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Dwyer\nClerk of Court JUL 31 2026\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n\n DOCKETING NOTICE\n\n\n Docket Number: 26-4928\n Originating Case Number: 3:22-cv-05937-CRB\n Short Title: Pampena, et al. v. Musk\n\n Dear Appellant/Counsel\n The United States Court of Appeals for the Ninth Circuit has received a copy of your\n notice of appeal and assigned the docket number above to your case.\n Please include this docket number on every filing you submit and in any communication\n you have with the court about this case. If you are ordering any transcript from the lower\n court, please give the docket number to the court reporter right away.\n Motions filed with the notice of appeal are not transferred to this court. You need to\n separately file on this court\u2019s docket any motion that seeks relief from this court.\n You must file a Disclosure Statement (Form 34) within 14 days of this notice if your\n case: (1) involves a corporation, association, joint venture, partnership, limited liability\n company, or similar entity; (2) is a bankruptcy case; (3) is a criminal case with an\n organizational victim; or (4) involves review of state court proceedings. See Ninth Circuit\n Rule 26-1.1.\n\n\n Failure to timely file the opening brief may also result in your case being dismissed.\n Please read the enclosed materials carefully.\n\f Case 3:22-cv-05937-CRB Document 592 Filed 07/31/26 Page 2 of 3\n\n Office of the Clerk\n United States Court of Appeals for the Ninth Circuit\n Post Office Box 193939\n San Francisco, California 94119-3939\n 415-355-8000\nMolly C. Dwyer\nClerk of Court\n\n\n\n TIME SCHEDULE ORDER\n\n\n Docket Number: 26-4928\n Originating Case Number: 3:22-cv-05937-CRB\n Case Title: Pampena, et al. v. Musk\n\n\n\n 8/5/2026\n Elon Musk Mediation Questionnaire due\n\n 8/13/2026\n Elon Musk Appeal Transcript Order Due\n\n 9/14/2026\n Elon Musk Appeal Transcript Due\n\n 10/22/2026\n Elon Musk Appeal Opening Brief Due\n\n 11/23/2026\n John Garrett Appeal Answering Brief Due\n Brian Belgrave Appeal Answering Brief Due\n Twitter Investor Group Appeal Answering Brief Due\n Nancy Price Appeal Answering Brief Due\n Giuseppe Pampena Appeal Answering Brief Due\n Steve Garrett Appeal Answering Brief Due\n\f Case 3:22-cv-05937-CRB Document 592 Filed 07/31/26 Page 3 of 3\n\nIf there were reported hearings, the parties shall designate and, if necessary, cross-\ndesignate the transcripts pursuant to 9th Cir. R. 10-3. If there were no reported hearings,\nthe transcript deadlines do not apply.\nThe optional reply may be filed within 21 days of service of the answering brief. See\nFed. R. App. P. 31 and 9th Cir. R. 31-2.1.\n\nMediation Questionnaire is available here. More information about the Mediation\nProgram is available here.\n\nIf the opening brief is not filed by the deadline, the court may dismiss this case. See\n9th Cir. R. 42-1.\n\f","ocr_status":2,"date_upload":"2026-08-03T11:53:11.061960-07:00","document_number":"592","attachment_number":null,"pacer_doc_id":"035027459002","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"USCA Case Number","acms_document_guid":""}],"date_created":"2026-08-03T11:32:11.491065-07:00","date_modified":"2026-09-21T16:53:04.722102-07:00","date_filed":"2026-07-31","time_filed":null,"entry_number":592,"recap_sequence_number":"2026-07-31.001","pacer_sequence_number":1803,"description":"USCA Case Number 26-4928 Court of Appeals for the Ninth Circuit for 112 USCA Case Number. (kmg, COURT STAFF) (Filed on 7/31/2026) (Entered: 08/03/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/472713156/","id":472713156,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/65412803/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/488155917/","id":488155917,"tags":[],"absolute_url":"/docket/65412803/591/giuseppe-pampena-v-elon-rmusk/","date_created":"2026-07-30T13:05:22.136781-07:00","date_modified":"2026-08-14T08:13:38.770067-07:00","sha1":"455370b04e46474285881cf7825a98ccd6fa5e88","page_count":3,"file_size":428534,"filepath_local":"recap/gov.uscourts.cand.401655/gov.uscourts.cand.401655.591.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.401655/gov.uscourts.cand.401655.591.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:22-cv-05937-CRB Document 591 Filed 07/30/26 Page 1 of 3\n\n\n\n\n UNITED STATES DISTRICT COURT\nFOR THE DISTRICT OF Northern District of California\n Form 1. Notice of Appeal from a Judgment or Order of a\n United States District Court\n\nU.S. District Court case number: 3:22-cv-05937-CRB\n Notice is hereby given that the appellant(s) listed below hereby appeal(s) to\nthe United States Court of Appeals for the Ninth Circuit.\n\nDate case was first filed in U.S. District Court: 10/10/2022\n\nDate of judgment or order you are appealing: 07/06/2026, 04/03/2026\n\nDocket entry number of judgment or order you are appealing: Dkts. 557, 590\nFee paid for appeal? (appeal fees are paid at the U.S. District Court)\n Yes No IFP was granted by U.S. District Court\nList all Appellants (List each party filing the appeal. Do not use \u201cet al.\u201d or other abbreviations.)\n Elon R. Musk\n\n\n\n\nIs this a cross-appeal? Yes No\nIf yes, what is the first appeal case number?\nWas there a previous appeal in this case? Yes No\nIf yes, what is the prior appeal case number? No. 24-6249\nYour mailing address (if pro se):\n\n\n\n\nCity: State: Zip Code:\n\nPrisoner Inmate or A Number (if applicable):\n\nSignature /s/ Ellyde Thompson Date July 30, 2026\n Complete and file with the attached representation statement in the U.S. District Court\n Feedback or questions about this form? Email us at forms@ca9.uscourts.gov\n\nForm 1 Rev. 06/09/2022\n\f Case 3:22-cv-05937-CRB Document 591 Filed 07/30/26 Page 2 of 3\n\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n Form 6. Representation Statement\n Instructions for this form: http://www.ca9.uscourts.gov/forms/form06instructions.pdf\nAppellant(s) (List each party filing the appeal, do not use \u201cet al.\u201d or other abbreviations.)\nName(s) of party/parties:\nElon R. Musk\n\n\nName(s) of counsel (if any):\nAlex Spiro; Ellyde R. Thompson; Jesse A. Bernstein, Stephen\nA. Broome; Alex Bergjans; Michael T. Lifrak\n\n\nAddress: 295 5th Avenue, 9th Floor, NY NY 10016; 865 S. Figueroa Street, 10th Fl., Los Angeles, CA 90017\nTelephone number(s): (212) 849-7000; (213) 443-3000\n ellydethompson@quinnemanuel.com;alexspiro@quinnemanuel.com;jessebernstein@quinnemanuel.com;\nEmail(s): stephenbroome@quinnemanuel.com, alexbergjans@quinnemanuel.com ,michaellifrak@quinnemanuel.com\n bernstein@\nIs counsel registered for Electronic Filing in the 9th Circuit? Yes No\n\nAppellee(s) (List only the names of parties and counsel who will oppose you on appeal. List\nseparately represented parties separately.)\nName(s) of party/parties:\nGiuseppe Pampena; The Twitter Investor Group; Brian Belgrave; Steve\nGarrett; John Garrett; Nancy Price\n\nName(s) of counsel (if any):\nJoseph W. Cotchett; Francis A. Bottini, Jr.; Mark C. Molumphy; Tyson C.\nRedenbarger; Elle D. Lewis; Gia Jung; Carolina A. Yuen; Aaron Paul Arnzen\n\n\nAddress: 840 Malcolm Road, Suite 200 Burlingame, California 94010; 7817 Ivanhoe Avenue Ste 102, La Jolla, CA 92037\nTelephone number(s): (650) 697-6000; (858) 914-2001\nEmail(s): fbottini@bottinilaw.com;mmolumphy@cpmlegal.com;jcotchett@cpmlegal.com; gal.com;trede\n tredenbarger@cpmlegal.com;cyuen@cpmlegal.com;elewis@cpmlegal.com, aarnzen@bottinilaw.com\n\n\n\nTo list additional parties and/or counsel, use next page.\n Feedback or questions about this form? Email us at forms@ca9.uscourts.gov\n\nForm 6 1 New 12/01/2018\n\f Case 3:22-cv-05937-CRB Document 591 Filed 07/30/26 Page 3 of 3\n\n\n\n\nContinued list of parties and counsel: (attach additional pages as necessary)\nAppellants\nName(s) of party/parties:\nElon R. Musk\n\nName(s) of counsel (if any):\n\n\n\nAddress:\nTelephone number(s):\nEmail(s):\nIs counsel registered for Electronic Filing in the 9th Circuit? Yes No\nAppellees\nName(s) of party/parties:\n\n\n\nName(s) of counsel (if any):\n\n\n\nAddress:\nTelephone number(s):\nEmail(s):\nName(s) of party/parties:\n\n\n\nName(s) of counsel (if any):\n\n\n\nAddress:\nTelephone number(s):\nEmail(s):\n Feedback or questions about this form? Email us at forms@ca9.uscourts.gov\n\nForm 6 2 New 12/01/2018\n\f","ocr_status":2,"date_upload":"2026-07-30T13:12:40.952687-07:00","document_number":"591","attachment_number":null,"pacer_doc_id":"035027448080","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice of Appeal to the Ninth Circuit","acms_document_guid":""}],"date_created":"2026-07-30T13:05:22.117720-07:00","date_modified":"2026-09-21T16:53:04.699205-07:00","date_filed":"2026-07-30","time_filed":"12:41:50","entry_number":591,"recap_sequence_number":"2026-07-30.001","pacer_sequence_number":1796,"description":"NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Elon Musk. Appeal of Order on Motion for Miscellaneous Relief,, Order on Motion for Judgment as a Matter of Law, 590, Judgment 557 (Appeal fee of $605 receipt number ACANDC-22278246 paid.) (Thompson, Ellyde) (Filed on 7/30/2026) (Entered: 07/30/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/469792148/","id":469792148,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/65412803/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/485143978/","id":485143978,"tags":[],"absolute_url":"/docket/65412803/590/giuseppe-pampena-v-elon-rmusk/","date_created":"2026-07-06T07:35:57.665208-07:00","date_modified":"2026-08-27T03:25:12.084815-07:00","sha1":"9cfb90929fabea22a15b3a078239b635c2f7c705","page_count":38,"file_size":1365886,"filepath_local":"recap/gov.uscourts.cand.401655/gov.uscourts.cand.401655.590.0_3.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.401655/gov.uscourts.cand.401655.590.0.pdf","ia_upload_failure_count":null,"thumbnail":"recap-thumbnails/gov.uscourts.cand.401655/485143978.thumb.1068.png","thumbnail_status":1,"plain_text":" Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 1 of 38\n\n\n\n\n 1\n 2\n 3\n 4\n 5 IN THE UNITED STATES DISTRICT COURT\n 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA\n 7\n 8 GIUSEPPE PAMPENA, et al., Case No. 22-cv-05937-CRB\n 9 Plaintiffs,\n ORDER ON POST-TRIAL\n 10 v. MOTIONS\n 11 ELON MUSK,\n 12 Defendant.