla is also liable for 4 Defendant Qazi’s and Defendant Smick’s actions. 5 60. Defendant X Corp., formerly Twitter, Inc., is a Nevada corporation with offices in 6 San Francisco County. In late 2019, after former Twitter CEO Jack Dorsey refused to reinstate 7 the account of Defendant Musk and Tesla’s abusive agent, Defendant Qazi, Defendant Musk 8 began to seriously consider strategies to control Twitter. In 2022, after unlawfully building up a 9 stake in Twitter, Inc. with the help of Defendants Birchall and Morgan Stanley & Company, 10 LLC—an act that is presently the subject of multiple federal investigations by the SEC and 11 United States Department of Justice—and after a lengthy legal battle in the Delaware Court of 12 Chancery, Defendant Musk acquired Twitter, Inc. for the sum of for $44 billion, paid for with his 13 fraudulently inflated Tesla shares. He renamed the company X Corp. and the platform X. 14 Today, Defendant Musk primarily uses the platform to spread pro-Tesla and pro-Russian 15 propaganda, including but not limited to hate speech and messages intended to interfere with the 16 2024 presidential election. As part of the Atlanteca Enterprise, X Corp. has been used as a 17 weapon against Defendant Musk’s many critics. On March 25, 2024, in X Corp. v. Center for 18 Countering Digital Hate, Inc., Judge Breyer of this Court ruled, “The Court notes, too, that X 19 Corp.’s motivation in bringing this case is evident. X Corp. has brought this case in order to 20 punish CCDH for CCDH publications that criticized X Corp.” Similarly, X Corp. has also sued 21 to punish Media Matters for America and the World Federation of Advertisers, whom Musk 22 considers enemies. 23 61. Defendant Elon Musk Revocable Trust Dated July 22, 2003 (the “Musk Trust”) is 24 a trust that owns the majority of Defendant Musk’s illicit wealth, including millions of shares of 25 Tesla stock. Defendant Musk is the “sole Trustee” of, and controls, the Musk Trust. Defendant 26 Musk also uses the Musk Trust to reward his collaborators in the Atlanteca Enterprise. 27 62. Defendant Excession, LLC is a Texas Limited Liability Company. It is 28 FIRST AMENDED COMPLAINT 28 17 3:24-cv-04647-MMC PDF Page 23 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 22 of 159 1 Defendant Musk’s family office, which manages his wealth, including but not limited to the 2 assets of the Musk Trust. Besides Defendant Birchall, Excession has several employees. 3 63. Defendant Jared Birchall, also known by the alias “James Brickhouse,” is 4 Defendant Musk’s fixer and right-hand man. He resides in Texas, but lived and worked in 5 California during much of the relevant timeframe. Defendant Birchall has a documented history 6 of hiring and paying at least one convicted felon on Defendant Musk’s behalf and was recently 7 deposed by the SEC and the United States Department of Justice in connection with ongoing 8 investigations. Defendant Birchall is the head of Excession, Defendant Musk’s family office, 9 which manages Musk’s wealth in conjunction with the Musk Trust. Defendant Birchall 10 communicates about sensitive and unlawful matters with Defendant Musk via the encrypted 11 messaging application Signal using messages that automatically disappear after a set interval, or 12 in person, typically during weekly Friday meetings. Defendant Birchall was formerly employed 13 by Defendant Morgan Stanley and Merrill Lynch, from which he was fired in 2010. According 14 to discovery documents originating in the separate civil lawsuit Rasella v. Musk, even after being 15 fired, Defendant Birchall conspired with Morgan Stanley employees Jon Neuhaus, Michael 16 Grimes and Kate Claassen as well as former employee Kyle Corcoran to execute deliberately 17 manipulative and/or secret stock trades on Defendant Musk’s behalf while evading Morgan 18 Stanley’s compliance department and the advice of legal counsel in order to help Defendant 19 Musk acquire Twitter, Inc. at an artificially low price. 20 64. Defendant Morgan Stanley & Company, LLC is a Delaware Limited Liability 21 Company with offices in California. It provides investment banking and illegal market 22 manipulation services to Defendants Musk and Tesla and the Atlanteca Enterprise. Defendant 23 Morgan Stanley faces ongoing probes from the SEC, the Office of the Comptroller of the 24 Currency, and the United States Department of the Treasury in conjunction with its “wealth 25 management” unit, which services Defendant Musk. Defendant Morgan Stanley and its 26 subsidiaries have paid over $600 million in fines to the SEC over the past decade. 27 65. Defendant Omar Qazi is a Tesla customer, shareholder and contractor who has 28 FIRST AMENDED COMPLAINT 28 18 3:24-cv-04647-MMC PDF Page 24 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 23 of 159 1 been criminally charged in at least two unrelated cases and who resides at least part-time in San 2 Francisco County. Defendant Qazi also does business in Los Angeles, Santa Clara and San 3 Francisco Counties in California. Defendant Qazi, individually and through his corporation, 4 Defendant Smick Enterprises, Inc., is a ferocious paid propagandist for Defendants Musk and 5 Tesla, having authored and/or coordinated over 330,000 tweets praising Tesla and scapegoating 6 its critics—plus essays, podcasts, and promotional videos touting Tesla’s purported FSD 7 features. For the sake of comparison, Yevgeny Prigozhin, known as “Putin’s Chef,” employed a 8 “troll-factory” that “generated one of the largest known online disinformation 9 campaigns, churning out 71,000 tweets” according to Bellingcat in 2020. Today, Defendant 10 Qazi has over 500,000 followers on Twitter. One of those followers is Defendant Musk, who 11 frequently uses Defendant Qazi’s posts as springboards for official Tesla communications. 12 Defendant Qazi was given “VIP” status by Defendants Tesla and X Corp. at Defendant Musk’s 13 behest. Especially after Defendant Musk disbanded Defendant Tesla’s formal Public Relations 14 team in late 2019, Defendant Qazi filled in for its role, often working as a tag team with 15 Defendant Musk to hurl accusations and falsehoods concerning Plaintiff, among other topics, in 16 order to discredit Plaintiff’s document-based research on Defendants Tesla and Musk. Before 17 Musk purchased it, Defendant Qazi was banned from Twitter due to his harassing conduct 18 toward Plaintiff, but evaded the ban by appropriating various new accounts until Defendant 19 Musk purchased the platform, reversed his ban, and began paying him to post. 20 66. Defendant Smick Enterprises, Inc. is a Delaware corporation that has failed to 21 register with the California Secretary of State or Franchise Tax Board and does not pay required 22 California taxes, but nevertheless operates in Santa Clara and San Francisco Counties. 23 Defendant Qazi is its Chief Executive Officer. Under respondeat superior doctrine, Defendant 24 Smick is liable for the actions of Defendant Qazi performed in connection with its business. 25 67. Defendant Singer Cashman, LLP is a California limited liability partnership that 26 represented Defendant Musk in the Alameda Case and willingly filed a false pleading on his 27 behalf in the Superior Court of California for the County of Alameda that it knew or should have 28 FIRST AMENDED COMPLAINT 28 19 3:24-cv-04647-MMC PDF Page 25 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 24 of 159 1 known was false. On or about June 24, 2024, twelve days after being named in this litigation, 2 the Singer Cashman, LLP website began redirecting to the website of Singer IP, LLP, which no 3 longer featured the profile of prior partner Defendant Adam S. Cashman. 4 68. Defendant Adam S. Cashman is an attorney licensed in California, State Bar No. 5 255063, who represented Elon Musk in the Alameda Case. Mr. Cashman was a named partner at 6 Singer Cashman, LLP and is now a partner at BraunHagey & Borden, LLP. He signed the false 7 Alameda Complaint on behalf of Elon Musk naming Plaintiff as a defendant, which he had a 8 legal obligation to review before filing. He also signed the predecessor document to the 9 Alameda Complaint. Defendant Cashman previously worked for Quinn Emanuel. None of 10 Defendant Cashman’s communications with Defendants are protected by attorney-client 11 privilege due to the crime-fraud exception. 12 69. Defendant Allison Huebert is an attorney licensed in Texas, Bar Card No. 13 24124694, working for Tesla, Inc., but who represented Elon Musk in the Alameda Case. Her 14 name appears on the false Alameda Complaint naming Plaintiff as a defendant, which she had a 15 legal obligation to review before filing. Defendant Huebert previously worked for Quinn 16 Emanuel. None of Defendant Huebert’s communications with Defendants are protected by 17 attorney-client privilege due to the crime-fraud exception. 18 70. Defendant Adam G. Mehes is an attorney licensed in Texas, Bar Card No. 19 24133603, working for X Corp. and/or Tesla, Inc. but who represented Elon Musk in the 20 Alameda Case. His name appears on the false Alameda Complaint naming Plaintiff as a 21 defendant, which he had a legal obligation to review before filing. His name also appears on the 22 false predecessor document to the Alameda Complaint. Defendant Mehes previously worked for 23 Quinn Emanuel. None of Defendant Mehes’s communications with Defendants are protected by 24 attorney-client privilege due to the crime-fraud exception. 25 71. Defendant Alex Spiro is a Florida-based attorney licensed in New York who 26 works for Quinn Emanuel and caters to celebrity clients. Defendant Spiro represents Tesla, Inc. 27 and Elon Musk, and works on behalf of the entire Atlanteca Enterprise. Defendant Spiro has 28 FIRST AMENDED COMPLAINT 28 20 3:24-cv-04647-MMC PDF Page 26 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 25 of 159 1 been the subject of a motion for criminal sanctions brought by the State of Florida and routinely 2 practices law in California without a license. Defendant Spiro was also the subject of a sanctions 3 motion in Texas for practicing law in Texas without a license. Defendant Spiro never paid his 4 pro hac vice fees in Greenspan I—part of a pattern evidenced by roughly a dozen other cases in 5 which Defendant Spiro also failed to file required paperwork or pay required fees. At Defendant 6 Musk’s instruction, Defendant Spiro provided legal advice to Defendant Qazi regarding 7 Greenspan I. None of Defendant Spiro’s communications with Defendants are protected by 8 attorney-client privilege due to the crime-fraud exception. 9 10 JURISDICTION AND VENUE 72. This Court has jurisdiction over the subject matter of this action pursuant to 28 11 U.S.C. §§ 1331, 1337, and 1338(a), as well as 18 U.S.C. § 1964(a) and (c). This is a civil case 12 arising under the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1965 13 and Declaratory Judgment Act, 28 U.S.C. § 2201. 14 73. Supplemental jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1367 15 over the state law claims that are so related to the federal claims in this action that they form part 16 of the same case or controversy under Article III of the United States Constitution. 17 74. Personal jurisdiction and venue are proper because at least one defendant is a 18 corporation headquartered in this district and/or because the improper conduct alleged herein 19 occurred in, was directed from, and/or emanated or exported from California. Substantial acts in 20 furtherance of the alleged fraud or the effects of the fraud have occurred in this judicial district. 21 22 AGENCY, JOINT VENTURE, AIDING AND ABETTING, AND CONSPIRACY 75. Defendants conspired with currently unidentified co-conspirators in carrying out 23 the wrongful conduct alleged herein. All such unidentified co-conspirators were Defendants’ 24 agents, employees, and/or joint venturers, and were at all times acting within the course and 25 scope of said agency, employment, and/or joint venture. 26 27 76. Each Defendant and unidentified co-conspirator took actions that aided and abetted, encouraged, and rendered substantial assistance in accomplishing the wrongful conduct, 28 FIRST AMENDED COMPLAINT 28 21 3:24-cv-04647-MMC PDF Page 27 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 26 of 159 1 wrongful goals, and other wrongdoing alleged herein. In taking these actions, each Defendant 2 and unidentified co-conspirator acted with an awareness of his/her primary wrongdoing and 3 realized his/her conduct would substantially assist the accomplishment of the wrongful conduct, 4 wrongful goals, and other wrongdoing. In addition, each act and omission comprising the 5 aforementioned wrongful conduct, wrongful goals, and other wrongdoing was made known to, 6 and ratified by, each of the Defendants. 7 77. Each Defendant and unidentified co-conspirator conspired with each other and 8 with others to perpetrate the unlawful scheme on Plaintiff, as alleged herein. In doing so, each 9 Defendant and unidentified co-conspirator have committed acts and omissions, including but not 10 limited to making materially false, misleading, and deceptive statements and omissions, while 11 acting within the scope and in furtherance of the conspiracy alleged herein, and with full 12 knowledge of the goals of that conspiracy. 13 78. Plaintiff reserves the right to amend this Complaint when he learns the identities 14 of currently unidentified co-conspirators, and Plaintiff intends to sue each Defendant and co- 15 conspirator as participants, alter egos, agents, and conspirators with one another in the wrongful 16 acts, omissions, plans, schemes, and transactions alleged herein. 17 18 19 FACTS COMMON TO ALL CLAIMS FOR RELIEF A. The Tesla “Autopilot” Fraud 79. Tesla “Autopilot” 1.0 was introduced in October 2014 as a set of features that 20 began as a project called “advanced driver assistance” to comply with European safety standards. 21 Its features focused on highway driving: automatic braking and lane-keeping (“Autosteer,” 22 automatic lane change and uncommanded lane change). By October 2015, “Autopilot” “7.0” 23 had been released, with Defendant Musk stating as follows at a recorded press event (see 24 https://www.youtube.com/watch?v=73_Qjez1MbI&t=4s): 25 26 27 28 “What I’m going to take you through is how the system learns over time. I think that what’s interesting and unique is that we’re deploying a fleet learning technology, essentially the network of vehicles is—is gonna be constantly learning and um as we release the software and more people enable Autopilot, uh, then the information about how to drive is uploaded to the network. So, so each car—each, each driver is really an FIRST AMENDED COMPLAINT 28 22 3:24-cv-04647-MMC PDF Page 28 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 27 of 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expert trainer in how the Autopilot should work. Um. And I think you’re good about how that works, but it’s a combination of a variety of systems, um, and um, and it’s never really been done as a connected vehicle. So, and the interesting thing is like, every car made by Tesla from late September last year will overnight have this ability… And the capability will keep improving over time, both from the standpoint of all the expert driving doing approximately a million miles a day of travel and training, but also in terms of the software functionality” (emphasis added). 80. In fact, no vehicle delivered by Tesla in 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, or 2023 came remotely close to having the ability to “learn[] over time” as described by Defendant Musk. Instead, Defendant Tesla relied on human beings—independent contractors with sparse training who were often not even Tesla employees—caught up in another fraud described below, to manually tag portions of images and videos that the company’s supposed “machine learning” algorithms had no hope of identifying on their own. 81. The media relied on Defendant Musk’s false and misleading statements in its coverage of “Autopilot.” The MIT Technology Review captioned its February 23, 2016 article entitled, “Tesla Autopilot” with, “The electric-vehicle maker sent its cars a software update that suddenly made autonomous driving a reality.” This was simply false. 82. On November 28, 2018, among a flurry of articles reporting that Defendant Tesla claimed that its customers had driven 1 billion miles using “Autopilot,” Bloomberg News falsely reported, “The resulting trove of real-world miles acts as a feedback loop to the algorithms that are constantly training the fleet of Tesla vehicles...” See https://www.bloomberg.com/news/articles/2018-11-28/tesla-customers-rack-up-1-billion-milesdriven-on-autopilot. To the extent any training “algorithms” existed, they did not work. 83. On December 16, 2019, a news story began circulating about a boy wearing an orange shirt in Brazil who had been mistaken for a traffic cone by “Autopilot.” While the boy was not hurt, the story continued to raise serious questions about “Autopilot”’s true abilities. 84. By 2020, confidential internal Tesla presentations still noted hundreds of slides worth of manual tagging errors. Such errors frequently labeled discrete, solid objects, such as highway barriers, with a system flag for “road debris,” with one presentation slide noting, “we annotate standalone curbs that separate lanes as road_debris” next to screenshots of manual FIRST AMENDED COMPLAINT 28 23 3:24-cv-04647-MMC PDF Page 29 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 28 of 159 1 image taggers asking questions like, “Would this be the correct way to annotate this?” 2 85. Defendant Tesla evaluated its manual image taggers based on “accuracy” as 3 assessed by their human supervisors, but also on speed, evaluating “Time per frame,” 4 abbreviated “T/F,” with supervisor dashboards noting that “lower T/F is better.” This metric 5 incentivized Tesla’s human image taggers to sacrifice accuracy, especially since Tesla compared 6 taggers to each other on each metric. 7 86. The fact that “Autopilot” had never actually involved a “network of vehicles” that 8 was “constantly learning” from “expert trainer” drivers was emphasized in May 2024 by 9 nVIDIA CEO Jensen Huang, who described such features at Tesla as “really revolutionary” 10 because they were purportedly part of Tesla FSD version 12, released approximately nine years 11 after the October 2015 “Autopilot” “7.0” press conference falsely claiming that they had already 12 been implemented. Huang also stated, “We used to train based on images that are labeled.” 13 Tesla still does exactly this. See https://www.youtube.com/watch?v=ER7iqeYx9HU&t=508s. 14 87. Today, “Autopilot” has been the subject of nearly 100 lawsuits and/or regulatory 15 actions against Defendant Tesla, including but not limited to Matsko v. Tesla, Inc., Case No. 16 3:22-cv-05240-RFL (N.D. Cal. filed September 14, 2022), which features detailed background 17 on pages 17-22 of the Consolidated Third Amended Complaint, ECF No. 102. 18 88. As noted in Matsko, Defendants “Tesla and Musk often use ‘Autopilot’ as an 19 umbrella term to refer to all of Tesla’s A[dvanced ]D[river ]A[ssistance ]S[ystems] technologies 20 and systems, including Autopilot, Enhanced Autopilot, and FSD, and Tesla’s Autopilot team has 21 historically developed all of Tesla’s ADAS technologies and systems.” 22 89. According to the June 30, 2022 videotaped deposition of Tesla Director of 23 Autopilot Software Ashok Elluswamy from Huang v. Tesla, Inc. et al in the Superior Court of 24 California for the County of Santa Clara, Case No. 19CV346663, Defendant Musk personally 25 ran the “Autopilot” team, which also included Directors Milan Kovac (who no longer works on 26 “Autopilot”), CJ Moore (who has since left Tesla), and Andrej Karpathy (who has since left 27 Tesla). 28 FIRST AMENDED COMPLAINT 28 24 3:24-cv-04647-MMC PDF Page 30 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 29 of 159 1 2 90. While he continued to spread lies to the general public about the software’s capabilities, Defendant Musk’s “prime directive” to his “Autopilot” team was “do not crash.” 3 91. Defendant Tesla repeatedly published false and/or misleading statistics 4 embellishing “Autopilot”’s safety record on the Tesla website which failed to take into account 5 various driving conditions such as time of day, street or highway driving, and weather 6 conditions. 7 92. Tesla customers and employees believed Defendant Musk’s and Tesla’s lies, and 8 consequently, many lost their lives. As of the date of this pleading, according to the tracking 9 website TeslaDeaths.com, “there are 44 ‘Verified Tesla Autopilot Deaths’ across 39 incidents.” 10 11 B. The Tesla “Full Self-Driving” Fraud 93. On its own, “Autopilot” was not successful at sufficiently boosting sales of Tesla 12 vehicles—the software’s initial goal, as consumers were still generally wary of electric 13 vehicles—and Defendant Tesla continued to lose billions of dollars. Defendant Musk decided to 14 expand Tesla’s automated driving features from highways to “city streets.” 15 94. In 2016, Defendant Tesla launched “Enhanced Autopilot” and “Full Self-Driving” 16 at Defendant Musk’s behest, which it sometimes qualified with the terms “Capability” or “Beta.” 17 Tesla published an infamous video entitled “Full Self-Driving Hardware on All Teslas” (see 18 https://www.tesla.com/videos/full-self-driving-hardware-all-tesla-cars) that falsely claimed: 19 “THE PERSON IN THE DRIVER’S SEAT IS ONLY THERE FOR LEGAL REASONS 20 HE IS NOT DOING ANYTHING THE CAR IS DRIVING ITSELF” 21 22 23 24 25 26 27 28 95. The video was intentionally deceptive and had implications that reverberated for years. On December 6, 2021, The New York Times published an article based on “interviews with 19 people who worked on the project over the last decade” which made clear that, “The route taken by the car had been charted ahead of time by software that created a three-dimensional digital map, a feature unavailable to drivers using the commercial version of Autopilot, according to two former members of the Autopilot team. At one point during the filming of the video, the car hit a roadside barrier on Tesla property while using Autopilot and had to be repaired, three people who worked on the video FIRST AMENDED COMPLAINT 28 25 3:24-cv-04647-MMC PDF Page 31 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 30 of 159 1 2 3 4 5 said.” See https://www.nytimes.com/2021/12/06/technology/tesla-autopilot-elon-musk.html. 96. This strategy of optimizing pre-planned routes would surface again and again with respect to “Autopilot” and FSD. 97. As competition in electric vehicles ramped up, especially from Chinese 6 automotive manufacturers, Defendant Musk increasingly conveyed that FSD represented the key 7 to Tesla’s future. Defendant Musk began to speak about FSD increasingly in the context of 8 Tesla’s stock price, such as on quarterly earnings calls, linking its success or failure to the 9 company’s overall likelihood of success or failure. 10 98. On November 26, 2018, Defendant Musk made a videotaped admission to Axios 11 that Defendant Tesla “faced a severe threat of death” and was “bleeding money like crazy” such 12 that “in a very short period of time, we would die.” See 13 https://www.axios.com/2018/11/26/elon-musk-tesla-death-bleeding-cash. 14 99. To attempt to remedy the urgent problem of Tesla’s cash crunch, starting in late 15 2018, Defendant Tesla began to cultivate a network of social media influencers from its 16 customer base in an effort to convince the public that its FSD features were safe and effective. 17 100. On April 22, 2019, at “Autonomy Investor Day,” false promises by Defendant 18 Musk regarding the purported Tesla “robotaxi” network—including Musk’s statements that 19 “[T]here will be autonomous robotaxis from Tesla next year...next year for sure, we’ll have over 20 a million robotaxis on the road,” and that Tesla owners would earn “~$30,000 Total gross profit 21 per car per year” for “11 years” based on “Vehicle longevity”—formed the basis of Defendant 22 Tesla’s $2 billion share issuance days later, which was later increased to $2.7 billion. 23 101. There were no “forward-looking statement” disclosures or meaningful cautionary 24 statements at “Autonomy Investor Day,” only a passing reference to the idea of disclosures in a 25 joke that Defendant Musk used to falsely suggest that his predictions always come true. 26 27 102. Defendant Musk knew that his promises about robotaxis were false when he made them. In order to launch a network of autonomous taxis, among other steps, Defendant Tesla 28 FIRST AMENDED COMPLAINT 28 26 3:24-cv-04647-MMC PDF Page 32 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 31 of 159 1 would have needed to 1) secure regulatory approval from state and local regulators; 2) set up 2 insurance business relationships; 3) developed a mobile application capable of coordinating 3 complex logistics; 4) tested that mobile application in a variety of settings nationwide; and 5) 4 taken steps to protect any relevant intellectual property, such as by filing for patent and/or 5 trademark protection where appropriate. By April 22, 2019, Defendant Tesla had done none of 6 these, nor had it taken first steps to attempt to accomplish any of them. In a June 3, 2020 e-mail 7 to Plaintiff, the California Department of Motor Vehicles (“CADMV”) confirmed that Defendant 8 Tesla had never actually raised the matter of “robotaxis” with its autonomous driving regulators. 9 10 103. Defendant Morgan Stanley was one of the underwriters of Defendant Tesla’s May 2019 “robotaxi” capital raise according to Tesla’s SEC Form 424B5 filed May 2, 2019. 11 104. 12 24, 2019 promised, 13 14 15 The “Tesla First Quarter 2019 Update” filed as part of an SEC Form 8-K on April “A custom-made robotaxi capable of running about a million miles using a single battery pack, with all the sensors and computing power for full autonomy, should cost less than $38,000 to produce. We believe low vehicle cost, low maintenance cost and an expected powertrain efficiency of 4.5 miles per kWh should make this the lowest cost of ownership, and to be the most profitable autonomous taxi on the market.” 16 17 18 19 20 105. FSD also provided Defendant Tesla with a mechanism to generate revenue, which was increasingly important for the cash-strapped company. On the dubious theory that its value would triple as the software improved, Defendant Musk raised the price of FSD from $5,000 at Autonomy Investor Day in April 2019 to $15,000 in September 2022. Date April 2019 May 2019 August 2019 July 2020 October 2020 January 2022 September 2022 September 2023 April 2024 21 22 23 24 25 26 FSD Cost $5,000 $6,000 $7,000 $8,000 $10,000 $12,000 $15,000 $12,000 $8,000 27 28 106. A key problem for Defendant Musk was that no matter the price, not enough FIRST AMENDED COMPLAINT 28 27 3:24-cv-04647-MMC PDF Page 33 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 32 of 159 1 customers were interested in purchasing the flawed and dangerous FSD software, leading to 2 frequent remarks on earnings calls about how the public simply did not “understand” the import 3 of Defendant Tesla’s supposedly ingenious product. 4 107. A second key problem for Defendant Musk was that Tesla’s lawyers, accountants 5 and auditors knew that his promises often rang hollow, and would not allow the company to 6 recognize all Autopilot or FSD payments as revenue up-front because the products were so 7 speculative. On August 25, 2020, Tesla Head of SEC Reporting Janice Yeung created general 8 ledger account 411114, “Vehicle Sales - FSD Def Rev,” with a note that the account was for 9 “Autopilot deferred revenue.” On September 7, 2020, Ms. Yeung created a general ledger 10 account 471114, “FSD Revenue - Def Rev Release,” with a note that the account was for 11 “Autopilot deferred revenue recognized.” Both were assigned to the Microsoft Dynamics 360 12 FSLI-L2 “Revenues” category. A corresponding liability general ledger account 223230, 13 “Deferred Revenue - Autopilot,” had already been on the books since Defendant Tesla started 14 using Microsoft Dynamics 360 in July 2018. 15 108. Revenue recognition thus became a driving force behind purported FSD 16 development and feature releases. Defendant Musk repeatedly declared broken and dangerous 17 software to be a technological breakthrough so that the company’s lawyers, accountants and 18 auditors would allow the recognition of additional revenue that had been stored in general ledger 19 account 411114 without yet appearing on the company’s statement of operations as revenue. 20 109. Five years after Defendant Musk and Tesla raised nearly $3 billion on the basis of 21 the false promise that 1 million robotaxis would be on the road by 2020, they next promised that 22 the Tesla robotaxi network would be unveiled at an event on August 8, 2024. That event was 23 cancelled and postponed until November, emphasizing the dishonesty of the 2019 claims. 24 110. By 2020, Defendant Tesla was so desperate for cash that it simply began stealing 25 customer funds. Defendant Tesla modified its mobile application to exploit “dark patterns,” or 26 user interface designs that made it more likely for customers to make mistakes, such as the 27 inadvertent approval of large expenditures on FSD software packages they did not actually want. 28 FIRST AMENDED COMPLAINT 28 28 3:24-cv-04647-MMC PDF Page 34 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 33 of 159 1 For example, Defendant Tesla updated its mobile app to add FSD upgrades to each user’s 2 shopping cart by default and re-designed the “purchase” button not to look like a button at all. 3 Defendant Tesla referred to these stolen funds as “customer deposits” or “cash” on its financial 4 statements and recognized the converted funds as revenue. 5 6 111. Once FSD had been “purchased” for thousands of dollars, Tesla typically refused to issue refunds. This dynamic was described by several Tesla customers on social media: 7 a) On January 15, 2020, Nassim Nicholas Taleb wrote in a Twitter post: “The 8 purchase was non-intentional. I unintentionally hit the buy button while the 9 app was in my pocket and do not know of any app that makes you do a 10 purchase of $4,333 with[out] confirmation/password or something of the 11 sort.” Although Taleb, who is famous, reportedly received a refund after 12 complaining publicly, many less-famous Tesla customers did not. 13 b) Twitter user @CamBirch wrote on January 28, 2020, “I just had this happen. 14 Called Tesla (hard to do) and talked to a support person. It took them a week 15 and the refund is now displayed on my card. Getting the free mud flaps had 16 more confirmations and proof of purchase than a nearly $10k purchase.” 17 c) Twitter user @mpj510 described the experience on March 9, 2020: “hi Elon! 18 We were having a problem getting a refund for full self drive that we didn’t 19 authorize last 1/13/2020 and that costs $7,542.50! Kindly help us.” 20 d) Twitter user @Maykou1st described her experience on April 10, 2020: “In Jan 21 I noticed an addition in the ph app about upgrades so I looked and noticed I 22 ‘bought’ a full self driving upgrade in 8/2019 for $3k which I never did and 23 they refused to refund.” 24 e) At least one other similar public request was deleted as a condition of 25 26 27 receiving a refund. 112. When Tesla customers made FSD upgrade purchases through the Tesla mobile application deliberately or inadvertently, purchases prior to October 2021 were recorded as 28 FIRST AMENDED COMPLAINT 28 29 3:24-cv-04647-MMC PDF Page 35 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 34 of 159 1 revenues in general ledger account 470001 designated for “OTA Upgrade Revenue” and in 2 approximately October 2021 or later in general ledger account 471115 designated for “FSD 3 Revenue – Subscription”. 4 113. On the June 30, 2021 Q2 2021 Tesla earnings call, Defendant Musk admitted, 5 “We need to make Full Self-Driving work in order for it to be a compelling value proposition” 6 (emphasis added). The call ended soon thereafter with no further questioners permitted. Despite 7 the admission that Tesla’s FSD features did not yet “work,” Defendant Tesla recognized tens of 8 millions of dollars of deferred revenue on the basis of their purported functionality. 9 114. An internal Tesla spreadsheet, below, reveals that by Q3 2021, the FSD 10 subscription upgrade refund rate was extremely high: over 26.5% for July 2021 (703 11 refunds/2,652 upgrades), 26.7% for August 2021 (589 refunds/2,202 upgrades), and 15.9% for 12 September 2021 (520 refunds/3,268 upgrades). 13 14 15 16 17 18 19 20 21 22 23 115. To more widely disseminate false and misleading marketing promoting FSD, in or 24 around September 2021, Defendant Tesla launched the FSD Early Access Program (“EAP”) for 25 social media influencers including but not limited to Defendant Qazi, Galileo Russell, and others, 26 who wanted to be able to access early versions of FSD software to create demonstration videos. 27 28 116. E-mails sent to EAP applicants stated that, “The Early Access program is invitation-only and participants are specifically chosen for evaluation. Therefore it’s not open FIRST AMENDED COMPLAINT 28 30 3:24-cv-04647-MMC PDF Page 36 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 35 of 159 1 enrollment. If one is eligible, we will contact them directly, but we cannot promise that all FSD 2 customers will receive an invitation.” 3 117. Tesla retained editorial control over all EAP participants and their unbranded 4 Tesla commercials. On September 19, 2021, EAP contractor Galileo Russell, who regularly 5 collaborates on and appears in Tesla-related videos with Defendant Qazi, posted a video of 6 himself to YouTube in which he admitted that Tesla exercises direct control over EAP 7 contractors. See https://www.youtube.com/watch?v=gvgsoRPiWA8&t=2m14s. In Russell’s 8 words, “Um, but yeah, Tesla doesn’t want us sharing all of the clips of the videos, um, just like 9 when it looks good, because they know people take it out of context” (emphasis added). 10 118. By the time the EAP came into existence, Defendant Tesla was already in 11 litigation in Greenspan I, in which Plaintiff explicitly alleged that Defendants Qazi and Smick 12 acted as Musk and Tesla’s agents. Therefore, to attempt to insulate Tesla from liability and 13 cover up the fact that EAP participants were, in fact, acting as Tesla’s agents, the Tesla legal 14 department drafted terms and conditions entitled the “Tesla Early Access Program Agreement” 15 that appeared to explicitly disclaim any agency relationship. 16 119. After Defendant Qazi electronically signed Defendant Tesla’s EAP Agreement 17 purportedly disclaiming any agency relationship, Defendant Tesla sent Defendant Qazi a 18 contractual rider that re-established the agency relationship. The rider was entitled “EAP 19 Guidelines” and read as follows: 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 31 3:24-cv-04647-MMC PDF Page 37 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 36 of 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 120. By stating that “there are a lot of people that want Tesla to fail; don’t let them 18 mischaracterize your feedback and media posts,” Defendant Tesla explicitly authorized EAP 19 participants including but not limited to Defendant Qazi to act as its agents and attack critics on 20 Tesla’s behalf, including but not limited to Plaintiff. 21 121. Further cementing the agency relationship between Defendant Tesla and EAP 22 participants, after Defendant Musk’s acquisition of Twitter in 2022, Tesla EAP participants were 23 added to a “VIP” list of only a few dozen Twitter users eligible to earn income from their Twitter 24 posts. Unlike other revenue share programs, such as those offered by Google and YouTube, the 25 revenue share program offered by Defendant X Corp. was initially not open to the public. 26 27 122. On July 13, 2023, Defendant Qazi posted a screenshot of Defendant Smick’s Stripe account reflecting a $6,206.00 payment from Defendant X Corp. for his participation in its 28 FIRST AMENDED COMPLAINT 28 32 3:24-cv-04647-MMC PDF Page 38 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 37 of 159 1 VIP revenue-sharing program—the first of many such payments of varying amounts. See 2 https://x.com/WholeMarsBlog/status/1679593569114533888. Each payment amount was 3 nominally based on the impressions and engagement that the @WholeMarsBlog Twitter account 4 received on all of the account’s posts since its inception. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 123. Many of the impressions and engagements that Defendant Qazi was paid for were for impressions and engagements of Twitter posts that libeled and/or harassed Plaintiff. 124. Tesla social media influencer Alexandra Merz, also known as @TeslaBoomerMama on Twitter, posted a spreadsheet of her earnings from the X Corp. VIP revenue-sharing program on Google Sheets. Ms. Merz’s spreadsheet reflected the fact that starting on August 7, 2023, Defendant X Corp. made and continues to make payments to participants on a bi-weekly basis. Ms. Merz’s smallest bi-weekly payment was reportedly $142.55 (“11/10 - 11/23/2023”) and her largest was reportedly $2,859.52 (“6/7 - 6/20/2024”). 125. For a time, Ms. Merz’s Google Sheet also contained hidden worksheets for other Tesla social media influencers, including but not limited to Kristen Yamamoto, known on Twitter as @Kristennetten or “K10,” and Sawyer Merritt, another Tesla social media influencer. 126. Defendant Qazi produced hundreds of videos posted on both Twitter and YouTube purporting to depict the flawless operation of Defendant Tesla’s FSD software. Yet Defendant Qazi’s videos were fraudulent in three different ways: FIRST AMENDED COMPLAINT 28 33 3:24-cv-04647-MMC PDF Page 39 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 38 of 159 1 a) Defendant Qazi deliberately withheld material information about his own 2 Tesla vehicle’s service problems, including a persistent “screeching noise,” 3 from his followers. He then edited his videos to remove evidence that his 4 Tesla vehicle was not functioning properly. On November 10, 2020, 5 Defendant Tesla’s service systems recorded “Jim Qazi” using Defendant 6 Qazi’s cell phone number ending in 37 writing via text message, “if you’re 7 driving at a low speed and turning the wheel left you should be able to hear 8 the screeching sound. it is so bad and just keeps getting worse and worse. very 9 sad that nobody is able to tell me what it is[.]” On the same day, Defendant 10 Tesla acknowledged that Defendant Qazi “mentioned this concern previously 11 and we were not able to verify it.” On March 28, 2021, Defendant Qazi 12 followed up, writing via the Tesla mobile application, “would like someone to 13 look at berkeley even if no repair is ultimately needed, or if they could just 14 burnish the brakes or do whatever to get it go away temporarily that would 15 make me happy too. trying to make videos of this new FSD software without 16 the car making loud high pitched screeching noises” (emphasis added). 