When the 'Chute Fails

Golden Parachutes, Bad Faith Arguments, and the Rise of Norm Busters

One thing that Elon Musk and Donald Trump appear to have in common is a willingness to flout rules that have — in the main — traditionally been followed without incident. This is true even where skipping out on such responsibilities or legal obligations might have been pleasurable, or financially beneficial, or otherwise what a self-interested player might have chosen to do — nonetheless, in many circumstances throughout history, businesses and individuals chose to do what they had contracted to do, not because there was no feasible way out of the deal, but because it made sense to just be a person of integrity.

The rules that might be voted “Most Likely to be Flouted” in high school superlative terms are generally those enforced by societal, reputational, and policy pressures — not by strong, bright-line consequences or rigid and swift application of the legal system. Perhaps it is a coincidence. Perhaps it is because people who would flout such rules and laws know that the civil justice system is slow, plodding, and expensive. Due to the inherent imbalance in the system, it might be easy — when one, say, has access to nearly unlimited resources for legal counsel — to starve one’s opponent out of justice by force of a long, relentless slog in various civil proceedings.

Such is the case in the newest “flout du jour” in which Musk appears to have centered himself. Although it’s not news that Musk fired Parag Agrawal, Vijaya Gadde, and Ned Segal “for cause” on October 26th, just as he was closing the merger, it does seem that it should be newsworthy to note that two months later, Musk appears to have taken the further step of withholding their contractually-owed golden parachute payments. (If you want an excellent conceptual argument for why we should not allow golden parachute promises to be flouted as a policy matter, Matt Levine does what only Matt Levine can do in explaining the whole thing for you, here. What I am talking about here is more specifically why this contractual promise should be enforced, which is not entirely overlapping with “why we should learn to love golden parachutes” — because whether or not you think they are good from a policy perspective, this one exists, and imho, we should all give an ish about the rules, just like Walter implied.)

In Form 4 filings made with the SEC on Friday, December 2nd, Agrawal, Gadde, and Segal went on record with the amounts they believe are owed to them under the terms of their severance agreements.

While there is little doubt that the vested portions of the stock reported on the Form 4s were paid out by operation of the merger agreement, it appears that the unvested portions (both in Issuer RSUs and Issuer PSUs) have not been paid out. So, let’s dig into what these terms mean, what contracts are being flouted, and why we might want to care.

First off, we should note that this situation may apply to additional executives at the company, but we only have Form 4 visibility into those who were “Section 16” reportable persons under the SEC definition of such. It is perhaps for this reason that we didn’t see a similar Form 4 for Sarah Personette, although she may also have a similar claim.

Second, this is abnormal in many ways that make it difficult to know exactly what is going on. This seems to be the optimal kind of circumstance for rule flouting—where the rules are squishy, the public visibility into the underlying actions is limited, and the legal enforcement mechanisms are either slow or untested, or both. Because the only potential recourse for people who are on the receiving end of such rule floutations (just go along with the neologism, it’s a thing now) are frequently in a position to need the assistance of the legal system to have any hope of justice, and because (although you wouldn’t know it if you turn on the news and see SBF doing live interviews) most traditional legal advice is to lay low and only make “no” comment during the pendency of legal proceedings, this confluence of circumstances has the effect of silencing victims.

(Yes, I know, it’s hard to see people who are casually awaiting an eight-figure contractual payout as victims, but there’s an argument to be made that this is one place where trickledown economics really is a thing. In general economic terms, not so much. But in the context of law, it’s called precedent, and the benefits really do flow from the precedent setters. And given that only someone with a lot to lose is going to have the legal means to fight the requisite battle, it will fall upon the wealthy and privileged victims to be the ones to pave the way to precedent that could genuinely help benefit flow to the smaller players in a similar situation.)

The abnormalities here stand out straight from the jump. Why were these execs filing Form 4s sixty-plus days after closing? Why have others not ever zero’ed out their positions with the SEC? What is the effect of filing a Form 4 representing consideration that you have not received because the company has withheld it? What are the tax implications? How can these execs seek their own justice to be paid what they are owed? All great questions. We have very few answers, but I think there’s something to be gleaned by looking at all the things that we don’t know, because it might help us get closer to some of what’s actually going on here.

It’s odd to file a Form 4 to report the disposition of a security for which you have not received the proceeds of the disposition. That’s just weird. That makes everything about this whole thing weird. But the original weirdness is the fact that Musk just straight up decided he had the right to withhold payment of something that he was contractually obligated to pay.