\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Buyer\u2019s remorse is not an exception to the securities laws. These laws, in their\n 14 essence, are about trust. Trust that the country\u2019s financial markets are fair, honest, and\n 15 transparent. The market always picks winners and losers, but it is vital that those\n 16 outcomes are free of manipulation. The Securities Exchange Act of 1934 seeks to protect\n 17 public investors\u2014big and small\u2014by ensuring a level playing field. By insisting that\n 18 public statements which could affect the market be truthful, Congress sought to guarantee\n 19 that all members of the investing public have equal access to information and, most\n 20 importantly, that the information be accurate. A speaker\u2019s motive is not dispositive; what\n 21 matters is whether the statements were made with knowledge of their falsity or with a\n 22 deliberately reckless disregard for their accuracy. Even if the speaker has a change of\n 23 heart or a momentary regret about a transaction, such qualms do not justify lying to the\n 24 investing public.\n 25 This is a case about a breach of trust by Elon Musk. In April 2022, Musk sought to\n 26 buy Twitter, Inc., and take it private. He offered to buy the company at a significant\n 27 premium, $54.20 per share or about $44 billion total. Then, in order to sweeten the deal,\n 28 Musk offered to waive due diligence, making the agreement \u201cseller-friendly.\u201d Twitter\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 2 of 38\n\n\n\n\n 1 accepted the offer. The deal was publicly announced on April 25, 2022.\n 2 But Musk started having second thoughts. The purchase price was high and the\n 3 Tesla stock that he planned to use for financing was taking a hit, meaning he might have to\n 4 sell even more of it to compensate. So on May 13, despite waiving due diligence, Musk\n 5 tweeted that the deal was temporarily on hold until he received more details on how\n 6 Twitter calculated the level of bots/spam on its platform. Despite Musk\u2019s public\n 7 statement, the deal was not on hold and Musk had been aware of bot issues on Twitter\n 8 since before he made his tender offer. The Twitter share price dropped immediately and\n 9 significantly. On May 17, Musk made a similar tweet, asserting that the number of bots on\n 10 Twitter was much higher than Twitter was representing and that the deal could not move\n 11 forward until he received more information. The Twitter share price remained low until\n 12 October 4, when Musk announced that he would go through with the deal. On that day,\nNorthern District of California\n United States District Court\n\n\n\n\n 13 the price spiked.\n 14 Plaintiffs sued. They represent all sellers of Twitter stock between May 13 and\n 15 October 4. They brought claims based on Musk\u2019s two tweets, a separate statement made\n 16 on May 16, and a purported months-long scheme by Musk to artificially depress Twitter\u2019s\n 17 share price. After a two-week trial and more than three days of deliberations, a jury\n 18 unanimously found that Musk\u2019s two tweets were false, and that the investing public was\n 19 damaged.\n 20 Musk now seeks to set aside this verdict and moves for a judgment as a matter of\n 21 law or, alternatively, for a new trial. JMOL (dkt. 570). He also asks this Court to decertify\n 22 the class based on the general nature of the verdict. Mot. to Decertify (dkt. 571). Plaintiffs\n 23 bring post-trial motions of their own. They seek an award of prejudgment interest and\n 24 approval of their class notice of the verdict and proposed claims administration process.\n 25 MPI (dkt. 565); MFA (dkt. 567). As explained below, the Court GRANTS Musk\u2019s\n 26 motion for a judgment as a matter of law as to his May 17 tweet and DENIES it in all\n 27 other respects. The Court also DENIES his motion to decertify the class. The Court\n 28 GRANTS Plaintiffs\u2019 motion for prejudgment interest and motion for approval of their\n 2\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 3 of 38\n\n\n\n\n 1 proposed class notice and claims administration procedure.\n 2 I. MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE\n ALTERNATIVE, A NEW TRIAL\n 3\n Musk argues that Plaintiffs, as a matter of law, failed to prove (1) loss causation, (2)\n 4\n material falsity, (3) scienter, (4) reliance, and (5) damages. JMOL at 2\u20134. He also asserts\n 5\n that he is entitled to a new trial, in the alternative. The Court GRANTS the motion only as\n 6\n to loss causation for Musk\u2019s May 17 tweet. The Court addresses each argument in turn.\n 7\n A. Legal Standard\n 8\n A motion for judgment as a matter of law is appropriate where \u201ca reasonable jury\n 9\n would not have a legally sufficient evidentiary basis to find for the [nonmoving] party on\n 10\n that issue.\u201d Fed. R. Civ. P. 50(a)(1). A court can grant a judgment as a matter of law \u201cif\n 11\n the evidence, construed in the light most favorable to the nonmoving party, permits only\n 12\nNorthern District of California\n United States District Court\n\n\n\n\n one reasonable conclusion, and that conclusion is contrary to the jury\u2019s verdict.\u201d Pavao v.\n 13\n Pagay, 307 F.3d 915 918 (9th Cir. 2002). A court must uphold a jury\u2019s verdict if \u201cit is\n 14\n supported by substantial evidence that is adequate to support the jury\u2019s findings, even if\n 15\n contrary findings are also possible.\u201d Escriba v. Foster Poultry Farms, Inc., 743 F. 3d 1236,\n 16\n 1242 (9th Cir. 2014). A court must review the evidence as a whole and \u201cdisregard\n 17\n evidence favorable to the moving party that the jury is not required to believe,\u201d and the\n 18\n court \u201cmay not substitute its view of the evidence for that of the jury.\u201d Johnson v. Paradise\n 19\n Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001) (internal quotations\n 20\n omitted).\n 21\n Under Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure, a trial court may\n 22\n grant a new trial after a jury trial \u201cfor any reason for which a new trial has heretofore been\n 23\n granted in an action at law in federal court.\u201d Specifically, a court may grant a new trial\n 24\n \u201conly if the verdict is contrary to the clear weight of the evidence, is based upon false or\n 25\n perjurious evidence, or to prevent a miscarriage of justice.\u201d Shimko v. Guenther, 505 F.3d\n 26\n 987, 993 (9th Cir. 2007) (internal quotations omitted). Such a motion may be granted on\n 27\n insufficiency of evidence grounds \u201conly if the verdict is against the great weight of the\n 28\n 3\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 4 of 38\n\n\n\n\n 1 evidence, or it is quite clear that the jury has reached a seriously erroneous result.\u201d Incalza\n 2 v. Fendi N. Am., Inc., 479 F.3d 1005, 1013 (9th Cir. 2007) (internal quotation marks\n 3 omitted).\n 4 B. Loss Causation\n 5 Musk challenges the sufficiency of the evidence that his May 13 and 17 tweets\n 6 caused the class to suffer a loss in the market. JMOL at 14. For the May 13 tweet, Musk\n 7 asserts that Plaintiffs failed to prove (1) proximate causation, (2) that the market perceived\n 8 his statements as true, (3) that there was a corrective disclosure, and (4) that the\n 9 misrepresentation caused loss after his July 8 termination letter. Id. at 15\u201319. Plaintiffs\n 10 respond that there was sufficient evidence of proximate causation and corrective\n 11 disclosure. JMOL Opp\u2019n at 8\u201310. Musk also argues that there was no market reaction to\n 12 the May 17 tweet, so Plaintiffs had no evidence of loss. JMOL at 15. Plaintiffs counter\nNorthern District of California\n United States District Court\n\n\n\n\n 13 that the May 17 tweet helped maintain the price deflation caused by the May 13 tweet.\n 14 JMOL Opp\u2019n at 7\u20138. The Court agrees with Musk as to the May 17 tweet.\n 15 1. May 13 Tweet\n 16 a. Proximate Causation\n 17 \u201cLoss causation is shorthand for the requirement that investors must demonstrate\n 18 that the defendant\u2019s deceptive conduct caused their claimed economic loss.\u201d Lloyd v.\n 19 CVB Fin. Corp., 811 F.3d 1200, 1209 (9th Cir. 2016) (citation modified). It is \u201csimply a\n 20 variant of proximate cause\u201d and \u201cthe ultimate issue is whether the defendant\u2019s\n 21 misstatement, as opposed to some other fact, foreseeably caused the plaintiff\u2019s loss.\u201d Id. at\n 22 1210. \u201cA plaintiff is not required to show \u2018that a misrepresentation was the sole reason for\n 23 the investment\u2019s decline in value\u2019 to establish loss causation. \u2018[A]s long as the\n 24 misrepresentation is one substantial cause of the investment\u2019s decline in value, other\n 25 contributing forces will not bar recovery under the loss causation requirement.\u2019\u201d Nuveen\n 26 Mun. High Income Opportunity Fund v. City of Alameda, 730 F.3d 1111, 1119 (9th Cir.\n 27 2013) (emphasis in original) (quoting In re Daou Sys., 411 F.3d 1006, 1025 (9th Cir.\n 28 2005)).\n 4\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 5 of 38\n\n\n\n\n 1 \u201cTypically, in securities cases, loss causation is shown by the drop in share price\n 2 due to a misstatement or omission by the defendant.\u201d See Edenbrook Cap., LLC v.\n 3 RhythmOne Plc, No. 19-CV-00615-WHO, 2019 WL 1791419, at *8 (N.D. Cal. Apr. 24,\n 4 2019). Here, Dr. Tabak testified that there was direct evidence that the May 13 tweet\n 5 caused an immediate, significant drop in Twitter\u2019s share price. Trial Tr. at 1865:12\u2013\n 6 1866:6 (Tabak). Musk argues that there was no evidence that the false statement\u2014that the\n 7 deal was temporarily on hold\u2014caused the impact on the share price. JMOL at 15. Not so.\n 8 Dr. Tabak testified that he evaluated news stories and analyst reports about the tweet and\n 9 that they were \u201cgenerally in accord\u201d that Musk\u2019s \u201cdeclaring the deal temporarily on\n 10 hold[]\u201d was causing the price decline.1 Trial Tr. at 1866:12\u20131867:7.\n 11 b. Market Perception\n 12 Next, Musk asserts that there was insufficient evidence of loss causation because\nNorthern District of California\n United States District Court\n\n\n\n\n 13 the market knew the truth that the deal was not actually on hold. JMOL at 16. He points\n 14 to Dr. Tabak\u2019s testimony that everyone knew that \u201cTwitter did not agree to put the deal on\n 15 hold\u201d and there were comments \u201cthat you can\u2019t put it on hold.