Musk attorney flags 'bizarre' blue-ink entry in jury verdict

When the jury returned its verdict last week in a securities lawsuit against Elon Musk over allegedly false statements he made during his acquisition of Twitter, it wrote out a damages figure for each day of the class period. Class members could claim the damages number written next to the day they sold stock, multiplied by the number of shares they sold.

The jury wrote 97 of the 98 figures in black ink, but one number -- the damages amount for plaintiffs who sold on Aug. 9, 2022 -- was written in blue.

Not only is that consequential, according to a letter Musk's attorney Alexander B. Spiro of Quinn Emanuel Urquhart & Sullivan LLP sent Senior U.S. District Judge Charles R. Breyer on Thursday, it's evidence that his client didn't get a fair trial.

On that day, the jury awarded $4.20 a share in damages.

Throughout the trial, they'd hear about Musk's affinity for the number 420 -- a common reference to marijuana use. Musk bought the company for $54.20 a share and announced he'd secured funding for the deal on April 20, 2022. The references were part of his team's "jiu jitsu strategy," his financial advisors testified, to present an offer that appeared unserious before coming back with a strong offer Twitter would feel pressured to accept.

The blue ink, Spiro speculated, was a "bizarre and highly questionable" shot at his client.

"The bright blue number in a sea of black figures immediately jumps off the page, as was the apparent intent," Spiro, who didn't have a jury-facing role but did serve as a witness for the defense, wrote. "The jury's emphasis on the $4.20 number, which had no significance to its damages determination, but appears to be a mocking reference to a number previously associated with Mr. Musk, shows that the verdict was a mockery of justice: a commentary not on whether Mr. Musk committed securities fraud (he did not) but on the jury's views about Mr. Musk himself." Giuseppe Pampena v. Elon R. Musk, 3:22-cv-05937 (N.D. Cal., filed Oct. 10, 2022).

If the jurors used the verdict form to mock Musk, Spiro argued, they failed in their duty to separate their feelings about Musk from the facts of the case.

"The inescapable conclusion from the face of the verdict form is that the jury felt it appropriate to use its verdict to send a message to Mr. Musk, instead of properly discharging its solemn duty to render a just verdict," Spiro wrote.

Prior to trial, Musk's lawyers expressed concern that they wouldn't be able to seat a jury that could be impartial toward the outspoken Tesla CEO and former Trump administration affiliate. At jury selection, Breyer said that the majority of questionnaire responses from potential jurors indicated strong feelings about the defendant. When Breyer asked members of the jury pool if they were unable to judge the case fairly, over a third raised a hand.

Instead of trying to seat a jury without feelings about Musk, Breyer decided that he would allow jurors to serve as long as they felt they could set aside their opinions of the defendant and judge the case fairly.

But Spiro, who also used the letter to argue the plaintiffs unfairly excluded him from the trial, said the blue ink on the verdict form proves Musk was "deprived his right to a fair trial."

"Unfortunately, and as evidenced by the record and expressed on the jury's verdict form, each of those fears were realized. No reasonable and experienced person could have any faith in the fairness of this proceeding or its resulting verdict," Spiro wrote.

After two days of trial and three days of deliberation, the jury found Musk liable on Friday over a May 13, 2022, post saying the acquisition was "temporarily on hold," as well as a similar post he made later that month.

The jury found in Musk's favor on the plaintiffs' claim that his posts constituted a scheme to lower Twitter's stock price and renegotiate the deal.

After the verdict was read, attorneys for the plaintiffs told reporters they believe the verdict will total $2.6 billion once the claims process is complete.