So, what’s the deal with that? Am I saying that there is no case in which someone comes into a company finds out that the CEO — who happens to have a beautiful, ornate, yuge-ass golden parachute — has been selling corporate secrets to a foreign sovereign, can do nothing? That you just have to pay the guy? Because: golden parachute?

No, that’s not what I’m saying. That’s why contracts exist! To help create things (like golden parachutes) and to set the terms around which exceptions to the rules should apply. So, Elon’s argument, such that he has made it public (which is to say, through a dark smudgy glass, darkly) is that he fired these three executives on the eve of taking over the company, for cause. What cause? Well, we can only really infer from the statements that Musk made during the litigation, but I’m presuming it has various and ever-shifting flavors, some of which originally included yelling bots in a crowded theatre, but also now seem to encompass content moderation choices around Hunter Biden’s hacked iCloud dick pics. Don’t @t me. It’s a weird world.

But let’s just say that’s the cause. Let’s do what everyone is always begging me to do, which — to be honest — I do not see why I should have to, but anyway… let’s steelman Elon’s claims. Deep breath. OK, so I buy a company that I’ve just tried to do a bunch of due diligence on during litigation, which didn’t work out so well, and the Court made me close the deal, but then I said, “yeah, well, I always wanted to anyway because my neural nets said ‘do it’ like the kermit-darthvader.gif and so I bought it because free speech.” But then, before I even got into the company, just from, I guess, what I saw in discovery, I didn’t like the way these execs were doing things. It wasn’t at all because I didn’t like how they forced me to do the merger. Because remember, now I wanted to do the merger all along. It was because I didn’t like them. I mean, because I didn’t like their content moderation decisions. Or maybe because I didn’t like the way they talked about bots. Oh, right, I remember now! It’s because they lied about bots. Not in the same way I talk about DAU and brag about it being number-only-go-up. That’s completely different. The way they talked about mDAU, I didn’t like that at all. I think they should be fired for that. For reasons. But I shouldn’t even have to be arguing about my reasons: did you think I was really going to wildly overpay for this company and then keep giving money to my sworn litigation enemies? That would make me look dumb. Of course, I wasn’t going to do that. I’m not a chad. I’m no NPC.

Now I know why I never take people up on the offer to steelman Elon’s arguments. Because now my brain hurts. I mean, my neural nets hurts. You know what I mean.

Anyway, ok, we’ve steelmanned Elon’s arguments, okay? I did my best, and admittedly, my best is probably only a start towards true steel. Of course he shouldn’t have to keep on execs he just doesn’t like, people who caused him to fight this battle and buy this stupid company for the full price after spending hundreds of millions of dollars to litigate the thing. In fact, yeah! That reminds me, shouldn’t I be able to keep those hundreds of millions of dollars that those executives caused me to spend in litigation on both sides of the transaction? It just about makes us even for all that litigation they made me do over the summer if I don’t pay out these golden parachutes. I mean, it’s basically like they got their money, they just got paid in litigation, because it seemed like that was what they wanted anyway.

Hold on—I’m getting a phone call.

What? What do you mean, I—Elon—caused the litigation? They were the ones who filed suit. What do you mean because I wouldn’t close? I always planned on closing, I just wanted to get a lower price. Don’t you know anything about business? This is the way these things work.

Huh. My Elon’s lawyer called fake-Elon-in-my-head but then hung up on him. Anyway, where were we?

Right. We were trying to figure out the logic behind Elon’s “for cause” termination that would allow him to rightfully withhold the golden parachute payments from these execs. Maybe instead of starting from a bespoke and obfuscated position, we should look to the language of the contract to see what the allowable reasons would have been to do so, and then see if we can fit what happened into one of those delineated reasons.

Things get a little complicated here by the fact that we don’t have access to all the contemporaneous documents, but rather we have a smattering of older versions and proxy summaries of current terms, but I have patched together what exists, and have good reason to believe that it very closely (if not identically) maps onto the precise contract language at play for these three executives.

So, the Form 4 filings give us some direction about what documents should control these transactions. So, let’s back up to unvested RSUs and PSUs (what are they, anyway) and see where we can find the terms upon which they should have been converted into the right to receive merger consideration, and suss out whether or not that happened as was intended by the underlying contracts.