\u201d Id. (quoting Trial Tr. at\n 16 1908:23\u20131909:19). But as Plaintiffs note, Twitter\u2019s public statements had nothing to do\n 17 with Musk and his position on the merger. See JMOL Opp\u2019n at 9. To the public, it could\n 18 have been entirely possible that Musk was unilaterally holding up the deal. Musk also\n 19 notes that there was no statistically significant price reaction to his later comments about\n 20 working on his deal financing, which he argues supports his position that the market knew\n 21 the deal was not on hold. JMOL at 17. That is certainly evidence that cuts against\n 22 Plaintiffs. But it does not necessarily mean that the deal generally was not continuing as\n 23 usual. See Pavao, 307 F.3d at 918 (courts must construe evidence \u201cin the light most\n 24\n 1\n 25 Musk also argues that Dr. Tabak did not distinguish any price impact from the true information\n that Musk had concerns about the deal. JMOL at 18. But Dr. Tabak testified that his investigation\n 26 showed that the literal falsity of Musk\u2019s tweet was what the news was reporting. Moreover, Dr.\n Tabak explained that Musk\u2019s heightened concerns could potentially play a part in the market\u2019s\n 27 interpretation. Trial Tr. at 1905:4\u201313. But, he continued, Musk \u201cdidn\u2019t just imply that he had\n heightened concern; he suggested he was taking a certain action by temporarily putting the deal on\n 28 hold.\u201d Id.; see also Nuveen, 730 F.3d at 1119 (misrepresentations need not be the sole reason for\n a decline in share price).\n 5\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 6 of 38\n\n\n\n\n 1 favorable to the nonmoving party\u201d). And it does not render Plaintiffs\u2019 other evidence\u2014as\n 2 discussed above\u2014about market perception insubstantial. Castro v. Cnty. of Los Angeles,\n 3 833 F.3d 1060, 1066 (9th Cir. 2016) (courts must uphold verdicts if there is \u201cevidence\n 4 adequate to support the jury\u2019s conclusion, even if it is also possible to draw a contrary\n 5 conclusion\u201d).\n 6 Musk also argues that Dr. Tabak did not disaggregate non-fraud factors that could\n 7 have impacted Twitter\u2019s price drop, such as the May 15 publication of the SparkToro\n 8 report about bots on Twitter. JMOL at 18. Additionally, he posits that Dr. Tabak\u2019s\n 9 decision to \u201cattribute the May 16 stock market drop to the purported fraud\u201d was defective.\n 10 Id. Neither argument persuades. As to the SparkToro report, there was no evidence that it\n 11 affected Twitter\u2019s share price. Indeed, Dr. Tabak testified that he did not \u201csee it in any\n 12 news stories or any analyst reports in that period.\u201d Trial Tr. at 1893:19\u201324. And as\nNorthern District of California\n United States District Court\n\n\n\n\n 13 discussed below regarding damages, Dr. Tabak sought to exclude unrelated stock impacts\n 14 from his analysis. See infra Section I.F.\n 15 As to Dr. Tabak\u2019s two-day damage calculation window for May 13 and 16, \u201cthere\n 16 are many cases that find that multi-day event windows are appropriate for event study\n 17 analysis in securities fraud class actions.\u201d Monroe Cnty. Employees\u2019 Ret. Sys. v. S. Co.,\n 18 332 F.R.D. 370, 391 (N.D. Ga. 2019) (collecting cases); see Hsu v. Puma Biotechnology,\n 19 Inc., No. SACV1500865AGJCGX, 2018 WL 4956520, at *4 (C.D. Cal. Oct. 5, 2018) (\u201cno\n 20 disqualifying problem\u201d with two-day loss causation window); In re Vivendi Universal,\n 21 S.A. Sec. Litig., 634 F. Supp. 2d 352, 372 (S.D.N.Y. 2009) (three-day window). Dr.\n 22 Tabak explained that he concluded May 16 was a continuation of the May 13 decline\n 23 because, after market close, there are news stories, analyst reports, and individuals who do\n 24 not trade during the day that can affect the next trading day. Trial Tr. at 1896:15\u201320.\n 25 Although Musk relies on In re Omnicom Group, Inc. Securities Litigation to argue that\n 26 news of already-public information is insufficient for loss causation, the news in that case\n 27 was reporting facts that had been disclosed much earlier. See JMOL at 19 (citing In re\n 28 Omnicom Group, Inc. Securities Litigation, 597 F.3d 501, 505\u201306 (2d Cir. 2010) (negative\n 6\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 7 of 38\n\n\n\n\n 1 article describing events transpiring months earlier)). Here, the news Dr. Tabak reviewed\n 2 was between trading days. See Trial Tr. at 1896:15\u201320.\n 3 c. Corrective Disclosure\n 4 Musk contends that Plaintiffs failed to prove a corrective disclosure theory of loss\n 5 causation. JMOL at 19. Plaintiffs respond that they do not have to prove a corrective\n 6 disclosure in a seller case and that they did prove one, in any event. JMOL Opp\u2019n at 9\u201311.\n 7 The Court agrees with Plaintiffs.\n 8 For starters, Musk is incorrect that the law requires Plaintiffs to prove a corrective\n 9 disclosure for loss causation. See Richardson v. TVIA, Inc., No. C 06 06304 RMW, 2007\n 10 WL 1129344, at *5 (N.D. Cal. Apr. 16, 2007) (\u201cOther courts have similarly held that a\n 11 corrective disclosure is not necessary where the subject of the misrepresentation and\n 12 omissions caused the loss.\u201d). Nevertheless, Musk argues that the Supreme Court\u2019s logic in\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Dura Pharmaceuticals, Inc. v. Broudo means a seller does not suffer a loss if they sell and\n 14 rebuy shares before a corrective disclosure. JMOL at 19. But Plaintiffs are right that, in a\n 15 seller case, loss is realized before a corrective disclosure. See JMOL Opp\u2019n at 10.\n 16 Dura merely stands for the proposition that \u201can inflated purchase price will not\n 17 itself constitute or proximately cause the relevant economic loss.\u201d 544 U.S. 336, 342\n 18 (2005). The Supreme Court reasoned that a purchaser of an inflated price could sell shares\n 19 before the truth comes out, meaning \u201cthe misrepresentation will not have led to any loss.\u201d\n 20 Id. In a seller case, by contrast, a seller suffers a loss at the moment of sale. The seller is\n 21 forced to sell at an artificially deflated price, immediately realizing their loss. And it\n 22 would be the misrepresentation that caused the artificial deflation in the first place. If the\n 23 seller were later to rebuy at the same price, it would be a different transaction entirely and\n 24 distinguishable from the principle espoused in Dura. See id. (\u201cShares are normally\n 25 purchased with an eye toward a later sale.\u201d).\n 26 Regardless, Plaintiffs provided substantial evidence of a corrective disclosure on\n 27 October 4, 2022. Dr. Tabak testified that, when Musk filed his statement that he would go\n 28 through with the Twitter deal, the share price jumped over 20%, resulting in two trading\n 7\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 8 of 38\n\n\n\n\n 1 suspensions for the stock. See Trial Tr. at 1868:3\u20131869:22. Dr. Tabak concluded that\n 2 there was nothing other than Musk\u2019s statement that could have accounted for the sharp\n 3 increase in price. Id. at 1869:23\u20131870:2 (Tabak) (\u201cThe only other news was basically\n 4 commentary reaction to the SEC filing.\u201d). Musk asserts that Dr. Tabak\u2019s testimony is still\n 5 not evidence of a corrective disclosure because Dr. Tabak said it was not part of his expert\n 6 opinion. JMOL Reply at 12. But this mischaracterizes the testimony\u2014especially in the\n 7 light most favorable to Plaintiffs.\n 8 Musk\u2019s counsel\u2019s question on this point was very specific. He asked Dr. Tabak to\n 9 confirm that he was \u201cnot claiming that any information that came out was corrective of Mr.\n 10 Musk\u2019s alleged false statement.\u201d Trial Tr. at 1907:11\u201313 (emphasis added). Dr. Tabak\n 11 answered that it was \u201cnot part of [his] opinion.\u201d Id. at 1907:14. Dr. Tabak did not say that\n 12 there was no corrective disclosure. He simply said that whether or not the disclosure was,\nNorthern District of California\n United States District Court\n\n\n\n\n 13 in fact, corrective was not a part of his opinion. See In re Vaxart, Inc. Sec. Litig., No. 20-\n 14 CV-05949-VC, 2025 WL 1869694, at *2 n.2 (N.D. Cal. July 7, 2025) (noting that what\n 15 constitutes a corrective disclosure is for the trier of fact).\n 16 d. Post-July 8 Loss\n 17 Musk asserts that his July 8 termination letter was an intervening event and that\n 18 Plaintiffs did not have evidence of loss causation after that date. JMOL at 19\u201320. The\n 19 Court disagrees. As explained further regarding damages, Dr. Tabak calculated the loss\n 20 attributable to the May 13 tweet by creating a constant percentage of deflation derived\n 21 from the \u201cmerger discount\u201d between Musk\u2019s offered price per share and the actual stock\n 22 price. Trial Tr. at 1846:13\u20131847:3 (Tabak); see also infra Section I.F. And he made sure\n 23 to exclude additional deflation stemming from Musk\u2019s letter from his analysis. See id. at\n 24 1849:20\u20131850:9. Nevertheless, Dr. Tabak concluded that there was still deflation\n 25 attributable to May 13 after July 8, even though it was a smaller percentage of the merger\n 26 discount. Id. at 1850:4\u20139. He testified that the deflation only vanished when Musk finally\n 27 announced he would go through with the deal on October 4. See Trial Tr. at 1868:3\u2013\n 28 1869:22. Musk raises the fair point that Dr. Tabak did not analyze whether Twitter\u2019s share\n 8\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 9 of 38\n\n\n\n\n 1 price would have fallen to the same level if Musk issued the termination letter but never\n 2 tweeted on May 13. JMOL at 20 (quoting Trial Tr. at 1918:25\u20131919:15). But although\n 3 that undermines Plaintiffs\u2019 position, the argument does not mean the jury was without\n 4 sufficient evidence of loss causation after July 8. See In re Genius Brands Int\u2019l, Inc. Sec.\n 5 Litig., 97 F.4th 1171, 1183 (9th Cir. 2024) (misrepresentations need not be the sole reason\n 6 for price decline).\n 7 2. May 17 Tweet\n 8 Musk argues that the lack of a market reaction to the May 17 tweet meant there was\n 9 no loss causation attributable to it. JMOL at 15. Plaintiffs point out that Dr. Tabak\n 10 testified that the May 17 tweet maintained the deflation from the May 13 tweet. JMOL\n 11 Opp\u2019n at 7. The Court agrees with Musk.\n 12 Dr. Tabak did not provide an expert opinion on price maintenance. In fact, he\nNorthern District of California\n United States District Court\n\n\n\n\n 13 affirmatively disclaimed such an opinion. To be sure, he did testify that the May 17\n 14 \u201cmaintained the prior deflation.\u201d Trial Tr. at 1881:14\u201320 (Tabak); id. at 1882:1\u20136 (\u201c[I]f\n 15 the question that the jury wants to address is what would have happened if, you know,\n 16 having spoken and said something incorrect, Mr. Musk should have corrected it, then the\n 17 answer should be that these maintained the deflation from May 13th.