17 b) According to a July 9, 2024 report in Business Insider, Defendant Tesla 18 prioritized the review and tagging of camera images for Defendant Musk’s 19 and its EAP participants’ routes. See https://www.businessinsider.com/tesla- 20 prioritizes-musk-vip-data-self-driving-2024-7. 21 c) Defendant Qazi produced hundreds of YouTube videos for his hundreds of 22 thousands of followers showcasing his Tesla Model 3’s purported FSD 23 features, but withheld information about his use of a Comma device that 24 suppressed safety warnings until he admitted to its persistent use on June 7, 25 2024. See https://x.com/WholeMarsBlog/status/1799276775912153403. 26 27 127. Defendant Qazi’s videos were intended to both increase vehicle sales and increase Tesla’s stock price. In one video, he exclaimed, “I’ll sell them all fuckin’ Teslas. I’ll pull in 28 FIRST AMENDED COMPLAINT 28 34 3:24-cv-04647-MMC PDF Page 40 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 39 of 159 1 those referrals!” See https://www.youtube.com/watch?v=VSOayMTw5Zw&t=1396s. In 2 another post, he wore a T-shirt of Tesla’s nearly vertical stock graph. 3 128. In order to mass market FSD, Defendant Musk ordered Defendant Tesla’s lawyers 4 to devise a strategy to avoid regulatory scrutiny. Consequently, knowing that U.S. regulators 5 only claimed jurisdiction over “Level 3” and higher systems on the Society of Automotive 6 Engineers (“SAE”) Levels of Driving Automation scale (first published in a paper entitled SAE 7 J3016 Recommended Practice: Taxonomy and Definitions for Terms Related to Driving 8 Automation Systems for On-Road Motor Vehicles and later revised in 2016, 2018, and 2021), 9 Defendant Tesla exploited justifiable confusion over the various SAE “Levels” and claimed in 10 communications with regulators, obtained by Plaintiff via public records requests, that FSD only 11 constituted a “Level 2” system. 12 129. While exploiting confusion over the SAE “Levels,” Defendant Tesla also created 13 its own. In a November 20, 2020 letter from its counsel Eric C. Williams to Miguel Acosta, 14 Chief of the Autonomous Vehicles Branch of the CADMV, Defendant Tesla wrote, “City Streets 15 continues to firmly root the vehicle in SAE Level 2 capability and does not make it autonomous 16 under the DMV’s definition.” See https://www.plainsite.org/documents/242a2g/california-dmv- 17 tesla-robotaxi--fsd-emails/. At approximately the same time, the Tesla Insurance Autonomous 18 Vehicle Protection Package in Texas included an “additional definition” stating, “‘Autonomous 19 vehicle’ means any vehicle equipped with a level two or higher driving automation system as 20 defined by SAE International Standard J3016.’” See 21 https://www.plainsite.org/documents/uhbpli/redpoint-county-mutual-insurance-company-serff- 22 tracking-no-misf132484596-filing-package/. Thus, Defendant Tesla informed different 23 regulators that its FSD software was both autonomous and not autonomous simultaneously. 24 130. Whether or not FSD was actually a “Level 2” system at the outset—which did not 25 necessarily mean it remained so as the software changed—by maintaining that FSD’s capabilities 26 had their “root” in a “Level 2” classification, for years Defendant Tesla evaded the jurisdiction of 27 the CADMV and the National Highway Traffic Safety Administration (“NHTSA”). 28 FIRST AMENDED COMPLAINT 28 35 3:24-cv-04647-MMC PDF Page 41 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 40 of 159 1 131. No regulator performed ongoing independent analysis of FSD’s capabilities for 2 the purposes of determining the proper SAE Level classification. Each instead relied on 3 technology manufacturers such as Defendant Tesla to self-assess their respective SAE Levels. 4 5 6 132. On August 12, 2021, NHTSA issued Standing General Order 2021-01, which required manufacturers of Level 2 driver assistance systems to report vehicle crashes. 133. On August 17, 2021, a member of the public recorded a Tesla sales representative 7 at a Tesla showroom at 4545 La Jolla Village Drive, Unit C17, San Diego, CA 92122 8 representing that FSD operates at “Level 3 of 5 levels in total of full self-driving.” See 9 https://www.youtube.com/watch?v=Ii_UvYiO1x0. 10 134. Meanwhile, Defendant Musk repeatedly stated that FSD would achieve “Level 5” 11 soon virtually every year starting on April 22, 2019 at Autonomy Investor Day. On December 1, 12 2020, while accepting the Axel Springer Award in Germany, Defendant Musk claimed that FSD 13 would achieve “Level 5” in 2021. 14 135. In response to a public records request by Plaintiff, CADMV produced a March 9, 15 2021 “Memo to File” that stated, “DMV asked CJ [Moore, Tesla’s former Director, Autopilot 16 Software] to address, from an engineering perspective, Elon’s messaging about L5 capability by 17 the end of the year. Elon’s tweet does not match engineering reality per CJ.” CJ Moore was no 18 longer employed by Defendant Tesla soon after this disclosure to Plaintiff. 19 136. According to Defendant Tesla’s Tesladex database, as of March 22, 2022—two 20 months after Defendant Tesla claimed, “We successfully increased the number of FSD Beta 21 vehicles from a couple of thousand in Q3 to nearly 60,000 vehicles in the US today,” in its “Q4 22 and FY 2021 Update”—there were only actually 42,128 “delivered” Tesla vehicles produced in 23 North America and Europe that were configured for active use of FSD Beta. This was according 24 to a query for all vehicles with the “GUI_fsdControlEnabled” flag set to “true”, which means 25 that matching vehicles had an enabled Graphical User Interface panel for FSD Beta on the center 26 console. Tesladex also indicated as of that date that 434,460 “delivered” vehicles were FSD- 27 capable and 218 “delivered” vehicles had had FSD Beta suspended. 28 FIRST AMENDED COMPLAINT 28 36 3:24-cv-04647-MMC PDF Page 42 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 41 of 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 137. On July 28, 2022, the CADMV initiated two legal proceedings against Defendant Tesla for committing fraud with respect to its FSD software in yet another way: by using the terms “Autopilot” and “Full Self-Driving” at all. In the First Amended Accusation of Case Nos. 21-02188 and 21-02189 (with minor changes between them to account for the charges relating to Tesla’s vehicle dealer, as opposed to manufacturer, license), CADMV alleged, “Respondent made or disseminated statements that are untrue or misleading, and not based on facts, in advertising vehicles as equipped, or potentially equipped, with advanced driver assistance system (ADAS) features. On at least five dates between May 28, 2021 and July 12, 2022, specifically May 28, 2021, June 3, 2022, June 14, 2022, June 28, 2022, and July 12, 2022, Tesla advertised ADAS features in written marketing materials primarily on Tesla’s internet website using the product label and descriptions: A. ‘Autopilot’ 21 22 23 24 25 26 27 28 B. ‘Full Self-Driving Capability’ C. The phrase: ‘The system is designed to be able to conduct short and long-distance trips with no action required by the person in the driver's seat.’ D. The claims: ‘From Home - All you will need to do is get in and tell your car where to go. If you don't say anything, your car will look at your calendar and take you there as the assumed destination. Your Tesla will figure out the optimal route, navigating urban streets, complex intersections and freeways. To your Destination- When you arrive at your destination, simply step out at the entrance and your car will enter park seek mode, automatically search for a spot and park itself. A tap on your phone summons it back to you.’ FIRST AMENDED COMPLAINT 28 37 3:24-cv-04647-MMC PDF Page 43 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 42 of 159 1 2 3 4 5 6 7 8 9 10 Instead of simply identifying product or brand names, these ‘Autopilot’ and ‘Full SelfDriving Capability’ labels and descriptions represent that vehicles equipped with the ADAS features will operate as an autonomous vehicle, but vehicles equipped with those ADAS features could not at the time of those advertisements, and cannot now, operate as autonomous vehicles. These advertisements are a deceptive practice under Civil Code § 1770(a)(5). Tesla has published disclaimers including one observed June 28, 2022, stating in part: ‘The currently enabled features require active driver supervision and do not make the vehicle autonomous.’ However, the disclaimer contradicts the original untrue or misleading labels and claims, which is misleading, and does not cure the violation. Respondent advertised statements not based on facts in violation of Cal. Code Regs. Title 13, § 260.00. Respondent made untrue or misleading statements in advertisements in violation of Vehicle Code § 11713(a). Respondent’s acts, omissions, or conduct constitutes cause to discipline a manufacturer license pursuant to Vehicle Code § 11705(a)(10).” CADMV further alleged, 15 “Respondent continued to use the product labels ‘Autopilot’ and ‘Full Self-Driving Capability,’ from January 1, 2023, to the present, and at least on September 1, 2023, through October 4, 2023, and those labels describe partial driving automation features using language that implies or would otherwise lead a reasonable person to believe that the features allow the vehicle to function as an autonomous vehicle. Respondent thereby violated Vehicle Code § 24011.5(b) and Vehicle Code § 11713(a) as those sections interact. Respondent’s acts, omissions, or conduct constitutes cause to discipline a manufacturer license pursuant to Vehicle Code § 11705(a)(10).” 16 138. 11 12 13 14 On July 6, 2023, Defendant Musk claimed at the World Artificial Intelligence 17 Conference in Shanghai that FSD would achieve “Level 4 or 5” by the end of 2023. All of these 18 claims were false and Defendant Musk knew them to be false when he made them. 19 20 21 139. In March 2024, Defendant Tesla dropped the “Beta” suffix after “Full Self- Driving” and replaced it with the term “(Supervised)” in marketing materials. 140. Tesla’s motions to dismiss the CADMV proceedings were denied on June 10, 22 2024 by California Office of Administrative Hearings Administrative Law Judge Juliet E. Cox. 23 Both CADMV enforcement proceedings remain pending. 24 141. On or around August 23, 2024, Defendant Tesla suddenly deleted dozens of posts 25 from its website from 2016-2019, including but not limited to a October 19, 2016 post entitled, 26 “All Tesla Cars Being Produced Now Have Full Self-Driving Hardware.” 27 28 FIRST AMENDED COMPLAINT 28 38 3:24-cv-04647-MMC PDF Page 44 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 43 of 159 1 2 C. The Tesla Vehicle Quality Fraud 142. For years, Defendant Tesla has known that, on average, its vehicle quality does 3 not meet industry standards. In one internal chat discussing a customer complaint, Tesla Senior 4 Regional Parts Manager / Senior Supply Chain Field Operations Manager, Material Planning - 5 Service and Energy Greg Dolgner wrote, “If you want a better quality seat, the customer should 6 go buy a Mercedes or BMW.” 7 143. The persistent defects prevalent in Tesla vehicles are a direct result of choices 8 made by Defendant Musk, such as the decision to build vehicles in an outdoor tent at the 9 company’s Fremont factory, and the decision to use electrical tape from home improvement 10 stores to fix manufacturing defects. See https://www.cnbc.com/2019/07/15/tesla-workers-in- 11 ga4-tent-describe-pressure-to-make-model-3-goals.html. See also 12 https://www.cnbc.com/2018/10/19/tesla-ceo-elon-musk-extreme-micro-manager.html. While 13 many of these choices have been widely reported, Defendant Tesla has gone to considerable 14 lengths to cover up the downstream effects and hide them from customers and investors. 15 16 17 144. Defendant Tesla forced many customers to sign non-disclosure agreements in order to have their vehicles repaired. 145. In 2018, Defendant Musk was referred to the Federal Trade Commission by 18 NHTSA for making false claims about the Model 3’s safety record. Defendant Tesla’s 19 manufacturing practices arguably made the Model 3’s safety considerably worse. 20 146. Like all automotive manufacturers, Tesla is routinely sued in “lemon lawsuits” 21 under the Magnuson-Moss Warranty Act and similar state statutes. However, per vehicle sold, 22 records on PlainSite offer a rough estimate that Tesla is sued two to three times as often as its 23 major competitors such as General Motors, Ford, and Toyota. 24 147. Defendant Tesla never disclosed to investors the existence of Case No. 20- 25 123464TVI-OTIR/04 in Norwegian Oslo District Court, brought by RAC Norway A/S (“RAC 26 Group”), the local manager of the AVIS car rental brand. RAC Group sued Defendant Tesla for 27 the repair costs to its fleet of almost 100 Tesla vehicles, used as Tesla’s loaner fleet for car 28 FIRST AMENDED COMPLAINT 28 39 3:24-cv-04647-MMC PDF Page 45 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 44 of 159 1 repairs, after Defendant Tesla stopped paying RAC Group’s invoices worth approximately 35 2 million NOK. The lawsuit ended with a court-ordered settlement of 11.8 million NOK paid by 3 Tesla in March 2021, which was personally approved by Tesla CFO Zachary Kirkhorn. 4 148. This omission later had an impact when car rental company Hertz announced a 5 supposed order for 100,000 Tesla vehicles in October 2021, sending Tesla’s stock soaring to the 6 tune of about $400 billion in market capitalization, despite the fact that no such order actually 7 existed. Nonetheless, Defendant Musk’s personal wealth increased by about $45 billion as a 8 result—enough to purchase Twitter, Inc. the following year. Investors were unaware that Tesla 9 had encountered so much trouble maintaining a fleet of under 100 rental cars in a relatively small 10 country that it ended up being sued and settling the case, with repair costs accruing to Tesla. 11 149. Defendant Tesla has been investigated by NHTSA for numerous safety defects, 12 including but not limited to problems with the suspension in Model S and X vehicles, sudden 13 unintended acceleration events, phantom braking, and numerous other recalls the bases for which 14 Defendant Tesla has attempted to deny and cover up for years. 15 D. 16 The Tesla Solar Fraud 150. SolarCity was founded in 2006 by Lyndon and Peter Rive, Defendant Musk’s 17 cousins. Musk himself was the Chairman of the SolarCity Board of Directors, having reportedly 18 provided the initial impetus to start the company. By that point, Musk had been an investor in 19 Tesla for three years and had been leading SpaceX for four. 20 151. Defendant Tesla, SolarCity and SpaceX sometimes engaged in undisclosed 21 related-party transactions, such as SolarCity buying cars from Tesla, or SpaceX purchasing solar 22 panels from SolarCity. In the words of former Tesla Director Brad Buss in Delaware Court of 23 Chancery Case No. 12711-VCS, “We would just—you know, we might buy solar panels for 24 something. They may be buying batteries and stuff from our perspective. You know, I think 25 they bought some cars.” 26 27 152. By 2016, SolarCity’s CEO, Lyndon Rive, was starting to panic. SolarCity required a bridge loan to avoid defaulting on its revolving debt and no one was willing to provide 28 FIRST AMENDED COMPLAINT 28 40 3:24-cv-04647-MMC PDF Page 46 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 45 of 159 1 it. Defendant Musk and his cousins had strategized a buyout over a conversation at Lyndon 2 Rive’s second home at Lake Tahoe in February 2016. Rive attempted to tell Defendant Musk 3 how dire the situation was, but Musk seemed distracted by other issues. When discussing 4 whether SolarCity should raise equity by May 2016, Defendant Musk asked, “Can it wait a 5 month?” Any buyout would have needed to be approved by shareholders, made challenging by 6 the horrific financials and the conflicts of interest between the Board members. 7 153. Because SpaceX owned 77% of SolarCity’s bonds, a SolarCity bankruptcy would 8 have had material negative consequences for SpaceX, and in turn, Defendants Musk and the 9 Musk Trust. The damage to Defendant Musk’s reputation alone would have also materially 10 affected cash-strapped Tesla, causing a cascade of events that could have plausibly led to 11 Defendant Musk’s personal bankruptcy and long-term alienation from banks and capital markets. 12 Defendant Musk was therefore motivated to take extreme measures. 13 154. Musk schemed with his cousins and both Boards of Directors to make it appear as 14 though his plan for a vertically integrated energy company was widely supported and had made 15 perfect sense all along. In reality, the Tesla, SolarCity, and even SpaceX Boards were all against 16 a Tesla-SolarCity merger. Defendant Tesla stood to acquire a large amount of debt from 17 SolarCity, and there was virtually no overlap between manufacturing, selling and financing solar 18 panels and manufacturing and selling electric vehicles. 19 155. That the deal made no sense was widely known. As Linette Lopez wrote in 20 Business Insider, “[T]he merger that Musk called a ‘no-brainer’ appeared to be anything but. No 21 other company was bidding to buy SolarCity, and according to internal emails, it was also 22 struggling to find financing for a $200 million bridge loan that it needed immediately.” As 23 Lyndon Rive wrote about one of SolarCity’s loan facilities, “If we breach [K]ronor, we’re dead.” 24 156. According to Defendant Tesla’s own General Counsel at the time, Todd Maron, 25 the deal was worse than nonsensical: it would actually harm Tesla. As he wrote, “[T. Rowe 26 Price] said what Tesla is trying to accomplish in the automotive space is very complex and to 27 add SolarCity to the mix raises the operational and financial risk profile of the company, 28 FIRST AMENDED COMPLAINT 28 41 3:24-cv-04647-MMC PDF Page 47 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 46 of 159 1 2 especially given SolarCity’s financial challenges as a company.” 157. Advisors Evercore Partners LLC and Lazard also insisted that the deal was 3 problematic, even looking at numbers that painted an overly optimistic picture due to an 4 enormous mathematical error. Both Goldman Sachs and Defendant Morgan Stanley refused to 5 lend money on the basis that SolarCity had failed credit checks. Even the Board of SpaceX “said 6 no” to investing, according to unredacted testimony by SolarCity CEO Rive. 7 158. The pliant Tesla Board finally cracked under pressure from Defendant Musk. 8 Virtually all of the Directors were conflicted. Kimbal Musk—who claimed under oath that he 9 didn’t perceive any conflict at all—is Defendant Musk’s brother and business partner of decades. 10 Steve Jurvetson and his funds owned 1.67 million shares of SolarCity stock. Ira Ehrenpreis was 11 invested in SpaceX through a Special Purpose Vehicle—the only one of his firm’s investments 12 that apparently necessitated one. Antonio Gracias vacationed with Musk’s family in Mexico. 13 159. Defendant Musk devised a solution to save himself and his family: a fake product 14 demonstration. He would announce and launch a “Solar Roof Tile,” purportedly proving that the 15 supposed vertical integration between SolarCity and Tesla had always been meant to be. On 16 October 26, 2016, the demonstration took place on the set of the television show Desperate 17 Housewives, carefully orchestrated to keep the press from catching onto the fact that the entire 18 presentation was a hoax. The product did not work, did not really exist, and was not hooked up 19 to the electric grid. It was all for show to induce shareholders to approve the deal. 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 42 3:24-cv-04647-MMC PDF Page 48 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 47 of 159 1 160. When Tesla and SolarCity shareholders voted on the merger deal, they were 2 falsely told that Elon Musk had been “recused” from the decision-making process—a lie. 3 Defendant Musk guided the process at every step along the way, even as every other party saw 4 the clear danger in what he proposed. Investors were not told, however, that SolarCity was at 5 risk of breaching key loan covenants, that it had been rejected by at least two major investment 6 banks for credit, that the Board had been informed about cash concerns for months, that every 7 financial advisor asked had advised against the deal, or that SolarCity solar panels might be 8 using defective components that would need to be recalled to avoid fire risk. Despite lacking 9 this crucial information and trying to keep it sealed, confidential, and redacted in court, 10 11 12 13 Defendant Tesla’s Board maintained that shareholders were fully informed. 161. Shareholders voted to approve the deal. Defendant Tesla was saddled with billions of dollars of SolarCity’s debt. 162. Soon after the merger was approved, Tesla was in crisis, with barely enough cash 14 to survive and Defendant Musk pushing to manufacture the new Model 3 en masse. In June 15 2019 deposition testimony regarding the merger, Elon Musk asserted that while “we certainly 16 believed that the long-term growth of megawatts deployed would be very significant,” “ if I did 17 not take everyone off of solar and focus them on the Model 3 program to the detriment of solar, 18 then Tesla would have gone bankrupt. So I took everyone from solar, and said, ‘Instead of 19 working on solar, you need to work on the Model 3 program.’” 20 163. Defendant Musk’s ex post facto rationalization—that unless Tesla acquired 21 SolarCity for its labor pool, Tesla would go out of business—contradicts what investors were 22 told in 2016. At no point did Tesla disclose that it would require thousands of new employees to 23 make the Model 3 program work, let alone that the only way to hire them would be to acquire a 24 company whose staff had no experience whatsoever with vehicle manufacturing or sales. 25 164. In mid-2018, a secret project codenamed “Project Titan” was devised to replace 26 faulty Amphenol H4 solar panel connectors that SolarCity had deployed across the United States, 27 as well as SolarEdge optimizers, both of which were starting fires. Then, in August of 2019, 28 FIRST AMENDED COMPLAINT 28 43 3:24-cv-04647-MMC PDF Page 49 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 48 of 159 1 Walmart sued Defendant Tesla for negligence in maintaining its solar panel installations on the 2 rooves of stores, which had also resulted in multiple fires. See 3 https://www.nytimes.com/2019/08/20/business/walmart-tesla-lawsuit-fires.html. 4 165. Once the merger was complete, Defendant Tesla faced the challenge of actually 5 manufacturing the fake product that Defendant Musk had demonstrated on the set of Desperate 6 Housewives: the Solar Roof Tile. Defendant Tesla inherited from SolarCity and its Silevo, LLC 7 subsidiary a subsidized solar panel manufacturing arrangement with the State of New York, 8 coordinated by Empire State Development Corporation, Fort Schuyler Management Corporation, 9 and the Research Foundation for the State University of New York that was intended to create 10 New York manufacturing jobs. New York State spent approximately $1 billion to build 11 Defendant Tesla’s Buffalo factory (the “Buffalo Factory”), which its auditors later wrote off. 12 166. Post-merger, Defendant Musk frequently focused on the topic of solar power to 13 market Defendant Tesla to potential customers and investors and to manufacture purported 14 evidence for litigation surrounding the merger. On August 18, 2019, Defendant Musk posted on 15 Twitter, “Tesla Solar just relaunched. [Let me know] what you think… Tesla.com/solar With the 16 new lower Tesla pricing, it’s like having a money printer on your roof if you live a state with 17 high electricity costs. Still better to buy, but the rental option makes the economics obvious.” 18 See https://x.com/elonmusk/status/1163025594180726784. On October 10, 2019, Defendant 19 Musk wrote on Twitter, “All Tesla Supercharger stations in regions affected by California power 20 outages will have Tesla Powerpacks within next few weeks. Just waiting on permits.” He then 21 added, “Also adding Tesla Solar to our Supercharger stations as fast as possible. Goal is 24/7 22 clean power with no blackouts.” See https://x.com/elonmusk/status/1182089703039700993. 23 167. Defendant Musk has a degree in physics from the University of Pennsylvania, 24 boasted on the May 3, 2018 Q1 2018 earnings call, “I actually studied physics in college,” and 25 knew or should have known that adding solar functionality to electric vehicle charging stations in 26 a practical and economical manner, i.e. not requiring multiple football fields worth of solar 27 panels per station, would defy the laws of physics. Tesla Supercharger stations were never 28 FIRST AMENDED COMPLAINT 28 44 3:24-cv-04647-MMC PDF Page 50 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 49 of 159 1 2 equipped with permanent batteries or solar power. 168. On or around August 21, 2020, the Office of the New York State Comptroller 3 released Audit Report 2017-S-60. It states in part, “Since 2017, publicly available Tesla reports 4 have indicated potential setbacks with Tesla’s solar roof... However, in November 2018, Tesla 5 reported it was still refining the product design and installation processes and, as a result, 6 production would not significantly increase until the first half of 2019.” 7 169. Initially, Defendant Tesla, its Tesla Energy Operations, Inc. subsidiary and 8 Panasonic Solar North America (“Panasonic”) planned to manufacture “version 2.0” of the Tesla 9 Solar Roof Tile at the Buffalo Factory using equipment purchased from Von Ardenne GmbH in 10 Germany. Fort Schuyler Management Corporation paid for a $5,634,000 “Solar Roof Tile” 11 upgrade from Von Ardenne on February 6, 2019, which required heavy machinery to be shipped 12 from Germany to New York. On July 29, 2019, Defendant Musk posted on Twitter, “Spooling 13 up production line rapidly. Hoping to manufacture ~1000 solar roofs/week by the end of this 14 year.” See https://x.com/elonmusk/status/1156005185656782848. As reported by the Wall 15 Street Journal on July 6, 2023, this did not go according to plan: 16 17 18 “New York state paid to build a quarter-mile-long facility with 1.2 million square feet of industrial space, which it now owns and leases to Tesla for $1 a year. It bought $240 million worth of solar-panel manufacturing equipment. Musk had said that by 2020 the Buffalo plant each week would churn out enough solar-panel shingles to cover 1,000 roofs. 19 20 21 22 23 24 25 26 The Tesla solar-energy unit behind the plan, however, is averaging just 21 installations a week, according to energy analysts at Wood Mackenzie who reviewed utility data. The building houses some factory workers, but also hundreds of lower-paid desk-bound data analysts working on other Tesla business. The suppliers that Cuomo predicted would flock to a modern manufacturing hub never showed up. The only new nearby business is a Tim Horton’s coffee shop. Most of the solar-panel manufacturing equipment bought by the state has been sold at a discount or scrapped. A state comptroller’s audit found just 54 cents of economic benefit for every subsidy dollar spent on the factory, which rose on the site of an old steel mill. External auditors have written down nearly all of New York’s investment.” 27 28 See https://www.wsj.com/articles/elon-musk-tesla-buffalo-new-york-solar-plant-1b634b9e. FIRST AMENDED COMPLAINT 28 45 3:24-cv-04647-MMC PDF Page 51 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 50 of 159 1 170. Instead of creating the full-time manufacturing jobs promised at the Buffalo 2 Factory, Defendants Musk and Tesla largely contracted temporary workers from Imagine 3 Staffing Technology, Inc. These hires were justified in Tesla’s WARP Payables system with a 4 note stating, “Having these contractors allows the Workplace team to more effectively and 5 efficiently support site-wide operations across all of our customer buckets. Paid at competitive 6 market rate for cost efficiencies compared to hiring direct.” In sum, Defendant Tesla went out of 7 its way to avoid hiring full-time employees in New York despite its promise to do the opposite. 8 9 171. The “version 2.0” Solar Roof Tiles never ended up being produced, and the manufacturing equipment was ultimately packed up and stored in a nearby warehouse, paid for 10 by New York State. So in late 2019, Tesla began purchasing “version 3.0” of its Solar Roof 11 Tiles from a Chinese manufacturer, Changzhou Almaden Co. Ltd. (“Changzhou Almaden”). 12 172. Nonetheless, on page 9 of its Q4 2019 Investor Update published January 29, 13 2020, Defendant Tesla falsely stated, “Solarglass tiles are made in our Gigafactory New York.” 14 After the factory’s publicly-financed equipment was crated up and warehoused nominally due to 15 the COVID-19 pandemic, Tesla began advertising that it would hire temporary workers to handle 16 manual tagging of images to train “Autopilot” and FSD, meaning that the Buffalo Factory started 17 out as part of one scam, but ended up as part of two more. In this way, Defendant Tesla could 18 falsely claim to have met New York’s job creation milestones. 19 173. Defendant Tesla continued to make false claims about the Buffalo Factory. While 20 Tesla disclosed on page 9 of its Q1 2020 Investor Update (created on April 29, 2020 by Martin 21 Viecha) that, “In Q1, Gigafactory New York reached a significant milestone. In a single week, 22 Solar Roof production exceeded 4MW…” by the time this disclosure was made, Panasonic 23 manufacturing employees working with Tesla had been laid off for nearly two months and 24 Tesla’s publicly-financed solar manufacturing equipment had already been boxed up. There was 25 no “Solar Roof production” taking place at the Buffalo Factory at all. 26 27 174. A March 6, 2020 United States Department of Labor (“DOL”) Petition for Trade Adjustment Assistance (TAA) Form ETA-9042 filed by Defendant Tesla’s manufacturing 28 FIRST AMENDED COMPLAINT 28 46 3:24-cv-04647-MMC PDF Page 52 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 51 of 159 1 partner Panasonic states that 403 layoffs were necessary as of that date at the Buffalo Factory 2 due to “Tesla’s switch to purchasing solar products from China.” 3 175. According to the DOL Office of Trade Adjustment Assistance, the federal 4 government spent at least $371,541 in “Training Expenditures” for 84 laid-off Panasonic 5 employees in the United States due to Defendant Tesla’s decision to import Chinese solar panels 6 that it falsely told investors were still being manufactured in New York. 7 176. Changzhou Almaden shipped its “version 3.0” Solar Roof Tiles direct from the 8 factory in China to Hayward, California, as indicated by labels on the boxes at work sites. Some 9 of these products appeared to have “MADE IN USA” stickers on the back, along with clearly 10 labeled cables from Zhejiang Jiaming Tianheyuan Photovoltaic Technology Co. Ltd. 11 177. To sell solar products, Defendant Tesla also committed fraud. Its salespeople 12 targeted elderly non-English speakers and promised that by installing solar panels, they would 13 save on their energy bills. Instead, Tesla was sued repeatedly for elder abuse as energy bills 14 went up. Many of its solar installations also caused major damage to customers’ rooves, leading 15 to water damage and mold. Other installations caught on fire. In all, Defendant Tesla was sued 16 more than 150 times over its solar products. See https://www.plainsite.org/tags/tesla-solar/. 17 E. 18 19 20 21 22 23 24 25 26 27 28 The Tesla Stock Inflation Fraud 178. The 201-page January 30, 2024 Post-Trial Opinion in Tornetta v. Musk et al, Delaware Court of Chancery Case No. 2018-0408-KSJM, begins as follows: “Was the richest person in the world overpaid? The stockholder plaintiff in this derivative lawsuit says so. He claims that Tesla, Inc.’s directors breached their fiduciary duties by awarding Elon Musk a performance-based equity-compensation plan. The plan offers Musk the opportunity to secure 12 total tranches of options, each representing 1% of Tesla’s total outstanding shares as of January 21, 2018. For a tranche to vest, Tesla’s market capitalization must increase by $50 billion and Tesla must achieve either an adjusted EBITDA target or a revenue target in four consecutive fiscal quarters. With a $55.8 billion maximum value and $2.6 billion grant date fair value, the plan is the largest potential compensation opportunity ever observed in public markets by multiple orders of magnitude—250 times larger than the contemporaneous median peer compensation plan and over 33 times larger than the plan’s closest comparison, which was Musk’s prior compensation plan. This post-trial decision enters judgment for the plaintiff, finding that the compensation plan is subject to review under the entire fairness standard, the defendants bore the burden of proving that the compensation plan was fair, FIRST AMENDED COMPLAINT 28 47 3:24-cv-04647-MMC PDF Page 53 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 52 of 159 1 and they failed to meet their burden” (emphasis added). 2 179. Defendant Musk’s unprecedented 2018 executive compensation plan, whose “12 3 total tranches of options” depended on Defendant Tesla’s stock going up precipitously to vest, 4 provided him with an unprecedented incentive to commit securities fraud. 5 6 7 180. In response to that incentive, Defendant Musk did in fact commit securities fraud many times over, ultimately becoming the wealthiest person alive according to press reports. 181. In response to Defendant Musk pressuring his executives to commit securities 8 fraud on a routine basis for years, and especially the years 2018-2021, dozens of executives quit 9 their employment with Defendant Tesla. 10 182. Zachary Kirkhorn, who later quit, was previously Defendant Tesla’s Chief 11 Financial Officer despite having little experience in finance when he assumed the role to replace 12 the prior CFO who had quit. For years, Mr. Kirkhorn, former Vice President, Investor Relations 13 Martin Viecha, former Musk Chief of Staff Omead Afshar, and current Chief Financial Officer 14 Vaibhav Taneja received daily or weekly “Short Interest Reports” by e-mail from Head of 15 Investor Relations Travis Axelrod concerning short-seller activity. 16 183. Defendant Tesla manipulated its balance sheet, statement of operations (otherwise 17 known as a profit and loss statement), and statement of cash flows in a variety of ways including 18 but not limited to complex accounting fraud and overt market manipulation. Defendant Tesla 19 also manipulated material proprietary metrics relied upon by investors, the media and analysts 20 that did not directly appear on its financial statements. In this way, Defendant Tesla defrauded 21 the market, artificially inflated the price of its stock, and harmed short-sellers such as Plaintiff, 22 who justifiably expected the stock to go down. 23 24 25 a. Accounting Fraud: Cash Balances 184. “Cash, cash equivalents and investments” refers to the amount of cash a company has on hand in its bank accounts. 26 27 i. Earned Interest 185. According to a March 5, 2019 Financial Times article, the actual cash interest 28 FIRST AMENDED COMPLAINT 28 48 3:24-cv-04647-MMC PDF Page 54 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 53 of 159 1 yield reported by Defendant Tesla indicates that the company began exaggerating cash balances 2 starting in Q4 2016, and continued exaggerating them by $1.5 billion or more through 2018. See 3 https://ftalphaville.ft.com/2019/03/05/1551787633000/How-much-does-Tesla-have-in-the-bank-/. 4 5 6 7 8 9 10 11 12 13 The article’s conclusions are further supported by Defendant Musk’s own videotaped admission 14 to Axios on November 26, 2018 that Defendant Tesla “faced a severe threat of death” and was 15 “bleeding money like crazy” such that “in a very short period of time, we would die”— 16 disclosures totally absent from the Q3 2018 SEC Form 10-Q filed just 26 days prior, which 17 misleadingly reported an ample “$2,967,504[,000]” of unrestricted cash on hand. 18 186. Defendants Musk and Tesla knew or should have known that they were reporting 19 false and misleading information regarding cash holdings. Based on earned interest, average 20 cash balances were approximately 90% lower than reported throughout 2019 and part of 2020: 21 $ in Millions of Dollars 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 49 3:24-cv-04647-MMC PDF Page 55 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 54 of 159 1 187. Under oath at trial in Case No. 12711-VCS in the Delaware Court of Chancery, 2 Defendant Musk testified on July 12, 2021 that, “We had weekly cash meetings at Tesla too,” 3 referring to the weekly cash meetings he had required and attended when SolarCity was in 4 financial distress. Defendant Musk did not explicitly deny attending Tesla’s weekly cash 5 meetings, claiming he could not “recall” attendance. 6 188. At many companies, quarter-end and year-end cash balances are manipulated 7 through the use of credit lines to make accounts appear for a brief moment to have more funds in 8 them than they normally do. When Morgan Stanley analyst Adam Jonas explicitly asked Tesla 9 CFO Kirkhorn about the present-day cash balance—not the quarter-end balance—on the Q1 10 2020 earnings call, Kirkhorn’s statement that, “I don’t have any additional color” was false given 11 that as CFO he had full access to Defendant Tesla’s financials. Mr. Kirkhorn’s refusal to 12 elaborate was an admission to quarter-end cash balance manipulation. 13 189. On November 3, 2020, Defendant Musk further admitted via Twitter that the 14 closest Defendant Tesla had come to bankruptcy “was about a month” from “mid 2017 to mid 15 2019”—an admission that Defendant Tesla filed and Defendant Musk signed false financial 16 statements in violation of the Sarbanes-Oxley Act of 2002 since the company’s disclosures at no 17 point offered any suggestion of bankruptcy or disclosed “going concern” warnings. See 18 https://x.com/elonmusk/status/1323640901248393217. 19 190. On December 22, 2020, Defendant Musk further admitted via Twitter that 20 “[d]uring the darkest days of the Model 3 program” he had even e-mailed Apple, Inc. CEO Tim 21 Cook offering to sell Tesla to Apple—a fact also never disclosed to investors—but that he never 22 received a response. See https://x.com/elonmusk/status/1341485211209637889. 