So, Parag, Vijaya, and Ned all have both vested and unvested beneficial ownership. As many of you arbitrageurs know, when the merger happened “by operation of the agreement” various other things occurred. One was that brokers who held stocks or options on a beneficial owner’s behalf were required to pay out the proceeds of the conversion. The Form 4 explains it this way:

“Pursuant to the Agreement and Plan of Merger (the "Merger Agreement"), dated April 25, 2022, by and among the Issuer, X Holdings I, Inc., a Delaware corporation ("Parent"), X Holdings II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Parent ("Acquisition Sub"), and, solely for the purpose of certain provisions of the Merger Agreement, Elon R. Musk, on October 27, 2022 (the "Closing Date"), Acquisition Sub merged with and into the Issuer (the "Merger"), with the Issuer continuing as the surviving corporation and a wholly-owned subsidiary of Parent. […] In connection with the Merger, these shares were cancelled and converted into the right to receive $54.20 in cash, without interest, per share, subject to the terms and conditions of the Merger Agreement (the "Merger Consideration").”

In other words, the merger happens and then your shares magically turn into the right to receive cash (aka “merger consideration”). They are no longer shares of the company, they are money money money. This is a fairly non-controversial proposition, although in some cases holders of options had a long, strange trip through to the following Friday after the merger, due to the odd timing of close on a Thursday when options were expiring, and yada yada [complicated realities of option things]. But let’s put a pin in the options, because let’s not forget that one of the options-issuers was the company itself, and one wonders what may have become of those options, or whether they stand in some limbo as well. One thing at a time.

So, the merger happens, and your vested shares become cash. The company can’t do anything about this, they can’t say, “nooooooo! I’m Elon Musk and I don’t like this stockholder! don’t give them the cash monies!!!!” — it all just happens via the various brokerages, and no one has discretion to say or do otherwise. But the unvested shares are a different beast. Those are held by the company. And here is where the story of the golden parachutes and the stories of the rank-and-file employees start to converge. Because although the numbers are admittedly much larger in most cases for the C-Suite folks, the executives are not the only ones who held unvested RSUs and PSUs. It’s as good a time as any to explain the meaning and the difference in those two terms. Plain old RSUs are restricted stock units, and are generally restricted in the time-based sense, i.e., that they are unvested until a certain vesting period has passed, at which time they become normal old shares of the company that get shipped off to your brokerage firm to hold on your behalf. Another type of RSU is a PSU, a performance-based [restricted] stock unit, which doesn’t necessarily vest over time without additional performance metrics being hit.

The way that unvested stock units (RSUs and PSUs) vest and become actual stock in the company is dependent on the terms of the grant itself. It appears that these three executives also had unvested performance-based stock option grants, which are reported on a different line item in the Form 4, but which should effectively result in the same thing post-closing: right to receive an equivalent in cash to the stock price times the number of units held.

So, for example, as best I can parse the details here, these three execs reported the following holdings (Form 4s are linked for each individual for double-checking my math):

Parag Agrawal:
Common Stock (paid by brokerage): 129,605

RSUs (time-based restricted) stock grant: 327,847 (not paid)
$17,769,307 unpaid

PSUs (performance-based restricted) stock grant: 470,354 (not paid)
$25,493,186 unpaid

PS[o]Us (performance-based restricted stock option grants: 241,508 (not paid)
$13,089,733 unpaid

Total Owed to Parag: $56,352,227

Vijaya Gadde:
Common Stock (paid by brokerage): 623,929 (converted)

RSUs (time-based restricted) stock grant: 269,354 (not paid) [50% accleration]
$7,299,548 unpaid

PSUs (performance-based restricted) stock grant: 204,306 (not paid) [50% accleration]
$5,536,693 unpaid

PS[o]Us (performance-based restricted stock option grants: 241,508 (not paid) [50% accleration]
$6,544,867 unpaid

Total Owed to Vijaya: $19,381,108

[Note: Edited to reflect 50% accelerated vesting, whereas Parag and Ned were entitled to 100% accelerated vesting.]

Ned Segal:
Common Stock (paid by brokerage): 378,264 (converted)

RSUs (time-based restricted) stock grant: 310,069 (not paid)
$16,805,739 unpaid

PSUs (performance-based restricted) stock grant: 257,213 (not paid)
$13,940,944 unpaid

PS[o]Us (performance-based restricted stock option grants: 241,508 (not paid)
$13,089,733 unpaid

Total Owed to Ned: $43,836,418

Total Reported on Form 4s Unpaid: $119,569,753

(There are also additional amounts owed to the three listed above, including one year of salary and twelve months of COBRA benefits, as well as apparently monies owed to Sarah Personette, who appears to be similarly situated, but who has not yet filed a zero’ing out Form 4.)

