And I say all that as a big supporter of Elon generally.
Typically the law tries to at least somewhat take into account intent, like if someone omits something from a filing by accident or in a deliberate attempt to conceal, for example.
Pointing out his statements demonstrates that he's aware of the rules and is choosing not to respect them. That's usually a sign that someone should be on the higher end of the typical punishment range for a given act.
https://assets.documentcloud.org/documents/5750664/Show-Caus...
> According to Tesla’s Policy, any edits to a pre-approved Written Communication or even releasing a verbatim pre-approved Written Communication more than two days after it has been pre-approved requires that the pre-approval be reconfirmed. Even if the exact substance of the 7:15 tweet had been pre-approved 20 days before, Musk cannot credibly claim that he thought he was not required to obtain pre-approval again under the plain terms of the Policy. In fact, the written communication in the 7:15 tweet was not pre-approved 20 days earlier or at any time. Musk’s claim that he thought he was simply restating information from the January 30 communications is not credible.
This is material information, and he misled investors. It's clear cut.
1) 350k-500k cars a year
2) around 400k cars a year
3) around 500k cars a year
The three statements communicate different information and (3) is the best, since unlike (1) and (2) it implies there's a chance that the production numbers can exceed 500k and would certainly be close to 500k in any case. Whereas, with (1) and (2) it probably won't be.
Furthermore, quoting a specific number, even if you have the word "around" before it, implies new information was obtained narrowing down the range given in the earnings call. Giving investors more clarity on how they should invest in Tesla. This makes it material.
If we can accept the information is material, then it's pointless to argue whether it's misleading or false, since that's not what the SEC is arguing about. Musk has to pre-approve material statements (due to his settlement with the SEC) and, according to internal Tesla policy, get that approval at most 2 days before posting them. The earnings call was on January 30, so even if pre-approval was given then (it wasn't) then it would have expired on February 19 when the tweets were made.
The fact that he misled investors (proven by the fact that he issued a correction 4 hours later), just adds extra ammunition to the SECs argument that Musk should have pre-approved his tweet as pre-approval would have caught the factual errors.
Seriously though, read through the court document, except for the bit at the end of page 9 (where they quote a bunch of cases) it's very simple to read and understand: https://www.documentcloud.org/documents/5750664-Show-Cause.h...