23 191. Investors were left in the dark with no knowledge of Tesla’s cash crisis, while 24 Defendants Musk and Tesla always had knowledge of Tesla’s true cash position with weekly 25 resolution at least. Just as with SolarCity, Defendant Musk was ready to sell Tesla to another 26 company (Apple), but did not inform investors at the time, indicating that he knew exactly how 27 dire the situation was but actively chose to conceal that fact. 28 FIRST AMENDED COMPLAINT 28 50 3:24-cv-04647-MMC PDF Page 56 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 55 of 159 1 2 ii. Cash Stuck in China 192. Defendant Tesla’s general ledger, multiple versions of which Plaintiff obtained 3 via the Tesla Files, reveals that Tesla has historically had approximately 500 bank accounts 4 worldwide denominated in various currencies. Yet some of its Chinese accounts have strict 5 restrictions on withdrawals that are unacknowledged on the balance sheet. 6 193. Exhibit EX-10.85 attached to the 2019 SEC Form 10-K filed February 13, 2020, 7 the “English Convenience Translation” of the Tesla (Shanghai) Co., Ltd. Fixed Asset 8 Syndication Loan Agreement dated December 18, 2019 with numerous Chinese banks, includes 9 clause 11, translated as “Revenue Collection Account Management,” which restricts transfers of 10 revenue collected in China to any other account unless the “transfer is used for the purpose of 11 repaying any of its working capital loans” from the Chinese banks. In effect, Defendant Tesla 12 cannot move cash collected in China to the United States until the loans are repaid unless the 13 Chinese bank lenders pre-approve such a transfer. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 194. As summarized by Lawrence Fossi, a corporate attorney and writer who has also been targeted for harassment by Defendants Musk, Tesla, Qazi and Smick, “Near the time of the Grant Contract, the Chinese government arranged for a generous financing package for Tesla Shanghai from state-controlled banks. The financing, which was re-arranged [in] December[ of 2019], includes a factory loan of up to $1.26 billion with a five-year term and a $315 million working capital loan with a one-year term. Tesla Shanghai sells its production through another Tesla subsidiary, Tesla (Beijing) Co, Ltd.…which also imports into China Fremont-made vehicles. Last year, the Chinese government also arranged financing for Tesla Beijing: An RMB 5 billion ($700 million) loan facility, secured by the cars in Tesla Shanghai’s inventory and by funds on deposit in a collection account… Under the terms of the Tesla Shanghai loan agreements, until all loans have been fully repaid, no funds can leave the control accounts at Chinese banks except for expenditures related to Tesla’s Shanghai operations. In other words, even if Tesla were to be cash flow positive in Shanghai, the cash would be unavailable to Tesla’s operations throughout the rest of the world for years to come” (emphasis added). See https://seekingalpha.com/article/4369297-tesla-investors-are-flying-blind-in-china. 195. Since it began doing business in China in or around 2019, Defendant Tesla has 28 FIRST AMENDED COMPLAINT 28 51 3:24-cv-04647-MMC PDF Page 57 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 56 of 159 1 deliberately failed to comply with Financial Accounting Standards Board (“FASB”) Accounting 2 Standards Codification (“ASC”) 280, which would require Tesla to enumerate financial metrics 3 for each “economic environment” in which it conducts business. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 196. As Fossi explains in the same article, Tesla meets the ASC 280 criteria necessary to trigger such reporting requirements with regard to China: “What constitutes an operating segment? Per ASC 280 10 50-1, an operating segment has the following characteristics: (1) It engages in activities from which it earns revenues and incurs expenses, (2) it has operating results regularly reviewed by the company’s chief operating decision maker, and (3) it has discrete financial information available. Tesla’s Chinese operations plainly meet the definition of an operating segment, so the next question is: Under what circumstances is the company required to report separately information about that segment? The answer, found in ASC 280 50-10, is when the assets, profit or loss, or revenue of that segment meet the quantitative threshold set forth in ASC 280 10 50-12, which is 10%. Tesla’s revenues from its China operations in Q2 totaled $1.4 billion, which is more than 23% of its total revenues of just over $6 billion. So, the separate reporting requirement is triggered.” 197. Nonetheless, Defendant Tesla has refused to provide investors with detailed disclosures about its cash holdings or sales broken down by geographic region. Its competitors, such as Toyota and BMW, do provide detailed disclosures broken down by geographic region. 198. When asked in 2020 why Defendant Tesla’s financial disclosures are so limited by one of his cult followers, Defendant Musk responded, “People read too much into this level of detail. It’s not useful for predicting the future, nor can we ourselves accurately predict what issues we will encounter on a short-term, fine-grained level.” 22 See https://x.com/elonmusk/status/1299924292709224448. In fact, by hiding “this level of 23 detail,” Defendants Musk and Tesla ensured that no one can examine what actually happened in 24 the past, covering up the company’s massive and multi-faceted accounting fraud. iii. Accounts Receivable 25 26 27 199. Starting in Q3 2018, Defendant Tesla’s Accounts Receivable balance sheet line item jumped from $570 million to $1.155 billion and exceeded $1 billion thereafter. 28 FIRST AMENDED COMPLAINT 28 52 3:24-cv-04647-MMC PDF Page 58 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 57 of 159 1 200. In December 2019, “Tesla went over why its accounts receivable has been 2 elevated, attributing it to a large gap in timing between vehicle delivery and cash received from 3 banks in Europe” per Deutsche Bank summarizing statements made by Tesla’s then-Head of 4 Investor Relations Martin Viecha, in violation of Regulation FD, 17 C.F.R. § 243.100. 5 201. 6 11 “While our AR balance is usually about 20 per cent of revenue, it can fluctuate depending upon a number of factors. First, overall, less than 30 per cent of our receivables is associated with new car sales. Second, due to payment terms associated with financing and enterprise customers, settlement times for certain methods of cash payments and geographic mix of our deliveries, our cash balance and associated receivables are impacted significantly by how many cars are delivered in the final weeks and days of the quarter. Third, roughly 40 per cent of the balance is attributed to payment terms on regulatory credit sales and statutory EV incentive programs, both of which have been increasing.” 12 202. 7 8 9 10 On the July 22, 2020 Q2 2020 Tesla earnings call, CFO Kirkhorn then stated: Defendant Tesla has provided at least five different explanations over time (and 13 only four in public) for why it had and has an extremely large accounts receivable balance of 14 over $1 billion, none of which are consistent with each other or with reality. 15 203. Given Defendant Tesla’s business model, which involves up-front cash payments 16 for physical products, this unusually high and persistent balance attracted notice from prominent 17 investors such as David Einhorn, who publicly questioned Defendant Musk about it twice, and 18 from journalists with accounting degrees and experience, such as Francine McKenna. In Ms. 19 McKenna’s words, “They should not have this big of an accounts receivable balance.” 20 204. Defendant Tesla’s accounts receivable balance began to balloon in Q3 2018 21 (having increased about half a billion dollars from Q2 2018), at the same time that its self- 22 reported “delivery” figures began to diverge from vehicle registration data. This would suggest 23 that Tesla reported to investors that it expected to be paid for cars that it never actually sold. 24 205. By Q2 2020, Defendant Tesla reported Accounts Receivable as $1.5 billion. 25 206. By Q4 2021, Defendant Tesla reported Accounts Receivable as $1.9 billion. iv. Accounts Payable 26 27 207. One of Defendant Musk’s strategies for dealing with cash shortages at his 28 FIRST AMENDED COMPLAINT 28 53 3:24-cv-04647-MMC PDF Page 59 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 58 of 159 1 businesses is to simply stop paying vendors. At least 40 lawsuits have been filed against 2 Defendant Tesla for this reason. See https://www.plainsite.org/tags/tesla-vendor-nonpayment/. 3 208. Defendant Tesla’s persistent failure to pay vendors led to an unusually high 4 reported Accounts Payable balance of over $10 billion in its Q4 2021 Investor Update, or more 5 than half of its reported $17.58 billion cash and cash equivalents on hand. 6 7 209. $3.6 billion at a time when it reported cash and cash equivalents on hand of $8.6 billion. 8 9 In Q2 2020, Defendant Tesla reported a still-high Accounts Payable balance of v. Tax Evasion 210. Tesla is a multi-national corporation with numerous international subsidiaries. 10 Various expenses associated with United States-based customers, prospective customers and/or 11 invoices have been attributed to Tesla’s subsidiary in The Netherlands. 12 211. Defendant Tesla has historically only sold its Solar Roof to consumers in the 13 United States. According to the Tesla Files, invoices from Changzhou Almaden to Defendant 14 Tesla for glass tiles were billed to “Tesla, Inc.” (internal entity ID 3000) with Tesla’s Accounts 15 Payable e-mail address, “AccountsPayable@tesla.com”. Yet inside Tesla’s WARP Payables 16 accounting system, these expenditures were re-assigned to Tesla Motors Netherlands BV 17 (internal entity ID 4081)—even with “Ship To” addresses in Hayward, California or Sparks, 18 Nevada in the United States for work orders to be carried out in the United States. 19 20 21 22 23 212. There is no legitimate reason why Tesla Motors Netherlands BV would assume financial liability for transactions involving Tesla Solar Roof installations in the United States. 213. Defendant Tesla re-assigned transactions taking place entirely in the United States to international subsidiaries in order to evade federal income tax and state taxes. 214. For years, Defendant Tesla engaged in a pattern and practice of delaying the filing 24 of vehicle registration paperwork for its customers in order to avoid the accrual of corresponding 25 tax obligations within the same fiscal quarter as each sale, especially around the end of each 26 quarter when most deliveries took place. The result was an artificial boost in quarterly profit 27 since liabilities associated with each sale did not accrue until the following quarter or later. 28 FIRST AMENDED COMPLAINT 28 54 3:24-cv-04647-MMC PDF Page 60 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 59 of 159 1 2 3 4 5 6 7 8 9 10 11 215. Defendant Musk has abused his purported non-profit organization, the Musk Foundation, to give himself substantial tax breaks. According to The New York Times, “Mr. Musk’s philanthropy has been haphazard and largely self-serving — making him eligible for enormous tax breaks and helping his businesses. Since 2020, he has seeded his charity with tax-deductible donations of stock worth more than $7 billion at the time, making it one of the largest in the country. The foundation that houses the money has failed in recent years to give away the bare minimum required by law to justify the tax break, exposing it to the risk of having to pay the government a substantial financial penalty.” See https://www.nytimes.com/2024/03/10/us/elon-musk-charity.html. b. Accounting Fraud: “Deliveries” 216. While most publicly traded companies report “sales” of products in their financial 12 disclosures, with regard to electric vehicles, Defendant Tesla does not. Instead, Defendant Tesla 13 reports the number of “deliveries” of its vehicles, but it has intentionally never actually defined 14 what the term “deliveries” means in order to grant itself maximum reporting flexibility. 15 217. Its lack of definition notwithstanding, the “deliveries” metric is among the most 16 important metrics used by Wall Street analysts who follow Tesla’s stock. In addition to articles 17 about “deliveries” in financial media, this fact is also reflected in analyst notes, which have for 18 years featured headlines such as, “Tesla 1Q Deliveries Disappoint: How Much Cash in the 19 Bank?” (Morgan Stanley, April 4, 2019), “Tesla, Inc.: 4Q22 deliveries miss, could spark lower 20 mid-term expectations” (RBC Capital Markets, LLC, January 3, 2023), and “Tesla Inc. (TSLA): 21 1Q23 deliveries increased 36% yoy to about 423k” (Goldman Sachs, April 2, 2023). i. No Actual Definition 22 23 218. Defendant Tesla has customarily issued a press release at the beginning of each 24 quarter containing its “deliveries” metrics for the prior quarter. The press release is then attached 25 to a SEC Form 8-K that is filed with the SEC generally the same day. 26 27 28 219. At all relevant times, Defendant Tesla’s quarterly “deliveries” press releases contained substantially the same disclaimer: “Our net income and cash flow results will be announced along with the rest of our FIRST AMENDED COMPLAINT 28 55 3:24-cv-04647-MMC PDF Page 61 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 60 of 159 1 2 3 4 5 6 7 financial performance when we announce [quarterly] earnings. Our delivery count should be viewed as slightly conservative, as we only count a car as delivered if it is transferred to the customer and all paperwork is correct. Final numbers could vary by up to 0.5% or more. Tesla vehicle deliveries represent only one measure of the company’s financial performance and should not be relied on as an indicator of quarterly financial results, which depend on a variety of factors, including the cost of sales, foreign exchange movements and mix of directly leased vehicles” (emphasis added). (the “Deliveries Disclaimer”). 220. The Deliveries Disclaimer does not actually define what it means for a car to be 8 delivered, allowing Defendant Tesla to claim that the term means whatever it wants it to mean. 9 While the Deliveries Disclaimer does state, “we only count a car as delivered if it is transferred 10 to the customer and all paperwork is correct,” the Deliveries Disclaimer does not explain what 11 “paperwork” it is referring to, what it means to be “correct,” and how Tesla defines a “transfer[] 12 to the customer,” which may or may not involve actual payment. The Deliveries Disclaimer 13 further fails to define what a “customer” is, since in many instances, Defendant Tesla transfers 14 vehicles to its own subsidiaries around the world. In some instances, it even registers vehicles to 15 them, meaning that it “delivers” and registers vehicles to itself. 16 221. It is clear that Defendant Tesla believes “deliveries” to have a distinct meaning 17 from “sales.” In its quarterly slide decks, Defendant Tesla’s “Forward-Looking Statements” 18 disclaimer has repeatedly referred to “our ability to grow our sales, delivery, installation, 19 servicing and charging capabilities.” The necessary implication is that regardless of what 20 “delivery” means, just because a car has been “delivered” does not mean it has been “sold.” 21 222. Tesla has historically stated, “A majority of our automotive sales revenue is 22 recognized when control transfers upon delivery to customers” in its SEC filings, such as its SEC 23 Form 10-K for fiscal year 2018 on page 78. Yet the questions of when and how Tesla recognizes 24 sales revenue are independent from what constitutes a “delivery to customers” in the first place. ii. “Delivery Count New” Versus “Delivery Count Used” 25 26 223. Defendant Tesla’s software engineers created database schemas used internally 27 that distinguish between deliveries of used cars and deliveries of new cars. Through the use of 28 an enumerated data type field that allows a user to toggle between “Delivery Count New” and FIRST AMENDED COMPLAINT 28 56 3:24-cv-04647-MMC PDF Page 62 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 61 of 159 1 “Delivery Count Used,” Defendant Tesla designed its information technology systems to allow 2 used car deliveries to be improperly classified as new car deliveries. 3 4 5 6 7 8 9 10 11 12 13 14 15 224. The Tesla Files reveal that Defendant Tesla did, in fact, improperly classify used car deliveries as “Delivery Count New” deliveries in certain instances. 225. Defendant Tesla was constantly handling errors regarding deliveries, as reflected 16 by JIRA tickets with titles such as, “ITBI-10769: Incorrect Delivery Type Count,” “BA-604: 17 investigate and correct title status, delivery count type,” “ITBI-9222: Delivery Count Type 18 Updates,” and “SFDC-12806: Change Delivery Count Type for Reserved Model S/X Used.” 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 57 3:24-cv-04647-MMC PDF Page 63 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 62 of 159 1 2 iii. Multiple Undisclosed Dynamic Incorrect Methodologies 226. Over time, Defendant Tesla transitioned systems that tracked sales and deliveries 3 from Salesforce to internal systems based on the WARP software architecture that Defendant 4 Tesla adopted from SpaceX. Even once Defendant Tesla had standardized on WARP, it still 5 maintained multiple information technology systems, some of which ran on Microsoft SQL 6 Server and others of which ran on MySQL—two widely used but incompatible back-end 7 database platforms, requiring additional work to integrate them. 8 9 227. Other JIRA tickets, such as “SFDC-7040: Update to Logic of Delivery Count Type field” and “SFDC-7716: Update to Delivery Count Type Logic” indicate that the definition 10 of what constituted a “delivery” changed frequently within Tesla, even before the company 11 switched from Salesforce (the “SF” in “SFDC”) to its own proprietary database platform. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 228. depending upon a variety of factors including database systems, software errors discussed in JIRA tickets, auditor requirements, and which of the company’s many Chief Financial Officers was signing required paperwork. 26 27 From quarter to quarter, Tesla’s definition of “deliveries” has constantly changed, iv. Rushed Delivery of Defective Vehicles 229. Historically, not each “delivered” vehicle has necessarily been a finished, working 28 FIRST AMENDED COMPLAINT 28 58 3:24-cv-04647-MMC PDF Page 64 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 63 of 159 1 product. In 2018, Defendant Tesla began using the term “factory gated” to convince investors 2 that it was meeting “delivery” targets, again, without ever actually defining it. Many “factory 3 gated” vehicles suffered from severe quality defects. 4 230. In December 2020, China-based PingWest noted, “Tesla is doing whatever it can 5 to hit the production goal, including lowering its quality standards,” by loading “defective 6 parts…onto production vehicles.” “‘Let’s say, in the past, our vehicles need 80 points in order to 7 leave the factory, now it’s only 60.’” 8 9 v. Multiple “Deliveries” Per Vehicle 231. After switching from Salesforce, Defendant Tesla designed its own database 10 systems to allow one unique vehicle, as designated by a Vehicle Identification Number (“VIN”) 11 to have multiple Tesla Reservation Numbers (“RN”) assigned. In practice, depending upon the 12 database query used, the same car could thus be counted as “delivered” multiple times. 13 232. As alleged above, Defendant Tesla routinely defrauded its customers with regard 14 to service, which was often due to poor manufacturing practices and resulting low vehicle 15 quality. These practices often led to “delivered” vehicles with serious defects in order to achieve 16 “delivery” goals by quarter-end. Whether such vehicles were returned in the same quarter or a 17 subsequent quarter, they would be repaired and “delivered” again, giving Defendant Tesla a 18 perverse incentive to lower vehicle quality. 19 20 21 233. For example, Defendant Tesla associates the following VINs with multiple RNs: a) VIN 5YJ3E1EA6JF048613: (1) RN113380206, (2) RN113388015, (3) RN113405702, (4) RN113408626; 22 b) VIN 5YJ3E1EA6JF049731: (1) RN110289177, (2) RN111286062; 23 c) VIN 5YJ3E1EA6JF059689: (1) RN109697530, (2) RN110253111; 24 d) VIN 5YJ3E1EA6JF178293: (1) RN113268829, (2) RN113290943, 25 (3) RN113362454, (4) RN113384557, (5) RN113440580, (6) RN113448409, 26 (7) RN113511889; 27 e) VIN 5YJ3E1EA6KF304492: (1) RN110291383, (2) RN112286048; 28 FIRST AMENDED COMPLAINT 28 59 3:24-cv-04647-MMC PDF Page 65 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 64 of 159 1 f) VIN 5YJ3E1EA6KF415639: (1) RN109697729, (2) RN112261424; 2 g) VIN 5YJ3E1EA6KF430853: (1) RN113354066, (2) RN113370365, 3 (3) RN113381175, (4) RN113397314, (5) RN113434572, (6) RN113496456; 4 5 6 h) VIN 5YJ3E1EA6KF447409: (1) RN113379821, (2) RN113386959. 234. price to increase, harming Plaintiff while he held short positions in TSLA directly or indirectly. 7 8 9 Defendant Tesla’s artificially high quarterly “delivery” numbers caused its stock vi. Conflicted Overseas Auditors In The Dark 235. Defendant Tesla’s auditor, PricewaterhouseCoopers, LLP (“PwC”), also conducts business with other members of the Atlanteca Enterprise, rendering objective auditing 10 impossible. For example, SpaceX’s 2015 subsidy application to the California Alternative 11 Energy and Advanced Transportation Financing Authority (“CAEATFA”), among other 12 materials, was prepared for SpaceX by Christopher Sharpe of PwC at the same time that PwC 13 was purportedly auditing Tesla’s books. This arrangement was still in place as recently as 2020. 14 PwC also does CAEATFA (and presumably other tax) work for TBC-The Boring Company. 15 16 17 18 19 236. If PwC proves too troublesome for one Atlanteca Enterprise member, it is possible that Defendant Musk could end its contracts with all Atlanteca Enterprise members. 237. Defendant Musk has not hesitated to fire vendors in the past, such as when he fired law firm Cooley because it hired one former SEC attorney who investigated him. 238. On March 28, 2024, the United States Public Company Accounting Oversight 20 Board (“PCAOB”) fined PwC $2.75 million for “quality control violations related to auditor 21 independence” according to Reuters. 22 239. Defendant Tesla has never disclosed that PwC’s “audit” work in the United States 23 is at least partially carried out in Argentina, where standards are lower. In 2023, PwC failed to 24 note a $4 billion discrepancy at client Americanas SA in South America, resulting in a scandal. 25 240. On January 18, 2022, German Cuadra Distefano e-mailed Shyama Narayanan, 26 Program Manager, IT Internal Audit at Defendant Tesla with “a few clarifying questions” 27 regarding Tesla’s “billing engine configuration.” His e-mail signature stated that he worked for 28 FIRST AMENDED COMPLAINT 28 60 3:24-cv-04647-MMC PDF Page 66 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 65 of 159 1 2 “Pricewaterhousecoopers Service Delivery Center (Argentina) S.R.L.” in Buenos Aires. 241. PwC has never reviewed the information technology systems that generate 3 Defendant Tesla’s “delivery” disclosures for accuracy, as PwC only examines the entirely 4 separate set of paper records that customers sign upon physical delivery of each vehicle. 5 vii. Contradictions With Known Sales Metrics: New Vehicle Registrations and Google Invoices 6 7 242. In theory, Defendant Tesla’s “delivery” metrics should have aligned with vehicle 8 registration statistics available from all of the departments and/or bureaus of motor vehicles 9 where the company does business. They did not. 10 243. After conducting a detailed analysis of known vehicle registration data, Plaintiff 11 pressed the Tesla Board of Directors and PwC from 2020 through 2021 for an explanation as to 12 the precise meaning of a “delivery,” yet Plaintiff received no response. As Plaintiff wrote to the 13 Tesla Board of Directors and PwC on April 29, 2020, 14 15 16 17 18 “I believe Tesla’s delivery numbers from 2017 to present are fake. Interpreted as ‘sales,’ which is how the market interprets ‘deliveries’—a misinterpretation Tesla management has actively encouraged—the numbers are impossible to achieve. Based on DMV vehicle registration data from numerous states, including most of the states where Tesla sells the most vehicles, you are short by about 166,000 sales (the black bars in the graph below minus estimated sales for locations where data is unavailable thus far).” 19 20 21 22 23 24 25 26 27 28 244. Prior to 2018, Defendant Tesla entered into a contract with Google, LLC in order FIRST AMENDED COMPLAINT 28 61 3:24-cv-04647-MMC PDF Page 67 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 66 of 159 1 to make use of Google Maps in its on-board navigation systems. The terms of the agreement 2 required Tesla to pay a license fee for each “existing car” and each “new car,” providing a more 3 accurate view of new vehicle sales than Tesla’s public reports of “deliveries.” According to 4 Google’s monthly invoices to Defendant Tesla, from July 2018 through June 2020, Tesla sold 5 660,600 new vehicles while it “delivered” 734,550, a material difference of 73,950, or 11.2%. 6 7 8 9 245. At all relevant times, the market interpreted “deliveries” to mean “sales” and stock analysts and journalists reported on Tesla’s “delivery” numbers, impacting the stock. 246. Defendant Tesla’s inflation of its “delivery” numbers by anywhere from 73,950 to 166,000 vehicles was intended to, and did, inflate Tesla’s stock price. 10 c. Accounting Fraud: Warranty Reserves and Goodwill Repairs 11 247. Tesla service technicians routinely fix vehicles with problems that are common 12 among Tesla vehicles. In addition to Technical Service Bulletins (“TSB”), Tesla maintains an 13 internal knowledge base, “confidential” and “attorney-client work product” guides (even where 14 no attorney involvement is clearly evident), numerous JIRA tickets, and Microsoft Teams 15 discussion boards where various known defects in vehicles are discussed. 16 248. To attempt to placate often-dissatisfied customers who are typically unaware of 17 quality issues until it is too late, Tesla offers “goodwill” service that neither requires customer 18 payment nor affects the vehicle warranty. For customers, this is a benefit that permits for free 19 repairs even outside of the warranty period on occasion and signifies that the company cares 20 about their experience. However, because goodwill repairs are not billed to the warranty reserve 21 for vehicles, frequent use has the effect of minimizing the apparent cost of repairs by inflating 22 the remaining warranty reserve for each affected vehicle. In other words, frequent abuse of 23 “goodwill” repairs allows Tesla to overstate its remaining warranty reserve to investors, and this 24 in turn artificially increases the company’s reported profit. 25 249. Out of 30 public lawsuits involving Tesla where documentation of service 26 incidents was attached, all 30 involved some sort of “goodwill” repair listed on an invoice. See 27 https://www.plainsite.org/tags/tesla-goodwill-service/. Internal Tesla documents make clear why 28 FIRST AMENDED COMPLAINT 28 62 3:24-cv-04647-MMC PDF Page 68 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 67 of 159 1 this is. First, corporate policy prohibits service technicians from assigning any service mandated 2 by government to the warranty reserve. Therefore, even if the government mandates that a 3 problem covered by the Tesla warranty should be fixed, the warranty reserve is unaffected. 4 Second, Defendant Tesla has had numerous conflicting goodwill policies over a period of years, 5 some requiring management approval in varying conditions, which have led to service 6 technicians not always knowing when they can and cannot offer goodwill service. 7 250. Tesla’s policies surrounding “goodwill” service are complex and involve various 8 levels of corporate approval, suggesting that the company is reluctant to offer such concessions 9 on a frequent basis. Yet the “goodwill” designation is routinely abused due to the frequency 10 11 with which vehicles encounter quality defects, often straight from the factory. 251. Tesla was aware that its employees were approving too much “goodwill” service. 12 Usage of “goodwill” is tracked closely in dozens of the company’s Business Intelligence 13 dashboards. One of Tesla’s many confusing sources on “goodwill” procedures, the Goodwill 14 Guide PDF, even includes “APPENDIX: CUSTOMER TALKING POINTS” such as: 15 “Why did my friend get a free service when I was charged for mine? 16 Goodwill is reserved for specific situations and circumstances and applied on a case-by- 17 case basis. 18 Can Tesla Goodwill be used in place of my warranty? 19 Tesla Goodwill should not be used in place of a warranty, service plan or any other kind 20 of service that the customer would ordinarily have to pay for” (emphasis in original). 21 d. Accounting Fraud: Material Weaknesses in Internal Controls 22 252. On January 3, 2021, Goldman Sachs published an investor briefing noting 23 24 Defendant Tesla’s “internal control environment” as a risk factor. 253. The WARP system that tracks vehicle ownership records the chain of successive 25 owners for each vehicle starting from its manufacturing date. Yet that chain often contains 26 broken or nonsensical links. Within WARP, it is possible for a vehicle to have no owner at all (a 27 “null” owner in database parlance) for a period of time, or for the end date of row A in the chain 28 FIRST AMENDED COMPLAINT 28 63 3:24-cv-04647-MMC PDF Page 69 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 68 of 159 1 not to match the start date of row B. It is also possible within WARP for a vehicle to have two 2 owners or more at the same time, and not just in situations where, for example, a married couple 3 may want to maintain joint ownership of a vehicle. 4 254. There is no legitimate reason for Defendant Tesla’s software to allow such errors. 5 255. Within WARP, numerous vehicles worldwide are registered to various fake 6 country-based “Tesla Marketing” “owners” who are assigned GMail e-mail addresses. For 7 example, in Germany, Tesla Marketing uses the GMail address teslademarketing@gmail.com. 8 In Norway, Tesla Marketing uses teslamarketingeu+NO@gmail.com. (The “+NO”, referring to 9 Norway’s country code, is an SMTP filter for the teslamarketingeu@gmail.com e-mail address.) 10 In China, the owner “marketing TeslaCN” has the GMail address 11 TeslaCNmarketing@gmail.com. Another GMail address of teslamotorsprototype@gmail.com, 12 for “Tesla Motors Pre-Runner,” is also the assigned owner for some vehicles. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 256. While WARP clearly has a “Customer Type” field to distinguish a typical “Owner” from internal inventory vehicles, these fake owners are not associated with system flags for internal inventory vehicles. At least in Norway, many of these vehicles with fake owner email addresses appear in government records as registered to Tesla Motors Norway A/S. 257. A fake customer associated with yet another GMail address was given a mailing address of Palo Alto, CA in the United Kingdom, which WARP should not have permitted. 258. According to photographs taken by whistleblower Martin Tripp, at Defendant Tesla’s Nevada factory, employees were able to modify inventory and scrap material figures by manually editing the MySQL database underlying WARP using the freely available MySQL FIRST AMENDED COMPLAINT 28 64 3:24-cv-04647-MMC PDF Page 70 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 69 of 159 1 Workbench software application and/or using an SQL UPDATE query. Any business logic built 2 into WARP restricting types of entries based on certain rules could therefore be bypassed. The 3 identity of users updating specific records could also be possibly forged or omitted. This is 4 perhaps why employees working in Tesla’s financial division, such as Scott Smith, wondered, in 5 writing, if the data that they were looking at from company reports was even “real.” 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 259. Given the substantial uncertainty internally over the validity of inventory, work- in-progress and Non-Conforming Material (NCM) figures from 2018, Tesla’s 2018 financial disclosures should be restated for this reason alone. Internal e-mails express confusion about inventory timestamps, which may have been overwritten by both batch software programs and manual database editing, as shown above. In e-mails, Defendant Tesla’s database engineers did not seem to be familiar with how MySQL timestamp fields work: the first timestamp column is automatically updated for a given row when the row is changed, but not subsequent fields. 260. As of 2022, Defendant Tesla’s WARP Payables system did not track payment methods, causing each corporate credit card to be improperly entered as a separate vendor, e.g. “CitiBank P Card,” which was assigned vendor ID 140394. Even more alarmingly, the line items from such purchasing cards were not entered into WARP individually, but grouped together and totaled in association with a single general ledger account, even when it was a near certainty that not every purchase on the card should have been ascribed to the same general ledger account, let alone the same vendor, as shown below for a mischaracterized, purported “$2,590,484.79” purchase that was actually many separate purchases from many separate 28 FIRST AMENDED COMPLAINT 28 65 3:24-cv-04647-MMC PDF Page 71 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 70 of 159 1 vendors charged to the purchasing card. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 261. In the criminal matter of USA v. Parulekar, Northern District of California Case No. 5:18-cr-00550-LHK, a former Tesla Group Manager, Global Supply Management was able to forge signatures on payment documents without any internal controls leading to the payment of $9.3 million to the wrong vendor. e. Accounting Fraud: Lying In Public to Justify Revenue Recognition 262. Like many assets, gas and electric motor vehicles depreciate in value over time. 263. During an April 12, 2019 podcast interview, Defendant Musk stated, “I think the 21 most profound thing is that if you buy a Tesla today, I believe you are buying an appreciating 22 asset—not a depreciating asset.” 23 24 25 26 27 28 264. Upon information and belief, this statement was intended to allow Defendant Tesla to recognize revenue, and therefore boost reported profits, by affecting lease accounting for certain leases whose profitability depended upon whether the final resale value of the vehicle exceeded the buyback price determined in advance. In sum, if Defendant Tesla insisted that its vehicles were “appreciating” in value, it could potentially record up-front revenue sooner. 265. In or around April, 2019, Defendant Tesla was still in the period of “mid 2017 to FIRST AMENDED COMPLAINT 28 66 3:24-cv-04647-MMC PDF Page 72 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 71 of 159 1 mid 2019” during which Defendant Musk later admitted the company was at risk of filing for 2 bankruptcy, providing a powerful motivation for recognizing extra revenue. 3 266. In August 2018, in a different interview referring to technology products in 4 general, Defendant Musk stated, “[W]ith each successive design iteration...it actually gets better 5 and cheaper. But, it’s like, a natural progression of any new technology,” admitting that 6 Defendant Musk knew that technology products depreciate. 7 f. Accounting Fraud: Intentionally Underestimating Performance Metrics To Later Beat Them 267. By January 5, 2022, Defendant Tesla had held approximately 4,637 private calls 8 9 10 with approximately 1,500 institutional investors including but not limited to Springs Capital, 11 SFG Asset Advisors, Samlyn, Ashler Capital, Myriad Asset Management, Atika Capital, Arosa 12 Capital, Alyeska Investment, Balyasny, Palestra Capital, Point72, Holocene Advisors, Graticule 13 Asset Management, and Baron Capital. 14 15 16 268. Upon information and believe, Defendant Tesla shared material non-public information with institutional investors on these private calls in violation of Regulation FD. 269. On a regular basis, Vice President, Investor Relations Martin Viecha e-mailed 17 Wall Street analysts with material nonpublic information, such as “consensus” figures regarding 18 future estimates of Tesla’s “deliveries” and/or earnings per share, as shown below: 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 67 3:24-cv-04647-MMC PDF Page 73 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 72 of 159 1 2 3 4 5 6 7 8 These figures were not shared with the general investing public, also in violation of Regulation 9 FD, 17 C.F.R. § 243.100. 10 270. Analyst estimates were derived in part from information provided by Defendant 11 Tesla, which upon information and belief would provide intentionally low estimates in advance, 12 making a “beat” of those estimates more likely when the final number was actually disclosed. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 g. Overt Market Manipulation 271. Defendant Morgan Stanley has helped Defendants violate securities laws on a continuous basis for years. As alleged in the First of Amended Complaint of Rasella v. Musk, New York Southern District Court Case No. 1:22-cv-03026-ALC-GWG, ECF No. 99, Morgan Stanley helped Defendant Musk purchase shares of Twitter, Inc. in an unlawful, manipulative manner intended to keep the price of TWTR down and to deliberately evade Morgan Stanley’s compliance team, or as Morgan Stanley Managing Director, Private Wealth (likely Jon Neuhaus) put it, “No one knows what is going on and why . . . Not [Morgan Stanley] compliance not anyone.” The allegations in Rasella, based on documents obtained during discovery, including but not limited to text messages, are damning: “On February 2, 2022, [likely Neuhaus] privately assured Defendant Birchall that ‘it will take time but it should if you want to get in under the radar and establish a position.’ Birchall agreed and later confirmed that ‘we should opportunistically ramp up if given the chance. . . . if there are some interesting premarket blocks [near] or at the close, we should look to take advantage.’ [likely Neuhaus] responded that they would “Buy into weakness and higher volume . . . But not press the price.’ Fearful of letting ‘anyone sniff anything out,’ warned that they could do ‘a slightly larger block trade Provided ONLY If we keep it absofuckinglutely Quiet And We execute it well’” (emphasis in original). 28 FIRST AMENDED COMPLAINT 28 68 3:24-cv-04647-MMC PDF Page 74 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 73 of 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 272. On Friday, May 4, 2018 at 6:02 A.M., Defendant Musk posted on Twitter, “Oh and uh short burn of the century comin [sic] soon. Flamethrowers should arrive just in time.” 273. When deposed by the SEC, Defendant Birchall testified under oath that he had weekly meetings with Defendant Musk on Fridays. 