The total amounts outstanding with the salary, COBRA, and Personette monies are:

Parag: $57,361,400
Ned: $44,468,148
Vijaya: $20,012,946
Sarah: $19,260,090

Total Amounts Owed: $141,102,584

The terms of these stock / option grants are a contractual obligation, laid out in certain documents, not all of which are public. However, we can piece together a fairly robust portrait of the likely situation by looking at other SEC filings. [I also finally determined where to double-check my figures by digging out my hard copy of the deal proxy, a document that I thought I would never have to look at again.]

But as to the interpretation of the contractual obligations, the operative documents are: 1. the Merger Agreement, although it doesn’t do too much heavy lifting here, except convert stock into the right to receive merger consideration, which is mostly non-controversial; 2. Twitter’s current Change of Control and Involuntary Termination Protection Policy and the Participation Agreement under which each individual’s employment was contracted; and 3. the offer letter between each reporting person and the company. The Form 4 references to the items in 2 and 3, above, as the “Severance Terms”.

So, let’s try to find those documents, shall we?

First, Parag. Parag’s Offer Letter is available from SEC filngs, although it is fairly brief in its terms. It also somewhat oddly references the ‘existing’ “Amended and Restated Change of Control and Involuntary Termination Protection Policy” but unhelpfully does not attach a copy, and then further explains that “not later than March 31, 2022, the Company will make clarifying updates in the ‘Change in Control‘ definition.” So, it’s relating back to an agreement we don’t have a definitive copy of, while also promising revisions to that document, of which there is no evidence and it’s not clear the planned changes ever came to fruition in light of the chaos that began right around the time of planned amendments.

The offer letter also sort of lays out the “cause/no cause” distinction, but mainly does so by reference back to the CoC/ITPP in place at the time. It seems to add to whatever definition is in place in the CoC, but also, kinda sorta, to add to it, partially by means of a “planned review to the CoC”.

Here is the relevant section:

Once you sign your Policy participation agreement, you will be eligible for severance benefits under the Policy if your employment ends in a qualifying termination of employment (generally, termination by the Company without cause or by you with good reason), all as detailed in the Policy. […] The Committee expects to undertake a review of the Policy in the future and seek your input on any changes to the Policy. In addition to any other changes identified in that review, effective as of the date of this letter, the following terms under the Policy will apply to you: (a) the Change of Control Period will begin 3 months before a Change of Control and end 12 months after the Change of Control, (b) there will be accelerated vesting of equity awards that would have vested within 12 months after the termination of employment (but 37.5% acceleration if the termination is before January 1, 2025) and otherwise consistent with the terms of the Policy as in effect on the date of this letter, including (but not limited to) with respect to performance-based awards (that is, treating any applicable performance goals as being met at target levels), provided that performance-based awards granted after the date hereof shall be subject to the terms of the applicable award agreement if such agreement expressly sets forth a different treatment, and provided further that with respect to any equity awards with respect to which, at the time of termination of employment, it is known (as determined by the Company) that the applicable performance goals were attained as of the date of termination, such vesting shall be applied at the greater of target or actual level of performance, (c) clause (a) of the “Good Reason” definition shall state as follows: “a material adverse change in the nature or scope of your authority, powers, functions, duties, responsibilities, or reporting relationship (including ceasing to directly report to the board of directors of a publicly traded entity, if applicable)”, and (d) no amendment to the Policy that would adversely affect your rights under the Policy shall be made without your prior written consent.[…] In addition to the changes described above, not later than March 31, 2022, the Company will make clarifying updates in the “Change of Control” definition.

So, it would be really nice right about now to have a copy of the Change of Control and Involuntary Termination Protection Policy to which this document refers, and it would be even nicer to have the latest and greatest version of the Policy, if further amendments were made as planned, subsequent to Parag’s taking over the CEO role.

But, we have the documents that we have, which is the 2014 version of this policy. We also have good reason to believe the relevant language has not meaningfully changed. So, let’s look at it and see if we can figure out what “for cause” means.

If you’ve read the Matt Levine piece linked above, you’ve already been through this, but I feel like it’s worth walking through again, just so everyone is clear.