\u201d). But Dr. Tabak\n 18 then clarified that he was \u201cnot affirmatively saying this is a price maintenance case.\u201d Trial\n 19 Tr. at 1882:16\u201320; see also id. at 1882:14\u201315 (\u201cQ. And you said you\u2019re not offering that\n 20 opinion, right? A. If that\u2019s what I said, that\u2019s what I said, yes.\u201d).\n 21 Without an expert opinion on price maintenance, Plaintiffs lack substantial evidence\n 22 to support a finding of loss causation with respect to the May 17 tweet. See In re REMEC\n 23 Inc. Sec. Litig., 702 F. Supp. 2d 1202, 1275 (S.D. Cal. 2010) (granting summary judgment\n 24 on loss causation as plaintiffs lacked expert testimony to prove it). Because Plaintiffs did\n 25 not have sufficient evidence for a key element of their case, the Court GRANTS Musk\u2019s\n 26 motion for a judgment as a matter of law for the May 17 tweet.2\n 27\n 2\n 28 As the Court grants Musk\u2019s motion as to the May 17 tweet, it will not address arguments\n pertaining to that tweet for the remainder of the order.\n 9\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 10 of 38\n\n\n\n C. Material Falsity\n 1\n Musk asserts that the May 13 tweet was neither false nor material. JMOL at 20.\n 2\n Plaintiffs disagree. See JMOL Opp\u2019n at 12\u201314. As Musk\u2019s arguments primarily go to his\n 3\n view of the evidence, rather than its sufficiency, the Court denies his motion as to material\n 4\n falsity.\n 5\n 1. Falsity\n 6\n Musk argues that the May 13 tweet was not false because it only stated that the deal\n 7\n was temporarily on hold pending details, and the evidence at trial showed that the merger\n 8\n was held up while Musk sought spam information. JMOL at 20. Not so. There was\n 9\n substantial evidence of falsity.\n 10\n In his tweet, Musk stated, \u201cTwitter deal temporarily on hold pending details\n 11\n supporting calculation that spam/fake accounts do indeed represent less than 5 percent of\n 12\nNorthern District of California\n United States District Court\n\n\n\n\n users.\u201d Trial Ex. 97. Despite his public statement, Musk did not instruct his team or\n 13\n lawyers to stop work on the deal. See Trial Tr. at 772:25\u2013773:6 (Musk). Indeed, one of\n 14\n his bankers at Morgan Stanley testified that the tweet surprised her and that Musk never\n 15\n put the deal on hold or directed his team to do so. Trial Tr. at 1602:23\u20131603:14 (Claassen)\n 16\n (\u201cWe were never directed to put the deal on hold.\u201d). Even a member of the Twitter team\n 17\n testified that Musk had never notified them about a hold and that the deal was not, in fact,\n 18\n on hold\u2014temporarily or otherwise. See id. at 1103:7\u201317 (Segal) (\u201cQ. Was the Twitter\n 19\n deal on hold? A. No.\u201d); see also id. at 395:12\u201316 (Gadde) (\u201cQ. Did [Musk] tell Twitter to\n 20\n stop working on the deal? A. Not to my recollection.\u201d). That is sufficient evidence for the\n 21\n jury to find that the tweet was literally not true.\n 22\n Additionally, Plaintiffs assert that the tweet represented to the public that Musk had\n 23\n the right to put the deal on hold, despite Musk waiving due diligence in a seller-friendly\n 24\n agreement. JMOL Opp\u2019n at 13. Musk responds that his statement would be \u201can opinion\n 25\n not actionable under the securities laws even if incorrect.\u201d JMOL at 21. But opinions can\n 26\n still be actionable if they affirm that the speaker holds the stated belief, they embed\n 27\n statements of fact, and a reasonable investor could understand them to convey facts about\n 28\n 10\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 11 of 38\n\n\n\n\n 1 the speaker\u2019s basis for the view. Golub v. Gigamon Inc., 994 F.3d 1102, 1106 (9th Cir.\n 2 2021) (citing Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension Fund, 575\n 3 U.S. 175 (2015)); see also Jury Instructions (dkt. 527) at 20 (instruction on actionable\n 4 opinions). Here, a jury could rely on evidence that Musk publicly claimed a right that he\n 5 did not enforce in private to find that his professed opinion was false.\n 6 2. Materiality\n 7 Musk also contends that the falsity of the tweet was not material. JMOL at 21. For\n 8 a misrepresentation to be material, \u201cthere must be a substantial likelihood that the\n 9 disclosure of the omitted fact would have been viewed by the reasonable investor as\n 10 having significantly altered the \u2018total mix\u2019 of information made available.\u201d Basic Inc. v.\n 11 Levinson, 485 U.S. 224, 232 (1988) (citation modified). There was substantial evidence\n 12 that the May 13 tweet was material.\nNorthern District of California\n United States District Court\n\n\n\n\n 13 First off, Musk\u2014a Twitter investor seeking to purchase all outstanding common\n 14 stock at the time\u2014testified that his tweets about the deal were \u201cmaterial information\u201d\n 15 about the deal\u2019s status that \u201cthe public should know.\u201d Trial Tr. at 667:12\u2013668:5 (Musk).\n 16 Brian Belgrave, one of the Plaintiffs, testified that he believed the deal being on hold\n 17 \u201ccreated the concern, created the uncertainty that created the fear in the market.\u201d Id. at\n 18 305:13\u201322 (Belgrave). The tweet was also quickly followed by a significant reduction in\n 19 Twitter\u2019s share price. See In re Alphabet, Inc. Sec. Litig., 1 F.4th 687, 703 (9th Cir. 2021)\n 20 (immediate market reaction supported materiality). And Dr. Tabak testified that this\n 21 \u201cbasically instantaneous\u201d reaction was statistically significant. Trial Tr. at 1825:23\u2013\n 22 1826:20 (Tabak). That is enough evidence to support the jury\u2019s finding of materiality.\n 23 D. Scienter\n 24 Musk contends that there was no evidence of scienter because he acted in good\n 25 faith, believing his statements were true when he made them. JMOL at 22. He relies\n 26 primarily on his own testimony to support his position. See id. at 22\u201323. But \u201cit is rare\n 27 that perpetrators of a fraud would confess outright.\u201d In re Peoplesoft, Inc., No. C 99-\n 28 00472 WHA, 2000 WL 1737936, at *3 (N.D. Cal. May 25, 2000). That is why \u201cproof of\n 11\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 12 of 38\n\n\n\n\n 1 scienter in fraud cases is often a matter of inference from circumstantial evidence.\u201d\n 2 DSAM Glob. Value Fund v. Altris Software, Inc., 288 F.3d 385, 390 (9th Cir. 2002)\n 3 (internal citation omitted). Courts may consider evidence of \u201cmotive\u201d or \u201cpersonal\n 4 financial gain\u201d for inferences of scienter. Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551\n 5 U.S. 308, 325 (2007). The Court concludes that there was substantial evidence to support\n 6 a finding that Musk knowingly made \u201can untrue statement with the knowledge that the\n 7 statement was false or with deliberate reckless disregard for whether the statement was\n 8 true.\u201d See Jury Instructions at 21.\n 9 For starters, there was sufficient evidence that Musk had a motive to back out of, or\n 10 at least renegotiate, the deal. Musk had planned to\u2014and eventually did\u2014use stock from\n 11 his other company, Tesla, Inc., to buy Twitter. See Trial Tr. at 555:14\u2013556:25 (Birchall).\n 12 Tesla had \u201ca special place in [Musk\u2019s] heart\u201d but the Tesla share price dropped\nNorthern District of California\n United States District Court\n\n\n\n\n 13 significantly after he agreed to buy Twitter. See id. at 742:5\u20137; Trial Ex. 261 (showing\n 14 decline in Tesla share price). As Plaintiffs note, it could mean Musk may have had to sell\n 15 more Tesla stock to pay for the deal as it was then-structured. See JMOL Opp\u2019n at 16.\n 16 And there was evidence Musk told his biographer that the cost of the deal would require\n 17 him to \u201ctake on a lot of debt\u201d and he believed it would \u201cwork out at a much lower\n 18 price . . . literally half or something.\u201d Trial Tr. at 976:11\u201323 (Isaacson).\n 19 There was also evidence that Musk\u2019s publicly-stated reason for his problem with the\n 20 deal\u2014the number of bots on Twitter\u2014was something he knew he was misrepresenting.\n 21 As he stated in his May 13 tweet (and others), Musk was publicly arguing that the number\n 22 of bots on Twitter was much higher than Twitter represented and that he would not close\n 23 until Twitter gave him answers regarding its methodology. He testified that his impression\n 24 of the high number of bots came from his user experience on the platform. Trial Tr. at\n 25 690:24\u2013691:6 (Musk). In fact, he conceded that even before he signed the merger\n 26 agreement, he thought there were more bots on Twitter than it represented. See id. at\n 27 693:6\u201318. Musk testified that, before he signed the deal, he believed spam was \u201crunning\n 28 rampant\u201d and thought he could fix it. Id. at 694:4\u201317.\n 12\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 13 of 38\n\n\n\n\n 1 But at the same time, Musk said he knew that Twitter estimated its bot percentage\n 2 by looking at the number of people or accounts that logged into Twitter on a given day, or\n 3 the monetizable daily active users (\u201cmDAU\u201d). Id. at 711:14\u2013712:8. Musk was aware that\n 4 mDAU included users who merely lurked on the app and did not leave a publicly\n 5 noticeable footprint, which he understood included \u201cmost of the people in mDAU.\u201d Id. at\n 6 712:4\u201311. Nevertheless, Musk repeatedly insisted that there were more bots on Twitter\n 7 than it claimed merely because bot activity was actually visible, even though mDAU\n 8 mostly included users without online footprints. See id. at 789:22\u201325 (\u201cQ. You\u2019re using\n 9 the wrong denominator, though, aren\u2019t you? A. It\u2019s\u2014I\u2019m using the number that people\n 10 can experience. Like what is their experience in the platform? Does it seem like only 5\n 11 percent is bots and spam?\u201d).\n 12 Accordingly, the evidence at trial supports a jury finding of scienter. A jury could\nNorthern District of California\n United States District Court\n\n\n\n\n 13 conclude that Musk had a motive to get out of the existing deal and used bots as a pretext\n 14 to do so. The evidence also showed that Musk was aware of the impact his tweets could\n 15 have on the stock market. Trial Tr. at 664:13\u201321. And his conduct behind the scenes,\n 16 such as not actually telling Twitter or his team that the deal was on hold, supports a strong\n 17 inference of knowledge\u2014or at least deliberate recklessness\u2014as to the falsity of his\n 18 statements.