274. On Friday, May 4, 2018 at 5:09 P.M., Defendant Musk posted on Twitter, “Looks like sooner than expected. The sheer magnitude of short carnage will be unreal. If you’re short, I suggest tiptoeing quietly to the exit …” 275. Upon information and belief, at least as early as May 4, 2018, Defendant Musk conspired with Defendant Birchall and/or Defendant Morgan Stanley to devise a strategy to harm short-sellers of Tesla stock. 276. Upon information and belief, in turn, Defendant Birchall enlisted Defendant Morgan Stanley, which engaged in trading activity on Defendant Musk’s behalf with the specific intent to illegally manipulate the price of Tesla stock upward. 277. According to Defendant Musk’s SEC Form 4 disclosures, Defendants Birchall, Excession, Must Trust and/or Morgan Stanley exploited thin trading volume during before-hours and after-hours trading sessions to increase Tesla’s stock price. 278. On Monday, May 7, 2018—the next business day after Defendant Musk had 28 FIRST AMENDED COMPLAINT 28 69 3:24-cv-04647-MMC PDF Page 75 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 74 of 159 1 publicly warned of the “short burn of the century comin [sic] soon” the previous Friday— 2 Defendant Tesla filed its Q1 2018 SEC Form 10-Q. The same day, Defendant Musk filed a SEC 3 Form 4 describing eight groups of TSLA share purchases by Defendant Musk Trust, all 4 reportedly on May 7, 2018. 5 279. Based on publicly available price data, many of the purchase trades reported on 6 Defendant Musk’s SEC Form 4 could not have taken place during regular trading hours when 7 Musk would have been able to take advantage of the most efficient market price. However, the 8 first group of trades for 5,903 shares worth $1.74 million is completely consistent with trades 9 made hours before market open, when trading was thin and pricing was inefficient. 10 11 12 280. In all, Defendant Musk’s reported May 7, 2018 stock purchases were worth approximately $9.85 million. 281. Defendant Musk’s stock purchases were an effort to “paint the tape,” intended to 13 artificially and deliberately increase the price of TSLA by creating the false impression of high 14 trading activity, especially during extended hours—not to secure the best price. 15 16 17 282. Upon information and belief, Defendants Musk, Birchall, Excession, LLC, Musk Trust and Morgan Stanley repeated this scheme on additional trading days from 2018 to present. 283. Upon information and belief, Defendants Birchall, Excession, LLC, Musk Trust 18 and Morgan Stanley also used one or more Morgan Stanley trading accounts to mask trades in 19 TSLA actually being executed on Defendant Musk’s behalf, as they did with TWTR. 20 h. Broadcasting Propaganda on Social Media 21 284. Beginning in late 2018, Defendant Tesla began to deliberately cultivate social 22 media influencers and small blogs lacking journalistic standards to promote false narratives 23 encouraging viewers to purchase the company’s electric vehicles, stock, and later, after the 24 SolarCity merger, solar products. Each influencer group was especially active on Twitter and 25 YouTube, posting tens of thousands of text messages and videos in aggregate: 26 27 a) “Now You Know” YouTube Channel: Zac Cataldo incorporated Now You Know Productions, LLC in Massachusetts on July 24, 2019. The channel 28 FIRST AMENDED COMPLAINT 28 70 3:24-cv-04647-MMC PDF Page 76 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 75 of 159 1 located at https://www.youtube.com/@NowYouKnowChannel and run by Mr. 2 Cataldo recommended purchasing Tesla stock to its “95,000+ subscribers and 3 17,000,000+ views” for years. Cataldo’s “Creative Director” since May 2015 4 was Tesla Massachusetts Regional Manager Steven Salowsky. Per Mr. 5 Salowsky’s LinkedIn profile, the channel “Currently hold[s] the top position 6 in the world for referring and selling Tesla vehicles.” See 7 https://www.linkedin.com/in/ssalowsky/. Mr. Cataldo never clearly disclosed 8 the direct involvement of Defendant Tesla with his channel. 9 b) “HyperChange” YouTube Channel: A YouTube channel run by social media 10 influencer Galileo Russell at https://www.youtube.com/@HyperChangeTV. 11 In a video published on September 20, 2019 entitled “Model 3: The Self- 12 Driving Electric Smartcar,” Russell predicted, “hundreds of millions in annual 13 revenue, and extremely high profit margins, or even billions” for Defendant 14 Tesla based on nothing except his own unfounded speculation, while 15 Defendant Tesla lost money on every car sold. Russell frequently 16 recommended purchasing Tesla stock and was permitted to ask questions of 17 Defendant Musk on at least one Tesla earnings call as though he were a 18 professional stock analyst. 19 c) “Third Row Tesla” YouTube Channel: A channel located at 20 https://www.youtube.com/@ThirdRowTesla/ promoting Tesla products 21 starting in late 2019. Kristen Yamamoto, an Oregon-based coffee shop owner 22 going by @Kristennetten or “K10” on Twitter, became one of the core 23 members of “Third Row Tesla” along with Defendant Qazi (@OmarQazi 24 [banned], @tesla_truth [banned], and @WholeMarsBlog), Vivien Hantusch 25 (@flcnhvy), Sofiaan Fraval (@Sofiaan), and Vincent Yu 26 (@vincent13031925). Yu was affiliated with Tesmanian, LLC, a collection of 27 companies he runs with George Szeto, who is also connected to Tesmanian, 28 FIRST AMENDED COMPLAINT 28 71 3:24-cv-04647-MMC PDF Page 77 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 76 of 159 1 Inc., Tesmanian Asset Management LLC, VGT Group, Inc. and VGT 2 Investment LLC. Together, all of these individuals participated in corporate 3 propaganda broadcasts promoting Tesla, some of which took place in one of 4 Defendant Musk’s homes where they interviewed Elon and Kimbal Musk. 5 d) “Electrek” Blog: A blog located at https://electrek.co operated by 6 controversial amateur Canadian securities analyst Fred Lambert that for many 7 years received preferential media treatment from Defendant Tesla. 8 e) “Teslarati” Blog: A website located at https://www.teslarati.com describing 9 itself as “Tesla news, rumors and reviews” that received preferential media 10 11 treatment from Defendant Tesla. f) “CleanTechnica” Blog: A website located at https://cleantechnica.com 12 describing itself as “independent cleantech journalism” that often published 13 false stories and received preferential media treatment from Defendant Tesla. 14 g) Frunkpuppy, LLC: Dr. Earl Banning and former Morgan Stanley Digital 15 Marketing Assistant Vice President Julissa Bonilla incorporated Frunkpuppy, 16 LLC in Ohio on January 30, 2019 as part of a social media influence 17 campaign. The “Frunkpuppy” concept of photographing puppies in the front 18 trunks, or “frunks,” of Tesla vehicles was heavily promoted by Dr. Banning 19 on his @28delayslater Twitter account. 20 h) Lex Fridman/MIT: On April 5, 2019, citing a paper by Lex Fridman, 21 Defendant Musk wrote on Twitter, “‘...drivers in this dataset use Autopilot for 22 34.8% of their driven miles, and yet appear to maintain a relatively high 23 degree of functional vigilance.’” The widely-criticized Fridman paper, 24 entitled “Human Side of Tesla Autopilot: Exploration of Functional Vigilance 25 in Real-World Human- Machine Collaboration,” was removed from MIT’s 26 websites on an unknown date after May 2020. All references were removed 27 from Fridman’s personal website between May 12, 2020 and August 11, 2020. 28 FIRST AMENDED COMPLAINT 28 72 3:24-cv-04647-MMC PDF Page 78 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 77 of 159 1 The Fridman paper’s findings were contradicted by subsequent MIT research, 2 which Defendant Musk did not share. See 3 https://dl.acm.org/doi/10.1145/3409120.3410644. 4 285. On April 29, 2019, Mr. Musk wrote, “We don’t buy advertising” (see 5 https://x.com/elonmusk/status/1122817103373881344) and on July 20, 2020 he wrote, “At some 6 point, we should probably do advertising as art/communication/entertainment & to support high 7 quality media” (see https://x.com/elonmusk/status/1285443997654122496). Emphasizing the 8 point, on April 27, 2021, Mr. Musk wrote, “Other companies spend money on advertising & 9 manipulating public opinion, Tesla focuses on the product.” (see 10 11 12 https://x.com/elonmusk/status/1387172830094233601). 286. On October 25, 2021, Vivien Hantusch, whom Defendant Musk had hired to his “Office of the CEO” within Tesla in secret, posted on Twitter: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Page 88 of Tesla’s 2018 SEC Form 10-K disclosed “marketing, promotional and advertising 28 FIRST AMENDED COMPLAINT 28 73 3:24-cv-04647-MMC PDF Page 79 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 78 of 159 1 costs of $70.0 million, $66.5 million and $48.0 million in the years ended December 31, 2018, 2 2017 and 2016, respectively.” Page 80 of Tesla’s 2019 SEC Form 10-K disclosed “marketing, 3 promotional and advertising costs of $27 million, $32 million and $37 million in the years ended 4 December 31, 2019, 2018 and 2017, respectively, of which the majority is related to promotional 5 activities.” These figures do not match each other for 2017 and 2018, and they do not match the 6 false claims on Twitter that “Tesla doesn’t advertise.” Additionally, a records request response 7 from the Las Vegas Convention and Visitors Authority revealed that Defendant Tesla offered to 8 build free charging stations in Las Vegas for TBC-The Boring Company, another Atlanteca 9 Enterprise member, which amounted to a hidden advertising expense for Tesla, Inc. 10 287. Despite representing that “rental car companies” would enjoy “unequivocal” 11 “economic advantages” from owning a “fleet” of Tesla vehicles, Ms. Hantusch, based in 12 Germany, did not mention the RAC Group litigation in Europe proving the opposite. 13 288. DEPT is an international public relations firm based in The Netherlands that 14 boasts of its large technology company clients on its home page (https://deptagency.com/en-us/): 15 Apple, Google, Samsung, Sony PlayStation, Spotify, and Defendant Tesla, among others. The 16 DEPT website features a page clearly stating that it offers Influencer Marketing services, at 17 https://www.deptagency.com/en-us/service/brand-campaigns-content/influencer-marketing/. 18 289. Internal Tesla documents demonstrate that Tesla hired DEPT through Tesla’s 19 subsidiary in The Netherlands to facilitate a stealth advertising campaign based in Finland 20 targeted at customers in the United States and the rest of North America. The result was a 21 YouTube video entitled “FIRST DAY IN FINLAND (drifting Teslas)” posted by “Kara and 22 Nate,” a couple from Tennessee who have 2.71 million followers on YouTube at present. See 23 https://www.youtube.com/watch?v=r5nCw_zEpTU. The video’s description on YouTube 24 explicitly states, “(BTW Tesla did not pay us to be here, even though it might seem that way 25 with our excitement levels!) Haha.” This was false. Internally at Tesla, this campaign was 26 referred to as the “2019 Tesla Winter Experience.” 27 290. Hotel invoices from Finland billed to Tesla demonstrate that in fact, Tesla did pay 28 FIRST AMENDED COMPLAINT 28 74 3:24-cv-04647-MMC PDF Page 80 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 79 of 159 1 for Kara and Nate’s stay, in Room 512 of Hotellii Merihovi, from March 12, 2019 through 2 March 14, 2019. Their Tesla advertisement was posted to YouTube on May 14, 2019. 3 291. DEPT is not the only advertising agency Tesla has made use of, despite 4 Defendant Musk’s and Tesla’s persistent representations that the company does not spend on 5 advertising. Other marketing vendors in Tesla’s WARP Payables system include APCO 6 Worldwide, CP2 Fieldmarketing BV, MWW, Professional Public Relations, and Strategies 360. 7 MWW in particular was hired under the direction of Dave Arnold to secretly spy on Tesla 8 employee Facebook groups for $150.00 per hour or more in order to prevent unionization efforts, 9 a task which possibly violated labor laws. 10 292. Prior to DEPT’s involvement, Tesla “Director US-East” Jeremy Snyder was 11 responsible for “relationships to create an influencer marketing strategy” according to his 12 LinkedIn profile. See https://www.linkedin.com/in/snyderjeremy. 13 i. Fraudulent Price Targets 14 293. Defendant Musk and Tesla’s proxies on financial media networks have long been 15 Catherine “Cathie” D. Wood of ARK Investment Management, LLC (“ARK”) and Ross Gerber 16 of Gerber Kawasaki, Inc. Both are investment managers that have shilled for Defendants Tesla 17 and Musk through good times and bad, and both are investors in X Corp., directly (in the case of 18 Ross Gerber) or indirectly (via both funds, but via ARK Venture Private Holdings, LLC in 19 Wood’s case). Wood, who famously touted a $4,000-per-share price target for Tesla’s stock on 20 CNBC, sold off a significant portion of ARK’s Tesla holdings at around $320 per share in 2019, 21 less than 10% of her target price. 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 75 3:24-cv-04647-MMC PDF Page 81 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 80 of 159 1 294. Cathie Wood upped ARK’s price target for Tesla to $6,000 per share at the start 2 of August 2019. Beginning in mid-October, without again changing its price target or its 3 laughably broken “model,” ARK began selling large quantities of Tesla shares. 4 295. Ms. Wood claimed that her prognostications were based on models, but ARK’s 5 supposed models contained stunning errors, such as using Microsoft Excel’s formatting functions 6 to remove 0s from cell values instead of using the correct numbers. In this way, one material 7 figure in an ARK model was off by a factor of one million. 8 9 296. ARK’s selling activity was omitted from Cathie Wood’s media appearances where she continued to exude optimism about Tesla and technology generally. In Q4 2019, 10 ARK offloaded about $127.6 million worth of Tesla stock and purchased just over $4 million 11 worth. In other words, while Cathie Wood insisted that Tesla was a screaming “buy” destined to 12 soar, her funds disposed of around $123 million worth of shares, net. 13 297. On December 9, 2019, Ms. Wood appeared on CNBC once again to discuss 14 Tesla. Although she was more than willing to talk on live television for nearly seven full 15 minutes about the Cybertruck (analyzed from “many different angles”), her perception of Tesla’s 16 competitive advantages, her “bear price” of $700, market share, and the supposed fact that 17 “Tesla is not an auto company,” what she did not mention was that her firm had just “re- 18 allocated” $100 million away from Tesla stock. In addition, CNBC displayed a screen about 19 ARK’s Tesla holdings falsely claiming that ARK did not have a stake “>1%.” 20 298. The distribution of material non-public information to select individuals tasked 21 with pumping up a stock price is unlawful. Yet Wood and Gerber repeatedly met with 22 Defendant Musk privately. Gerber and Wood enjoyed perks such as exclusive factory tours, 23 access to Musk for interviews, and special event invitations, all while they maintained a uniquely 24 ecstatic outlook in public. Yet behind the scenes, ARK was selling weekly. 25 26 27 28 FIRST AMENDED COMPLAINT 28 76 3:24-cv-04647-MMC PDF Page 82 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 81 of 159 1 2 3 4 5 6 7 8 9 299. In 2024, the SEC and United States Department of Justice charged and criminally 10 prosecuted short-seller Andrew Left—who publicly flipped from being short Tesla stock to being 11 long on October 23, 2018—for the practice of proclaiming high price targets in public and then 12 quietly selling his stakes, among other allegedly unlawful acts. 13 14 300. Gerber claims to have a degree from Musk’s alma mater in “Business Law,” but according to the University of Pennsylvania, Gerber never received such a degree. 15 j. Silencing Critics 16 301. Under Defendant Musk’s leadership, Defendant Tesla has never hesitated to make 17 false statements. Former Tesla Senior Director, Global Communications Dave Arnold quit 18 immediately when litigation revealed that he had planted a false story in the Huffington Post 19 accusing former Tesla engineer Cristina Balan of having engaged in “criminal conduct.” 20 i. Tesla Customer and Shareholder Omar Qazi Responds To A Tesla Model 3 Safety Issue On Elon Musk’s Behalf By Amplifying Dangerous Conspiracy Theories About Plaintiff 21 22 23 24 25 26 27 28 302. In April 2018, Diego MasMarques, Jr., an individual convicted of murder and attempted murder in Spain and charged with other crimes domestically, made threats directed at Plaintiff over the fact that MasMarques’s convictions were public on PlainSite. On various websites, Mr. MasMarques, who has a documented history of mental illness, posted thousands of libelous fabrications falsely alleging that Plaintiff and his family members had committed a wide variety of crimes ranging from setting up a “fraudulent” non-profit organization, to tax evasion, FIRST AMENDED COMPLAINT 28 77 3:24-cv-04647-MMC PDF Page 83 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 82 of 159 1 to extortion, to the hacking of his e-mail account. Once Mr. MasMarques began making death 2 threats, Plaintiff applied for and was granted a two-year restraining order against him. See 3 Greenspan v. MasMarques, Santa Clara County Superior Court Case No. 18CH008067 (the 4 “Civil Harassment Case”). See also Greenspan v. MasMarques et al, Massachusetts District 5 Court Case No. 1:23-cv-10134-DJC. 6 7 8 9 303. In December 2018, a Tesla critic named Paul Huettner received a thinly-veiled death threat via anonymous fax purporting to be from “Elon Musk.” He reported it to the FBI. 304. On or around January 13, 2019, a Tesla customer recorded a video of a Tesla Model 3 center console that was unresponsive while driving on “Autopilot” on the highway at 10 high speed. Plaintiff posted on Twitter from the @PlainSite account warning Defendants Musk 11 and Tesla, “You have a legal and ethical obligation to fix this before someone else gets killed in 12 an avoidable accident. This mirrors complaints on the $TSLA forum about freezing center 13 consoles.” Plaintiff’s post embedded the video. 14 305. Defendants Musk and Tesla did not respond, but the next day, January 14, 2019, a 15 Twitter account, “@tesla_truth” (posing as “Steve Jobs”) did, falsely writing, “Aaron, the center 16 touch screen has nothing to do with driving the car,” and ending with, “Good luck in court on 17 Tuesday for violating that restraining order,” even though Plaintiff had not violated any order. 18 306. Upon information and belief, on January 14, 2019, Mr. MasMarques and/or one 19 of his sympathizers began feeding Defendant Qazi false information concerning Plaintiff on 20 Twitter, and the @tesla_truth account amplified that misinformation without bothering to verify 21 its accuracy. At approximately the same time as @tesla_truth first responded, a since-deleted 22 Twitter account, @Tom34079930, replied to a @tesla_truth post falsely stating in part, “Aaron 23 Greenspan went last year to a judge and lied to get a restraining order on Diego. The judge was 24 pissed when she found out he lied. Now the restraining order is on Aaron and he violated it.” 25 The @Tom34079930 account also falsely wrote to @tesla_truth, “Greenspan is a tax cheat.” 26 27 307. Plaintiff did not at any point solicit feedback from @tesla_truth. Its owner attacked Plaintiff over a public safety concern, much as it had previously attacked journalists. 28 FIRST AMENDED COMPLAINT 28 78 3:24-cv-04647-MMC PDF Page 84 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 83 of 159 1 308. The @tesla_truth account then began re-posting and linking to many more of the 2 libelous and deranged posts that were the subject of the unrelated Civil Harassment Case, some 3 of which featured Plaintiff’s parents’ home address, a photograph of their home, and the name of 4 their synagogue, alongside serious and false accusations about Plaintiff and his family. 5 6 7 309. The owner of the @tesla_truth account admitted, “I haven’t researched many details about all the complaints against Aaron,” displaying reckless disregard for the truth. 310. An attempt via Direct Message (“DM”) to discuss the seriousness of the matter 8 and the associated safety concerns with @tesla_truth’s owner was not fruitful. The owner of the 9 account refused to stop and continued making public antagonizing statements on Twitter, 10 11 including, “Jail all shorts,” echoing Defendant Musk’s notorious scapegoating of short-sellers. 311. Plaintiff sent a link via DM to the @tesla_truth account owner to a PDF file 12 hosted on his personal website of Twitter posts concerning the Civil Harassment Case. When the 13 account owner clicked on the link, Plaintiff’s server logs yielded the account owner’s DNS 14 hostname and IP address: c-73-71-59-42.hsd1.ca.comcast.net and 73.71.59.42, respectively. 15 Given the alarming safety concerns associated with the Civil Harassment Case, Plaintiff searched 16 PlainSite’s server logs for any associated usage history, and found that a user with the same IP 17 address had searched for “smick enterprises,” a company run by Defendant Qazi. 18 19 312. Given the number of people the account owner had already harassed, Plaintiff publicized a redacted form of this information to warn of the danger Defendant Qazi posed. 20 313. Defendant Qazi later admitted to using the @tesla_truth Twitter account. 21 314. The same day, still concerned about the danger posed to his family and others at 22 synagogues mentioned in some of the posts, Plaintiff attempted to contact Defendant Qazi by 23 phone at his employer’s office as determined by his LinkedIn profile, but was unable to reach 24 him. Plaintiff informed an unknown female supervisor that he had asked Defendant Qazi to stop 25 and considered his conduct dangerous, harassing and libelous. At the time, Plaintiff did not 26 know that Defendant Qazi’s “employer” was actually Qazi’s father’s company. Plaintiff did not 27 ask to speak with Defendant Qazi’s father or any of his family members when he called. 28 FIRST AMENDED COMPLAINT 28 79 3:24-cv-04647-MMC PDF Page 85 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 84 of 159 1 Plaintiff simply conveyed that Defendant Qazi’s dangerous conduct should cease immediately. 2 3 ii. Qazi Steps Up His Campaign of Criminal Harassment 315. The next day, on January 15, 2019 at 7:01 P.M. (all times herein are Pacific Time 4 unless otherwise specified) Plaintiff received a harassing phone call from a blocked telephone 5 number. The anonymous male caller impersonated a service technician who initially only said 6 he was calling from “the phone company,” and asked for Plaintiff’s home address. Since the 7 caller refused to identify “the phone company,” and since AT&T does not customarily call from 8 blocked numbers for service appointments, Plaintiff refused to divulge any information. 9 Defendant Qazi later admitted to placing this harassing phone call both privately and publicly. 10 316. The @tesla_truth Twitter account, posing as “Steve Jobs,” was eventually 11 suspended by Twitter for violating its terms of service. It was permitted to continue operating 12 only by renaming itself to “Steve Jobs [sic] Ghost” and by falsely identifying as a so-called 13 “parody” account, even though the account’s primary purpose was not to parody Steve Jobs, but 14 to promote Defendants Musk and Tesla by abusing the imprimatur of Apple, Inc.’s co-founder. 15 317. In mid-July 2019, the @tesla_truth account once again began posting false and 16 misleading information about Plaintiff and the Civil Harassment Case. Such posts continued 17 through late October 2019 and inspired harassment from others. 18 318. On August 2, 2019 at 11:24 P.M., via the @PlainSite Twitter account, Plaintiff 19 reported on a public video posted by Defendant Qazi on the @tesla_truth account advertising 20 Tesla’s so-called “Autopilot” functionality. The video depicted a black Tesla Model 3 driving 21 through a red stoplight on Autopilot without the driver’s hands on the steering wheel as required. 22 Although Defendant Qazi later claimed not to be the driver, he has not denied that the vehicle 23 was his, and he claimed to own the video’s copyright. 24 iii. Omar Qazi Leads a Mob That Tries To Frame Plaintiff for Possession of Child Pornography 25 26 319. The next day, on August 3, 2019 starting at 7:49:32 A.M., an internet user with 27 the DNS hostname ip72-203-123-36.oc.oc.cox.net in or around Rancho Palos Verdes, California 28 accessed documents hosted on PlainSite from the Civil Harassment Case. FIRST AMENDED COMPLAINT 28 80 3:24-cv-04647-MMC PDF Page 86 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 85 of 159 1 320. Less than 20 minutes later, on August 3, 2019 at 8:07 A.M., the @tesla_truth 2 Twitter account posted an altered and false version of Form CH-100 from Plaintiff’s Civil 3 Harassment Case, replacing the “Person From Whom Protection Is Sought” with the name 4 “Little Billy Watkins” and an age of “5” (referring to a fictional five-year-old child). The altered 5 document also contained Plaintiff’s phone and fax number alongside the text: 6 8 “BREAKING: Aaron Greenspan of Plainsite has been arrested after trying to beat up a group of kids in the playground after a failed child abduction. The kids ended up doing a number on him and now he has filed a restraining order against them. Should’ve known they would fight back.” 9 321. 7 Fifteen minutes later, on August 3, 2019 at 8:22 A.M., at the same phone number 10 posted by Defendant Qazi as part of the altered Form CH-100, Plaintiff received several text 11 messages from an unknown telephone number, +1 408 767 6349, shown below: 12 13 14 15 16 These text messages falsely alleged that Plaintiff had “child pornography” and “[pornographic] 17 images of underage kids” on his computer and threatened to “call the police” accordingly. 18 322. Seven minutes later, on August 3, 2019 at 8:29 A.M., Plaintiff received a fax on 19 the fax number posted by Defendant Qazi as part of the altered Form CH-100 from an unknown 20 fax number, +1 415 969 2047, purporting to be from “Kids R Us” with a cover page message of, 21 “Aaron, let me know if you need more. Full price this time please.” The cover page style 22 matched that of the fax cover page that had been sent to Paul Huettner. The next page contained 23 a monochrome pornographic image of a teenage young woman. Plaintiff immediately reported 24 the harassing text messages and pornographic fax to the FBI. 25 323. Eight minutes later, on August 3, 2019 at 8:37 A.M., Defendant Qazi used the 26 @tesla_truth Twitter account to post regarding Plaintiff, “he was just posting some stuff about 27 me in his feed so I wanted to mess with him a little bit.” 28 FIRST AMENDED COMPLAINT 28 81 3:24-cv-04647-MMC PDF Page 87 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 86 of 159 1 324. In light of these events, on August 7, 2019 at 3:27 P.M., Plaintiff e-mailed the 2 Tesla Board of Directors, including Defendant Musk, with questions and concerns about 3 Defendant Tesla’s relationship with Defendant Qazi. Plaintiff never received a response. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 325. On August 7, 2019 at 6:38 P.M., Defendant Qazi admitted to further harassment and to the destruction of evidence by posting from his @OmarQazi Twitter account: “I did make the joke post about Aaron getting beat up by kids or whatever with his contact info I got from PlainSite. Did it for fun because he posted tweeted [sic] about me. Deleted it later that day. Nothing personal against Aaron.” 326. In a DM conversation with a third party from September 27, 2019, Defendant Qazi admitted, “[I] take responsibility for what my followers do too and [I] take it seriously.” 327. On August 8, 2019 at 11:13 P.M., Defendant Musk responded to e-mailed, on- the-record questions from Plaintiff with a screenshot of false information stemming from libelous posts by Diego MasMarques, Jr., along with the words, “Your true colors …” 328. Especially after Plaintiff was able to lawfully obtain previously confidential court documents from Delaware Court of Chancery Case No. 12711-VCS, In Re Tesla Motors, Inc. Stockholder Litigation (the “SolarCity Case”), including deposition transcripts of Defendant Musk, on a nearly daily basis, the @tesla_truth account posted dozens of false statements— hundreds in aggregate—regarding Plaintiff, his family, and his non-profit organization. These harassing statements were read by a wide audience of at least 10,000-35,000 followers. Virtually all were published to promote Defendant Tesla’s stock, its products, and Defendant Musk. 329. On or around September 28, 2019, an internet user with the same last two cell phone digits as Defendant Qazi (37) created a Twitter account with the username @PlainShite (and a name of “Plain Shit”) that made use of the PlainSite name and logo without permission. 330. On the morning of October 9, 2019, Bloomberg Businessweek published an article by Zachary Mider referring to Defendant Musk, profiling Defendant Qazi, and stating: “The billionaire CEO, who declined to be interviewed for this story, replied to his fan [Defendant Qazi via e-mail] the same day [in August 2019]. ‘Your Twitter is awesome!’ he said, before adding a warning: ‘Please be wary of journalists. They will sweet talk you and then wack [sic] you with a baseball bat.’ Musk cc’d me on the message. Tesla also declined to comment.” FIRST AMENDED COMPLAINT 28 82 3:24-cv-04647-MMC PDF Page 88 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 87 of 159 1 The article contained a photograph of Defendant Qazi next to his black Tesla Model 3 and 2 referred to the @tesla_truth account as a “bottomless font of Muskolatry.” 3 331. On October 9, 2019 at 2:53 P.M., Plaintiff published a copy of a Twitter DM 4 conversation in which Defendant Qazi admitted that he had an “out of control revenge impulse” 5 and that he had made the harassing telephone call to Plaintiff from a blocked number on January 6 15, 2019 “to fuck with him,” though Defendant Qazi misrepresented the call’s contents in several 7 respects. In this same conversation, Defendant Qazi also made reference to an unknown “Jim” 8 who had contributed to or provided input for the @tesla_truth account in January 2019. 9 332. To the extent that Defendant Qazi at any point denies having authored statements 10 attributed to him on @tesla_truth or other social media accounts, they were authored by other 11 employees and/or agents of Defendant Tesla with Defendant Qazi’s supervision and approval. 12 333. On October 9, 2019 at 3:09 P.M., regarding Plaintiff, the @tesla_truth Twitter 13 account posted: “i’m going to drag his name through the mud until the day he does [sic]. I want 14 everyone to know the true facts about who he really is...” 15 16 iv. Elon Musk Personally Participates In The Harassment Campaign 334. On October 9, 2019 at 3:34 P.M., Plaintiff e-mailed a Notice of Intent to Sue and 17 Evidence Preservation Notice to Defendant Musk, attorneys at Defendant Tesla and SpaceX, 18 Defendant Qazi, SpaceX Communications Director James Gleeson, and SEC Regional Director 19 Erin Schneider. 20 335. Also at 3:48 P.M., Defendant Musk replied by e-mail to all parties, including the 21 SEC, with the message, “Does the psych ward know you have a cell phone? Just curious.” (the 22 “Musk Reply”). Defendant Musk then replied to all parties again, in reference to Defendant 23 Qazi’s response, with two laugh/crying emojis. None of the responses had any substantive 24 bearing on the Notice of Intent to Sue and Evidence Preservation Notice whatsoever and were 25 accordingly not pre-litigation communications. Nor did either of Defendant Musk’s responses 26 pertain to an active legal proceeding or a particular legal matter then under review. 27 336. Also at 3:48 P.M., Defendant Qazi posted on the @tesla_truth Twitter account a 28 FIRST AMENDED COMPLAINT 28 83 3:24-cv-04647-MMC PDF Page 89 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 88 of 159 1 screenshot of the e-mail containing Plaintiff’s Notice of Intent to Sue and Evidence Preservation 2 Notice to Elon Musk, without redacting any of Plaintiff’s contact information. 3 4 5 337. At 3:51 P.M., Defendant Qazi further posted a screenshot of Elon Musk’s response, falsely suggesting that Plaintiff resided in a “psych ward.” 338. At 3:56 P.M., Defendant Qazi posted an image of the screenshot of the Notice of 6 Intent to Sue and Evidence Preservation Notice zoomed in on Plaintiff’s contact information 7 alongside the text, “If you would like to contact Aaron for pranks you can email or call him 8 using the info listed below. Remember that all pranks will be recorded, so give it your best shot.” 9 339. As a result of Defendants’ actions, Plaintiff received unwanted telephone calls, e- 10 mails and messages, and hundreds of additional libelous messages were posted publicly. 11 v. Omar Qazi Targets Plaintiff’s Family for Further Harassment 12 340. The following day, on October 10, 2019 at approximately 11:00 A.M., Defendant 13 Qazi created a fake Twitter account impersonating Plaintiff’s father, Dr. Neil S. Greenspan. The 14 Twitter account’s handle, deliberately intended to confuse others, was @greenspan_neil. The 15 account did not identify itself as a parody account and was not a parody account. 16 341. Via Twitter, Defendant Qazi admitted that he used and/or uses the “catch all” 17 feature on Google Apps (since renamed to Google Workspace) to receive all e-mails addressed 18 to smick.com, including e-mails connected to numerous fake accounts on Twitter. 19 342. Defendant Smick uses and/or owns the domain name smick.com. 20 343. On Thursday, October 10, 2019, Plaintiff filed a Digital Millennium Copyright 21 Act (“DMCA”) takedown request with Twitter, Inc. regarding the copyrighted photograph Mr. 22 Qazi used to impersonate Plaintiff’s father. Consequently, Twitter removed the photograph. 23 Defendant Qazi replaced it with a different copyrighted photograph of Plaintiff’s disabled 24 brother and changed the name on the account to Plaintiff’s brother’s name, Simon Greenspan. 25 Plaintiff reported Defendants’ harassment to the San Francisco Police Department (“SFPD”). 26 The SFPD desk officer decided of his own volition to focus on the pornographic fax sent to 27 Plaintiff and accordingly classified his police report as relating to child pornography. 28 FIRST AMENDED COMPLAINT 28 84 3:24-cv-04647-MMC PDF Page 90 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 89 of 159 1 344. On Friday, October 11, 2019, among other messages, Defendant Qazi wrote, “I 2 hate my brother” from the fake @greenspan_neil account now posing as “Simon Greenspan.” In 3 a separate exchange on the same day with Twitter account @enL3X1, who asked, “Are you a 4 parody or actually his brother?” Defendant Qazi wrote, “yeah I’m his little brother haha.” 5 345. Plaintiff’s brother is not active on Twitter and never has been. 6 346. On October 11, 2019, Defendant Qazi created websites using servers owned or 7 leased by Defendant Smick Enterprises, Inc. (the “Smick Sites”) containing copyrighted 8 photographs of Plaintiff and his family members with the bold headline, “It’s plain to see: This 9 fraudulent charity is FULL OF SHIT.” The text continued in part: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 “Have you been harassed, intimidated, threatened or targeted for extortion by Aaron Greenspan, his fraudulent ‘Think Foundation’ ‘Charity’, or board members Neil Greenspan or Judy Greenspan? You are not alone.” The website’s source code contained the hidden HTML, “”. 347. The Smick Sites mainly echoed Mr. MasMarques’s allegations: that Plaintiff’s non-profit organization was a “fraudulent charity” and that Plaintiff and his family “harassed, intimidated, or targeted for extortion” individuals. Defendant Qazi claimed to have engaged “Lantham & Watkins” and wrote “56 people” had submitted “verified testimonies” to the site(s). 348. On October 15, 2019, the Smick Sites were updated to copy the appearance of the PlainSite website and the misspelled reference to Latham & Watkins was removed. Defendant Qazi updated the bold headline to: “Have you been a victim of harassment, intimidation, extortion, sexual assault, identity theft, or cyberstalking by Aaron Greenspan? You are not alone. The victims of Aaron Greenspan Foundation is gathering evidence of Aaron Greenspan’s crimes to finally bring this criminal to justice.” The supposed “Victims of Aaron Greenspan Foundation” does not exist and never has. Defendant Qazi changed the false number of people who had submitted “testimonies” to “956,” corresponding to Plaintiff’s home address. 349. Later iterations of the Smick Sites increased the number of submitted “testimonies” to various numbers in the thousands, added HTML page titles such as “PlainSite :: Fake Charity Comitting [sic] Securities Fraud” and included other libelous hidden comments. 28 FIRST AMENDED COMPLAINT 28 85 3:24-cv-04647-MMC PDF Page 91 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 90 of 159 1 2 3 350. On October 15, 2019 at approximately 10:52 P.M., Defendant Qazi contacted Plaintiff’s disabled brother via Facebook Messenger. 351. On October 16, 2019, Defendant Qazi removed the PlainSite source code from the 4 Smick Sites, but left posted the bold headline accusing Plaintiff of several crimes and the 5 copyrighted photographs of Plaintiff’s family members, including Plaintiff’s brother. 6 352. On Friday, October 18, 2019 at 7:06 P.M., one of Defendant Qazi’s harassing 7 Twitter accounts, @PlainShite—intended to impersonate and disparage Plaintiff’s company’s 8 trademarked brand, PlainSite—publicly accused Plaintiff of “attacking and slandering” others. 9 353. On October 18, 2019 at 7:34 P.M., Plaintiff wrote to Defendant Qazi via e-mail 10 stating, “If I’ve said anything objectively false I’d like to know what so that I can correct the 11 record.” At 8:24 P.M., Defendant Qazi responded via e-mail, stating, “Thanks for writing. I will 12 write back to you tomorrow, or Sunday if I don’t get time tomorrow.” He never responded 13 further, despite later falsely claiming in public that Plaintiff had failed to engage. 14 354. Defendant Qazi solicited information about Plaintiff’s supposed “crimes” from 15 thousands of followers, but only two “testimonies” initially appeared on the Smick Sites: “M’s 16 TESTIMONY,” and “P’S TESTIMONY,” a haphazard PDF compilation of Mr. MasMarques’s 17 false allegations submitted by Defendant Qazi’s friend, a conspiracy theorist and Elon Musk 18 obsessive named Amelia “Mia” Tracey of Sydney and Melbourne, Australia, but posted 19 anonymously. Neither of these posts described any actual crime committed by Plaintiff or his 20 family members, let alone any actual “victim” of Plaintiff, as none exist. 