“Cause” means:

(a) your unauthorized use or disclosure of the Company’s confidential information or trade secrets, which use or disclosure causes material harm to the Company;

(b) your breach of any agreement between you and the Company;

(c) your failure to comply with the Company’s written policies or rules, including its code of conduct;

(d) your conviction of, or plea of “guilty” or “no contest” to, a felony under the laws of the United States or any state thereof;

(e) your gross negligence or willful misconduct in the performance of your duties;

(f) your continuing failure to perform assigned duties after receiving written notification of the failure from the Board (or for Eligible Employees other than the Chief Executive Officer, from the Chief Executive Officer); or

(g) your failure to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested your cooperation;

provided, however, that “Cause” will not be deemed to exist in the event of subsections (b), (c) or (f) above unless you have been provided with (i) 30 days’ written notice by the Board or the act or omission constituting “Cause” and (ii) 30 days’ opportunity to cure such act or omission, if capable of cure.

So, disclosure of confidential information or trade secrets has no cure period, but there’s never been any allegation, however wild, by Musk that any of these three engaged in such behavior. Remember, for this to be a good faith termination, he would have had to have had knowledge about these events prior to coming into the company.

Breach of agreements and failure to comply with policies both require the opportunity to cure the breach, as does failure to perform assigned duties. So it literally cannot be a good faith argument under b, c, or f. That leaves conviction or plea to felony. Safe to say that had not happened before October 26th. So, we’ve got (e) and (g). Gross negligence or willful misconduct in the performance of duties, and failure to cooperate in good faith with a governmental or internal investigation. There’s no evidence or argument regarding (g), so we are left with (e): “gross negligence or willful misconduct in the performance of your duties.”

There’s a real question about whether or not such behavior could have properly been deduced by Musk in discovery in the litigation over the merger. Certainly, you would have imagined if he had evidence of this, he would have raised it in the trial proceedings, or even—you know—just … tweeted it out. He made some accusations about their handling of the bot situation, but given that was his failed predicate for trying to get out of the deal, it feels like really weak sauce to try to run back to this argument now, and to insert Musk’s business judgment for Twitter’s. Gross negligence and willful misconduct are very high bars for business decisions. We aren’t talking about a disagreement about vision or even implementation here, it would have to be egregious in the eyes of the everyperson, not in the eyes of Mr. Elon Musk. This is just not that scenario, not on October 26, 2022, not in light of the first “Twitter Files” release. There are no facts proven that show the types of actions that would be required to lead to the gross negligence and willful misconduct standard, especially because it would particularly be odd to allow the new owner to make these determinations post hoc, retroactively, for the time period while old management was still in place to render such judgments.

As Matt Levine also reported, citing The Financial Times, “In this instance, Musk’s argument is that Twitter has been mismanaged and that if it were not for his bid, the value of the company’s stock would have collapsed, one of the people said. The executives, according to a person familiar with their thinking, are weighing their legal options over the decision. Denying severance payments related to acquisitions is unusual and the “for cause” clause typically requires misconduct to have taken place.”

What kind of argument is that? It’s not even trying to be on the list of available “for cause” arguments. It’s some kind of inherent playground fairness argument, not the kind that a clear contract is going to abide.

So. Musk says “I’m not paying you.” The execs say, “you owe us monies.”

Ok, so what happens now? At least three of the executives, and likely a handful of other non-Section 16 reportable people, have a claim for failure to be paid, wherein Musk will presumably have the opportunity to air his grievances that he believes amount to what could constitute rightful “for cause” dismissal under the circumstances. But how and where does that process happen? Well, it’s also in the document.

First, there’s the Claims Procedure. Because remember, whatever isn’t paid is owed pursuant to a document that is incorporated into a Severance Plan that falls under ERISA. And the contract itself spells out the path to remedy:

Claims Procedure: Any Eligible Employee who believes he or she is entitled to any payment under the Policy may submit a claim in writing to the Administrator. If the claim is denied (in full or in part), the claimant will be provided a written notice explaining the specific reasons for the denial and referring to the provisions of the Policy on which the denial is based. The notice will also describe any additional information needed to support the claim and the Policy’s procedures for appealing the denial. The denial notice will be provided within 90 days after the claim is received. If special circumstances require an extension of time (up to 90 days), written notice of the extension will be given within the initial 90-day period. This notice of extension will indicate the special circumstances requiring the extension of time and the date by which the Administrator expects to render its decision on the claim.