\n 19 E. Reliance\n 20 Musk asserts that Plaintiffs did not offer evidence that the fraud-on-the-market\n 21 presumption applied and that there was also no evidence of individual reliance. JMOL at\n 22 23\u201324. Plaintiffs argue that they did not need evidence of individual reliance because the\n 23 evidence properly established the fraud-on-the-market presumption. JMOL Opp\u2019n at 18.\n 24 The Court agrees with Plaintiffs that the presumption applied and was not rebutted.\n 25 The fraud-on-the-market theory recognizes a \u201crebuttable presumption of reliance on\n 26 material misrepresentations aired to the general public.\u201d Amgen Inc. v. Connecticut Ret.\n 27 Plans & Tr. Funds, 568 U.S. 455, 461 (2013). It \u201crests on the premise that certain well\n 28 developed markets are efficient processors of public information.\u201d Id. Accordingly, the\n 13\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 14 of 38\n\n\n\n\n 1 market price will reflect \u201call publicly available information, and hence, any material\n 2 misrepresentations.\u201d Basic, 485 U.S. at 246. \u201c[A]nyone who purchases the stock at the\n 3 market price may be considered to have done so in reliance on the misrepresentation.\u201d\n 4 Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 284 (2014). \u201cTo invoke the\n 5 Basic presumption, a plaintiff must prove: (1) that the alleged misrepresentation was\n 6 publicly known; (2) that it was material; (3) that the stock traded in an efficient market;\n 7 and (4) that the plaintiff traded the stock between the time the misrepresentation was made\n 8 and when the truth was revealed.\u201d Goldman Sachs Grp., Inc. v. Arkansas Tchr. Ret. Sys.,\n 9 594 U.S. 113, 118 (2021). The Court determines that Plaintiffs availed themselves of the\n 10 fraud-on-the-market presumption because they provided sufficient evidence for each of the\n 11 Basic factors.\n 12 For the first factor, it is undisputed that Musk\u2019s tweets were publicly known on\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Twitter. And for the second factor, as previously discussed, Musk\u2019s tweets were\n 14 materially false. For the third factor, Dr. Tabak testified that Twitter stock traded on an\n 15 efficient market. See Trial Tr. at 1809:24\u20131810:10 (Tabak).3 As to the fourth factor, the\n 16 Class Period is limited to class members who sold between Musk\u2019s misrepresentation and\n 17 when the truth\u2014that he was going to buy Twitter\u2014was revealed. See JMOL Opp\u2019n at 19.\n 18 Musk asserts that he rebutted the presumption by providing evidence that the\n 19 market already knew the truth and so his misrepresentations could not have affected the\n 20 market price. JMOL at 24. A defendant can rebut the presumption with a \u201cshowing that\n 21 severs the link between the alleged misrepresentation and either the price received (or\n 22 paid) by the plaintiff.\u201d Basic, 485 U.S. at 248. Musk points out that the market knew he\n 23 had \u201cwaived diligence well before May 13,\u201d so his tweet could not have affected Twitter\u2019s\n 24\n 3\n 25 Musk argues that the Plaintiffs\u2019 theory of loss causation did not show an efficient market because\n there was no immediate market response to his May 13 tweet. JMOL at 23. \u201cBut an immediate\n 26 response is not required for loss causation.\u201d Miller v. Thane Int\u2019l, Inc., 615 F.3d 1095, 1103 (9th\n Cir. 2010) (emphasis in original). Regardless, Musk misconstrues the evidence. Dr. Tabak did\n 27 testify that there was an immediate decline in the Twitter stock price after the May 13 tweet. Trial\n Tr. at 1892:25\u20131893:2. Musk\u2019s argument against the inclusion of May 16 in Dr. Tabak\u2019s event\n 28 study confuses the timing of the reaction with its duration. See JMOL at 23 (inclusion of May 16\n stock drop \u201cis incompatible with an efficient market\u201d).\n 14\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 15 of 38\n\n\n\n\n 1 stock price. JMOL at 24. But Musk did not carry his burden here \u201cby a preponderance of\n 2 the evidence.\u201d See Goldman, 594 U.S. at 126. As Plaintiffs note, Musk himself presented\n 3 evidence to contest what waiving due diligence meant and, therefore, what the market may\n 4 have known. See, e.g., Trial Tr. at 732:7\u20139 (Musk) (\u201cQ. You knowingly, voluntarily,\n 5 strategically waived due diligence in order to make this offer more attractive to Twitter,\n 6 right? A. On the assumption that the public filings were accurate.\u201d); id. at 1752:5\u201313\n 7 (Armstrong) (\u201cQ. And due diligence can be used to gain a better understanding of the\n 8 disclosures and the financial statements in a company\u2019s annual report, right? A. No, I\n 9 disagree with that comment.\u201d).\n 10 Musk\u2019s second rebuttal argument also fails. He contends that the market learned\n 11 the merger was not on hold at the same time as the May 13 tweet. JMOL at 24. On this\n 12 point, Musk cites Dr. Tabak\u2019s testimony that people were \u201cimmediately saying things and\nNorthern District of California\n United States District Court\n\n\n\n\n 13 saying that Twitter has not put it on hold, so it would be folded in with May 13th and\n 14 16th.\u201d See id. (citing Trial Tr. at 1909:10\u201315 (Tabak)). But Musk is reaching beyond\n 15 what Dr. Tabak actually said. Dr. Tabak\u2019s testimony was limited to Twitter\u2019s position\u2014\n 16 that Twitter did not agree and the market was aware of that. Id. at 1909:16\u201319 (\u201cQ. Okay.\n 17 So your testimony is that people knew as of May 13 that Twitter had not agreed to put the\n 18 deal on hold? A. Yes. They said they hadn\u2019t seen anything from Twitter.\u201d). Knowledge\n 19 that Twitter did not agree to a hold does not equate to knowledge that the deal was not, in\n 20 fact, on hold. It says nothing of Musk\u2019s position, which was the opposite of Twitter\u2019s as\n 21 represented in his tweet.\n 22 Accordingly, the Court concludes that there was insufficient evidence for Musk to\n 23 have rebutted the presumption.\n 24 F. Damages\n 25 Musk argues that Plaintiffs failed to prove legally sufficient damages because their\n 26 expert, Dr. Tabak, did not perform the proper analysis for the measure of damages and\n 27 failed to disaggregate economic loss by market or industry factors. JMOL at 10\u201314. The\n 28 Court disagrees.\n 15\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 16 of 38\n\n\n\n 1. Measure of Damages\n 1\n Musk contends that Dr. Tabak\u2019s \u201cout-of-pocket\u201d damages model was flawed.\n 2\n JMOL at 11. Out-of-pocket loss is \u201cthe difference between the value of what the plaintiff\n 3\n gave up and the value of what the plaintiff received.\u201d Ambassador Hotel Co. v. Wei-\n 4\n Chuan Inv., 189 F.3d 1017, 1030 (9th Cir. 1999). The Court\u2019s jury instructions describe\n 5\n damages as \u201cthe difference between the price at which a stock sold and the price at which\n 6\n the stock would have sold had the statement or fraudulent acts reflected the true state of\n 7\n affairs.\u201d Jury Instructions at 27.\n 8\n At the start of the Class Period, the true state of affairs was that there was an\n 9\n ongoing deal to buy Twitter. See Trial Tr. at 608:1\u201324 (Birchall) (deal work was pushing\n 10\n ahead as usual). Consequently, on May 13, Musk had three options. He could either say\n 11\n nothing, comment on the true state of affairs that the deal was proceeding as usual, or\n 12\nNorthern District of California\n United States District Court\n\n\n\n\n make a misrepresentation. As the jury concluded, Musk made an affirmative\n 13\n misrepresentation.\n 14\n According to Musk, Dr. Tabak only opined on the difference between the actual\n 15\n stock price and the \u201cbut-for price\u201d had Musk said nothing, instead of what the price would\n 16\n have been had his statements reflected the truth. JMOL at 11. Essentially, Musk contends\n 17\n that saying nothing is different from affirmatively speaking the truth. Id. at 12. But this\n 18\n mischaracterizes Dr. Tabak\u2019s testimony. Dr. Tabak repeatedly testified that, for his\n 19\n analysis, saying nothing was \u201cjust taking away the false stuff.\u201d Trial Tr. at 1901:3\u20134\n 20\n (Tabak). He clarified that \u201cSaying nothing is essentially not presenting that\n 21\n misrepresentation.\u201d Id. at 1901:11\u201314 (emphasis added).\n 22\n None of Dr. Tabak\u2019s testimony is incompatible with the standard in the jury\n 23\n instructions. Plaintiffs pursued the theory that Musk misrepresented the literal state of the\n 24\n Twitter deal.4 See FAC (dkt. 31). For example, Musk\u2019s May 13 tweet represented that the\n 25\n 26 4\n At the motion hearing, Musk argued that the true state of affairs was the existence of a dispute\n 27 between him and Twitter or that he was getting cold feet for the deal. See June 18, 2026 Hr\u2019g Tr.\n (dkt. 587) at 31:11\u201325. Perhaps. But there are many possibilities for what the true state of affairs\n 28 was at the time\u2014and Plaintiffs\u2019 theory is one of them. Ultimately, it is a factual question for the\n jury, and the Court concludes there was substantial evidence to support Plaintiffs\u2019 position.\n 16\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 17 of 38\n\n\n\n\n 1 Twitter deal was \u201ctemporarily on hold.\u201d Trial Ex. 97. Evidence at trial showed that the\n 2 deal was never on hold. See, e.g., Trial Tr. 1603:12\u201314 (Claassen) (\u201cQ. Isn\u2019t it a fact that\n 3 he didn\u2019t put the deal on hold? A. Correct. We were never directed to put the deal on\n 4 hold, to my knowledge.\u201d). In other words, Musk\u2019s statement was the opposite of the true\n 5 state of affairs. Had he said nothing, thereby omitting the false representation, it would\n 6 reflect the true state of affairs just as if he had merely said that the deal was proceeding as\n 7 usual\u2014the then-existing status quo. Accordingly, Dr. Tabak\u2019s damages model could still\n 8 measure the stock price as if Musk\u2019s statement reflected the true state of affairs or, in other\n 9 words, \u201cthe difference between the price [Plaintiffs received] for a security and the actual\n 10 value of that security at the time.\u201d Cf. Chassin Holdings Corp. v. Formula VC Ltd., No.\n 11 15-CV-02294-EMC, 2017 WL 66873, at *13 (N.D. Cal. Jan. 6, 2017) (emphasis added)\n 12 (discussing out-of-pocket damages in the context of a buyer case).