21 vi. Even With Omar Qazi Banned From Twitter, His Libel and Harassment Continues 22 23 355. Defendant Qazi’s harassment of Plaintiff led to the temporary suspension of 24 Defendant Qazi’s accounts. On or around October 22, 2019, Defendant Musk wrote an e-mail to 25 Twitter, Inc. CEO Jack Dorsey in support of Defendant Qazi while disparaging Plaintiff. 26 27 28 FIRST AMENDED COMPLAINT 28 86 3:24-cv-04647-MMC PDF Page 92 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 91 of 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 356. On or about October 24, 2019, Twitter permanently banned Defendant Qazi, disabling @OmarQazi, @tesla_truth, @PlainShite, @greenspan_neil, and @SmickTrump. 357. On October 31, 2019, Defendant Qazi posted an essay on wholemars.org, a 16 domain name and server controlled by Defendant Smick, entitled, “Steve Jobs is dead.” In it, 17 Defendant Qazi admitted that his @tesla_truth account was suspended repeatedly for various 18 legal violations including impersonation, and that it was registered to teslatruth@smick.com. 19 358. In response, Defendant Qazi set up open-source software called Mastodon on a 20 server belonging to Defendant Smick. On November 1, 2019, Defendant Qazi published an 21 essay on wholemars.org thanking his supporters and inviting them to use Mastodon, where he 22 posted false and libelous statements about Plaintiff without fear of Twitter intervening. (At 23 various points in time, Smick’s “wholemars” domain names have redirected to each other.) 24 359. On Saturday, November 2, 2019, Sascha Pallenberg, formerly of Daimler AG, 25 wrote from his Twitter account, “Let me just be crystal clear about Omar Qazi. He harassed me, 26 colleagues and dozens of people in the industry over various fake accounts!” Pallenberg is one 27 of several automotive industry consultants and professional journalists who contacted Plaintiff to 28 FIRST AMENDED COMPLAINT 28 87 3:24-cv-04647-MMC PDF Page 93 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 92 of 159 1 2 3 4 confirm that Defendant Qazi had harassed them as well. 360. Also on November 2, 2019, an unknown individual created a profile using Plaintiff’s name and e-mail address without permission on the pornographic website Pornhub. 361. On November 6, 2019, an unknown individual using the Wikipedia username 5 “Cihwcihw” made their first edit to Wikipedia since signing up five years prior: the alteration of 6 an article about Plaintiff, in order to supposedly “be more impartial and includ[e] additional 7 details.” In fact, this user only changed and added false content about Plaintiff, referencing 8 Defendant Qazi’s website while parroting his false claims about Plaintiff. 9 10 vii. The Tesla Cult Fractures, with Omar Qazi Scapegoating Plaintiff 362. On April 29, 2020, Defendant Musk erupted into an angry tirade on Defendant 11 Tesla’s Q1 2020 earnings call, calling local public health officials “fascist.” At one point, 12 Defendant Musk was disconnected from his own earnings call, possibly by his own lawyers. 13 363. On May 9, 2020, Defendant Musk ignited further controversy by threatening to 14 sue, and days later suing, Alameda County over its implementation of the multi-county Shelter- 15 In-Place Order concerning COVID-19, which curtailed Tesla’s manufacturing in Fremont. 16 Defendant Musk then instructed his employees to violate the Shelter-In-Place Order and return to 17 work and risk death, or in the alternative, risk losing unemployment benefits. Soon after, Musk 18 posted an image on Twitter falsely implying that he had defied the Shelter-In-Place Order. 19 364. Many supporters of Defendants Musk and Tesla were, for once, appalled by 20 Musk’s erratic behavior and disregard for human life. On May 12, 2020, Electrek editor Frederic 21 Lambert wrote an editorial critical of Musk and the “toxic” Twitter account @thirdrowtesla: the 22 channel led by Defendant Musk’s most ardent supporters, including Defendant Qazi. See 23 https://electrek.co/2020/05/12/tesla-super-fandom-becomes-toxic-negative-electric-revolution-op-ed/. 24 365. Signaling the vital importance of his work harassing Tesla’s critics, Defendant 25 Musk appeared with Defendant Qazi in a 3.5-hour Third Row Tesla video interview filmed at 26 one of Defendant Musk’s Los Angeles homes and published on February 9, 2020. See 27 https://www.youtube.com/watch?v=J9oEc0wCQDE. The below photograph depicts Defendant 28 FIRST AMENDED COMPLAINT 28 88 3:24-cv-04647-MMC PDF Page 94 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 93 of 159 1 Qazi (far right) with Defendant Musk (far left) and Tesla Director Kimbal Musk (second from 2 right with cowboy hat) at the recording session: 3 4 5 6 7 8 9 10 11 12 13 366. Also pictured is Vivien Hantusch, seated to the right of Defendant Musk, who 14 secretly began working for Tesla full-time in the “Office of the CEO” starting in or around 2020, 15 in a position with salary and lucrative stock options. 16 17 18 19 20 21 22 23 24 25 26 27 367. Even as she worked for Tesla and Musk, Hantusch steadfastly refused to admit her formal association, posting thousands of messages promoting Tesla and other Musk businesses from her @flcnhvy Twitter account with over 100,000 followers by 2021. 28 FIRST AMENDED COMPLAINT 28 89 3:24-cv-04647-MMC PDF Page 95 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 94 of 159 1 368. Due in part to the criticism from even friendly bloggers like Lambert, who had 2 now labeled Third Row Tesla “toxic,” Hantusch disapproved of Qazi’s handling of the Third 3 Row Tesla Twitter account, leading to a rift in the group. 4 5 6 369. Defendant Qazi ultimately admitted authorship of Third Row Tesla’s Twitter posts, thereby also admitting that he had deliberately contravened Twitter’s lifetime ban. 370. The fallout from the rift between Electrek and Third Row Tesla, both of which 7 had served as cheerleaders for Defendant Tesla, led Defendant Qazi to author a 17,600-word 8 screed on his website hosted by Defendant Smick, published on May 17, 2020 (the “Qazi 9 Screed”). Entitled “Response to Frederic,” it oddly invoked Plaintiff’s name at least 47 times. 10 371. Virtually every statement concerning Plaintiff in the Qazi Screed was false or 11 misleading. In some cases, Defendant Qazi cropped images to deliberately mislead his readers. 12 Defendant Qazi also linked events that were chronologically impossible and omitted key facts. 13 14 15 372. On May 20, 2020, Plaintiff filed Greenspan I against Defendants Qazi, Smick, Musk, and Tesla. 373. On or around May 23, 2020, Defendant Qazi returned to Twitter once more via a 16 proxy account, @WholeMarsLog, later renamed @WholeMarsBlog, set up for him by Tesla fan 17 Scott Woods to assist with evasion of his lifetime ban. Defendant Qazi repeatedly made half- 18 baked attempts to deflect blame onto Mr. Woods for his posts in the months that followed. 19 374. On May 24, 2020, Third Row Tesla published “Episode 17” recorded on May 15, 20 2020, depicting Defendant Qazi wearing a shirt imprinted with a graph of TSLA’s share price 21 next to the text “Tesla $420.00,” referring to Defendant Musk’s false “funding secured” claim 22 that led to securities fraud charges by the SEC. 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 90 3:24-cv-04647-MMC PDF Page 96 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 95 of 159 1 375. On May 25, 2020, a federal holiday, Plaintiff’s father received a phone call at 2 3:14 P.M. Eastern Daylight Time from a “Private Caller” on caller ID. The male caller identified 3 himself only as working for the law firm Quinn Emanuel in connection with Greenspan I and 4 calling on behalf of Defendants Musk and Tesla. The caller asked whether Plaintiff’s father 5 served on the Board of Directors of Plaintiff’s non-profit organization and asked for his address. 6 376. At 3:12 P.M. Eastern Daylight Time, two minutes prior to the call, Defendant 7 Qazi’s @WholeMarsLog Twitter account had posted, “It’s time for the board of Plainsite to face 8 justice for their crimes,” among other libelous statements. 9 377. On June 8, 2020, Defendant Qazi boasted about his “Nikola shorts,” indicating 10 that despite his professed hatred of short-sellers, he had decided to become one himself because 11 Nikola Corporation’s purported hydrogen-powered truck competed with Tesla’s purported 12 electric truck. 13 378. On July 16, 2020, Defendant Qazi referred to the mugshot (below right) 14 associated with his arrest in Brevard County, Florida in connection with Case No. 05-2018-CF- 15 010519-AXXX-XX for felony possession of a controlled substance (LSD) and misdemeanor 16 possession of cannabis—as “my photo” from the @WholeMarsBlog account (below left), which 17 established that Defendant Qazi controlled @WholeMarsBlog, and not Scott Woods. 18 19 20 21 22 23 24 25 26 27 28 379. On or around July 25, 2020, Defendant Qazi posted a third document entitled “F’S TESTIMONY” and a link thereto on his Smick Sites purporting to be “testimony” from a “victim” of Plaintiff. The document was yet another compilation of Diego MasMarques, Jr.’s posts authored once again by Amelia Tracey, who had also fabricated “P’S TESTIMONY.” FIRST AMENDED COMPLAINT 28 91 3:24-cv-04647-MMC PDF Page 97 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 96 of 159 1 380. In or around August 2020, Defendant Qazi interviewed Nikola Corporation 2 former CEO Trevor Milton and toured Nikola’s headquarters in order to report insights back to 3 Defendants Musk and Tesla on one of their potential competitors. 4 5 6 381. On August 5, 2020, Defendant Qazi falsely and publicly accused Plaintiff of posting Defendant Qazi’s phone number and e-mail address on the “Dark Web.” 382. On August 22, 2020, in order to cause Plaintiff worry and anxiety, Defendant 7 Qazi began posting by name on his @WholeMarsBlog account about a female Harvard 8 University dean who Defendant Qazi erroneously believed was a college classmate of Plaintiff’s. 9 10 11 383. On August 25, 2020, Defendant Qazi made a photograph of Plaintiff’s parents from a newspaper article the banner image for his @WholeMarsBlog account. 384. After Plaintiff filed his Second Amended Complaint in Greenspan I on August 12 26, 2020, Defendant Qazi began a full-scale assault on Plaintiff’s reputation to “drag his name 13 through the mud” as promised, using at least twelve different websites: among them, Twitter, 14 Hacker News, Mastadon, Quora, Reddit, Wikipedia, Amazon.com, SoundCloud, Anchor.fm, as 15 well as sites owned by Defendants Qazi and/or Smick. 16 385. On August 28, 2020, Defendant Qazi appeared on the “Inside Transportation” 17 podcast. As of July 31, 2021, the podcast had been listened to approximately 1,700 times. The 18 interview contained a litany of lies about Plaintiff and the admission at 13:30 that Defendant 19 Musk was “very pissed” about Defendant Qazi being banned by Twitter in October 2019. 20 386. On September 19, 2020, attempting to cause Plaintiff worry and anxiety, 21 Defendant Qazi posted threats concerning law enforcement on his @WholeMarsBlog account, 22 warning that Plaintiff’s house was “completely bugged” due to a “warrant for a wiretap.” 23 387. On September 22, 2020, Defendant Qazi referred to Plaintiff as “twice as evil as 24 Trevor [Milton]” on the @WholeMarsBlog account, twelve minutes after he had referred to 25 Milton as someone who had “mollested [sic] his 15 year old cousin after a funeral.” 26 27 388. On September 24, 2020, Defendant Qazi posted links on his @WholeMarsBlog Twitter account to content authored by Diego MasMarques, Jr. and others on various gripe sites. 28 FIRST AMENDED COMPLAINT 28 92 3:24-cv-04647-MMC PDF Page 98 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 97 of 159 1 Plaintiff had previously informed both Defendant Qazi and his counsel of the serious danger 2 associated with the Civil Harassment Case, and again notified Qazi’s counsel accordingly. 3 389. On September 26, 2020, the @WholeMarsBlog Twitter account wrote “what 4 aaron does to people is worse than murder IMHO”, followed by a suggestion that Defendant 5 Qazi was contemplating suicide. Three days later, another cryptic suggestion appeared on 6 @WholeMarsBlog falsely stating that Plaintiff would be responsible for Defendant Qazi’s death. 7 8 9 10 11 390. On October 1, 2020, a photograph of Plaintiff’s mother appeared as the background image on the @WholeMarsBlog Twitter account. 391. On October 2, 2020, Plaintiff reported Defendant Qazi to SFPD a second time for internet harassment as the frequency of his harassing posts increased. 392. On October 4, 2020, Defendant Qazi wrote that Plaintiff was “10x worse than 12 [alleged child molester] Trevor Milton” and called him a “Truly sick person.” Defendant Qazi’s 13 Third Row Tesla colleague and confidant, Kristen Yamamoto, echoed Defendant Qazi’s false 14 allegations, writing, “—so you’re [sic] daughter comes to you saying Trevor molested her & you 15 tell her ‘I have a bigger problem, Aaron Greenspan.’ 16 photograph of Plaintiff’s disabled brother as the banner image of his @WholeMarsBlog account. 17 393. .” Defendant Qazi also posted a On October 6, 2020, it was widely reported that at the direction of Defendant 18 Musk, Defendant Tesla had shut down its entire Public Relations department months prior, 19 leaving Defendant Musk and Qazi’s Twitter accounts as the primary sources of information on 20 social media about Defendant Tesla, nominally valued at hundreds of billions of dollars. 21 394. On October 9, 2020 at 11:43 P.M., from the @WholeMarsBlog Twitter account, 22 Defendant Qazi wrote, “So it turns out nobody is really suspicious of a Tesla driving around 23 Fremont / someone actually nodded and waved from security” as he photographed Defendant 24 Tesla’s factory, which is private property. In contrast, on April 19, 2019, Randeep Hothi, a 25 researcher of similar age and skin tone to Defendant Qazi, was subject to a Workplace Violence 26 Civil Harassment Order filed by Defendant Tesla for observing the exact same factory by day. 27 395. On October 17, 2020, Defendant Qazi retweeted a post by the @OfficialABQ 28 FIRST AMENDED COMPLAINT 28 93 3:24-cv-04647-MMC PDF Page 99 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 98 of 159 1 Twitter account containing the text “Here’s a message for Greenspam” above a cartoon image of 2 one stick figure kicking another in the groin, causing it to collapse. Twitter later removed this 3 post for violating its rules prohibiting users from advocating violent conduct. 4 396. On October 19, 2020, an unknown party created an unverified Anchor.fm account 5 in Plaintiff’s name using Plaintiff’s e-mail address, and then used the unverified account to send 6 Defendant Qazi a recorded message not from Plaintiff, which Defendant Qazi then falsely and 7 publicly cited as evidence of “harassment” by Plaintiff on his @WholeMarsBlog account. 8 9 10 11 12 13 397. In late October 2020, Twitter, Inc. published a “Ban evasion policy” now at https://help.x.com/en/rules-and-policies/ban-evasion, clarifying that Defendant Qazi was violating the Twitter Terms of Service by continuing to use the platform, directly or indirectly. 398. On December 6, 2020, Defendant Qazi attempted to contact a friend of Plaintiff’s via LinkedIn for an unknown reason. 399. Upon information and belief, on December 8, 2020, Defendant Qazi used the 14 Cihwcihw Wikipedia account to exclusively edit three pages involving Plaintiff. The edits 15 contained a misspelling that consistently appears in Defendant Qazi’s writing. 16 400. Also on or about December 8, 2020, Defendant Qazi created a new page on his 17 personal website for “The Story,” referring to his involvement with Plaintiff. He promised 18 readers that the saga would be told in installments, starting with an introduction that he published 19 on December 15, 2020. Between December 8th and 15th, Defendant Qazi published nine 20 additional posts he referred to as “Apetizers” [sic] containing false and misleading statements 21 about Plaintiff. Each post, whether an “Apetizer” or formally part of “The Story,” contained 22 banner advertisements intended to produce financial gain for Defendant Qazi, as well as 23 prominent links encouraging readers to donate to Defendant Qazi’s legal defense funds via 24 GoFundMe and PayPal. The “Apetizers” alone were collectively 200 printed pages long. 25 26 27 401. From December 9-11, 2020, the Cihwcihw Wikipedia account continued to smear Plaintiff on various Wikipedia articles by inserting false and misleading changes. 402. On December 13, 2020, Defendant Qazi began publishing his series, “The Story,” 28 FIRST AMENDED COMPLAINT 28 94 3:24-cv-04647-MMC PDF Page 100 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 99 of 159 1 full of innumerable false and misleading statements and material omissions concerning Plaintiff. 2 By January 11, 2021, the existing portions of “The Story” required 303 pages to print. 3 403. Above and beyond those already enumerated, Defendant Qazi wrote over 100 4 pages of additional essays containing countless false statements about Plaintiff, including but not 5 limited to the grotesque falsehood that Plaintiff incited violence against Defendant Qazi. 6 7 404. highs, Defendant Qazi celebrated his work, posting, “holy fucking shit we’re all rich as fuck!!!” 8 9 On January 7, 2021, with the price of TSLA common shares at or near all-time 405. The SEC recognizes social media as a potential manipulative “device” pursuant to the Securities and Exchange Acts. Social media was been instrumental to Defendants’ 10 unprecedented “pump” of Tesla’s stock price, which culminated in a peak market capitalization 11 of over $1.2 trillion in November 2021: about twenty times the peak market capitalization of 12 Enron, and more than the combined valuation of the rest of the automotive industry, e.g. Toyota, 13 Volkswagen, Mercedes, General Motors, BMW, Honda, Fiat-Chrysler, Ford, Nissan and Suburu. 14 406. Through thousands of false and misleading statements and material omissions 15 broadcast directly to millions, and indirectly to millions more through the media, Defendants 16 successfully and unlawfully “pumped” the stock price of TSLA common shares from an average 17 of $167.66 per share during the period of June 29, 2010 (the date of Defendant Tesla’s Initial 18 Public Offering) through September 23, 2018 (the day before Plaintiff first purchased put 19 options) to $6,217.50 per share (split-adjusted) as of November 1, 2021, a 3,608% increase. 20 407. After Defendants Musk and Tesla manipulated successive quarterly financial 21 statements to make it appear as though Tesla had turned a profit, which then qualified Tesla for 22 inclusion in the S&P 500 index on December 21, 2020, Tesla’s stock peaked in November 2021 23 and then began to fall. Today, it trades at approximately 50% of its peak value. 24 F. 25 The “Hardcore Litigation” Fraud 408. Since Defendant Musk first announced publicly on May 20, 2022 via Twitter that, 26 “Tesla is building a hardcore litigation department where we directly initiate & execute lawsuits. 27 The team will report directly to me,” followed by “Looking for hardcore streetfighters, not 28 FIRST AMENDED COMPLAINT 28 95 3:24-cv-04647-MMC PDF Page 101 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 100 of 159 1 white-shoe lawyers like Perkins or Cooley who thrive on corruption. There will be blood,” he 2 has filed at least five frivolous and vexatious lawsuits, which are often Strategic Lawsuits 3 Against Public Participation (“SLAPP”), in state and federal courts. 4 5 6 409. These lawsuits were financed by the proceeds of securities fraud and involved the use of Defendant Tesla’s litigation attorneys, namely, Defendants Huebert and Mehes. 410. Defendant Musk has attempted to use his frivolous and vexatious litigation 7 strategy to undermine democracy by serially defrauding the courts with the hopes of 8 delegitimizing the regulators who are charged with keeping the various components of the 9 Atlanteca Enterprise in check, including Defendant Tesla, and punishing critics such as Plaintiff. 10 411. When he is on the defense, Defendant Musk—whose only argument in court is 11 often a misplaced invocation of the First Amendment—routinely abuses the California Anti- 12 SLAPP Statute, California Code of Civil Procedure § 425.16, to attempt to silence critics by 13 bankrupting them via the statute’s mandatory fee-shifting clause. This ironic strategy ran into 14 trouble, however, when the California Court of Appeals ruled unanimously that Defendant Musk 15 was not entitled to anti-SLAPP protection because, there was 16 17 18 19 20 “no ‘functional relationship’ between the alleged issues of public interest and Musk’s statements. For example, Musk’s comment that Hothi harassed employees and hit and almost killed employees does not relate to the reliability of Hothi’s information. Nor does the statement refute Hothi’s comments about Tesla or assert Tesla’s past treatment of Hothi was appropriate… Accordingly, the statement does not ‘`contribute to the public debate`’ regarding any of the matters of public interest identified by Musk.” Hothi v. Musk, Case No. A162400, Cal. Ct. App (December 20, 2021). 21 22 TOLLING OF THE STATUTES OF LIMITATIONS 412. To the extent that there are any statutes of limitations applicable to Plaintiff’s 23 claims, the running of the limitations periods have been tolled by various doctrines and rules, 24 including but not limited to equitable tolling, the delayed discovery rule, equitable estoppel, and 25 the fraudulent concealment rule. Tolling is supported by the following facts. 26 27 413. Litigation in the frivolous Alameda Case filed by Defendant Musk did not end until July 11, 2023 and Defendants Singer Cashman, LLP, Cashman, Huebert and Mehes 28 FIRST AMENDED COMPLAINT 28 96 3:24-cv-04647-MMC PDF Page 102 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 101 of 159 1 continued to violate various rules and laws through at least June 14, 2023. 2 414. Plaintiff has learned the facts herein progressively and on an ongoing basis. 3 415. Plaintiff discovered the details of Defendant Birchall’s relationship with 4 5 6 7 8 9 Defendant Morgan Stanley in approximately June 2024. 416. Plaintiff discovered that Defendant Qazi had been using his Comma defeat device to deceive viewers of his FSD promotional videos on or after June 8, 2024. 417. Plaintiff discovered that Defendant Tesla had pre-optimized routes for EAP participants such as Defendant Qazi on July 9, 2024. 418. Acting on behalf of Defendants Musk and Tesla, Defendants Qazi and Smick 10 have continued to libel and harass Plaintiff on an ongoing basis. The most recent known 11 instance of libel took place on August 27, 2024. 12 13 419. Defendants have admitted that they believe that this action relates back to the claims alleged in Greenspan I. 14 CLAIMS FOR RELIEF 15 COUNT I Violations of Federal Civil RICO (18 U.S.C. § 1962(c)) Against All Defendants Except Morgan Stanley 16 17 18 19 20 21 22 23 24 25 26 27 420. Plaintiff incorporates by reference the foregoing allegations. 421. When driving, especially in California, Plaintiff is forced to share the road with Tesla vehicles equipped with faulty and dangerous “Autopilot” and/or FSD software that threatens not only the safety of each Tesla vehicle’s occupants, but everyone on the road in front of, behind, and to the side of them, including but not limited to Plaintiff. 422. Plaintiff has no ability to prohibit Tesla vehicles from sharing the road with him. 423. Plaintiff has been forced against his will to drive in a more dangerous manner in order to avoid driving near Tesla vehicles whenever possible. 424. On May 16, 2022, Tesla employee Hans Von Ohain was driving a 2021 Tesla Model 3 with “Autopilot” activated. “Autopilot” malfunctioned, the car crashed, and Von Ohain was killed. 28 FIRST AMENDED COMPLAINT 28 97 3:24-cv-04647-MMC PDF Page 103 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 102 of 159 1 2 425. Plaintiff is not a Tesla employee. Plaintiff has not consented and does not consent to being a tester of Defendant Tesla’s faulty and dangerous software. 3 426. NHTSA has recorded 1,354 crashes involving Tesla vehicles equipped with its 4 “Level 2” “Autopilot” and/or FSD software, more than 10 times as many crashes reported by the 5 next-most-frequent “Level 2” system manufacturer, American Honda Motor Co. See 6 https://www.nhtsa.gov/laws-regulations/standing-general-order-crash-reporting (“Level 2 7 ADAS-Equipped Vehicles” organized by “Reporting Entity (ADAS)”). Plaintiff has a 8 reasonable fear of Tesla “Autopilot” and/or FSD software causing imminent physical injury. 9 427. The federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 10 U.S.C. §§ 1962, 1964, provides a private right of action for plaintiffs to recover against 11 defendants who harm them by conducting an enterprise through a pattern of racketeering 12 activity, as well as defendants who conspire to do so. 13 A. 14 The Atlanteca Enterprise 428. Each of the Defendants is a “person” within the meaning of 18 U.S.C. § 1961(3), 15 because each is “capable of holding a legal or beneficial interest in property,” and at all relevant 16 times were employed by and/or associated with Defendant Musk. 17 429. At all times relevant hereto, without Plaintiffs’ knowledge or consent, the 18 Defendants and others associated together to form an ongoing informal organization for the 19 purposes of carrying out the wrongful activities set forth herein and thus have constituted an 20 association-in-fact “enterprise” within the meaning of 18 U.S.C. § 1961(4). 21 430. As used herein, the term “Atlanteca Enterprise” shall refer to the association-in- 22 fact enterprise consisting of the Defendants and others working with them to carry out the 23 wrongful activities set forth herein. 24 431. The Atlanteca Enterprise included entities that were controlled by Defendant 25 Musk, including but not limited to Alani Kalea, LLC, Bastooks, LLC, Brick Store, LLC, 26 Bushwhacker, LLC, Callisto 100, LLC, Camellia Ranch, LLC, Domino Solar, Ltd. (Cayman 27 Islands), Duck Duck Goose 100, LLC, Europa 100, LLC, Falcon Landing, LLC, Firehorn Solar 28 FIRST AMENDED COMPLAINT 28 98 3:24-cv-04647-MMC PDF Page 104 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 103 of 159 1 1, LLC (Cayman Islands), Foundation Security, Ganymede November, LLC, Gatsby, LLC, 2 Horse Ranch, LLC, Jadejams Property, LLC, Musk Foundation, Musk Industries, LLC, Musk 3 Ventures, LLC, Muskrat Ventures, LLC, N158X, LLC, Neuralink Corporation, New World 4 Industries, LLC, Otoro Partners, LLC, Pravda Corp., Rose Garden 100, LLC, Sadjam Property, 5 LLC, SpaceX, Starlink, Inc., TBC-The Boring Company, Weisshorn Solar 1, LLC (Cayman 6 Islands), Wyoming Steel, LLC, X Holdings I, Inc., X Holdings II, Inc., and X.ai Corporation, as 7 well as entities that were not, such as Quinn Emanuel, Cooley, and 700 Holdings, LLC. It 8 included individuals who were associated with Defendant Musk as well as those who were not 9 Defendant Musk’s employees or agents. The Atlanteca Enterprise engaged in and affected 10 11 interstate and foreign commerce. 432. The Atlanteca Enterprise made use of the domain name atlanteca.com, which was 12 at all relevant times unknown in association with Defendants, to shield its communications from 13 legal process. 14 433. The Atlanteca Enterprise also makes use of the term “Muskonomy” to refer to 15 itself, as shown in the confidential xAI Discussion Materials for potential investors promising 16 “Proprietary Access to the Muskonomy” promulgated by X.ai Corporation and described by 17 Axios. See https://www.axios.com/2024/05/18/elon-musk-xai-fundraising. 18 434. From at least 2018 through 2023, the Atlanteca Enterprise joined together for a 19 common purpose of defrauding customers and regulators of Defendant Musk’s companies 20 regarding “Autopilot” and FSD software; hiding compromising information from litigants; 21 spreading optimistic false narratives about Defendant Musk, his companies, “Autopilot” and 22 FSD; attacking critics of Defendant Musk, his companies, “Autopilot” and FSD; increasing the 23 financial wealth of each Atlanteca Enterprise member beyond what each member might have 24 achieved individually; enriching the Musk family; and promoting the political and financial 25 interests of the Russian Federation, Saudi Arabia, and the People’s Republic of China. 26 435. Each of the Defendants was employed by or associated with the Enterprise. 27 436. While each of the Defendants were employed by or associated with the 28 FIRST AMENDED COMPLAINT 28 99 3:24-cv-04647-MMC PDF Page 105 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 104 of 159 1 2 Enterprise, the Enterprise and its purposes were distinct and separate from the Defendants. 437. Defendant Musk, who is colloquially known as one of the heads of the “PayPal 3 Mafia,” leads the Atlanteca Enterprise, assisted at various times by his former and current Chiefs 4 of Staff: Sam Teller, followed by Omead Afshar. Financial matters were coordinated primarily 5 through Defendant Birchall, Matilda Simon-Ferrigno, Zachary Kirkhorn, Janice Yeung, and 6 Danielle Matsumoto. While some individuals affiliated with the Atlanteca Enterprise, including 7 but not limited to Jared Birchall, Sam Teller, Emma Gallagher, Elissa Butterfield, Reyna Ortiz, 8 and Jehn Balajadia, were provided with atlanteca.com e-mail addresses, not all were. 9 438. Defendant Spiro provided and continues to provide legal advice to the Atlanteca 10 Enterprise, along with his law firm, Quinn Emanuel. Defendants Cashman, Huebert, and Mehes 11 left Quinn Emanuel to eventually work for the Atlanteca Enterprise as attorneys. Starting in 12 August 2022, Defendant Mehes technically worked as an attorney for Tesla, and in June 2023 13 switched to working as an attorney for X Corp., but also represented Defendant Musk in his 14 personal capacity while at both jobs, illustrating that Defendant Mehes actually worked and 15 works for the Atlanteca Enterprise. 16 439. Some individuals have worked for multiple Atlanteca Enterprise members at the 17 same time. For example, Charles Kuehmann has worked for Defendant Tesla and SpaceX 18 simultaneously since 2015. Vivien Hantusch has also worked for both simultaneously. 19 440. Not every person or organization who worked for the Atlanteca Enterprise 20 necessarily knew of its existence. The atlanteca.com domain name was never publicly disclosed 21 by any of its members and the vast majority of Defendant Musk’s tens of thousands of 22 employees across his various businesses were at all times unaware of it. 23 441. The atlanteca.com domain name’s DNS MX record was and is set up to use 24 Google Workspace to handle e-mail, separate and apart from the Microsoft-based e-mail servers 25 deployed at Defendant Tesla and SpaceX, thereby largely concealing its existence and operation 26 even from information technology administrators at those companies. 27 442. Each of the Defendants conducted or participated in, directly or indirectly, the 28 FIRST AMENDED COMPLAINT 28 100 3:24-cv-04647-MMC PDF Page 106 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 105 of 159 1 conduct of the Enterprise’s affairs. 2 443. Each Defendant’s participation was through a pattern of racketeering activity. 3 444. Each Defendant benefitted from the infusion of racketeering income and 4 knowingly agreed to facilitate the scheme of the RICO Atlanteca Enterprise. 5 B. 6 7 445. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The racketeering activity, as that term is defined in 18 U.S.C. § 1961(1), referred to above includes, but is not limited to, the following predicate offenses: 8 9 Predicate Offenses Wire Fraud, 18 U.S.C. § 1343 Date From To July 2, 2019 November 20, 2019 November 20, 2019 December 3, 2019 August 17, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 16, 2020 September 18, 2020 September 18, 2020 September 18, 2020 September 18, 2020 September 18, 2020 September 18, 2020 December 1, 2020 December 11, 2020 December 29, 2020 February 13, 2021 Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Method / Invoice No. 62519-QUINN 101-0000091385 101-0000089828 101-0000093949 101-0000095402 101-0000100178 101-0000099186 101-0000100968 101-0000102206 101-0000100179 101-0000103855 101-0000099185 101-0000100967 101-0000104510 101-0000102208 101-0000103613 101-0000099187 101-0000103856 101-0000104512 101-0000097912 101-0000096323 101-0000097911 101-0000099893 101-0000103386 101-0000100180 101-0000108184 101-0000106729 101-0000109087 101-0000109086 Amount $100,000.00 $461,214.57 $99,164.85 $99,807.00 $246,032.31 $273,742.33 $208,992.15 $163,355.37 $109,813.52 $104,426.10 $89,833.95 $85,248.18 $84,284.62 $54,545.90 $45,854.10 $19,617.30 $18,053.55 $13,881.60 $12,096.60 $244,475.13 $49,967.65 $44,406.30 $42,636.30 $41,903.65 $10,807.16 $17,496.50 $50,578.60 $28,129.20 $25,000.00 28 FIRST AMENDED COMPLAINT 28 101 3:24-cv-04647-MMC PDF Page 107 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 106 of 159 1 March 3, 2021 Tesla, Inc. Quinn Emanuel 2 March 30, 2021 March 30, 2021 March 30, 2021 March 30, 2021 April 14, 2021 April 14, 2021 Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel May 6, 2021 May 11, 2021 May 11, 2021 June 10, 2021 June 10, 2021 June 10, 2021 June 10, 2021 June 10, 2021 June 10, 2021 June 23, 2021 June 23, 2021 June 29, 2021 July 9, 2021 Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel August 2, 2021 August 2, 2021 August 16, 2021 August 16, 2021 August 16, 2021 September 13, 2021 November 8, 2021 November 8, 2021 July 13, 2023 Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. Tesla, Inc. X Corp. July 13, 2023 August 7, 2023 August 8, 2023 August 18, 2023 September 1, 2023 September 15, 2023 September 29, 2023 October 13, 2023 October 27, 2023 November 10, 2023 November 24, 2023 December 8, 2023 X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Quinn Emanuel Smick Enterprises, Inc. Sawyer Merritt Farzad Mesbahi Sawyer Merritt Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 102 101000012172020A 101-0000113213 101-0000099185A 101-0000109079 101-0000110712 101-0000102679A 101000012172020C 101-0000114218 101-0000108229 101-0000108229 101-0000109079A 101-0000115619 101-0000115618 101-0000114224 101-0000113114 101-0000114224 101-0000105111A 101-0000110251 101-0000117116 101000012172020B 101-0000118501 101-0000114225 101-0000116922 101-0000116917 101-0000110722A 101-0000120268 101-0000121949 101-0000121263 ACH via Stripe $230,861.85 ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe $6,454.00 $1,881.00 $4,249.60 $204.82 $651.59 $249.55 $166.42 $204.48 $191.31 $143.21 $142.55 $541.62 $186.00 $150,000.00 $61,912.47 $35,950.50 $3,466.00 $230,861.85 $3,637.36 $60,866.55 $60,866.55 $3,127.50 $1,999.25 $401.00 $21,668.14 $63,072.85 $21,668.14 $314.18 $4,428.00 $124.00 $231,130.01 $1,562.64 $1,827.60 $666.40 $1,725.93 $977.50 $48,399.31 $477.00 $3,334.05 $6,206.00 3:24-cv-04647-MMC PDF Page 108 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 107 of 159 1 2 3 4 5 6 7 8 9 10 11 December 22, 2023 January 5, 2024 January 19, 2024 February 2, 2024 February 16, 2024 March 1, 2024 March 15, 2024 March 29, 2024 April 12, 2024 April 26, 2024 May 10, 2024 May 24, 2024 June 7, 2024 June 21, 2024 July 5, 2024 July 19, 2024 August 2, 2024 August 16, 2024 X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. X Corp. Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz Alexandra Merz ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe ACH via Stripe $600.75 $430.09 $356.61 $458.82 $394.13 $171.20 $285.37 $186.31 $806.85 $1,551.94 $1,051.09 $1,275.13 $1,211.70 $2,859.52 $926.38 $1,047.67 $862.46 $997.09 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Pattern of Racketeering Activity 446. Defendants committed multiple predicate acts of wire fraud which are indictable under the provisions of the U.S. code enumerated in 18 U.S.C. § 1961(1)(B). Defendants did knowingly, willfully, and unlawfully conduct or participate, directly or indirectly, in a pattern of racketeering activity within the meaning of 18 U.S.C. § 1961(5). 447. Defendants conspired with or aided and abetted other Defendants in committing at least two predicate acts of wire fraud constituting a continuous course of conduct spanning a period from at least 2018 to the present. The temporal duration and the number of predicate acts are so extensive as to constitute a pattern of racketeering activity with, at minimum, closedended continuity, though on information and belief, such conduct is continuing—e.g., Defendants are continuously forming new for-profit entities and continuing to promote their fraudulent products, namely, Tesla “Autopilot” and FSD software—and there exists a specific threat it will persist indefinitely, constituting a pattern of racketeering activity that is open-ended. 448. In order to implement their scheme, Defendants used the interstate wires to reward their co-conspirators for defrauding customers, defrauding courts, defrauding regulators, and attacking anyone who could expose their scheme, as alleged herein. Such acts not only FIRST AMENDED COMPLAINT 28 103 3:24-cv-04647-MMC PDF Page 109 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 108 of 159 1 shared a common or related result, participants, and victims, but also shared a common method 2 of commission. Defendants’ acts of racketeering were all committed for the purpose of 3 defrauding as many people as necessary to sell electric vehicles containing faulty and dangerous 4 “Autopilot” and FSD software. 5 449. The Atlanteca Enterprise harmed Plaintiff’s business by enlisting Defendant X 6 Corp. to take action against Plaintiff due to Plaintiff’s criticism of Defendants Musk, Tesla, Qazi 7 and Smick and Plaintiff’s refusal to be intimidated by Defendants Musk, Tesla, Qazi, Smick, 8 Spiro, Singer Cashman, LLP, Cashman, Huebert, and Mehes. 9 450. As a direct and proximate cause of the Defendants’ actions, Plaintiff has been 10 injured, and continues to be injured, in his business by reason of the violations of 18 U.S.C. § 11 1962 in an amount to be proven at trial. 12 451. By reason of these RICO violations, Plaintiffs are entitled to damages in an 13 amount to be proven at trial and all civil remedies afforded by 18 U.S.C. § 1964(c), including 14 treble damages, reasonable attorneys’ fees, and the costs of this litigation. 15 COUNT II Violations of Federal Civil RICO (18 U.S.C. § 1962(a)) Against All Defendants Except Morgan Stanley 16 17 18 19 20 21 22 23 24 25 26 452. Plaintiff incorporates by reference the foregoing allegations. 453. Each of the Defendants participated in the pattern of racketeering set forth above. 454. Defendants are persons who received income from the pattern of racketeering set forth above. 455. Defendants each invested or used all or part of that income in the establishment, operation, and maintenance of the Atlanteca Enterprise. 456. The Atlanteca Enterprise was engaged in and affected interstate and foreign commerce. 