Oh, okay. So, they just have to submit a claim in writing to the Administrator, who was undoubtedly fired in the recent cost cutting. So, then the claim can be denied (which presumably would be Musk’s plan if he believes he was entitled to dismiss them for cause), and then after the denial (also note there is unhelpfully no particular time period mentioned for how long they have to file a claim, nor for how long the Administrator has to respond to the claim request. But in that response, whenever it may come (likely backstopped by some ERISA maximum time periods applicable across the board), there will be a notice that gives the instructions for how to appeal. Then, it sounds like either party can ask for and receive a 90-day extension upon request (certainly, Musk will argue, it’s a special circumstance that he’s the CEO of a handful of companies all at once, including this one that these folks left in shambles). Then there is also a separate section with information about Appeal Procedure, which reads as follows:

Appeal Procedure: If the claimant’s claim is denied, the claimant (or his or her authorized representative) may apply in writing to the Administrator for a review of the decision denying the claim. Review must be requested within 60 days following the date the claimant received the written notice of their claim denial or else the claimant loses the right to review. The claimant (or representative) then has the right to review and obtain copies of all documents and other information relevant to the claim, upon request and at no charge, and to submit issues and comments in writing. The Administrator will provide written notice of the decision on review within 60 days after it receives a review request. If additional time (up to 60 days) is needed to review the request, the claimant (or representative) will be given written notice of the reason for the delay. This notice of extension will indicate the special circumstances requiring the extension of time and the date by which the Administrator expects to render its decision. If the claim is denied (in full or in part), the claimant will be provided a written notice explaining the specific reasons for the denial and referring to the provisions of the Policy on which the denial is based. The notice shall also include a statement that the claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents and other information relevant to the claim and a statement regarding the claimant’s right to bring an action under Section 502(a) of ERISA.

It appears that the two former Stock Plan Administrators have left Twitter in the past several months since the acquisition, so presumably the Administrator role is being handled by Musk, or the Comp Committee, which is also Musk, or the Board of Directors, which might include Jared Birchall, but it’s not clear. In any case, it’s mostly a process that is effectively going to be Execs v. Musk, Musk, & Musk, et al. So, who has incentive to delay justice here? And how long can it be delayed, just in this initial (and arguably sham) portion of the process?

Well, the claim has to be filed. Let’s count that as Day 1.

Administrator has 90 days to deny the claim but can then get a nearly-automatic self-executing extension for an additional 90 days on a claim of “special circumstances” — this puts us at Day 181 for a denial of the original claim.

Then, the appeal of the denial. Let’s say we give fast-working attorneys for the executives, who have likely been preparing their response during the 181 days prior, 20 days to file their request for review. They have a maximum of 60 days to apply in writing for a review, but it would be weird for the execs here to not push the ball forward as fast as possible, especially as Musk makes overtures of bankruptcy potential to the remaining employees. So, let’s say around Day 200, the Administrator has 60 days to provide written notice in response to a review request. But hey, another 60 day extension is available without much heavy lifting, just because it’s “needed” — so we’re now potentially at Day 320 to get a final decision on the denial of the claim, which would unlock the possibility of filing a legal action under Section 502(a) of ERISA. So, 10-11 months down the road, the parties get to tangle with the inevitable arbitration agreements they entered into, to see if this dispute is sufficiently concerned with their employment to be arbitrable, or to determine whether it can be filed publicly in court.

Although there’s a real question in my mind, and in the relevant case law, about whether Musk can gin up a post hoc rationale for an action he took on October 26, it’s hard not to see this latest “document dump” campaign as an attempt to win public support for denial of these parachutes.

One thing we might see from the executives here, depending on their appetite for litigation and their risk tolerance in poking the bear, is a claim for “deemed exhaustion” which is basically the white flag I have personally flown in the face of Musk’s modus operandi on many occasions over the past few months. If you can make a case that the plan has failed to follow reasonable claims procedures (for example, by having fired all the plan administrators and anyone working on such matters), you can skip straight to the next level of the boss fight, which in this case, is likely to be the question of arbitrability.

From there, the timeline stretches out even further into the future. To my mind, for those concerned about freedom of speech and the absence of suppression on free expression, the most critical thing here is the obvious silencing effect this situation has on the execs. Musk has not even been required to make any kind of public-facing good faith argument about why he is withholding these golden parachutes, but because the execs are up against years of legal and administrative action to recover what they believe is rightfully, and contractually, theirs—the effect is undoubtedly to silence them in the interim. Because, unlike SBF, most people with highly-paid, outstanding lawyers will generally obey the advice of counsel to please stfu, thank you very much.