\nNorthern District of California\n United States District Court\n\n\n\n\n 13 2. Disaggregation\n 14 Musk also argues that the jury did not have \u201csufficient evidence to disaggregate and\n 15 isolate economic loss\u201d caused by his misrepresentations \u201cfrom price drops caused by\n 16 general market or industry factors during the Class Period.\u201d JMOL at 12. He contends\n 17 that Dr. Tabak failed to disaggregate market and industry effects and included impacts on\n 18 share price unrelated to fraud in the damages calculations. Id. at 13. Plaintiffs respond\n 19 that Dr. Tabak\u2019s damage calculation methodology\u2014using event studies and a constant\n 20 percentage measure of deflation\u2014is entirely appropriate and adequately disaggregates\n 21 damages. JMOL Opp\u2019n (dkt. 573) at 6. The Court agrees with Plaintiffs.\n 22 It is well-settled that \u201ca damage calculation requires courts to adjust for any share\n 23 price gains that are unrelated to the fraud.\u201d Luna v. Marvell Tech. Grp., Ltd., No. C 15-\n 24 05447 WHA, 2017 WL 4865559, at *3 (N.D. Cal. Oct. 27, 2017). There are many\n 25 methods to disaggregate unrelated factors. As Plaintiffs point out, Dr. Tabak relied on two\n 26 of them: constant percentage and event studies. See JMOL Opp\u2019n at 6\u20137.\n 27 The constant percentage method determines the amount of artificial inflation or\n 28 deflation on each date of a Class Period. See Homyk v. ChemoCentryx, Inc., No. 21-CV-\n 17\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 18 of 38\n\n\n\n\n 1 03343-JST, 2025 WL 1547625, at *16 (N.D. Cal. May 30, 2025). The method uses a\n 2 \u201cribbon,\u201d or the daily level of artificial inflation or deflation caused by fraud, based on the\n 3 \u201cconstant percentage\u201d a share price was calculated to have been inflated or deflated by\n 4 throughout the period. See id. The method can reliably disaggregate out-of-pocket\n 5 damages from market and industry factors. Id. (\u201c[C]ourts regularly find that the constant\n 6 percentage [] methodology . . . is reliable and appropriate.\u201d); see also Police Ret. Sys. of\n 7 St. Louis v. Granite Constr. Inc., No. C 19-04744 WHA, 2021 WL 229310, at *7 (N.D.\n 8 Cal. Jan. 21, 2021) (measure of inflation per share over the class period could be\n 9 accomplished via \u201cconstant percentage inflation\u201d). And Dr. Tabak utilized this method to\n 10 calculate a constant percentage of deflation over the Class Period, with reductions in the\n 11 percentage to exclude certain non-fraud factors that significantly depressed the share price.\n 12 See Trial Ex. 342; see also Trial Tr. at 1849:17\u20131853:17 (Tabak) (explaining deflation\nNorthern District of California\n United States District Court\n\n\n\n\n 13 over the Class Period).\n 14 While Musk still criticizes constant percentage methodology, he concedes that it \u201cis\n 15 appropriate . . . when based on an event study that removes non-fraud-related factors.\u201d\n 16 JMOL Reply (dkt. 578) at 8. Dr. Tabak did conduct an event study. See Trial Tr. at\n 17 1843:12\u201316. But because only two events were excluded, Musk argues that Dr. Tabak\u2019s\n 18 analysis insufficiently removes \u201cunrelated market movements.\u201d JMOL Reply at 8. That is\n 19 not correct.\n 20 An event study considers \u201cwhether and to what extent any non-fraud related\n 21 information (i.e. \u2018confounding information\u2019) contributed to the observed price movement\u201d\n 22 during a class period. In re FibroGen Sec. Litig., No. 21-CV-02623-EMC, 2024 WL\n 23 1064665, at *16 (N.D. Cal. Mar. 11, 2024). It is \u201cwidely accepted for calculating damages\n 24 of a class of stockholders.\u201d SEB Inv. Mgmt. AB v. Symantec Corp., 335 F.R.D. 276, 288\n 25 (N.D. Cal. 2020). Event studies can be performed using a regression model, which is a\n 26 statistical technique for measuring the ability of one or more variables to explain another\n 27 variable of interest. See id. The model can be used to observe the typical relationship\n 28 between the stock price and market factors. Id. Dr. Tabak conducted a regression analysis\n 18\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 19 of 38\n\n\n\n\n 1 for his event study to determine whether there were any statistically significant price\n 2 decreases. Trial Tr. at 1843:7\u20131850:22. He only found two non-fraud related events that\n 3 were statistically significant: Musk\u2019s termination letter on July 8, 2022 and Twitter\n 4 whistleblower allegations on August 23, 2022. Id. at 1845:2\u201320. And he excluded them\n 5 both from the damages calculation. Id. at 1850:4\u201316. Musk offers no evidence to suggest\n 6 that any other events ought to have also been excluded.5\n 7 Accordingly, the Court concludes that there was substantial evidence from which\n 8 the jury could disaggregate market and industry factors from Plaintiffs\u2019 damages.\n 9 G. New Trial\n 10 Despite prevailing on two claims, Musk asks the Court for a new trial because he\n 11 asserts that (1) the verdict was contrary to the weight of the evidence, (2) there was juror\n 12 bias, (3) there was taint from Plaintiffs\u2019 unsuccessful theory of scheme liability, and (4)\nNorthern District of California\n United States District Court\n\n\n\n\n 13 there was cumulative error from trial.6 JMOL at 25\u201330. Plaintiffs disagree. JMOL Opp\u2019n\n 14 at 21\u201330. The Court takes each argument in turn.\n 15 1. Contrary to the Weight of the Evidence\n 16 Musk reincorporates his arguments from his motion for a judgment as a matter of\n 17 law to argue that, even if substantial evidence supports the verdict, the verdict is contrary\n 18 to the clear weight of the evidence. JMOL at 25. The Court disagrees. As discussed\n 19 regarding Musk\u2019s motion for a judgment as a matter of law, the Court does not find that\n 20 the verdict is contrary to the clear weight of the evidence\u2014far from it. To be sure, there is\n 21 \u201csubstantial evidence that goes both ways\u201d on some of the issues, but that is not enough to\n 22 warrant a new trial. See Union Oil Co. of California v. Terrible Herbst, Inc., 331 F.3d 735,\n 23 743 (9th Cir. 2003) (reversing grant of new trial where the trial court \u201cbelieved that the\n 24 jury had failed to appreciate certain facts\u201d). It is not the Court\u2019s \u201cplace to substitute [its]\n 25\n 5\n 26 Musk did not call a rebuttal expert\u2014or any expert for that matter. Dr. Tabak\u2019s testimony was the\n only expert evidence before the jury on damages.\n 6\n 27 Musk also asks that the Court amend the judgment to include only judgment for the class\n representatives, as he argues that the verdict did not reflect fraud-on-the-market reliance for class-\n 28 wide liability. JMOL at 30. As Musk advances the same argument in his motion to decertify the\n class, the Court addresses this point in its discussion of that motion.\n 19\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 20 of 38\n\n\n\n\n 1 evaluations for those of the jurors.\u201d Id. at 742\u201343.\n 2 2. Juror Bias\n 3 Musk argues that the entire verdict is a product of bias and must be thrown out.\n 4 JMOL at 25. He highlights three points that he believes demonstrate bias: (1) a prejudiced\n 5 jury pool; (2) Plaintiffs\u2019 counsel\u2019s conduct; and (3) the verdict form. Id. The Court takes\n 6 these one by one.\n 7 a. Jury Pool\n 8 For Musk\u2019s first argument, he reaches back to before the jury was even selected.\n 9 He asserts that the jury pool exhibited significant hostility to him\u2014so much that he could\n 10 not get a fair trial. See JMOL at 26. The Court disagrees.\n 11 Musk is correct that that much of the pool did not like him. It is to be expected that\n 12 Musk is polarizing; he is a public figure and businessman who has recently been involved\nNorthern District of California\n United States District Court\n\n\n\n\n 13 in American politics at the highest levels. As the Court noted during jury selection,\n 14 \u201cpeople feel strongly about Mr. Musk one way or the other.\u201d Trial Tr. at 21:19\u201322:2 (Jury\n 15 Voir Dire). That is not to say that Musk was universally hated. Some prospective jurors\n 16 liked him. See, e.g., id. at 100:15\u201316 (prospective juror believing Musk is \u201ca good person\n 17 and he put a lot of effort to support humanity\u201d). And some were neutral. See, eg., id. at\n 18 53:25\u201354:4 (prospective juror with \u201c[n]o views\u201d on Musk). Nevertheless, the Court agrees\n 19 that there were more negative views than positive ones.\n 20 But that does not mean that the eventual jury will be similarly biased in its makeup.\n 21 Courts have significant experience in finding ways to filter out partial jurors. For example,\n 22 the Court has \u201cbroad discretion\u201d to question potential jurors to detect bias. See Mu\u2019Min v.\n 23 Virginia, 500 U.S. 415, 423\u201324 (1991). And it exercised that discretion during jury\n 24 selection to seek out potential bias and evaluate whether potential jurors could be\n 25 rehabilitated. See, e.g., Trial Tr. at 47:8\u201348:3 (questioning juror about potential bias); see\n 26 also United States v. Martinez-Salazar, 146 F.3d 653, 656 (9th Cir. 1998) (courts have\n 27 leeway to keep jurors \u201cwho initially admit[] bias as long as [they] ultimately assert[] an\n 28 ability to be fair and impartial\u201d), rev\u2019d on other grounds, 528 U.S. 304 (2000).\n 20\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 21 of 38\n\n\n\n\n 1 There is another reason Musk\u2019s objection falls flat: he had the ability to strike\n 2 jurors. \u201cChallenges for cause are the means by which partial or biased jurors should be\n 3 eliminated.\u201d United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000). Musk\u2019s\n 4 counsel had the opportunity to strike potential jurors for cause, even with the Court\n 5 denying a few challenges. See Trial Tr. at 134:1\u2013147:14; cf. Carpenter v. Chappelle, No.\n 6 C 98-2444 MMC, 2012 WL 2343615, at *11 (N.D. Cal. June 20, 2012) (\u201cA trial court\u2019s\n 7 failure to strike even a biased juror for cause will not constitute a Sixth Amendment\n 8 violation so long as the jury that hears the case is impartial.\u201d). And the Court granted\n 9 Musk\u2014and Plaintiffs\u2014six peremptory challenges to further eliminate jurors he felt were\n 10 prejudiced against him. Trial Tr. at 148:12\u201319. Notably, Musk does not point to any\n 11 individual juror in his eventual jury that he believes should have been removed. He merely\n 12 criticizes the pool and attributes bias to the jurors that made the final cut.\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Consequently, the Court determines that issues with the jury pool did not deprive\n 14 Musk of a fair trial.