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Tesla attorneys ask judge to vacate decision invalidating massive pay package for Elon Musk

Defense attorneys say the vote makes clear that Tesla shareholders, with full knowledge of the flaws in the 2018 process that McCormick pointed out in her January ruling, are adamant that Musk is entitled to the pay package. Photo via cdn.britannica.com

Attorneys for Elon Musk and Tesla’s corporate directors are asking a Delaware judge to vacate her ruling requiring the company to rescind a massive and unprecedented pay package for Musk.

Friday's hearing follows a January ruling in which Chancellor Kathaleen St. Jude McCormick concluded that Musk engineered the landmark 2018 pay package in sham negotiations with directors who were not independent. The compensation package initially carried a potential maximum value of about $56 billion, but that sum has fluctuated over the years based on Tesla's stock price.

Following the court ruling, Tesla shareholders met in June and ratified Musk’s 2018 pay package for a second time, again by an overwhelming margin.

Defense attorneys say the vote makes clear that Tesla shareholders, with full knowledge of the flaws in the 2018 process that McCormick pointed out in her January ruling, are adamant that Musk is entitled to the pay package.

“Honoring the shoulder vote would affirm the strength of our corporate system,” David Ross, an attorney for Musk and the other individual defendants, told McCormick. “This was stockholder democracy working.”

Ross told the judge that the defendants were not challenging the factual findings or legal conclusions in her ruling, but simply asking that she vacate her order directing Tesla to rescind the pay package.

McCormick, however, seemed skeptical of the defense arguments, peppering attorneys with questions and noting that there is no precedent in Delaware law for allowing a post-trial shareholder vote to ratify adjudicated breaches of fiduciary duty by corporate directors.

“This has never been done before,” she said.

Defense attorneys argued that, while they could find no case that is exactly comparable, Delaware law has long recognized shareholder ratification as a cure to corporate governance errors, and has long acknowledged the “sovereignty” of shareholders as the ultimate owners of a corporation.

“I candidly don’t see how Delaware law can tell the owners of the company that they’re not entitled to make the decision they made,” said Rudolf Koch, an attorney for Tesla.

Donald Verrilli, a lawyer for an induvial stockholder who owns more than 19,000 Tesla shares, suggested that it would be wrong for the lone shareholder who filed the lawsuit to thwart the will of the majority of Tesla shareholders. At the time the lawsuit was filed, the plaintiff owned just nine shares of Tesla stock.

“The voice of the majority of shareholders should matter…. This lawsuit is not representing the interest of the shareholders," Verrilli said.

Thomas Grady, an attorney for a group of Florida objectors who own or manage almost 8 million Tesla shares with some $2 billion, argued that for McCormick to rule for the plaintiff, she has to “disenfranchise” all other Tesla shareholders.

Greg Varallo, an attorney for the plaintiff, urged McCormick not to give any credence to the June shareholder vote, saying it has no legal precedent in Delaware or anywhere else. There also is no reason for the court to reopen the trial record and admit new evidence, he said.

Under Delaware law, stockholders have no authority to overrule courts by trying to use a post-trial ratification vote as a “giant eraser,” Varallo argued.

“Ratification is not magic, and it never has been,” Varallo added. “This should end here and now.”

McCormick gave no indication on when she would rule. She also has yet to rule on a huge and unprecedented fee request by plaintiff attorneys, who contend that they are entitled to legal fees in the form of Tesla stock valued at more than $7 billion.

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A View From HETI

D.C.-based Last Energy plans to bring 30 micro-nuclear reactors in Texas online within the next two years. Rending courtesy Last Energy.

A Washington, D.C.-based developer of micro-nuclear technology plans to build 30 micro-nuclear reactors near Abilene to address the rising demand for electricity to operate data centers across Texas.

The company, Last Energy, is seeking permission from the Electric Reliability Council of Texas (ERCOT) and the U.S. Nuclear Regulatory Commission to build the microreactors on a more than 200-acre site in Haskell County, about 60 miles north of Abilene.

The privately financed microreactors are expected to go online within roughly two years. They would be connected to ERCOT’s power grid, which serves the bulk of Texas.

“Texas is America’s undisputed energy leader, but skyrocketing population growth and data center development is forcing policymakers, customers, and energy providers to embrace new technologies,” says Bret Kugelmass, founder and CEO of Last Energy.

“Nuclear power is the most effective way to meet Texas’ demand, but our solution—plug-and-play microreactors, designed for scalability and siting flexibility—is the best way to meet it quickly,” Kugelmass adds. “Texas is a state that recognizes energy is a precondition for prosperity, and Last Energy is excited to contribute to that mission.”

Texas is home to more than 340 data centers, according to Perceptive Power Infrastructure. These centers consume nearly 8 gigawatts of power and make up 9 percent of the state’s power demand.

Data centers are one of the most energy-intensive building types, says to the U.S. Department of Energy, and account for approximately 2 percent of the total U.S. electricity use.

Microreactors are 100 to 1,000 times smaller than conventional nuclear reactors, according to the Idaho National Laboratory. Yet each Last Energy microreactor can produce 20 megawatts of thermal energy.

Before announcing the 30 proposed microreactors to be located near Abilene, Last Energy built two full-scale prototypes in Texas in tandem with manufacturing partners. The company has also held demonstration events in Texas, including at CERAWeek 2024 in Houston. Last Energy, founded in 2019, is a founding member of the Texas Nuclear Alliance.

“Texas is the energy capital of America, and we are working to be No. 1 in advanced nuclear power,” Governor Greg Abbott said in a statement. “Last Energy’s microreactor project in Haskell County will help fulfill the state’s growing data center demand. Texas must become a national leader in advanced nuclear energy. By working together with industry leaders like Last Energy, we will usher in a nuclear power renaissance in the United States.”

Nuclear energy is not a major source of power in Texas. In 2023, the state’s two nuclear power plants generated about 7% of the state’s electricity, according to the U.S. Energy Information Administration. Texas gains most of its electricity from natural gas, coal, wind, and solar.

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