457. Plaintiffs’ business and property was injured by reason of each Defendant’s use or investment of their income in the Atlanteca Enterprise in an amount to be proven at trial. 27 28 FIRST AMENDED COMPLAINT 28 104 3:24-cv-04647-MMC PDF Page 110 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 109 of 159 1 COUNT III Conspiracy to Violate Federal Civil RICO (18 U.S.C. § 1962(d)) Against All Defendants Except Morgan Stanley 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 458. Plaintiff incorporates by reference the foregoing allegations. 459. Defendants have undertaken the fraudulent acts described above as part of a common scheme. Defendants willfully, knowingly, and unlawfully conspired, confederated, and agreed together and with others to violate 18 U.S.C. § 1962(c), in violation of 18 U.S.C. § 1962(d). Defendants intentionally concealed their fraudulent conduct, which prevented Plaintiff from discovering their scheme, notwithstanding his exercise of due diligence. 460. Defendants were aware of the illegal activity. Defendants knew that they had made false and/or misleading representations to Tesla customers, regulators, courts, and the general public regarding “Autopilot” and FSD, and that doing so would cause customers and the public to lose money, property, and in some cases, people’s lives. Defendants knew of and agreed to facilitate the operation of the Atlanteca Enterprise their scheme. 461. Defendant Musk directed and caused the Atlanteca Enterprise to engage in the racketeering activity alleged hereinabove. 462. Each Defendant understood that he or it was committing numerous RICO predicate acts and participating in a racketeering scheme, evidenced among other things, by his or its overt acts and involvement in repeatedly promulgating false and/or misleading representations via wire transmissions, including email correspondence, online transmittal, and social media posts, and receiving financial and other contributions, including wired funds, based on those fraudulent communications. In addition, the Defendants understood they were facilitating and/or aiding and abetting Defendant Musk’s self-dealing and furthering the scheme by helping to conceal their fraudulent conduct. 463. The participation and agreement of each Defendant was necessary to the scheme. Defendants knew their predicate acts were part of a pattern of racketeering activity and agreed to the commission of those acts to further the scheme, and agreed and conspired to conduct and participate in the affairs of the Atlanteca Enterprise through a consistent and continual pattern of 28 FIRST AMENDED COMPLAINT 28 105 3:24-cv-04647-MMC PDF Page 111 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 110 of 159 1 racketeering activity. Further evidence of the agreement among Defendants is peculiarly within 2 their knowledge and control. 3 464. As a direct and proximate result of Defendants’ conspiracy and violations of 18 4 U.S.C. § 1962(d), Plaintiff has been injured in his business and property, as alleged herein, and is 5 entitled to treble damages, attorneys’ fees, and costs of suit. 6 7 8 COUNT IV Securities Fraud (California Corporations Code §§ 25400, 25500) Against Defendants Musk, Tesla, Excession, Musk Trust, Birchall, Qazi, Smick and Morgan Stanley 9 465. Plaintiff incorporates by reference the foregoing allegations. 10 466. Defendants made false statements in order to artificially raise the price of Tesla 12 467. Defendants engaged in fraudulent transactions in order to artificially raise the 13 price of Tesla stock. 14 468. Defendants took steps to conceal their unlawful actions. 15 469. As described in Exhibit A, Plaintiff lost at least $59,310.22 on his investment in 11 16 17 stock. Tesla put options due to Defendants’ unlawful acts. 470. Pursuant to California Corporations Code §§ 25400 and 25500, Defendants are 18 obligated to restore to Plaintiff all consideration paid for TSLA securities, plus interest at the 19 legal rate. 20 21 22 COUNT V Securities Fraud (California Corporations Code §§ 25401, 25501) Against Defendants Musk, Tesla, Excession, Musk Trust, Birchall, Qazi, Smick and Morgan Stanley 23 471. Plaintiff incorporates by reference the foregoing allegations. 24 472. Plaintiff does not know the identity of the legal entity or entities that sold him the 25 26 TSLA put options that resulted in Plaintiff’s losses. 473. Pursuant to California Corporations Code §§ 25401 and 25501, Defendants are 27 obligated to restore to Plaintiff all consideration paid for TSLA securities, plus interest at the 28 legal rate. FIRST AMENDED COMPLAINT 28 106 3:24-cv-04647-MMC PDF Page 112 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 111 of 159 1 2 3 COUNT VI Assistance Committing Securities Fraud (California Corporations Code §§ 25403, 25504.1, 25504.2) Against Defendants Excession, Musk Trust, Birchall, Qazi, Smick, Morgan Stanley and Spiro 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 474. Plaintiff incorporates by reference the foregoing allegations. 475. Defendant Birchall served as a vital conduit for Defendant Musk’s and Defendant Tesla’s interactions with Defendant Morgan Stanley, so that unlawful proceeds of securities transactions could flow to Defendants Excession and Musk Trust on Defendant Musk’s behalf. 476. Defendants Qazi and Smick willingly assisted Defendants Musk and Tesla with the artificial inflation of Tesla stock. 477. Plaintiff does not contest Defendant Morgan Stanley’s First Amendment right to publish its views, grounded in fact, on any particular stock. Nonetheless, Defendant Morgan Stanley selectively disclosed its views to different groups of investors, depending on whether those views were positive or negative, in a manner intended to aid and abet the securities fraud carried out by the other Defendants. 478. When Morgan Stanley analyst Adam Jonas had positive news to share about Tesla, he published frequent, extremely optimistic written research notes that were widely disseminated to financial media and, in turn, the public. When Jonas had negative news to share, he held private client calls where his views were intended to stay private. 479. One such call was recorded on May 22, 2019 by Paul Huetter, who published a transcript on-line. See https://www.dropbox.com/scl/fi/1iglhsa6tgso11arqemnu/Morgan_Stanley_Tesla_Call_2019_05_ 22.pdf?rlkey=8q0c0lr0ypw8k5tks02pfag5q&e=1&dl=0. On the call, Defendant Morgan Stanley, through Adam Jonas, described Defendant Tesla—whose stock offering Morgan Stanley had just underwritten days before—as a “distressed credit story and a restructuring story.” 480. Defendant Tesla’s SEC Form 424B5 filed May 2, 2019 with Morgan Stanley’s name on it did not disclose that the stock being issued was for a “distressed” issuer. Instead, it stated, “We intend to use the net proceeds from this common stock offering and our concurrent FIRST AMENDED COMPLAINT 28 107 3:24-cv-04647-MMC PDF Page 113 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 112 of 159 1 convertible notes offering to further strengthen our balance sheet, as well as for general corporate 2 purposes,” falsely suggesting that Defendant Tesla’s balance sheet was already strong. 3 4 481. Defendant Morgan Stanley approved the language of the May 2, 2019 SEC Form 482. Defendant Morgan Stanley knew that Defendant Tesla was in distress prior to 424B5. 5 6 May 2, 2019. On March 12, 2019, Jonas cut Morgan Stanley’s price target on TSLA to $260 per 7 share due to what it called a possible “air pocket in demand that is coming earlier than we 8 expected” in a published note, but did not use the same dire language he used in private in May. 9 483. Defendant Morgan Stanley agreed to publish “buy” recommendations, publish 10 artificially high earnings per share projections, suppress the negative information it knew about 11 Defendant Tesla’s business, and/or add Tesla stock to its model portfolio in order to earn fee 12 revenue from underwriting Defendant Tesla’s stock offerings, keep the continued business of 13 Defendant Musk himself, and/or to ensure its loans to Defendant Musk would not sour. 14 15 484. Morgan Stanley admits that it had a possible “conflict of interest” in a disclaimer on its research reports. 16 485. Defendant Morgan Stanley has also fraudulently published nonsensical gibberish 17 in the guise of “research” to justify high price targets on Defendant Tesla’s stock. While Morgan 18 Stanley has the right to sell gibberish to its clients if they are willing to pay for it, no investment 19 bank has the right to do so with fraudulent intent. 20 486. Defendant Morgan Stanley had fraudulent intent due to its conflicts of interest. 21 For example, on December 2, 2018, Adam Jonas was the lead contributor on a “bluepaper” 22 called “Flying Cars: Investment Implications of Autonomous Urban Air Mobility” that began, 23 “Autonomous flying cars aren’t π in the sky” while noting, “Tesla CEO Elon Musk is regularly 24 asked about flying cars.” On December 15, 2023, Adam Jonas wrote regarding Tesla, 25 “Tesla sits at the epicenter of a potential Cambrian Explosion of technology ushering in a new morphological era…” 26 27 28 and “The other night I was observing my son (somewhat past his bedtime) drawing a picture FIRST AMENDED COMPLAINT 28 108 3:24-cv-04647-MMC PDF Page 114 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 113 of 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 of dragon with a crayon. He showed me how by pressing hard against the paper he could make the color a darker, richer shade of green. As he pressed with all his might, the crayon disintegrated onto the page…” Nominally, these passages were intended to describe the potential of Defendant Tesla’s as-yetunreleased “Optimus” robot, which was introduced to the public as a person in a skintight suit dancing The Robot since the product as described did not and does not actually exist. When these passages were written, TSLA traded at $239.29 per share but Morgan Stanley’s price target was $380.00 per share, 59% higher. 487. Even Defendant Musk’s cheerleaders recognize that the “Optimus” project at Tesla is utter nonsense. On August 23, 2024, Ross Gerber, who formerly appeared on financial networks to support Defendants Tesla and Musk, was quoted as saying, “Nobody wants a robot from Elon Musk. Why? Who would trust it?... The last thing I need is some robot built by Elon Musk in my house, so I don’t know if they thought about the marketing of this at all yet.” See https://www.youtube.com/watch?v=HMF0GWfSRNQ&t=480s. 488. Also on August 23, 2024, Defendant Morgan Stanley announced that it was reducing its holdings of Tesla stock in its model portfolio. 489. Defendant Spiro made at least one false statement to the SEC on behalf of Defendants Musk, Tesla, Excession and/or Musk Trust. Specifically, on December 19, 2019, in response to SEC subpoenas as part of Investigation No. SF-04322, Defendant Spiro informed the SEC that “until recently, Tesla’s systems may not have automatically summarized cash balance information on a daily basis” according to an SEC Division of Enforcement summary. This statement was false. 490. Defendant Spiro was the point person for Defendant Musk, Tesla, Excession and/or Musk Trust in response to the SEC for Investigation No. SF-04322. In that role, Defendant Spiro deliberately withheld discoverable materials from the SEC that would have implicated his clients in criminal activity. One SEC document production round, 20200320_H52749_VOL001.zip, was merely 830KB compressed—seven pages of data in all (“This production contains documents bearing Bates labels [redacted] 4322_00000001- 28 FIRST AMENDED COMPLAINT 28 109 3:24-cv-04647-MMC PDF Page 115 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 114 of 159 1 [redacted]_SEC_SF_4322_00000007.”). A prior SEC document production round, 2 20200228_H52448_VOL005.zip, was only 34.7MB compressed. Before that, on January 24, 3 2020, Defendant Tesla produced only 78 pages in response to the SEC’s subpoena, which 4 Defendant Spiro requested confidential treatment for the same day. 5 6 7 491. In contrast, PwC sent the SEC an entire laptop with years worth of data for Investigation No. SF-04322. 492. Defendants Excession, Must Trust, Birchall, Qazi, Smick, Morgan Stanley and 8 Spiro acted with knowledge and provided substantial assistance to Defendants Musk and Tesla in 9 committing the violations of the California Corporate Securities Laws set forth above. 10 Defendants Excession, Musk Trust, Birchall, Qazi, Smick, Morgan Stanley and Spiro are 11 therefore liable as aiders and abettors of Defendant Musk within the meaning of California 12 Corporations Code §§ 25403, 25504.1, and/or 25504.2. 13 COUNT VII Fraud Against Defendants Musk, Tesla, Qazi and Smick 14 15 16 17 18 19 20 21 22 23 24 25 26 27 493. Plaintiff incorporates by reference the foregoing allegations. 494. Defendants Musk, Tesla, Qazi, and Smick carried out fraudulent acts with regard to Tesla “Autopilot” and FSD intended to deceive consumers into purchasing faulty and dangerous software, thereby putting Plaintiff’s physical safety while driving at risk. 495. Defendants Musk and Tesla carried out fraudulent acts with regard to Tesla vehicle quality, thereby putting Plaintiff’s physical safety while driving at risk. 496. On an ongoing basis, Plaintiff is unable to drive in a normal manner due to the presence of defective Tesla vehicles with dangerous “Autopilot” and FSD software on the road. 497. Defendants Musk, Tesla, Qazi, and Smick filed false and misleading documents in Greenspan I in order to defraud the court, which had the material effect of leading to the improper dismissal of Greenspan I. Specifically: a) Defendants Musk and Tesla falsely alleged that Plaintiff had invented an “implausible” self-serving story about the Tesla Files data breach, when in 28 FIRST AMENDED COMPLAINT 28 110 3:24-cv-04647-MMC PDF Page 116 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 115 of 159 1 fact, Plaintiff’s allegations were true and altered Defendants Musk and Tesla 2 to the largest data breach in the company’s history; 3 b) Defendants Musk and Tesla falsely alleged that aspects of their securities 4 fraud as alleged by Plaintiff were “implausible,” when in fact they knew that 5 Plaintiff’s allegations were true; 6 c) Defendant Qazi signed a declaration under penalty of perjury in which he 7 claimed the risk of “significant financial hardship,” while omitting that he had 8 actually signed the declaration while on vacation in Hawaii. ECF No. 136-1. 9 COUNT VIII Negligent Misrepresentation Against Defendants Musk, Tesla, Qazi, Smick and Morgan Stanley 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 498. Plaintiff incorporates by reference the foregoing allegations. 499. For years, Defendants Musk, Tesla, Qazi, Smick and Morgan Stanley misrepresented a) the capabilities of Tesla “Autopilot” and FSD software and the financial condition of Defendant Tesla to investors, regulators, courts, and the general public by claiming that the software was both less capable—to evade regulation—and more capable—to boost sales and Tesla’s stock price—than it really was, depending on the context; and b) that Defendant Tesla was more financially stable than it really was. 500. Defendants had no reasonable grounds for believing their representations were true and not misleading or deceptive when they made them. 501. Investors, regulators, courts and the general public reasonably relied on Defendants’ misrepresentations, nondisclosure, and/or concealment, and were actually misled and deceived thereby, and were induced by Defendants’ wrongful conduct to purchase or lease vehicles containing “Autopilot” and FSD software and/or shares of Tesla stock that they would not otherwise have purchased or leased in the absence of Defendants’ wrongful conduct. 502. Plaintiff was damaged by Defendants’ misrepresentations and the reliance of investors, regulators, courts and the general public was a substantial factor in causing that harm. 503. As a result of Defendants’ negligent misrepresentation and the harm caused 28 FIRST AMENDED COMPLAINT 28 111 3:24-cv-04647-MMC PDF Page 117 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 116 of 159 1 thereby, Plaintiff seeks and is entitled to (a) damages in an amount to be determined at trial and 2 (b) all other available relief prayed for below. 3 COUNT IX Defamation Per Se Against Defendants Qazi and Smick 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 504. Plaintiff incorporates by reference the foregoing allegations. 505. Starting on January 14, 2019 and even after the date of his ban by and from Twitter, Defendants Qazi and Smick made use of several Twitter accounts to publish constant, deliberate misinformation about Plaintiff and Plaintiff’s family. 506. From October 11, 2019 through present day, Defendants Qazi and Smick have employed a variety of domain names and websites, including but not limited to wholemars.com, wholemars.net, and wholemars.org to publish deliberate misinformation about Plaintiff and Plaintiff’s family. 507. Defendant Qazi made these false statements thousands of times with the hope that tarnishing Plaintiff’s reputation and discrediting both Plaintiff’s work and unrelated third-party court filings located by Plaintiff would increase or prevent any decrease in the value of TSLA shares. Qazi was successful: TSLA shares increased in value, he was profiled in a major financial publication in connection with Defendant Musk, many of his followers began repeating his false claims about Plaintiff, and many refused to believe anything published by Plaintiff. 508. Via Twitter and the Smick Sites, Defendants Qazi and Smick Enterprises, Inc. explicitly encouraged others to spread false statements and disinformation about Plaintiff. 509. Defendant Qazi explicitly encouraged others to “harass” and “prank” Plaintiff. 510. Defendant Qazi threatened, “any attempts to silence us will only make us louder.” 511. Defendants Qazi and Smick placed banner advertisements alongside their libelous statements about Plaintiff in order to derive further profits from their lies. 512. Although Defendant Qazi published falsehoods, misleading barbs and reputation- damaging accusations over a period of more than two years such that it is impossible to enumerate each and every one, select representative examples include: 28 FIRST AMENDED COMPLAINT 28 112 3:24-cv-04647-MMC PDF Page 118 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 117 of 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Example No. / Date 1. Public Statement by Defendant Qazi “Strange how Aaron mentions that he think [sic] Diego wants to ‘get in his pants’. Sounds like may be revealing some deeper desires there” Plaintiff never said any such thing in any context or via any medium. This January 14, 2019 statement falsely suggested a sexual attraction to Plaintiff’s stalker. That “Aaron mention[ed]” this statement on the particular website discussed in the post is provably false. 2. “Aaron Greenspan has child This statement explicitly and falsely pornography at his house. I do accused Plaintiff of possessing child September 28, not.” pornography, which would be a 2019 crime. The statement is provably false. 3. “To conclude, is anyone surprised This statement again explicitly Aaron Greenspan is a complete mentioned Plaintiff and falsely September 30, fraud? Every $tslaq I have looked accused him of fraud, and by 2019 into has committed serious crimes. referring to short-sellers including Plaintiff, “serious crimes.” This Aaron, know you have anger issues statement also falsely stated that and like to ‘do something’ when Plaintiff suffers from a medical you’re mad but retaliating against condition. Plaintiff has never been me for reporting your fraud will diagnosed with “anger issues” or any make it worse” similar medical condition. Defendant Qazi twisted a lone remark Plaintiff made at a memorial service for his deceased friend, Aaron Swartz. 4. “How will Aaron Greenspan, a This post explicitly mentioned criminal guilty of felony tax fraud Plaintiff and stated that he is a October 9, 2019 with no lawyer, do in court against “criminal guilty of felony tax fraud,” two guys with a lot more money which is false. Plaintiff has hired than him?” lawyers in various contexts over many years. 5. “Have you been a victim of This headline appeared on at least harassment, intimidation, extortion, four of the known Smick Sites, October 15, 2019 sexual assault, identity theft, or directly and falsely implicating cyberstalking by Aaron Greenspan? Plaintiff in numerous crimes. The Smick Sites have zero actual You are not alone. The victims of accounts of Plaintiff committing any Aaron Greenspan Foundation is of the listed crimes because Plaintiff gathering evidence of Aaron never committed them. Greenspan’s crimes to finally bring this criminal to justice” 6. “he extorted $250,000 from Mark This statement is part of an essay on Zuckerburg [sic]” Defendant Qazi’s website that November 1, explicitly names Plaintiff. Plaintiff FIRST AMENDED COMPLAINT 28 False / Misleading Aspects 113 3:24-cv-04647-MMC PDF Page 119 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 118 of 159 1 2019 2 3 7. 4 May 25, 2020 5 6 7 8. 8 June 23, 2020 9 10 11 12 13 9. June 23, 2020 14 16 17 19 10. July 10, 2020 20 21 22 11. 23 24 As board members they presided over Plainsite’s tax fraud, harassment of Tesla customers, and short and distort fraud.” “Aaron Greenspan abuses his charity to inure private benefit to himself. His tax exempt status should and will be revoked, and he must pay back the taxes he illegally avoided.” “Aaron Greenspan is a cyberstalker who has been threatening and harassing Omar & others for years. A common tactic used by cyber stalkers is false accusations and false victimization. 15 18 “Yes, Aaron Greenspan, Neil Greenspan, and Judith Greenspan. The harasser will try and make it look like they are the victim and use that to incite hate.” “I’m sad. Greenspan has stalked me and tried to hurt me so much, it can’t even fit in a tweet. He rapes his victims, entering their mind and shattering their peace when they least expect it. You can’t imagine it unless you’ve seen it first hand.” “Aaron Greenspan had servers in New Jersey. July 11, 2020 The same place the death threat @JohnnaCrider0 got this week came from.” 25 26 27 28 12. “Even though Greenspan himself FIRST AMENDED COMPLAINT 28 114 did not extort Mark Zuckerberg or anyone else, making this statement provably false. Also posted on the @WholeMarsLog Twitter account, this statement falsely accused Plaintiff and his parents of various crimes. From the @WholeMarsBlog Twitter account, where Defendant Qazi again falsely alleged that Plaintiff has committed tax crimes. The IRS did not identify any taxes that were “illegally avoided” in its recent audit of Think Computer Foundation, making the statement provably false. From the @WholeMarsBlog Twitter account, Defendant Qazi again falsely alleged that Plaintiff committed the crime of stalking while projecting his own actions onto Plaintiff. That Plaintiff has ever threatened Defendant Qazi with anything other than the instant litigation is provably false. From the @WholeMarsBlog Twitter account, where Defendant Qazi falsely claimed that Plaintiff is a rapist. Here, Defendant Qazi falsely implied that Plaintiff had sent a Tesla super-fan a death threat across state lines, a criminal act, because Plaintiff’s company once maintained a co-located server in New Jersey in 2003, which was provably decommissioned and disconnected in March 2007. From Defendant Qazi’s personal 3:24-cv-04647-MMC PDF Page 120 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 119 of 159 1 2 July 12, 2020 3 4 5 6 13. July 17, 2020 7 8 published the book, he didn’t like people reading what he has to say because it establishes that he’s been angry at the world and suffering from paranoid delusions since high school (or perhaps earlier).” “Aaron Greenspan is a serial rapist. He enters his victims [sic] lives unannounced and unexpected, and rapes them while they’re going about their lives, with their friends 13 You can’t understand it unless you’ve been targeted by him. I will fight for all his victims — past and future.” “saying that he harasses and threatens people just doesn’t communicate the kind of person he is 14 he’s a rapist 15 and the world will know the truth, no matter how hard he fights to keep it quiet” “Aaron Greenspan stalks and harasses colleged [sic] aged girls! Creepy! Leave her alone! 9 10 11 12 14. July 17, 2020 16 17 15. 18 July 18, 2020 19 @jack @Twitter Safety” 20 21 22 16. 23 24 August 3, 2020 25 Added to the Greenspan criminal activity file…” 26 27 28 “Scary. someone tried to hack into Omar’s iCloud account, so it got locked and he had to reset the password. 17. “Motives and profile of a Cyberstalker like Aaron FIRST AMENDED COMPLAINT 28 115 website in his “Aaron Greenspan Tries To Remove Book Review: How Evil People Abuse The DMCA To Silence Critics” post, in which he falsely describes Plaintiff as mentally ill. From the @WholeMarsBlog Twitter account, where Defendant Qazi falsely claimed that Plaintiff is a serial rapist. From the @WholeMarsBlog Twitter account, Defendant Qazi again falsely claimed that Plaintiff is a rapist and insisted that it was the “truth.” In this post, Defendant Qazi accused Plaintiff of harassment and stalking and flagged Twitter’s safety team because Plaintiff wrote a single comment on the absurdity of a Third Row Tesla member publicly defending billionaire Jack Dorsey against outrage over Twitter (and @ElonMusk) being hacked. Defendant Qazi falsely accused Plaintiff of breaking into his iCloud account and of being a “criminal” as a result. Plaintiff has never made any attempt of any kind to break into Defendant Qazi’s accounts on any platform. This statement is provably false based upon server log evidence. In this post, Defendant Qazi again falsely accused Plaintiff of the crime 3:24-cv-04647-MMC PDF Page 121 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 120 of 159 1 August 21, 2020 Greenspan” [image of excerpt from “Motives and profile” section of Wikipedia article at https://en.wikipedia.org/wiki/ Cyberstalking] 18. “Based on his cyberstalking and false police reports we have a good case to put him away for 5 and a half years” 2 3 4 5 6 August 21, 2020 7 8 9 10 11 12 19. “His rants are starting to sound like that of a Mass Shooter [sic].” October 26, 2020 20. “Recently Martin Tripp has been working with Aaron Jacob November 30, Greenspan to threaten, harass and 2020 doxx Tesla customers.” 13 14 15 21. December 7, 2020 16 17 18 19 20 22. December 8, 2020 21 22 23 24 25 26 27 28 23. December 8, 2020 “While researching the Aaron Greenspan story we’ve uncovered shocking evidence of massive fraud.” “we’re talking about major organized criminal activity… this is some messed up stuff” “Harvard Shut Down Aaron Greenspan’s Website For Stealing Student Passwords” Defendant Qazi falsely claimed that Plaintiff was stealing passwords, a possible violation of 18 U.S.C. § 1030, and that Harvard shut down Plaintiff’s product. In reality, the product was secure and the university did not shut it down. Harvard administrators were misinformed by an overzealous student. “I am trying to diagnose his various From Defendant Qazi’s personal mental conditions, and believe he website in his “Harvard Shut Down may have narcissistic personality Aaron Greenspan’s Website For disorder…” Stealing Student Passwords” post, in which Defendant Qazi, who is “What a psychopath.” neither a doctor nor qualified to offer a diagnosis in any way, again falsely FIRST AMENDED COMPLAINT 28 of “stalking” for a variety of completely inapplicable reasons. This is yet another example of Defendant Qazi projecting his own pathological obsession with and stalking of Plaintiff. In this post, Defendant Qazi again falsely accused Plaintiff of the crimes of “stalking” and filing a false police report, suggesting that Plaintiff would be incarcerated as a result. No criminal case against Plaintiff even exists. Defendant Qazi retweeted a post referring to Plaintiff by Twitter user @tesla_grl. This statement is baseless and false in several ways: Plaintiff has not ever “worked” with Martin Tripp, nor has Plaintiff ever taken any action against “Tesla customers.” In two separate posts, both of which readers understood to refer to Plaintiff, Defendant Qazi falsely accused Plaintiff of unspecified “major organized criminal activity” and “massive fraud.” 116 3:24-cv-04647-MMC PDF Page 122 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 121 of 159 1 2 3 24. 4 December 8, 2020 5 6 25. 7 8 December 9, 2020 9 “Aaron Greenspan clearly has serious mental health and anger issues that continue to this day.” “Given what we know about Aaron obsessively logging and storing all activity on his servers to try and use as blackmail, you can bet students were compromised the minute they signed up.” “Greenspan has also admitted to anger issues that are completely out of control, driving him to seek revenge for even small or imagined slights.” 10 11 12 26. December 9, 2020 “Well Aaron…FaceCash was shut down for violating financial regulations.” 13 14 15 16 27. January 13, 2021 17 18 19 28. March 13, 2021 20 21 22 29. 23 April 6, 2021 “Aaron Greenspan has admitted that he is willing to resort to violence to silence us if his attempts at non-violent retaliation fail.” “Breaking — Aaron Greenspan spotted angrily crying outside Zuckerberg hospital in San Francisco with piss streaming down one of his pant legs as he hurls feces at the building from a plastic bag.” “Aaron Greenspan… He’s like, you know, this very mentally ill guy…” 24 25 30. 26 June 13, 2021 “Aaron Greenspan: ‘Adolph [sic] Hitler was a great founder’” 27 28 FIRST AMENDED COMPLAINT 28 117 portrays Plaintiff as mentally ill. In this post, Defendant Qazi falsely accuses Plaintiff of having committed the crime of blackmail. In this post, Defendant Qazi again falsely portrays Plaintiff as mentally ill. This is textbook projection based on Defendant Qazi’s self-described “out of control revenge impulse.” There was no such admission by Plaintiff. Here, Defendant Qazi falsely suggests that Plaintiff violated 18 U.S.C. § 1960. In fact, Plaintiff’s company voluntarily shut down FaceCash before any violation could occur to ensure compliance with the law. This assertion is completely false as no such admission or anything resembling such an admission was ever made. This was a total fabrication intended to cast Plaintiff as mentally ill. Defendant Qazi made this false verbal statement on a YouTube video podcast viewed approximately 1,700 times and hosted by a 13-yearold child. Plaintiff is Jewish and does not believe that Adolf Hitler was “great” in any way. This quotation fabricated by Defendant Qazi falsely summarized a satirical post by Plaintiff highlighting the “just 3:24-cv-04647-MMC PDF Page 123 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 122 of 159 1 2 3 31. June 14, 2021 4 5 6 32. 7 8 July 18, 2021 9 10 11 12 13 33. May 19, 2022 14 15 16 17 18 19 20 21 22 34. May 21, 2022 23 24 25 26 27 28 35. following orders” mentality pervasive in technology companies. “that’s what a lot of people are This statement from the concerned about” @WholeMarsBlog Twitter account affirming “He sounds like a future mass murderer” in response to the above post about Hitler falsely suggests Plaintiff’s intent to commit murder. “Aaron Greenspan has gone to This statement from the insane lengths to make sure nobody @WholeMarsBlog Twitter account learns the truth about the falsely suggests Plaintiff’s Greenspan crime family and their involvement in a conspiracy to fraudulent charity. They’re ready to commit murder. harass Omar for years if they have to. Telling people what’s happening is the only thing keeping them from killing him” “After more than two years, Tesla Greenspan is not a “cyber stalker.” short-seller and cyber stalker Aaron The lawsuit in question was not Greenspan’s illegal SLAPP-suit found by any judge in any court to against @elonmusk and Omar Qazi be a Strategic Lawsuit Against has been dismissed with prejudice. Public Participation, or “SLAPP.” Greenspan filed more than 4,000 The filing of the lawsuit in question pages of nonsense with the court to was not “illegal” and Greenspan try and extort Omar. It was all BS violated no laws by filing it. The & lies.” lawsuit was not dismissed with prejudice; the state law claims, including claims against Mr. Qazi, were explicitly dismissed without prejudice. Plaintiff did not at any point attempt to “extort Omar.” Extortion is a crime. “Aaron Greenspan has got to be There were and are no grounds for sweating that they might find the United States Department of grounds to charge him criminally / Justice, which Mr. Qazi was Rumor has it Block was acting as referring to, to charge Greenspan the balance sheet (funding) for his criminally. Complainant never has short activism and harassment had any financial relationship campaign.” directly or indirectly with shortseller Carson Block whatsoever, and Complainant has never run a “harassment campaign,” let alone sought funding for one. “After more than two years of This is false. No judge ever issued Greenspan filing thousands of any such ruling. FIRST AMENDED COMPLAINT 28 118 3:24-cv-04647-MMC PDF Page 124 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 123 of 159 1 June 4, 2022 2 3 4 36. 5 6 June 4, 2022 37. 7 July 3, 2022 8 9 10 38. July 6, 2022 11 12 13 39. 14 August 24, 2022 15 16 17 18 19 40. August 24, 2022 41. 20 21 August 24, 2022 22 23 24 25 42. 26 August 25, 2022 27 28 pages of documents in an attempt to extort Qazi, the judge ruled that there was absolutely no truth or merit to any of Greenspan’s absurd allegations.” “Aaron, you’ve filed 67 lawsuits against hundreds of victims.” “Greenspan is probably going to appeal … Started stalking us a year or two before that. He’s told us he’s going to stalk us until the day he died or gets locked up.” “For the past two years since then Greenspan has been attempting to extort me into silence…” “I could not in good conscience pay off such a deranged and evil criminal…” “this nut job aaron greenspan litigated the case for years and filed thousands of documents with the court and the judge ruled he was completely full of shit and that he did not invent Facebook.” “I make money writing software. Something Greenspan doesn’t understand never working a day in his life. Harassment & extortion isn’t a job!” “more than a [] few screws loose…completely nuts…harassed and threatened the guy and his wife for not putting him in the movie…a real nut job…very offended by the story of Facebook because he was left out of it but the reality is that he had nothing to do with Facebook.” “Is @RealDanODowd committing tax fraud by using a non-profit to inure private benefit to himself? I can’t believe it… he set up a fake charity to benefit himself financially just like Aaron FIRST AMENDED COMPLAINT 28 119 This is false. Beginning with the word “started,” Mr. Qazi’s statement is a total fabrication. These statements falsely accuse Plaintiff of the crime of extortion. This is a total fabrication. Many of the documents filed in court were hundreds of pages of falsehoods and/or doctored photographs authored and created by Defendant Qazi regarding Plaintiff. This is false. Plaintiff has worked in various roles since approximately 1994 and has never harassed or extorted anyone. These characterizations from the “Dr. Know-it-all” podcast at https://www.youtube.com/watch?v= crMHh7yPyzE are false, the assertion that Plaintiff harassed Ben Mezrich is false, and the assertion that Plaintiff had “nothing to do with Facebook” is false. This is false. Plaintiff did not set up a “fake charity,” for any reason. 3:24-cv-04647-MMC PDF Page 125 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 124 of 159 1 2 3 43. December 1, 2022 4 5 6 44. December 3, 2022 7 8 9 10 11 12 13 14 15 16 45. December 3, 2022 46. December 4, 2022 17 18 19 20 47. 21 January 13, 2023 22 23 24 25 26 27 28 48. February 6, 2024 Greenspan!” “this is a criminal harassment issue, with Greenspan abusing the courts to extort me for a large cash payment & insane demands that I stay silent about his harassment” “I never would have picked up this 40 year old online stalker i’ve never met who has been following and threatening me for 4+ years now / he sued me and elon to hide the fact that he was committing fraud and harassing people / We won the case, and then won again and had it dismissed with prejudice but now he’s appealing. He will never stop obsessing over me as long as he’s alive until he faces justice.” “he sued me and elon to hide the fact that he was committing fraud and harassing people” “He’s let Greenspan drag this bullshit case through courts for years while failing to explain to the judge that this is a criminal harassment issue, with Greenspan abusing the courts to extort me for a large cash payment & insane demands that I stay silent about his harassment.” “Woah, this is crazy. My stalker Aaron Greenspan & his goons submitted thousands of fraudulent 50 cent donations on stolen credit cards to my donation page for legal defense against his SLAPP-suit against me and @elonmusk.” “I was doxxed by Tesla short sellers on Twitter before Elon bought it. First Greenspan called my employer, but we own the company so I didn’t get fired. Each part of this statement is false except for Plaintiff’s age, having turned 40 after the time of publication. The state law claims against Defendant Qazi were dismissed without prejudice. This statement falsely alleges that Plaintiff committed the crime of fraud. Each part of this statement is false. This is false. The acts described, wire fraud, conversion, and identity theft—none of which Greenspan committed—are crimes. These statements falsely allege that Plaintiff committed the crimes of harassment and stalking. He harassed, stalked and tormented FIRST AMENDED COMPLAINT 28 This statement again falsely accuses Plaintiff of “abusing the courts,” the crime of extortion, and the crime of harassment. 