\n 15 b. Counsel Conduct\n 16 Musk argues that Plaintiffs\u2019 counsel acted improperly throughout the trial to bias\n 17 the jury. JMOL at 26. The Court disagrees that counsel\u2019s conduct warrants a new trial.\n 18 Musk asserts that Plaintiffs\u2019 counsel cultivated an \u201cus-versus-them\u201d theme by\n 19 asking witnesses about their local ties and emphasizing their own, while at the same time\n 20 asking Musk about his decision to move himself and his business out of California. JMOL\n 21 at 26. The Court did not observe such questions rising to the level of attorney misconduct\n 22 or prejudice. Lawyers regularly attempt to establish camaraderie with witnesses through a\n 23 shared background. And as Plaintiffs note, the questions did not draw objections from\n 24 Musk. See JMOL Opp\u2019n at 23. Moreover, while the Court understands Musk\u2019s concern\n 25 with questions about his leaving the state, Plaintiffs\u2019 counsel is entitled to establish basic\n 26 background about witnesses and did not go so far that it became troubling. See Apple, Inc.\n 27 v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2014 WL 549324, at *13 (N.D. Cal. Feb.\n 28 7, 2014) (new trials are only appropriate where the misconduct permeates the entire\n 21\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 22 of 38\n\n\n\n\n 1 proceeding).\n 2 Next, Musk contends that Plaintiffs\u2019 counsel\u2019s statement in closing argument about\n 3 sending a message with a verdict improperly biased the jury. JMOL at 27. Although the\n 4 Court agrees that it was an improper statement, it does not warrant a new trial. During\n 5 closing argument, Plaintiffs\u2019 counsel stated:\n And I\u2019m going to tell you now that there are a lot of people in\n 6 this courtroom\u2014and it\u2019s all about a message, and the message\n is: Are we going to allow people like Ms. Price, Mr. Belgrave,\n 7 and the millions of people in between to not be protected? And\n that seal protects them, and that\u2019s why we came in this\n 8 courtroom.\n 9 Trial Tr. at 2291:6\u201312 (Plaintiffs\u2019 Rebuttal). The Court previously instructed Plaintiffs\u2019\n 10 counsel that he could say a finding of liability would send a message but not that the jury\n 11 should find a practice wrong because it would send a message. Trial Tr. 2136:11\u201315\n 12 (Charging Conference).\nNorthern District of California\n United States District Court\n\n\n\n\n 13 \u201c[W] here punitive damages are not at issue, urging the jury to \u2018send a message\u2019 by\n 14 its verdict is generally considered an improper appeal to the jurors\u2019 passion and prejudice.\u201d\n 15 Hammonds v. Yeager, No. EDCV 15-1036 SS, 2017 WL 10560471, at *1 (C.D. Cal. Aug.\n 16 9, 2017). The Court concludes that counsel\u2019s statement violated the nature of the Court\u2019s\n 17 restriction on argument. Counsel essentially asked the jury to find for Plaintiffs because it\n 18 would send a message. But while counsel\u2019s statement could potentially evoke prejudice, it\n 19 is not enough to warrant a new trial.\n 20 For reversal on grounds of attorney misconduct, the flavor of the misconduct \u201cmust\n 21 sufficiently permeate an entire proceeding to provide conviction that the jury was\n 22 influenced by passion and prejudice in reaching its verdict.\u201d McKinley v. City of Eloy,\n 23 705 F.2d 1110, 1117 (9th Cir.1983). Counsel\u2019s statement did not rise to this threshold. It\n 24 did not permeate the proceedings and was \u201cconfined to a few seconds of the closing\n 25 argument.\u201d7 Apple, 2014 WL 549324, at *14. The attorney who made the statement had a\n 26\n 27 7\n The Court notes that Musk did not object when Plaintiffs\u2019 counsel made the statement. See Kehr\n 28 v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286 (9th Cir. 1984) (considering lack of\n objection to closing argument in affirming denial of new trial motion).\n 22\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 23 of 38\n\n\n\n\n 1 more limited role at trial compared to other counsel for Plaintiffs. And, most importantly,\n 2 a new trial \u201cis warranted only if counsel\u2019s misconduct affected the verdict.\u201d Mateyko v.\n 3 Felix, 924 F.2d 824, 828 (9th Cir. 1990). That is not the case here, where the jury found in\n 4 Musk\u2019s favor for two out of four claims.8\n 5 c. Jury Verdict\n 6 Musk also challenges the completed verdict form as proof of prejudice. JMOL at\n 7 27. Musk points to the table for deflation per share over the Class Period and notes that all\n 8 the deflation values are in black ink except for one. Verdict (dkt. 538) at 6\u201310. The only\n 9 number in blue ink was $4.20. See id. at 8. Musk argues that the number 420 is often\n 10 negatively associated with him, and that it proves the jury used its verdict to send a\n 11 message. JMOL at 27\u201328. Musk\u2019s argument fails for several reasons.\n 12 For starters, that the jury sided with him on two claims takes the wind out of\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Musk\u2019s sails. See Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985)\n 14 (\u201cWithout evidence of prejudice we will not grant a new trial.\u201d). It defies common sense\n 15 that the jury could be so prejudiced against Musk yet absolve him of liability when they\n 16 had the chance to send a message. The objective record of the jury\u2019s deliberations further\n 17 undercuts Musk\u2019s picture of an impassioned jury. The jury did not immediately turn in its\n 18 verdict after closing arguments. Instead, it deliberated for multiple days before making a\n 19 decision. And there is evidence that the jury\u2019s deliberations were careful and thoughtful.\n 20 After all, the jurors submitted six notes about the evidence at trial and the law in their jury\n 21 instructions, even catching a typographical error in the instructions. See First Set of Jury\n 22 Notes (dkt. 532); Second Set of Jury Notes (dkt. 537). None of this hints at anti-Musk\n 23\n 24 8\n The Court also included a jury instruction to remind the jury to base its verdict solely on the\n 25 evidence it had heard, and the law provided by the Court. Jury Instructions at 2. Musk takes issue\n with the instruction, as he believes it prompted the jury about considering media coverage. JMOL\n 26 at 27. But it is a simple fact that the case would get publicity\u2014there were many people and\n reporters in the audience, particularly the days Musk testified. And the Court specifically\n 27 cautioned the jury they \u201cshould not consider [publicity] in determining what [their] verdict should\n be.\u201d Jury Instructions at 2. It is \u201cpresume[d] that jurors carefully follow the instructions given to\n 28 them.\u201d Caudle v. Bristow Optical Co., 224 F.3d 1014, 1023 (9th Cir. 2000), as amended on denial\n of reh\u2019g (Nov. 2, 2000) (citation modified).\n 23\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 24 of 38\n\n\n\n\n 1 animus.\n 2 Next, the number 420 is not necessarily indicative of prejudice against Musk. He\n 3 asserts that 420 is negatively associated with him but does not offer any evidence to\n 4 support it. To the contrary, 420 is a reference to cannabis/marijuana. See, e.g., United\n 5 States v. Jobe, 933 F.3d 1074, 1076 (9th Cir. 2019) (noting that 420 refers to marijuana).\n 6 One need only walk around San Francisco on April 20 to observe how prevalent the\n 7 celebration can be. What\u2019s more, a joke about 420 played a role in the trial. See Trial Tr.\n 8 1524:16\u201319 (Claassen) (\u201c[W]e knew Mr. Musk had joked about 420 quite a bit, and so we\n 9 threw it out there as 54.20.\u201d). Consequently, it is also possible that a jury in San Francisco\n 10 recognized and appreciated the joke\u2014just as Musk has.\n 11 Lastly, the verdict form has many instances where different colors of ink were used.\n 12 For example, the jury only marked liability for the May 17 tweet in blue ink\u2014the rest of\nNorthern District of California\n United States District Court\n\n\n\n\n 13 the claims are in black. Verdict at 2\u20135. The jurors also wrote \u201cReference Exhibit 342\u201d in\n 14 blue above the damages section heading. Verdict at 6. The jury used different pens at\n 15 different times when filling out the verdict form, not only when writing the number 4.20.\n 16 Accordingly, the Court rejects Musk\u2019s challenge to the verdict form.\n 17 3. Scheme Liability\n 18 Musk asserts that the trial was unfair because Plaintiffs\u2019 claim for scheme liability\n 19 distracted him from defending the misrepresentation-only case and permitted all types of\n 20 otherwise prejudicial evidence to be shown to the jury. JMOL at 28. His argument lacks\n 21 merit.\n 22 First and foremost, Musk cannot show prejudice from the scheme claim. That is\n 23 primarily because he prevailed on the claim at trial. Verdict at 5. Musk\u2019s attempt to\n 24 reframe his purported prejudice as being forced to divide time and resources to defend\n 25 against two theories falls apart under inspection. See JMOL at 28. He argues that the\n 26 claim was invalid and that he attempted many times to exclude it from the case\u2014citing\n 27 eleven of his motions. Id. at n.1. But Musk \u201ccannot just reassert arguments that have\n 28 already been rejected in hope of a different result.\u201d See Johnson v. U.S. Dep\u2019t of the\n 24\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 25 of 38\n\n\n\n\n 1 Treasury, No. C 11-06684 WHA, 2012 WL 5269620, at *3 (N.D. Cal. Oct. 24, 2012).\n 2 Litigants \u201cplay with fire if they raise the same arguments over and over and fail to\n 3 acknowledge prior adverse rulings.\u201d U.S. Commodity Futures Trading Comm\u2019n v. Lake\n 4 Shore Asset Mgmt. Ltd., 540 F. Supp. 2d 994, 1015 (N.D. Ill. 2008). Musk has no excuse\n 5 to contest that he was on notice of the claim; he should have been prepared to put on a\n 6 defense at trial. As the Court noted on February 26, 2026 when rejecting Musk\u2019s\n 7 challenge to the scheme claim, Musk \u201ccannot now reasonably contend that he [was]\n 8 prejudiced in his ability to adequately prepare a defense against a theory that was part of\n 9 the complaint, brought up during discovery, permitted during summary judgment, and then\n 10 permitted again after a pretrial motion in limine.\u201d9 See Order Re Ex Parte Motion (dkt.\n 11 454) at 6.