120 3:24-cv-04647-MMC PDF Page 126 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 125 of 159 1 2 3 49. May 4, 2024 4 5 6 50. July 26, 2024 7 8 9 10 11 12 13 14 15 16 51. August 27, 2024 17 18 19 20 21 22 52. August 27, 2024 23 24 25 26 27 28 513. me for years, and still to this day. It’s no joke.” “Baby reindeer reminded me a lot of my experience with my TSLAQ stalker Aaron Greenspan” Stalking is a crime. “Baby Reindeer” is a Netflix production concerning a female convict who physically harassed a male comedian and was sentenced to prison for it. “If we are investigating short Shorting stocks with an intent to sellers, I suggest @SECGov look distort price is a crime that Plaintiff into my stalker Aaron Jacob has never engaged in, yet Defendant Greenspan. I want to know who has Qazi suggested that the SEC and been funding his years long short USDOJ should investigate and and distort and harassment charge Plaintiff civilly and campaign against myself and many criminally. Plaintiff has never made others. Charging Greenspan any such “vow” and has no criminally will not take back the “victims.” harm he caused but it will begin to make things right. This is perhaps the most egregious and over the top short & distort example I have ever seen. Greenspan has vowed to torment me until the day he dies. Until he is put away his victims will never be able to find peace.” “When I made an anonymous Defendant Qazi unilaterally violated account and started calling out their a confidentiality agreement during BS for what it was, they attacked. settlement negotiations in Greenspan My stalker Aaron Greenspan (who I for which his former attorney, Karl was furious I laughed at him for Kronenberger, apologized. Then thinking he invented Facebook) Defendant Qazi falsely doxxed me and called my employer mischaracterized those negotiations to try and get me fired for my on Twitter as “extortion” and tweets. He started blackmailing me “blackmail,” which he reiterates to try and keep me silent.” here. “yeah my stalker Aaron Greenspan Every part of this statement is is a truly insane person. As long as entirely false. he’s alive he will always be trying to hurt me. I’m not his first victim either.” On or around July 6, 2022, Defendant Qazi posted on his @WholeMarsBlog Twitter account a copy of his purported response to a subpoena issued to him in the criminal case of United States of America v. Milton, New York Southern District Court Case No. 1:21-cr00478-ER. Trevor Milton is the former CEO of purported electric truck manufacturer Nikola FIRST AMENDED COMPLAINT 28 121 3:24-cv-04647-MMC PDF Page 127 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 126 of 159 1 Corporation. Mr. Qazi once visited the headquarters of Nikola Corporation to interview Mr. 2 Milton with other Tesla enthusiasts and was thus subpoenaed in that case. In his subpoena 3 response, rather than directly addressing any requests posed to him, Defendant Qazi instead 4 launched into a lengthy diatribe against Plaintiff, writing: 5 a) “Greenspan filed false DMCA notices with Twitter;” 6 b) “…filed multiple false police reports with the San Francisco police 7 department claiming I was in possession of child pornography;” 8 c) “For the past two years since then Greenspan has been attempting to extort me 9 into silence;” 10 d) “I could not in good conscience pay off such a deranged and evil criminal…;” 11 e) “…knowing that he had filed 64 similar lawsuits against numerous victims…” 12 f) “the case has now been dismissed with prejudice;” 13 g) “Greenspan was abusing the pro se designation to extort me into silence;” 14 h) “Greenspan is extremely deceptive, thinks he’s smarter than the authorities, 15 and will do everything he can to escape justice.” 16 All of these statements are false and/or contain falsehoods. None of these statements in any way 17 whatsoever pertain to Trevor Milton or the United States of America v. Milton criminal 18 proceedings and are thus not covered by litigation privilege. 19 20 21 22 23 514. Defendant Qazi’s website appears prominently in search engine results for queries based on Plaintiff’s name. 515. From Twitter and his Smick Sites, Defendant Qazi published links to libelous and/or pornographic material with the intent of poisoning search results concerning Plaintiff. 516. Defendant Qazi’s @WholeMarsBlog Twitter account has over 500,000 followers, 24 including Tesla executives who frequently “like” its content, and is on a short-list of VIP Twitter 25 accounts that receive special treatment from Twitter’s owner, Defendant Musk. 26 27 517. Defendant Qazi’s @WholeMarsBlog Twitter account is a collaboration with several other anonymous individuals who contribute content, over which Defendant Qazi has 28 FIRST AMENDED COMPLAINT 28 122 3:24-cv-04647-MMC PDF Page 128 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 127 of 159 1 immediate control. 2 518. Defendant Qazi’s statements via the @tesla_truth Twitter account, that he would 3 “drag [Plaintiff’s] name through the mud until the day he [dies]” and that “[a]fter he dies I’ll 4 keep telling people he sucked,” as well as his repeated posting of Plaintiff’s contact information, 5 as well as his explicit encouragement that several thousand individuals “contact Aaron for 6 pranks,” all demonstrate considerable malice and reckless disregard for the truth. 7 519. Defendant Qazi’s persistent lies kicked off a chain of libel by his followers, whom 8 Qazi assumed responsibility for, and who publicly referred to Plaintiff as a “psychopathic incel” 9 and a likely “mass shooter.” 10 520. Defendant Qazi’s written and verbal false statements were made with actual 11 malice because Qazi knew the statements were false and made the statements with reckless 12 disregard for whether the statements were false or not, even after the filing of Greenspan I. 13 521. On October 19, 2019, Defendant Qazi stated, “I want everyone to know the true 14 facts about who he really is,” and on August 24, 2020, Defendant Qazi admitted that he 15 frequently posts material on his Twitter accounts intended to be interpreted as fact, writing, “I 16 trust you guys to be smart enough to figure out what’s fact and speculation.” 17 522. Defendant Qazi’s thousands of aspersions demonizing Plaintiff—none of which 18 addressed a single one of Plaintiff’s substantive concerns regarding Defendant Tesla’s business 19 practices—were interpreted by readers statements of fact. On October 9, 2020, one reader even 20 replied to a @WholeMarsBlog post with a video clip of man holding up a sign that simply reads 21 “#FACTS.” See https://x.com/SjvTesla/status/1314685422497411074. 22 523. In addition to using a Twitter account containing the word “truth” to make 23 statements concerning Plaintiff, Defendant Qazi also repeatedly exhorted his followers on 24 Twitter and via the Smick Sites to complete IRS Form 13909 in order to file false reports 25 echoing the conspiracy theories already submitted by Diego MasMarques, Jr. 26 27 524. Communications with the IRS are regulated by federal law and are required to be factual. Defendant Qazi also frequently tagged law enforcement Twitter accounts in posts. 28 FIRST AMENDED COMPLAINT 28 123 3:24-cv-04647-MMC PDF Page 129 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 128 of 159 1 525. On January 29, 2021, Defendant Qazi posted a heavily altered photograph of 2 Plaintiff with a modified nose, mouth, eyes, and eyebrows that elicited replies from readers such 3 as “ugly as shit” and “Stay safe out there!” Defendant Qazi posted it again on February 25, 4 2021, April 29, 2021, and June 8, 2021, each time labeling the photograph with Plaintiff’s name. 5 6 7 526. Defendant Qazi’s false and misleading statements concerning Plaintiff, whether written or verbal, were not in service of and failed to further any public debate. 527. Defendant Qazi’s false and misleading statements, written and verbal, have 8 irreparably harmed Plaintiff’s reputation by providing disinformation for others to re-post in an 9 endless loop of defamation. 10 COUNT X Defamation Per Se Against Defendants Musk and Tesla 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 528. Plaintiff incorporates by reference the foregoing allegations. 529. Since 2019, Defendants Musk, Tesla and X Corp. have treated Defendants Qazi and Smick in such a manner as to cause any reasonable observer to believe that Qazi and Smick are actual or ostensible agent of Defendants Musk and/or Tesla, and that Qazi is more than just a casual friend—as falsely alleged by counsel in Greenspan I—as exhibited by: a) paying, through Defendant X Corp. on or about July 14, 2023 in the amount of $6,206.00, Defendant Qazi via Defendant Smick’s Stripe account, as part of a select group of eligible users, for his Twitter posts (the first of several payments); b) Defendant Qazi’s reasonable expectation of future employment with Defendant Tesla given its hiring of his Third Row Tesla colleague Vivien Hantusch; c) Defendant Musk authorizing and endorsing Qazi’s harassing conduct toward his critics, including but not limited to Plaintiff, by e-mailing Qazi, “Your Twitter is awesome!” alongside advice for handling journalists (as a Tesla Public Relations employee would) in an August 2019 e-mail to Qazi after the Tesla Board of Directors, including Defendant Musk, had been warned about Qazi’s harassment; d) having reportedly shut down Tesla’s Public Relations department, and out of his 28 FIRST AMENDED COMPLAINT 28 124 3:24-cv-04647-MMC PDF Page 130 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 129 of 159 1 then-over 59 million followers, Defendant Musk consistently using Defendant 2 Qazi’s Twitter accounts as springboards to make material disclosures to investors; 3 e) Defendant Qazi admitting from the @WholeMarsBlog Twitter account, “Many 4 people don’t know that Tesla actually reads everything we post on Twitter. Even 5 if Elon doesn’t respond to you, they will get the feedback to the appropriate team. 6 It’s someone’s job I think,” prompting a former Tesla employee to write “Can 7 confirm” and another observer to write, “They have this instead of a pr team.”; 8 f) permitting Defendant Qazi to attend exclusive, invite-only Tesla events where 9 10 Defendant Musk presented new products; g) prior to the EAP, granting Defendant Qazi early access to Tesla FSD beta 11 software—an honor bestowed upon only “25…non-employees” globally “based 12 on…their safe driving record” according to Tesla attorney Eric C. Williams’s 13 December 14, 2020 letter to the CADMV—despite Qazi’s history of criminal 14 charges for violating the California Vehicle Code, including an alleged but later 15 dismissed violation of § 23222(B): Possession of Marijuana While Driving, as 16 well as Defendant Qazi publicly posting to Twitter images of substantial amounts 17 of alcohol reportedly consumed before driving his Tesla vehicle; 18 h) entering into a contract, the EAP Agreement, with Defendant Qazi that restricted 19 his discussions with the media about Tesla beta software and gave Tesla editorial 20 control over content; 21 i) allowing Defendant Qazi access to Tesla’s private property in the same fashion 22 that has resulted in Tesla filing for restraining orders against others; 23 j) permitting Defendant Qazi to use the TESLA registered trademark in his 24 @tesla_truth Twitter handle with no legal consequence; 25 k) granting Defendant Qazi over three hours of Defendant Musk’s time to conduct 26 an in-person interview promoting Defendant Tesla’s products and narratives; 27 l) providing Defendant Qazi with access to material non-public information and 28 FIRST AMENDED COMPLAINT 28 125 3:24-cv-04647-MMC PDF Page 131 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 130 of 159 1 other leaked news tips from inside Tesla; 2 m) Defendant Musk autographing the interior of Defendant Qazi’s Model 3; 3 n) encouraging and/or allowing Tesla management, such as former Senior Global 4 Director, Public Policy and Business Development Rohan Patel, to follow and 5 “like” Defendant Qazi’s Twitter posts regardless of the substantial controversy 6 surrounding Qazi’s misconduct; 7 o) Defendant Musk petitioning Twitter, Inc. CEO and fellow billionaire Jack Dorsey 8 for special treatment for Defendant Qazi after Qazi was suspended from Twitter 9 so that he could continue to promote Defendant Tesla’s stock and products; 10 p) promoting Defendant Qazi’s legal defense fund for Greenspan I; 11 q) allowing Defendant Qazi to correspond with Defendant Musk’s preferred 12 13 attorney, Defendant Spiro, about Greenspan I; r) relying on Defendant Qazi for intelligence regarding competitors obtained at 14 meetings and tours where official Tesla employees would not be permitted; 15 s) regularly corresponding with Defendant Qazi about business matters via e-mail 16 17 and Twitter DM; t) actively ignoring written concerns expressed to the Board of Directors about 18 19 Defendant Qazi’s conduct; u) Defendant Qazi admitting on video that he performs work, compensated through 20 stock ownership and referral bonuses, for Defendant Tesla, by exclaiming, “I’ll 21 sell them all fuckin’ Teslas. I’ll pull in those referrals!” 22 v) Defendant Qazi appearing to work nearly 24 hours per day, every day, to 23 exclusively promote the interests of Defendants Musk and Tesla on social media; 24 w) Defendant Qazi admitting that he is a Tesla shareholder; 25 x) Ensuring that Defendant Qazi’s Twitter account would not be suspended even 26 27 after he posted internal Tesla information. 530. Defendants Musk and Tesla are vicariously liable for all defamatory statements 28 FIRST AMENDED COMPLAINT 28 126 3:24-cv-04647-MMC PDF Page 132 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 131 of 159 1 2 published by Defendant Qazi concerning Plaintiff from at least as early as 2019. 531. Had Defendants Musk or Tesla instructed Defendant Qazi to stop defaming 3 Plaintiff, Defendant Qazi would have obeyed and stopped because his defamatory statements 4 were made in service of Defendants Musk and Tesla. At no time did Defendants Musk or Tesla 5 instruct Defendant Qazi to stop. 6 7 532. Defendant Musk and his agents’ conduct was malicious, oppressive and done with a willful disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. 8 COUNT XI Defamation Against Defendant X Corp. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 533. Plaintiff incorporates by reference the foregoing allegations. 534. Plaintiff does not dispute that Defendant X Corp. has the right to make editorial decisions about content published on its website by third parties and that pursuant to 47 U.S.C. § 230 it is immune from suit for allegations pertaining specifically to those editorial decisions. 535. Plaintiff does not dispute Defendant X Corp.’s right to suspend Twitter accounts. Plaintiff alleges only that after his accounts were suspended, Defendant X Corp. defamed Plaintiff by making false statements broadcast to thousands of users about the purported reason(s) why the accounts were suspended. 47 U.S.C. § 230 does not immunize Defendant X Corp. in this regard. 536. When Defendant X Corp. suspended Plaintiff’s Twitter accounts on June 13, 2023, thousands of visitors to those accounts’ former pages were informed that “Twitter suspends accounts that violate the Twitter Rules,” falsely indicating that Plaintiff had, in some way, violated the Twitter Rules. 537. In fact, Plaintiff did not violate the Twitter Rules. Prior to Twitter, Inc. being owned by Defendant Musk, Plaintiff’s accounts had been reported numerous times by various users who followed Defendants Qazi and/or Musk, but Twitter, Inc. examined those reports and found no violation. In one instance, when Twitter, Inc. did purportedly find a violation reported in bad faith by Diego MasMarques, Jr., it quickly admitted an error and corrected that error. 28 FIRST AMENDED COMPLAINT 28 127 3:24-cv-04647-MMC PDF Page 133 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 132 of 159 1 538. Today, X Corp. states, “X suspends accounts that violate the X Rules” when third 2 parties attempt to visit Plaintiff’s former profile pages. However, Plaintiff never agreed to the X 3 Rules and was never bound by them. The implication that Plaintiff violated the X Rules, 4 meriting suspension, is false. 5 539. Plaintiff’s accounts were not suspended because they “violated the X Rules.” 6 Plaintiff’s accounts were suspended in retribution for criticizing Defendant Musk, in order to 7 silence Plaintiff. 8 540. On and after June 13, 2023, due the account suspensions, Plaintiff suffered harm. 9 The on-line mob that Defendant Qazi had led for years expressed scorn and ridicule directed at 10 Plaintiff, interpreting the suspensions as validation of the hundreds, if not thousands, of lies that 11 Defendants Musk, Tesla, Qazi and Smick had spread about Plaintiff. 12 541. On or around February 28, 2023, Defendant Tesla informed Defendant Qazi by e- 13 mail that he had posted “its internal information on public platforms,” referring to Twitter. Yet 14 Defendant X Corp. did not suspend the @WholeMarsBlog account operated by Defendant Qazi 15 and Smick, and in fact, began paying Defendant Smick to post starting in July 2023. 16 542. At least as early as July 17, 2024, Defendant Musk stated via Twitter that X Corp. 17 only suspends accounts that violate laws, falsely suggesting that Plaintiff’s accounts had been 18 suspended because it violated a law. 19 COUNT XII Violation of the Civil Anti-Stalking Statute (California Civil Code § 1708.7, et seq.) Against Defendant Qazi 20 21 22 543. Plaintiff incorporates by reference the foregoing allegations. 23 544. Per California Civil Code § 1708.7(a)(1), starting on January 14, 2019, Defendant 24 Qazi began following, alarming, and harassing Plaintiff through a pattern of conduct involving 25 his use of multiple Twitter accounts, prank telephone calls, false accusations regarding rape and 26 possession of child pornography, and republication of deliberately altered court documents. 27 These actions also led to the transmission of additional false allegations regarding child 28 FIRST AMENDED COMPLAINT 28 128 3:24-cv-04647-MMC PDF Page 134 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 133 of 159 1 2 pornography via text message and fax to Plaintiff. 545. Per California Civil Code § 1708.7(a)(2)(A) and (B), Defendant Qazi’s 3 amplification of posts by Diego MasMarques, Jr. made it more likely that his mob of followers 4 would locate posts that identified Plaintiff’s parents home by its address and photograph as well 5 as posts that identified Plaintiff’s parents’ synagogue. 6 546. Per California Civil Code § 1708.7(a)(3)(A), as early as January 14, 2019, 7 Plaintiff requested that Defendant Qazi stop his harassing conduct, writing “Please stop.” at 8 12:36 P.M. With no other way to reach him, and hoping that a verbal conversation would diffuse 9 the situation, Plaintiff also asked Defendant Qazi to stop by leaving a message for him to stop at 10 his nominal employer’s office on the same day, unaware that Defendant Qazi’s “employer” was 11 his father’s company and that Qazi did not really work there on a full-time basis. 12 13 14 547. Per California Civil Code § 1708.7(a)(3)(A), as early as January 17, 2019, in writing, Defendant Qazi admitted his intent to “fuck with” Plaintiff to an unknown third party. 548. On February 9, 2021, Twitter found that the @WholeMarsBlog account had 15 violated the Twitter Rules “against promoting or encouraging suicide or self-harm” regarding 16 Plaintiff. Previously, Twitter had removed content the account posted as it advocated violence. 17 549. Per California Civil Code § 1708.7(a)(3)(A), from 2019 onward, Defendant Qazi 18 posted credible threats directed at Plaintiff suggesting that he and/or Defendants Musk and Tesla 19 (“we,” as written on the @WholeMarsBlog account) had referred Plaintiff to law enforcement 20 and that based on these “criminal referrals,” “the FBI and law enforcement” were “very 21 interested.” 22 550. These threats were credible because law enforcement tends to respond far more 23 quickly to complaints from wealthy individuals and large corporations such as Defendants Musk 24 and Tesla whether or not the underlying substance is true or false. Furthermore, Defendants 25 Musk and Tesla have a documented history of referring their critics to criminal law enforcement 26 as a means of squelching criticism. On or around June 25, 2018, working on behalf of 27 Defendants Musk and Tesla, Hueston Hennigan LLP submitted a “[Redacted] CRIMINAL 28 FIRST AMENDED COMPLAINT 28 129 3:24-cv-04647-MMC PDF Page 135 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 134 of 159 1 REFERRAL” labeled “Privileged & Confidential” and “Attorney-Work Product” to the Office of 2 the Nevada Attorney General regarding a former employee, Martin Tripp, who had leaked 3 accurate information critical of Defendants Musk and Tesla to the press. The same baseless 4 referral was also submitted to the FBI and the United States Attorney’s Office for the District of 5 Nevada. Representatives of Defendants Musk and Tesla further met personally with the 6 Attorney General of Nevada to encourage criminal prosecution of a critic. 7 8 9 551. Criminal prosecution would pose a significant threat to Plaintiff’s health and safety for a variety of reasons, including but not limited to increased COVID-19 risk. 552. On August 5, 2021 at 10:15 A.M., Defendant Qazi posted on the 10 @WholeMarsBlog Twitter account, writing, “Please write to Case Western university [sic] and 11 Neil Greenspan to ask him to stop this harassment… I worry he’s a danger to students at Case.” 12 He later repeated this false claim against Dr. Greenspan on August 7, 2021. 13 553. On August 5, 2021 at 10:20 A.M., Plaintiff’s father received a harassing e-mail 14 from johndoe510150@gmail.com also addressed to the general e-mail account for his employer, 15 the Case Western Reserve University School of Medicine. The e-mail stated in part, “STOP 16 HARRASSSING [sic] WHOLEMARSBLOG and DOXXING PEOPLE online!!!” 17 554. On August 7, 2021 at 12:59 P.M., Defendant Qazi posted on the 18 @WholeMarsBlog Twitter account, “If Greenspan files a fifth revision of his lawsuit on Friday, 19 Chapter 8 will be published continuing the story” in an attempt to intimidate Plaintiff into 20 withholding this document from the Court in violation of 18 U.S.C. § 1512(b). Defendant Qazi 21 repeated this threat on August 10, 2021 on his personal website. 22 555. Defendant Qazi’s conduct caused Plaintiff and Plaintiff’s family members to 23 suffer substantial emotional distress due to the real threat of malicious prosecution and/or firing 24 from deliberate smearing of Plaintiff as a supposed likely mass murderer harboring child 25 pornography, and of Plaintiff’s father as supposedly posing a “danger to students.” 26 27 556. As a result of Defendant Qazi’s public conduct and his apparent contact with the restrained party in the Civil Harassment Case, Plaintiff reasonably feared for his and his family’s 28 FIRST AMENDED COMPLAINT 28 130 3:24-cv-04647-MMC PDF Page 136 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 135 of 159 1 safety after receiving messages, text messages and calls that he and others perceived as threats. 2 As a result, Plaintiff reported Defendant Qazi to the FBI and to SFPD twice. 3 557. Defendant Qazi facilitated the violation of Plaintiff’s civil harassment restraining 4 order against Diego MasMarques, Jr., which prohibits direct and indirect harassment, of which 5 he was aware as early as January 14, 2019, and further admitted to altering, misconstruing and 6 publicly posting Form CH-100 from the Civil Harassment Case for the express purpose of 7 harassing Plaintiff. 8 558. 9 Even after Plaintiff restricted his personal Twitter account in July 2020 due to Defendant Qazi’s ceaseless harassment—the digital equivalent of locking a door—Defendant 10 Qazi still used a proxy to follow it and to post screenshots and metadata to his followers, 11 brazenly displaying the padlock icon next to Plaintiff’s name in numerous images. 12 559. Defendant Qazi posted harassing messages on social media regarding Plaintiff 13 and Plaintiff’s family on the order of 1,000 times from different accounts, causing a cascade of 14 harassment that has yet to cease. For example, on October 1, 2019, @HaidarAns wrote, 15 “@AaronGreenspan you sure have a very punchable face [laugh/crying emoji]”. With tens of 16 millions of followers, Defendant Musk cemented the effect with only a few posts. 17 560. Defendant Qazi has admitted that he thinks harassing Plaintiff is “funny.” 18 561. Had Defendants Musk or Tesla instructed Defendant Qazi to stop harassing 19 Plaintiff, Defendant Qazi would have obeyed and stopped. At no time did Defendants Musk or 20 Tesla instruct Defendant Qazi to stop. 21 22 23 562. Plaintiff seeks equitable relief, including but not limited to damages in the form of general damages, special damages and punitive damages pursuant to Cal. Civil Code § 3294. 563. Plaintiff respectfully requests an injunction requiring: a) all Defendants to cease 24 and desist making and/or publishing further harassing statements concerning Plaintiff or 25 Plaintiff’s family via any published medium, written or oral; b) all Defendants to cease and desist 26 contacting or trying to contact Plaintiff, his family members, his friends, and any person 27 mentioned by name as having known Plaintiff in Plaintiff’s public writing; c) all Defendants to 28 FIRST AMENDED COMPLAINT 28 131 3:24-cv-04647-MMC PDF Page 137 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 136 of 159 1 cease and desist impersonating others; d) the immediate cessation of the operation of the Smick 2 Sites and/or transfer of the Smick Site domain names to Plaintiff; e) Defendant Qazi to cease and 3 desist using Twitter, directly or indirectly; and f) Defendant Qazi to permanently remove any and 4 all of his content mentioning Plaintiff from any and all websites under his control. 5 COUNT XIII Negligent Infliction of Emotional Distress Against Defendants Musk and Tesla 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 564. Plaintiff incorporates by reference the foregoing allegations. 565. Over time, Defendant Tesla has had a number of workplace policies that have been periodically revised and have at times pertained to overlapping subject matter. 566. As an officer, director and employee of Defendant Tesla, Defendant Musk is bound by Defendant Tesla’s workplace policies. 567. Defendants Musk and Tesla have frequently used the existence of Defendant Tesla’s workplace policies to justify the shielding of Defendant Musk’s purportedly private information and to excuse Defendant Musk’s failure to respond to inquiries involving service of process, thus admitting that Defendant Tesla’s policies are binding upon Defendant Musk. 568. Defendants Musk and Tesla owed Plaintiff a duty of care because starting in 2016, Tesla’s Anti-Harassment/Discrimination policy explicitly states that it applies to “visitors who enter onto Tesla’s premises” unconditionally and without regard to whether harassment, such as “[v]erbal abuse,” physically takes place on Tesla’s premises. 569. That policy was updated several times. Tesla’s July 2018 Policy Against Discrimination & Harassment in the Workplace (U.S. Locations) states: “At Tesla, we believe it’s essential to provide all employees with a respectful and safe working environment. As a result, we don’t tolerate discrimination, harassment or any mistreatment of employees in the workplace or work-related situations, whether based on a protected class under applicable law or otherwise. Because the intent of this Policy Against Discrimination & Harassment in the Workplace (the ‘Policy’) is to deter conduct that is unwanted, unreasonable, and demeaning, Tesla may consider an employee’s conduct to be in violation of this Policy even if it falls short of unlawful conduct under applicable law. When determining whether conduct violates this Policy, we consider whether a reasonable person could conclude that the conduct FIRST AMENDED COMPLAINT 28 132 3:24-cv-04647-MMC PDF Page 138 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 137 of 159 1 2 3 4 5 contributed to or created an intimidating, hostile, degrading or demeaning work environment. Tesla does not consider conduct in violation of this Policy to be within the course and scope of employment and does not sanction such conduct on the part of any individual or employee, including people leaders. 8 This Policy applies to everyone who works for Tesla and any of its subsidiaries. Everyone – including individual contributors and people leaders – is responsible for following and upholding this Policy. Additionally, we don’t tolerate conduct in violation of this Policy by employees towards non-employees (e.g., contingent workers or contractors, guests, vendors, customers, etc.), nor do we tolerate such conduct by nonemployees towards employees.” 9 570. 6 7 10 11 12 13 14 Workplace (U.S. Locations) reiterates the above paragraphs and further states: “Other types of prohibited harassment may include behavior similar to the examples above pertaining to sexual harassment. It can also include, but is not limited to: • Verbal conduct including taunting, jokes, threats, epithets, derogatory comments or slurs based on an individual’s status in a Protected Class; • Visual and/or written conduct including derogatory posters, photographs, calendars, cartoons, drawings, websites, emails, text messages or gestures based on an individual’s status in a Protected Class; or • Physical conduct including assault, unwanted touching or blocking normal movement because of an individual’s status in a Protected Class. 15 16 17 18 19 20 21 22 Tesla’s November 28, 2018 Policy Against Discrimination & Harassment in the The list of examples in this Policy is not exhaustive, and there may be other behaviors that are unacceptable under this Policy. ‘I was joking’ or ‘I didn’t mean it that way’ are not defenses to allegations of harassment or violations of this Policy. Nor is being under the influence of alcohol or other substances. This Policy applies to conduct at work, in work areas (even when off duty) including in the Company parking lot, and at work-related social events, office parties, off-sites, and customer entertainment events. 23 26 Employees are expected to be particularly careful about what they say and do in these circumstances. You do not need to be the subject of the conduct to be negatively impacted; rather, it is sufficient for you to have personally witnessed such offensive conduct. Harassment does not include a reasonable action taken by Tesla relating to the supervision and direction of an employee or the workplace.” 27 571. 24 25 Pursuant to Defendant Tesla’s November 28, 2018 Policy Against Discrimination 28 FIRST AMENDED COMPLAINT 28 133 3:24-cv-04647-MMC PDF Page 139 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 138 of 159 1 & Harassment in the Workplace (U.S. Locations), Defendant Musk is a “people leader” “who 2 works for Tesla.” 3 4 5 572. Pursuant to Defendant Tesla’s November 28, 2018 Policy Against Discrimination & Harassment in the Workplace (U.S. Locations), Plaintiff is a “non-employee” “guest.” 573. On December 29, 2018, Plaintiff visited Tesla property, namely, the Tesla 6 Showroom and Service Center at 999 Van Ness Avenue in San Francisco to look into purchasing 7 a Tesla Model 3, at which point a duty of care attached in regard to Plaintiff in perpetuity. 8 9 10 11 12 13 14 15 16 17 574. Plaintiff was harassed by Defendants Musk and Tesla and their agents from 2019 through present day for expressing serious concerns about the Tesla Model 3 and Tesla in general, in a way that was “unwanted, unreasonable, and demeaning.” 575. In violation of Defendant Tesla’s policies, Defendant Musk himself published the following statements about Plaintiff on his Twitter account, read by millions worldwide: Date / Medium October 9, 2019 E-Mail and Twitter via Qazi October 12, 2019 Twitter July 3, 2020 Twitter Written Statement by Defendant Musk “Does the psych ward know you have a cell phone? Just curious.” “@DrPatSoonShiong, are you aware that one of your senior journalists (Russ Mitchell) is openly funding a fake charity run by an online bully?” “Greenspan is crackers, bananas, barky & ten cards short of a full deck” 18 19 576. Plaintiff informed the Tesla Board of Directors, including Defendant Musk, via e- 20 mail that he was being harassed on August 7, 2019. Plaintiff received no response. The 21 harassment continued. 22 23 24 577. Plaintiff filed a formal “Tesla Integrity Line” complaint on October 22, 2021. Plaintiff received no response. The harassment continued. 578. On December 1, 2022, Defendant Qazi posted on his @WholeMarsBlog Twitter 25 account, “So if anyone has any ideas for next legal steps or has a good law firm that they think 26 can really kick Aaron’s ass and make him cry let me know. He’s having too much fun. He needs 27 to face justice for what he’s done, and pay back everyone who has donated to stop him.” 28 579. One week later, on December 8, 2022, Defendant Musk attempted to drag FIRST AMENDED COMPLAINT 28 134 3:24-cv-04647-MMC PDF Page 140 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 139 of 159 1 2 Plaintiff into the Hothi v. Musk litigation via a frivolous and vexatious proposed cross-compliant. 580. Defendant Musk’s request to file the proposed cross-compliant was denied. 3 Instead, on February 24, 2023, he filed the Alameda Case, a frivolous and vexatious lawsuit with 4 no factual or legal basis against Plaintiff, and spent two months attempting to serve Plaintiff. 5 6 7 8 9 581. On April 4, 2023, Defendant Cashman issued a wildly overbroad, vexatious subpoena to Plaintiff on Defendant Musk’s behalf. 582. On April 7, 2023, Defendant Cashman issued a wildly overbroad, vexatious subpoena to Plaintiff’s company on Defendant Musk’s behalf. 583. Defendant Musk has a history of harassing critics with subpoenas. On October 10 28, 2019, Magistrate Judge Jacqueline Scott Corley described Defendant Musk’s attempt to 11 subpoena then-BuzzFeed journalist Ryan Mac as pertaining to “irrelevant and harassing topics,” 12 noting “the record suggests Mr. Musk feels animus toward non-party Mr. Mac.” See Unsworth 13 v. Musk, Northern District of California Case No. 3:19-mc-80224-JSC, ECF No. 32. 14 584. Once he had purchased Twitter, Inc., on or around June 13, 2023, Defendant 15 Musk ordered Defendant X Corp. to terminate not only Plaintiff’s business account, @PlainSite, 16 but his personal account, @AaronGreenspan, as well. 17 585. All of these actions violated Defendant Tesla’s anti-harassment policies. 18 586. On or around July 26, 2024, Defendant Qazi had the approval of Defendants 19 Musk and Tesla when he wrote on his @WholeMarsBlog Twitter account to approximately 20 500,000 followers that “@SECGov look into my stalker Aaron Jacob Greenspan” for “short and 21 distort and harassment” crimes. 22 587. Due to the harassment, Plaintiff suffered a degree of emotional distress that no 23 person should reasonably be forced to endure. Plaintiff reported being harassed to local and 24 federal law enforcement repeatedly. For years, Plaintiff described the harassment to a journalist 25 as it was happening in real-time so that if he were to be physically harmed, there would be a 26 witness who understood the situation. Plaintiff also enhanced his home security. Plaintiff is thus 27 entitled to punitive damages. 28 FIRST AMENDED COMPLAINT 28 135 3:24-cv-04647-MMC PDF Page 141 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 140 of 159 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 COUNT XIV Fraud on the Court (Malicious Prosecution) Against Defendants Musk, Singer Cashman, LLP, Cashman, Huebert and Mehes 588. Plaintiff incorporates by reference the foregoing allegations. 589. Establishing his pattern of vexatious litigation that has now become familiar to this Court, Defendant Musk set out in 2022 to file a frivolous “case in order to punish [Plaintiff] for [Plaintiff’s] publications that criticized [Defendant Musk and his businesses].” X Corp. v. Center for Countering Digital Hate, Inc., Case No. 3:23-cv-03836-CRB (N.D. Cal. March 25, 2024). This constituted an ulterior motive that was not a proper impetus for litigation. 590. On December 8, 2022, Defendant Musk attempted to file the Alameda Case in the form of a cross-complaint in another lawsuit then pending in Alameda County, Hothi v. Musk— in which Defendant Musk was sued for libel by short-seller Randeep Hothi based on a public email conversation from 2019 between Plaintiff and Musk re-published on PlainSite. Musk did so for the primary purpose of harassing Plaintiff, or in Musk’s words, seeking Greenspan’s “blood” because he believed Greenspan to be “evil.” 591. When Judge Julia Spain denied Defendant Musk’s request for leave to file the proposed cross-compliant, the same claims were filed as a complaint in the new, separate Alameda Case on February 24, 2023 (the “Alameda Complaint”). 592. The Alameda Complaint and the proposed cross-compliant preceding it constituted a willful fraud on the Superior Court of California for the County of Alameda, in violation of numerous State Bar Rules of Professional Conduct in California and in Texas. 593. The Alameda Complaint contained numerous falsehoods: a) The Alameda Complaint stated that “Mr. Greenspan has made a career out of threatening and harassing individuals and businesses.” This is false. b) The Alameda Complaint stated that Plaintiff’s “first major target was Facebook.” This is false. Plaintiff has never had any “targets.” Mark Zuckerberg openly admits that Plaintiff developed the initial version of “The Facebook” at Harvard College in 2003, of which Zuckerberg was a member. 28 FIRST AMENDED COMPLAINT 28 136 3:24-cv-04647-MMC PDF Page 142 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 141 of 159 1 Had Plaintiff “threaten[ed] and harass[ed]” Zuckerberg and/or Facebook as 2 claimed by Mr. Musk, they would not have settled with Plaintiff and 3 Plaintiff’s company in 2009. See https://about.fb.com/news/2009/05/ 4 facebook-and-think-computer-corporation-resolve-trademark-dispute/. 5 c) The Alameda Complaint stated that “Mr. Greenspan’s own website had been 6 shut down for privacy violations because it improperly collected Harvard 7 university account passwords from students.” This is false. In 2003, Harvard 8 University administrators lacking technological savvy were concerned about 9 the way that Greenspan’s houseSYSTEM student portal stored passwords, 10 which they did not understand, but at no point was any password ever 11 compromised as Greenspan used appropriate technologies to safeguard 12 passwords for the time. Nor was houseSYSTEM ever “shut down” due to any 13 issues involving passwords. The possibility was merely discussed. 14 d) The Alameda Complaint stated that Greenspan filed a frivolous lawsuit 15 “because he was not included as a character in The Accidental Billionaires.” 16 This is false. The lawsuit in question was not frivolous; the same defendants 17 settled a similar defamation claim from another party for $1 million before it 18 was filed in court. Greenspan was included in both the 2009 and 2010 19 editions of The Accidental Billionaires, which is to say, all editions. This fact 20 is easily verifiable using, for example, Google Books, which allows any 21 person to instantly search text within numerous books free of charge. 22 e) The Alameda Complaint stated that Greenspan’s company “was forced to shut 23 down” because of “consumer protection law violations.” This is false. 24 Greenspan’s company 1) did not shut down; 2) did not violate any consumer 25 protection laws; and 3) was never even accused of violating any consumer 26 protection laws. The facts surrounding Greenspan’s company’s dispute with 27 the then-California Department of Financial Institutions over the 28 FIRST AMENDED COMPLAINT 28 137 3:24-cv-04647-MMC PDF Page 143 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 142 of 159 1 constitutionality of the 2010 California Money Transmission Act—including 2 the fact that Greenspan shut down the company’s payment system voluntarily 3 to prevent any legal violations—are a matter of public record. Moreover, 4 Greenspan’s company was named as a defendant in the Complaint in the 5 Alameda Case, so any reasonable attorney would have questioned the basis 6 for the allegation given that the “shut down” company was still operating. 7 f) The Alameda Complaint stated that Plaintiff “acted with actual malice 8 because, among other reasons, he caused Mr. Musk’s statement to be 9 publicized precisely in order to help support Mr. Hothi’s claim for 10 reputational damages in response to Mr. Musk’s initial private, and true, 11 statement.” This is false. Plaintiff did not believe that Mr. Hothi had any 12 claim for reputational damage at the time, and the response from Defendant 13 Musk was in no way private, nor was it completely true. 14 g) The Alameda Complaint stated that Plaintiff “did not publicize Defendant 15 Musk’s private email via PlainSite.org or Twitter until after having first 16 communicated with Mr. Hothi’s counsel.” This is false. Musk’s e-mail was 17 not private, as he knew or should have known that Plaintiff intended to 18 publish it. Plaintiff waited to publish because Defendant Musk failed to 19 respond as promised, causing Plaintiff to decide to allow him additional time. 20 h) The Alameda Complaint stated that Plaintiff “reached out to Mr. Hothi and 21 recommended that he retain plaintiff lawyer Gill Sperlein and his fellow 22 $TSLAQ member, Mr. Fossi, to defend Mr. Hothi in the restraining order 23 proceedings.” This is false as Plaintiff did not know who Gill Sperlein was. 24 i) The Alameda Complaint stated that Plaintiff filed “vexatious lawsuits.” This 25 is false. Plaintiff is not now and never has been a vexatious litigant in 26 California or any other state. No lawsuit he has ever filed has been 27 “vexatious.” A motion filed by Diego MasMarques, Jr. to have Plaintiff 28 FIRST AMENDED COMPLAINT 28 138 3:24-cv-04647-MMC PDF Page 144 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 143 of 159 1 deemed a vexatious litigant was flatly denied by a Superior Court of Santa 2 Clara County judge in 2019. A second attempt by Mr. MasMarques in the 3 District of Massachusetts to have Plaintiff deemed a vexatious litigant was 4 denied by District Judge Denise J. Casper in March 2024. 5 j) The Alameda Complaint stated that Plaintiff had filed “more than 60 lawsuits” 6 in his career. This is false. Plaintiff has not filed anywhere close to 60 7 lawsuits in his career, directly or indirectly. 8 k) The Alameda Complaint stated that Plaintiff had “over 100 victims.” This is 9 false. Plaintiff has never been charged with a crime let alone convicted of 10 one, naming a defendant in a civil lawsuit is not a criminal act, and dozens of 11 the defendants named in Plaintiff’s lawsuits were merely alter egos or 12 subsidiaries of other defendants. 13 l) The Alameda Complaint stated that “Mr. Greenspan did not engage in any due 14 diligence.” This is false. Plaintiff was known to Defendant Musk precisely 15 because of his ability to conduct due diligence, which he did prior to 16 contacting Mr. Musk in August 2019. 17 18 19 20 21 22 23 594. The Alameda Complaint was authored and/or reviewed by Mr. Musk’s three attorneys: Defendant Cashman, Defendant Huebert, and Defendant Mehes. 595. The Alameda Complaint was reviewed or should have been reviewed by Defendant Musk, on whose behalf it was filed. 596. The inclusion of the false and libelous statements concerning Plaintiff was deliberate and done with actual malice and reckless disregard for the truth. 597. The false and libelous statements in the Alameda Complaint were not included in 24 the December 8, 2022 proposed cross-complaint filed in Hothi v. Musk. They were specifically 25 added for the filing of the document as a separate, independent complaint. 26 27 598. The false and libelous statements in the Alameda Complaint were not covered by litigation privilege as Plaintiff’s time at Harvard, history with Facebook and Mark Zuckerberg, 28 FIRST AMENDED COMPLAINT 28 139 3:24-cv-04647-MMC PDF Page 145 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 144 of 159 1 litigation over state money transmission laws, and litigation history in general all have absolutely 2 nothing to do with, are not connected with, and have no logical relation to, Elon Musk libeling 3 Randeep Hothi. The false and libelous statements were completely extraneous to the lawsuit. 4 5 6 7 8 9 599. The Alameda Case was filed as part of a much longer and broader campaign of defamation and harassment by Defendants. 600. Not until April 10, 2023 was Plaintiff or Plaintiff’s company properly served with any subpoenas in the Hothi v. Musk matter. 601. Had Defendant Musk and his Hardcore Litigation Department been interested in filing a new, separate complaint based on actual facts, they would have waited until after 10 receiving and carefully evaluating the documents provided by Plaintiff or Plaintiff’s company in 11 response to the Hothi subpoenas before proposing, let alone filing, any type of new pleading. 12 602. Given that the Alameda Complaint had already been filed based on Mr. Musk’s 13 conspiracy theories and fabrications, the Hothi subpoenas served no actual purpose and were 14 merely another instrument of harassment. 15 603. The subpoenas, signed by Defendant Cashman, were sweepingly broad, written 16 with the apparent goal of learning which journalists Plaintiff had spoken with regarding Tesla 17 since 2018 and learning exactly what they had spoken about, even though the vast majority of 18 such communications had absolutely nothing to do with the Hothi litigation. 19 20 21 22 23 604. The Alameda Complaint had no factual basis. Defendants fabricated purported facts to justify the filing of the Alameda Complaint. 605. Defendant Musk and the members of the Hardcore Litigation Department all knew or should have known that the Alameda Complaint had no factual basis. 606. The Alameda Complaint was conceptually based on two misapprehensions by the 24 Hardcore Litigation Department. Having been ordered by Defendant Musk to find evidence for 25 his paranoid conspiracy theory that Plaintiff had orchestrated the Hothi litigation—even though 26 Tesla was the first party to take action by applying for a restraining order against Randeep Hothi 27 on false pretenses—the Hardcore Litigation Department attorneys: 28 FIRST AMENDED COMPLAINT 28 140 3:24-cv-04647-MMC PDF Page 146 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 145 of 159 1 a) misread an e-mail that Plaintiff sent to Randeep Hothi, presumably obtained 2 from discovery in the Hothi matter, warning Mr. Hothi not to engage Gill 3 Sperlein instead as a purported command to hire Gill Sperlein, when the e- 4 mail said nothing of the sort; 5 b) falsely assumed that Plaintiff had corresponded with Lawrence Fossi because 6 Mr. Fossi had previously represented Randeep Hothi, when Mr. Hothi had 7 nothing to do with Plaintiff’s decision to correspond with Mr. Fossi. 8 9 10 11 12 13 14 607. The Alameda Complaint had no legal basis as it amounted to a Strategic Lawsuit Against Public Participation. 608. The members of the Hardcore Litigation Department all knew or should have known that the Alameda Complaint had no legal basis. 609. Defendant Musk acted with malice. Defendant Musk boasted that he was “out for blood” and stated “There will be blood” in May 2022. 610. Defendant Musk explicitly described his plan in writing on Twitter—of using 15 attorneys at Tesla to target “evil” short-sellers—on April 4, 2023. See 16 https://x.com/elonmusk/status/1643335710840070148. Defendant Huebert and Defendant 17 Mehes are or were Tesla attorneys. 18 611. Defendants Singer Cashman, LLP, Cashman, and Huebert refused to substantiate 19 the legal basis for Mr. Musk’s Complaint pursuant to California Code of Civil Procedure 20 § 430.41(a)(1) when asked during a recorded meet and confer session on April 28, 2023, citing a 21 litany of excuses, including but not limited to “I’ll get back to you,” “I don’t understand what 22 you mean,” and not having citations “handy at the moment.” See 23 http://www.aarongreenspan.com/writing/musk/20230428.muskmeetandconfer.mp3. 24 25 26 27 612. Defendant Huebert also admitted that her lack of familiarity with California law had caused her to misrepresent Mr. Musk’s position and that she had spoken “too soon.” 613. On the same call, Defendant Huebert stated, “If you’re right, you’re right, and you know, maybe next week we’ll be like, yep, sorry, Aaron, you’re right, we looked at this and you 28 FIRST AMENDED COMPLAINT 28 141 3:24-cv-04647-MMC PDF Page 147 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 146 of 159 1 totally got us.” Indeed, on the next business day (the following week), Defendant Musk’s 2 Hardcore Litigation Department unilaterally filed its Request For Dismissal with prejudice with 3 regard to Defendants’ frivolous and vexatious Alameda Complaint. 4 614. Defendant Huebert stated that “unfortunately, one of the reasons you’re in this is, 5 uh, you know, you sent the…Elon’s response to Fossi and Hothi before it was publicized.” This 6 allegation was and is false. Plaintiff did not send Defendant Musk’s e-mail responses to 7 Randeep Hothi before they were publicized. On August 8, 2019 at 10:08 A.M., Bloomberg News 8 journalist Dana Hall had asked Plaintiff “Did you share this with ska?” referring to the Musk e- 9 mail conversation up to that point and @skaboosha, Randeep Hothi’s Twitter account. Plaintiff 10 responded, “Not yet. I am planning to release it all today to everyone at once when Elon 11 responds again. I’ll give him another couple hours.” Thus, Defendants’ assumption that 12 Randeep Hothi had received special treatment from Plaintiff was false. 13 615. While Defendants assumed that Plaintiff sent Defendant Musk’s e-mail responses 14 to attorney and short-seller Lawrence Fossi because of his representation of Randeep Hothi in the 15 Tesla, Inc. v. Hothi case, this assumption was false, and this false assumption, at least according 16 to Defendant Huebert, was Defendant Musk’s primary basis for filing the Alameda Complaint. 17 In fact, Plaintiff sent Mr. Musk’s e-mail responses to Mr. Fossi because having himself been 18 harassed by Defendant Musk in 2018, Mr. Fossi was uniquely positioned to suggest additional 19 questions to ask Mr. Musk. 20 616. On August 8, 2019 at 6:46 A.M., Plaintiff wrote by e-mail to three journalists and 21 Mr. Fossi, “I’ve been forwarding to press so you all have a head start and to you Lawrence 22 because you kicked this all off a year ago.” By “kicked this all off a year ago,” Plaintiff was 23 referring to the 2018 episode in which Defendant Musk revealed Mr. Fossi’s pseudonym, 24 “Montana Skeptic,” as a form of harassment and revenge for posting informed criticism. 25 617. Even if Plaintiff had somehow sent Mr. Fossi Defendant Musk’s e-mail responses 26 prior to publication because Mr. Fossi represented Randeep Hothi—which was not why he sent 27 them—this would not have conferred any particular benefit or advantage on Mr. Hothi at all, as 28 FIRST AMENDED COMPLAINT 28 142 3:24-cv-04647-MMC PDF Page 148 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 147 of 159 1 2 the messages were published hours later anyway and no litigation was pending at the time. 618. Plaintiff was forced to expend a considerable amount of time, energy and money 3 defending himself against Defendants’ false claims in court, as well as Defendant Musk’s overly 4 broad and unduly burdensome subpoenas. 5 619. The Hardcore Litigation Department knew in advance that Plaintiff intended to 6 file a demurrer in the Alameda Case on Monday, May 1, 2023, and that doing so would incur 7 filing fees. Defendant Cashman did not definitively answer the question as to whether the 8 Alameda Complaint was being voluntarily dismissed until after Plaintiff’s demurrer had already 9 been filed on that day. Even if the demurrer had not been filed, however, conducting legal 10 research, drafting the motion for sanctions and the demurrer, and securing legal representation 11 for Plaintiff’s company took a great deal of time and money. 12 620. After Plaintiff served all Defendants except Qazi with a Cross-Complaint on May 13 3, 2023 pursuant to the parties’ mutual agreement to electronic service, Ms. Huebert sent an e- 14 mail dated May 12, 2023 at 6:34 P.M. Pacific Time, stating in part: 15 16 17 “Any previous agreement regarding electronic service—which, in any event, would have applied only to service on Mr. Musk—was extinguished with the dismissal of the action in question. To avoid any doubt, however, we are also providing notice to you today that we affirmatively rescind any prior agreement to accept service electronically on behalf of Mr. Musk, or for any purpose with respect to the instant matter and Hothi v. Musk. 18 19 20 21 With respect to myself and the other named defendants you reference, in the unlikely event the Court issues summonses for your defective suit, we do not agree to accept service electronically.” 621. Defendant Huebert’s May 12, 2023 attempt to electronically renege on her and 22 Defendant Musk’s agreement to accept electronic service of process violated Section 128.5 of 23 the California Code of Civil Procedure, which forbids “bad faith” “tactics” “that are frivolous or 24 solely intended to cause unnecessary delay.” It also plainly violated Rule 3.02 of the Texas 25 Disciplinary Rules of Professional Conduct, entitled “Minimizing the Burdens and Delays of 26 Litigation.” This Rule explicitly states: 27 “[A] client may seek to have a lawyer delay a proceeding primarily for the purpose of harassing or maliciously injuring another. Under this Rule, a lawyer is obliged not to 28 FIRST AMENDED COMPLAINT 28 143 3:24-cv-04647-MMC PDF Page 149 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 148 of 159 1 2 3 take such an action. See also Rule 3.01. It is not a justification that similar conduct is often tolerated by the bench and the bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay undertaken for the purpose of harassing or malicious injuring.” 4 Her conduct also violated Rule 3.27(a) of the Local Rules of the Alameda County Superior 5 Court, which states in part: 7 “Represented parties and other represented persons must participate in electronic filing (e-filing) using a court-approved electronic service provider (EFSP) and must serve and accept service electronically, except by court order or if other service is required by law.” 8 622. 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 There was no legitimate reason to suddenly insist on service of process by mail or in person as of May 12, 2023 at 6:34 P.M. Defendant Huebert’s goal was to delay Plaintiff. 623. Defendant Huebert’s goal of impeding the litigation that she started with her colleagues was affirmed in her 6:58 P.M. follow-up e-mail, which stated: “Are you represented by counsel in this dispute? If you are, we are not permitted to communicate with you directly, so please forward us their contact information if that’s the case.” 624. Defendants continued to make false representations via e-mail in connection with the Alameda Case through at least June 14, 2023, with Defendant Huebert claiming, “there is no pending case in which you may serve discovery” and “I just received your other email, which was filtered in my spam again due to an unverified DNS associated with your email address,” both of which were false statements. In fact, the Alameda Case remained open until July 11, 2023, and as Plaintiff indicated to Defendant Huebert at the time, “I double-checked and as I thought, the plainsite.org domain does in fact have a valid DNS SPF record in place—and has the entire time that we have corresponded.” 625. Defendant Musk and his agents’ and counsel’s conduct was malicious and oppressive and done with a willful and conscious disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. 626. With a net worth at times reportedly in excess of $200 billion, Defendant Musk is one of the wealthiest individuals on Earth and did not need to seek funds from Plaintiff or anyone to attempt to offset his potential legal liability in the Hothi action. 28 FIRST AMENDED COMPLAINT 28 144 3:24-cv-04647-MMC PDF Page 150 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 149 of 159 1 2 3 4 5 6 7 627. Defendant Musk caused the Alameda Complaint to be filed for the improper purpose of harassing Plaintiff and harming Plaintiff financially, or in his words, to draw “blood.” 628. Defendant Musk caused the Alameda Complaint to be filed based on the libelous and unsubstantiated statements of Defendant Qazi. 629. Defendant Qazi’s language, “67 lawsuits against hundreds of victims,” was echoed almost verbatim by Defendant Musk in ¶ 4 of the Alameda Complaint. 630. Defendant Qazi obtained much of the false information he repeated against 8 Plaintiff from Diego MasMarques, Jr., whose ComplaintsBoard post Defendant Musk cited in 9 the 2019 e-mail conversation that was the purported basis for the Alameda Complaint. 10 631. Defendant Musk caused the Alameda Complaint to be filed against Plaintiff and 11 Plaintiff’s company—even though he either believed that Plaintiff was acting independently or 12 as an employee of his company—in order to waste Plaintiff’s resources. 13 14 15 632. Defendant Musk caused the Alameda Complaint to be filed in a venue where neither he nor Plaintiff resided. 633. Defendant Musk’s claims were substantively resolved in Plaintiff’s favor as they 16 were unilaterally and voluntarily dismissed by Defendant Musk just two weeks and two days 17 after service was effective on Plaintiff, on the last possible day for Mr. Musk to avoid the filing 18 of Plaintiff’s motion for sanctions under Sections 128.7 and 1010.6 of the California Code of 19 Civil Procedure, indicating that the reason for dismissal was substantive. 20 634. Defendant Musk did not at any point reach a settlement agreement with Plaintiff. 21 635. Defendant Musk and his agents’ and counsel’s conduct was malicious and 22 oppressive and done with a willful disregard for Plaintiff’s rights, entitling Plaintiff to an award 23 of punitive damages. 24 25 26 27 COUNT XV Professional Negligence Against Defendants Musk, Singer Cashman, LLP, Cashman, Huebert and Mehes 636. Plaintiff incorporates by reference the foregoing allegations. 637. The Hardcore Litigation Department and its client, Defendant Musk, owe a duty 28 FIRST AMENDED COMPLAINT 28 145 3:24-cv-04647-MMC PDF Page 151 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 150 of 159 1 2 3 4 of the care to any court they file in and/or to any tribunal before which they appear. 638. Defendant Musk and the Hardcore Litigation Department were grossly negligent and acted with reckless disregard in preparing and filing the Alameda Complaint. 639. In preparing the Alameda Complaint, Defendant Musk and the Hardcore 5 Litigation Department relied on a combination of incorrect data from Google searches; false, 6 unverified statements that originated on a Wikipedia page that redirects from “Aaron 7 Greenspan;” at least one court decision based on a material typographical error sourced from 8 https://wiki.answers.com; and conspiratorial allegations passed through Defendant Qazi that 9 originated with a convicted murderer with a documented history of mental illness. 10 640. Defendant Musk is a known associate of eugenicists, child molesters, and sex 11 traffickers Jeffrey E. Epstein (deceased) and Ghislaine Maxwell, both convicted felons—a fact 12 about which he has lied in public repeatedly. Defendant Musk also used Defendant Birchall as 13 an intermediary to pay a British convicted felon $50,000 for false information. See 14 https://www.buzzfeed.com/ryanmac/elon-musk-hired-felon-james-howard-higgins-dirt-pedo- 15 guy. Given this history, the Hardcore Litigation Department had an obligation to ensure that 16 Musk was not again relying on or paying for false information from yet another convicted felon. 17 18 19 20 641. Defendant Musk himself distrusts Wikipedia. On July 29, 2022, he posted “Wikipedia is losing its objectivity @jimmy_wales” on his @elonmusk Twitter account. 642. The Alameda Complaint is replete with indicia of overall gross negligence: a) The Alameda Complaint falsely states that Plaintiff lives and works in 21 Mountain View—information that was eight years out of date—even though 22 Plaintiff’s filings in the Northern District of California from 2020 onward, 23 dozens in all, and all in the possession of Musk’s counsel, state on the first 24 page of every document that Plaintiff lives and works in San Francisco. 25 b) The footer in the Alameda Complaint stated that it is the “COMPLAINT OF 26 DEFENDANT ELON MUSK,” even though Defendant Musk is the plaintiff 27 in that filing because defendants are not filers of complaints by definition, as 28 FIRST AMENDED COMPLAINT 28 146 3:24-cv-04647-MMC PDF Page 152 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 151 of 159 1 should be obvious to any attorney. The Hardcore Litigation Department was 2 so sloppy when preparing the Alameda Complaint that all of its members 3 apparently forgot to change the footer from their rejected proposed cross- 4 complaint, where Elon Musk was the defendant. 5 c) Heading I(A)(1) in the Alameda Complaint, “1. Greenspan’s Association 6 With $TSLAQ,” is orphaned. There is no subsequent heading I(A)(2). 7 643. These errors and the substantive issues with the Alameda Complaint did not phase 8 the Hardcore Litigation Department because they all exhibited reckless disregard for the truth, 9 and because their primary goal was not to achieve any sort of justice involving Plaintiff, but 10 11 simply to further smear his reputation and harass him. 644. The errors and substantive issues with the Alameda Complaint have harmed and 12 will continue to harm Plaintiff by providing a permanent record of damaging, false information 13 that many, if not most, readers—including attorneys—will assume to be true. 14 645. As an entrepreneur in Silicon Valley, the existence of such false records and the 15 associated false allegations coming from a notable billionaire is likely to preclude Plaintiff from 16 being able to raise the same type of venture capital funding that Plaintiff’s peers have been able 17 to secure, and which at one point was necessary for Defendant Musk to launch his own career. 18 19 20 646. The existence of such false records impacted Plaintiff’s ability to secure legal representation. 647. Defendant Musk and his agents’ and counsel’s conduct was malicious and 21 oppressive and done with a willful and conscious disregard for Plaintiff’s rights, entitling 22 Plaintiff to an award of punitive damages. 23 COUNT XVI Unjust Enrichment Against Defendants Qazi and Smick 24 25 26 27 648. Plaintiff incorporates by reference the foregoing allegations. 649. Defendants Qazi and Smick earned an unjust benefit from the Atlanteca Enterprise in an amount of at least $6,206.00 due to their unlawful conduct regarding Plaintiff. 28 FIRST AMENDED COMPLAINT 28 147 3:24-cv-04647-MMC PDF Page 153 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 152 of 159 1 2 3 4 5 650. Defendants Qazi and/or Smick earned an unjust benefit from Google AdSense banner advertising placed on web pages containing libelous statements about Plaintiff. 651. Defendants Qazi and/or Smick earned an unjust benefit from the Tesla referral program. 652. On the basis of his hundreds of libelous statements about Plaintiff and false 6 statements about Greenspan I, Defendants Qazi and/or Smick unfairly raised over $150,000 in 7 donations from fans of Defendants Musk and Tesla to mount a bad-faith defense against Plaintiff 8 in Greenspan I, which ultimately failed to dismiss all of Plaintiff’s claims with prejudice. 9 10 11 12 13 14 15 16 17 18 653. On December 12, 2023, Defendant Qazi posted on Twitter, “Today, the majority of my income actually comes from social media, with only a minority coming from software development. Huge thanks to the X team for making this possible. My income comes from advertising revenue share on X and YouTube, $3 a month X subscriptions from people who like my content, tips from my X profile, and sponsorships from companies who want me to help get the word out about their product or service… Some people have said recently that I have too much money, so people shouldn’t support Whole Mars… You might not think social media is a serious job and laugh at me and call me pathetic but this is the primary way I feed myself and take care of basic needs. My parents didn’t take it seriously either until they saw that there was real interest from sponsors and meaningful ad revenue share.” 19 See https://x.com/WholeMarsBlog/status/1734429337682940309. All of Defendant Qazi’s 20 stated “income” is derived from libeling Plaintiff and fraud harming Plaintiff. 21 22 23 24 25 26 27 654. Plaintiff is entitled to restitution plus interest. COUNT XVII Violation of Unfair Competition Law (California Business and Professions Code § 17200) Against Defendants Qazi and Smick 655. Plaintiff incorporates by reference the foregoing allegations. 656. Plaintiff and Defendants Qazi and Smick compete in the field of news distribution and software development. 657. Defendant Qazi harmed Plaintiff by unlawfully impersonating his family 28 FIRST AMENDED COMPLAINT 28 148 3:24-cv-04647-MMC PDF Page 154 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 153 of 159 1 2 members. 658. On June 4, 2022, on behalf of Defendants Musk and Tesla, Defendant Qazi wrote 3 from his @WholeMarsBlog Twitter account, “Greenspan and the directors of his fraudulent 4 charity @Plainsite must reimburse Qazi $200k in fees + $1 million of damages or they will face 5 a countersuit.” In sum, Defendant Qazi demanded $1.2 million from Plaintiff to avoid a 6 frivolous lawsuit. 7 8 9 10 659. Defendant Qazi posted screenshots of correspondence with Defendant Musk and his attorney, Defendant Alex Spiro, involving at least one planned lawsuit against Plaintiff. 660. An unknown individual purporting to work for Quinn Emanuel on behalf of Defendant Musk contacted Plaintiff’s father at his home in 2020. 11 661. Plaintiff interpreted Defendant Qazi’s extortionate threat to be serious. 12 662. Plaintiff refused to pay Defendant Qazi $1.2 million. 13 663. Defendant Qazi’s conduct was unlawful in violation of California Penal Code § 14 15 524, “Attempted Extortion.” 664. Defendant Musk attempted to file the Alameda Case against Plaintiff 16 approximately six months later, and persisted in filing it even after his initial motion for leave to 17 file was denied. 18 665. Plaintiff incurred court costs in excess of $450.00 to defend against the frivolous 19 lawsuit threatened by Defendant Qazi and actually filed by Defendant Musk, not including the 20 additional costs of filing related claims. 21 22 23 24 25 26 27 666. Plaintiff incurred PACER and state court fees for legal research related to the Alameda Complaint’s baseless claims and Defendants’ campaign of defamation and harassment. 667. Plaintiff’s company incurred legal fees and court costs of over $1,000.00 to defend against the frivolous lawsuit threatened by Mr. Qazi and filed by Mr. Musk. 668. Plaintiff’s company’s finances pass through to his personal tax return as his company is a Subchapter S corporation. 669. Defendant Musk and his agents’ and counsel’s conduct was malicious and 28 FIRST AMENDED COMPLAINT 28 149 3:24-cv-04647-MMC PDF Page 155 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 154 of 159 1 oppressive and done with a willful and conscious disregard for Plaintiff’s rights, entitling 2 Plaintiff to an award of punitive damages. 3 4 5 COUNT XVIII Violation of Unfair Competition Law (California Business and Professions Code § 17200) Against Defendants Musk, Tesla, Singer Cashman, LLP, Cashman, Huebert, Mehes and Spiro 6 670. Plaintiff incorporates by reference the foregoing allegations. 7 671. Defendants engaged in unlawful and unfair business practices intended to 8 9 artificially inflate Tesla’s reported profits. 672. Plaintiff has lost money due to Defendant Tesla’s persistent perjury, which was 10 intended to artificially inflate Tesla’s reported profits. Defendant Musk and/or Representatives 11 of Defendant Tesla perjured themselves in violation of California Penal Code § 118 when: 12 a) Defendant Musk falsely stated under oath during his June 1, 2019 deposition 13 in Delaware Court of Chancery Case No. 12711-VCS that he was “sure [he] 14 thought it was correct” that “SolarCity [was] headed to cash flow positive 15 situation for the next three to six months at the outside” even as it was 16 drowning in losses and debt. When warned about “penalty of perjury,” Musk 17 responded by saying, “This is unreasonable” and “you just keep trying to ask 18 all of these tricky questions.” See https://www.plainsite.org/dockets/ 19 download.html?id=289302298&a=3&z=f7555350 at 161-165. Musk used the 20 phrase “I don’t recall” at least 65 times. Musk also falsely claimed that he 21 believed Tesla’s “growth of megawatts deployed would be very significant” 22 even as he intended to and then did assign virtually all of SolarCity’s 23 employees to work on the Model 3. Id. at 37. 24 b) Mark Olson, former Tesla Senior Director, U.S. Tax, submitted false and 25 incomplete application materials to CAEATFA under penalty of perjury when 26 he responded “None” to a question that required him to “Disclose any legal or 27 regulatory action or investigation that may have a material impact on the 28 FIRST AMENDED COMPLAINT 28 150 3:24-cv-04647-MMC PDF Page 156 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 155 of 159 1 financial viability of the project or the Applicant.” 2 c) When Tesla applied to start a regulated insurance company with the California 3 Department of Insurance, under penalty of perjury an unknown employee 4 answered the question “Has the business entity or any of its partners, 5 members, controlling persons, officers, directors, managers or any 6 shareholders owning 10% or more interest in the business entity, ever been 7 notified by any jurisdiction to which you are applying of any delinquent tax 8 obligation that is not the subject of a repayment agreement?” by checking 9 “No.” Tesla was sued for failing to pay taxes on March 10, 2017. See County 10 of Orange, Treasurer-Tax Collector v. Tesla Inc, Superior Court of California 11 for the County of Orange, Case No. 30-2017-00909290-SC-SC-CJC. 12 d) On the same California Department of Insurance application, under penalty of 13 perjury an unknown employee answered, “Has the business entity or any of its 14 partners, members, controlling persons, officers, directors, managers or any 15 share- holders owning 10% or more interest in the business entity, a party to, 16 or ever been found liable in any lawsuit or arbitration proceeding involving 17 allegations of fraud, misappropriation or conversion of funds, 18 misrepresentation or breach of fiduciary duty?” by checking “No.” Elon 19 Musk and Tesla, Inc. were sued for securities fraud by the SEC and settled the 20 case, after which Musk was charged with contempt of court for violating the 21 agreement. Separately, Musk admitted that he concocted a “bait and switch” 22 scheme involving Roadster deposits, and Kimbal Musk admitted that Elon had 23 misappropriated Roadster deposit funds. 24 673. Defendants Musk and Tesla encouraged Tesla employee Vivien Hantusch to post 25 promotional materials on her nominally-independent @flcnhvy Twitter account without any 26 disclaimers explaining her formal business relationship with Tesla, in violation of the FTC Act. 27 674. Defendants Tesla has willfully violated 16 C.F.R. § 465 on an ongoing basis 28 FIRST AMENDED COMPLAINT 28 151 3:24-cv-04647-MMC PDF Page 157 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 156 of 159 1 2 3 4 through its FSD EAP. 675. Defendant Tesla has willfully violated of California Vehicle Code §§ 24011.5 and 11713 on an ongoing basis through its marketing of “Autopilot” and FSD. 676. Defendant Spiro unlawfully represented Defendants Musk and Tesla in 5 California, where he is unlicensed, in violation of California Business and Professions Code 6 § 6125, including in Greenspan I. 7 677. Defendants Singer Cashman, LLP, Cashman, Huebert and Mehes willfully 8 violated Section 128.5 of the California Code of Civil Procedure, Rule 3.2 of the California 9 Rules of Professional Conduct, Rule 3.02 of the Texas Disciplinary Rules of Professional 10 11 Conduct, and Rule 3.27(a) of the Local Rules of the Alameda County Superior Court. 678. Defendants Singer Cashman, LLP, Cashman, Huebert, Mehes, and Spiro have 12 willfully violated Rule 3.3 of the California Rules of Professional Conduct and Rule 3.03 of the 13 Texas Disciplinary Rules of Professional Conduct on an ongoing basis. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 679. Plaintiff spent money on PACER fees for legal research as a consequence of Defendant Spiro’s unlicensed practice of law. 680. Plaintiff spent hundreds of dollars on fees for service of process that, but for Defendants’ violations of law, would have been unnecessary. 681. Plaintiff suffered a monetary loss of at least $60,000.00 due to Defendants’ myriad violations of law and unfair business practices. 682. Defendants’ conduct was malicious and oppressive and done with a willful and conscious disregard for Plaintiff’s rights, entitling Plaintiff to an award of punitive damages. COUNT XIX False Advertising (California Business and Professions Code § 17500) Against Defendants Musk, Tesla and X Corp. 683. Plaintiff incorporates by reference the foregoing allegations. 684. Defendants engaged in false advertising with regard to Tesla “Autopilot,” FSD, “robotaxis,” and numerous other products and topics. 685. On July 17, 2024, Defendant Musk wrote on Twitter, 28 FIRST AMENDED COMPLAINT 28 152 3:24-cv-04647-MMC PDF Page 158 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 157 of 159 1 “𝕏 is a free speech platform that aspires to give equal voice to all, within the bounds of the law.” 2 3 4 and “You can do anything on this platform that doesn’t violate or probably violate the law.” 5 These statements were and are false. At all times, Plaintiff’s use of Twitter fell well “within the 6 bounds of the law,” and did not “violate the law,” yet Plaintiff’s @PlainSite and 7 @AaronGreenspan accounts were suspended. 8 686. On August 27, 2024, Defendant Musk wrote on Twitter, 9 10 “Just want to reiterate that this platform really is meant to support all viewpoints within the bounds of the laws of countries, even those of people with whom I vehemently disagree and personally dislike. 11 If that doesn’t seem to be happening, please yell at me (ideally on 𝕏).” 12 This statement was and is false. At all times, Plaintiff’s use of Twitter fell well “within the 13 bounds of the laws of countries,” yet Plaintiff’s @PlainSite and @AaronGreenspan accounts 14 were suspended because Plaintiff is a person that Defendant Musk “personally dislike[s].” 15 16 17 18 19 20 21 22 23 24 25 26 27 COUNT XX Declaratory Judgment Against Defendants Singer Cashman, LLP, Cashman, Huebert and Mehes 687. Plaintiff incorporates by reference the foregoing allegations. 688. The Declaratory Judgment Act provides that in “a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 689. After May 1, 2023, even after the Alameda Case had been voluntarily dismissed, Defendants Singer Cashman, LLP, Cashman, Huebert and Mehes asserted that a cross-claim could not be filed against them for malicious prosecution. 690. Pursuant to California precedent, victims of malicious prosecution must presently file a separate civil suit after the conclusion of the underlying suit in the victim’s favor. 691. Under California law, a filing fee is due both for the plaintiff at the time of filing, 28 FIRST AMENDED COMPLAINT 28 153 3:24-cv-04647-MMC PDF Page 159 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 158 of 159 1 2 and for each defendant at the time that a first responsive pleading is filed. 692. Thus, California’s fee schedule and prohibition on filing a cross-claim for 3 malicious prosecution in the same malicious action violates the victim’s due process rights by 4 requiring the victim to pay a filing fee twice: first to first respond to the malicious lawsuit, and 5 then again to file the claim for malicious prosecution. 6 693. Plaintiff seeks a Declaratory Judgment clarifying that the Fifth Amendment 7 forbids such an arrangement and that California courts must retain limited jurisdiction after a 8 malicious lawsuit has been dismissed in the victim’s favor to hear any potential cross-claim for 9 malicious prosecution, just as California courts retain jurisdiction to hear any motion for 10 attorney’s fees and/or costs. 11 PRAYER FOR RELIEF 12 WHEREFORE, Plaintiff prays for judgment as follows: 13 A. Judgment against Defendants on all counts of the First Amended Complaint; 14 B. A permanent injunction enjoining all Defendants from making further libelous 15 statements, contacting Plaintiff or his family, impersonating others, and requiring the 16 immediate cessation of the operation of Defendant Qazi’s and/or Smick’s websites 17 regarding Plaintiff; 18 C. Recovery from all Defendants of damages, including pre-judgment interest Plaintiff 19 sustained and will sustain, and any income, gains, profits, and advantages obtained by 20 Defendants as a result of their unlawful, unfair, fraudulent and deceptive acts alleged 21 hereinabove, in an amount not yet known, to be assessed at the time of trial; 22 D. Treble damages pursuant to 18 U.S.C. § 1964(c); 23 E. Actual and punitive damages, including costs and attorneys’ fees (should Plaintiff 24 25 26 27 engage counsel); F. Compensatory, consequential and punitive damages resulting from Defendant’s violation of California Civil Code §§ 1708.7 and 3294; G. Plaintiff’s reasonable costs and expenses of this action, including any attorneys’ fees 28 FIRST AMENDED COMPLAINT 28 154 3:24-cv-04647-MMC PDF Page 160 Case 3:24-cv-04647-MMC Document 55 Filed 08/28/24 Page 159 of 159 1 and costs (should Plaintiff engage counsel), in accordance with applicable law; 2 H. Such equitable/injunctive or other relief as the Court may deem just and proper. 3 JURY DEMAND 4 Plaintiff demands a trial by jury for all issues so triable. 5 6 Dated: August 28, 2024 Aaron Greenspan 956 Carolina Street San Francisco, CA 94107-3337 Phone: +1 415 670 9350 Fax: +1 415 373 3959 E-Mail: aaron.greenspan@plainsite.org 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT 28 155 3:24-cv-04647-MMC

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