\n 12 Second, Musk argues that the Court put no bounds on the scope of the scheme claim\nNorthern District of California\n United States District Court\n\n\n\n\n 13 and permitted otherwise inadmissible evidence to come in. JMOL at 28. But this is just\n 14 dissatisfaction with evidentiary rulings. District courts have \u201cbroad discretion\u201d in\n 15 rendering evidentiary rulings. Harper v. City of Los Angeles, 533 F.3d 1010, 1030 (9th\n 16 Cir. 2008). Erroneous evidentiary rulings only warrant new trials if the errors \u201c more\n 17 probably than not . . . tainted the verdict.\u201d Id. As an initial matter, the Court\u2019s rulings\n 18 could not have tainted the verdict if Musk was successful on both the scheme claim and\n 19 one misrepresentation claim. See Verdict. Moreover, there were bounds on the\n 20 admissibility of evidence at trial: the Federal Rules of Evidence. Musk makes clear that\n 21 the Court\u2019s rulings were guided by the Rules because he insists that every time he tried \u201cto\n 22 exclude highly prejudicial evidence wholly irrelevant to Plaintiffs\u2019 narrow Rule 10b-5(b)\n 23 claims, [he] was met with the same response: It comes in for the scheme claim.\u201d That is\n 24 entirely a description of how Rule 403, which permits relevant evidence if it is not\n 25 substantially unfairly prejudicial, works. See Fed. R. Evid. 403. Sometimes, evidence that\n 26\n 27 9\n Musk\u2019s representation that he could not defend against two theories at the same time is\n 28 undermined by the fact that the scheme theory is inclusive of the statements in the\n misrepresentation theory\u2014the scheme simply covers additional conduct.\n 25\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 26 of 38\n\n\n\n\n 1 may be irrelevant to one claim is relevant to another and is therefore admissible, even if\n 2 prejudicial.\n 3 Lastly, Musk contends that the inclusion of the scheme claim precluded him from\n 4 making certain arguments. JMOL at 29. The only example he provides is his apparent\n 5 inability to argue that his July 8 termination letter\u2019s impact on Twitter\u2019s stock price meant\n 6 that losses after that date could not be attributed to the fraud. Id. Musk states that\n 7 permitting the July 8 letter \u201cas a basis for liability even though it is protected litigation\n 8 conduct\u201d meant that he could not pursue this argument. Id. That is wrong on two fronts.\n 9 First, the Court simply found that the letter was not protected litigation conduct. See Trial\n 10 Tr. at 2077:4\u20132081:18 (Charging Conference) (finding that the July 8 letter was not\n 11 protected litigation conduct as a matter of law); see also Jury Instructions at 26\n 12 (instructions on protected litigation conduct covering the Delaware litigation itself). And\nNorthern District of California\n United States District Court\n\n\n\n\n 13 second, Musk does not provide a reason for why the scheme claim would bar him from\n 14 arguing, even in the alternative, that the letter was an intervening event for loss. To the\n 15 contrary, he did so at trial. See, e.g., Trial Tr. at 1917:8\u201312 (Tabak) (\u201cQ. You would\n 16 agree, though, regardless of whether it was part of a scheme or not part of a scheme, it\n 17 would be expected that the termination letter that was issued on July 8th would result in a\n 18 stock price decline, right? A. In this case, yes, I think that\u2019s fair.\u201d).\n 19 Consequently, the Court once again rejects Musk\u2019s argument regarding scheme\n 20 liability.\n 21 4. Cumulative Prejudice\n 22 Musk repackages his other bases for a new trial into a catch-all argument that the\n 23 combination of errors requires a new trial. JMOL at 29. The Court rejects this argument,\n 24 too.\n 25 \u201c[E]rrors in a civil trial must be considered \u2018cumulatively\u2019 and . . . the combined\n 26 effect of multiple errors \u2018may suffice to warrant a new trial even if each error standing\n 27 alone may not be prejudicial.\u2019\u201d Sidibe v. Sutter Health, 103 F.4th 675, 688 (9th Cir. 2024)\n 28 (quoting Jerden v. Amstutz, 430 F.3d 1231, 1240\u201341 (9th Cir. 2005)). But this principle\n 26\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 27 of 38\n\n\n\n\n 1 only applies to cumulative errors by the trial court. See id. (analyzing cumulative error of\n 2 trial court rulings); Jerden, 430 F.3d at 1240\u201341 (same). As discussed above, the Court did\n 3 not find any errors on its part. The only instance of prejudice the Court found was\n 4 Plaintiffs\u2019 counsel\u2019s statement during closing argument, which the Court explained was\n 5 insufficient to trigger a new trial. Accordingly, the Court denies Musk\u2019s motion.\n 6\n 7 II. MOTION TO DECERTIFY CLASS\n 8 Musk argues that there is no basis to conclude that Plaintiffs proved the fraud-on-\n 9 the-market presumption for class-wide reliance. Mot. to Decertify at 6. Because the jury\n 10 rendered a general verdict, Musk contends there is no way to know if the jury made its\n 11 decision based on individual reliance or the fraud-on-the-market presumption. Id. at 7. As\n 12 he believes individual issues abound, Musk asserts that Plaintiffs have failed to establish\nNorthern District of California\n United States District Court\n\n\n\n\n 13 the requirements of Rule 23 of the Federal Rules of Civil Procedure and so the class must\n 14 be decertified. Id. at 10\u201312. Plaintiffs respond that Musk\u2019s motion is procedurally\n 15 improper and rests on the faulty assumption that the general verdict is ambiguous. Mot. to\n 16 Decertify Opp\u2019n (dkt. 574) at 2\u20139. The Court DENIES the motion.\n 17 A. Legal Standard\n 18 Rule 23(c)(1)(C) permits a court to \u201calter[] or amend[]\u201d an order granting class\n 19 certification \u201cbefore final judgment.\u201d Fed. R. Civ. Pro. 23(c)(1)(C). The Ninth Circuit has\n 20 similarly stated that district courts may modify a class definition as a result of\n 21 developments during the course of litigation. See Armstrong v. Davis, 275 F.3d 849, 871\n 22 n.28 (9th Cir. 2001) (recognizing that Rule 23 \u201cprovides district courts with broad\n 23 discretion to determine whether a class should be certified, and to revisit that certification\u201d\n 24 and that \u201cthe district court may redefine the class\u201d (citing Penk v. Oregon State Bd. of\n 25 Higher Educ., 816 F.2d 458, 467 (9th Cir. 1987))). District courts have a responsibility to\n 26 continually review \u201cthe appropriateness of a certified class in light of developments\n 27 subsequent to class certification.\u201d Schilling v. TransCor Am., LLC, 2012 WL 4859020, at\n 28 *1 (N.D. Cal. 2012). Ultimately, whether to decertify a class is within the discretion of the\n 27\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 28 of 38\n\n\n\n\n 1 Court. See Levya v. Medline Indus. Inc., 716 F.3d 510, 513 (9th Cir. 2013).\n 2 B. Discussion\n 3 Rule 23(c)(1)(C) only empowers the Court to decertify a class \u201cbefore final\n 4 judgment.\u201d Fed. R. Civ. Pro. 23(c)(1)(C). Musk\u2019s motion comes after the Court entered a\n 5 final judgment on April 3, 2026. Dkt. 557. Moreover, as discussed regarding Musk\u2019s\n 6 motion for a judgment as a matter of law, the Court concluded that Plaintiffs properly\n 7 invoked the fraud-on-the-market presumption and Musk failed to present evidence that\n 8 could have rebutted it. Nevertheless, the Court briefly discusses the merits in light of its\n 9 responsibility to ensure appropriate certification and Musk raising the issue prior to\n 10 judgment. See Response to Post-Verdict Procedures (dkt. 549). For the reasons below, the\n 11 Court concludes that Musk\u2019s basis for the motion is fundamentally flawed.\n 12 At first blush, when only looking at the verdict form, Musk\u2019s argument has some\nNorthern District of California\n United States District Court\n\n\n\n\n 13 appeal. The form does not include a special interrogatory where a juror could mark that\n 14 Musk had rebutted the fraud-on-the-market presumption.10 See Verdict. But Musk\u2019s\n 15 assertion of ambiguity for class-wide reliance quickly falls apart upon review of the trial\n 16 record.\n 17 That is because there was no evidence of individual reliance during trial. Plaintiffs\n 18 did not even attempt to introduce such evidence. See Mot. to Decertify Opp\u2019n at 5\u20136. One\n 19 of their three class representatives, John Garrett, did not testify, so the jury could not have\n 20 premised liability on evidence of his individual reliance. And his wife Nancy Price, who\n 21 was also a class representative, did not testify that Garrett saw Musk\u2019s May 13 tweet,\n 22 either.11 Further, Plaintiffs\u2019 closing argument made clear that they were not advancing any\n 23 argument on individual reliance, just fraud-on-the-market for class-wide reliance. Trial Tr.\n 24 at 2214:7\u201323 (Plaintiffs\u2019 Closing) (only discussing fraud-on-the-market for reliance); id. at\n 25\n 10\n 26 Cases with successful Rule 10b-5 claims regularly exclude special interrogatories on reliance in\n their verdict forms. See, e.g., Verdict Form (dkt. 998) in In re Vivendi Universal, S.A. Securities\n 27 Litigation, 02 Civ. 5571 (RJH) (HBP); Jury Verdict (dkt. 1611) in Lawrence E. Jaffe Pension Plan\n v. Household International, Inc., 1:02-cv-05893.\n 11\n 28 Price also admitted on cross-examination that she was not aware of the May 13 tweet \u201cback in\n 2022.\u201d Trial Tr. at 1365:22\u20131366:2 (Price).\n 28\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 29 of 38\n\n\n\n\n 1 2177:23\u20132178:2 (asking the jury \u201cto compensate investors like Mr. Belgrave, Nancy Price,\n 2 John Garrett, and thousands of other investors\u201d). And Musk\u2019s closing argument only\n 3 discussed fraud-on-the-market, too. Trial Tr. at 2271:24\u20132272:13 (Musk Closing)\n 4 (arguing that Plaintiffs \u201ccan\u2019t show reliance on the market\u201d).\n 5 Faced with the actual trial record, Musk unsurprisingly urges the Court to restrict its\n 6 focus to the verdict form itself. Mot. to Decertify at 7 (arguing that \u201cthe general verdict\n 7 gives no indication which of these alternative theories of reliance the jury adopted\u201d).\n 8 Citing Niles v. United States, Musk contends that the Court must turn a blind eye to the\n 9 record and cannot speculate on which reliance theory was the subject of the verdict. Id. at\n 10 8. In that case, the Niles court noted that, \u201cwhere a matter is tried on alternate theories of\n 11 recovery and a general verdict rendered, appellate courts will not speculate on what\n 12 particular ground the jury may have found against (the) plaintiff.\u201d 520 F. Supp. 808, 812\nNorthern District of California\n United States District Court\n\n\n\n\n 13 (N.D. Cal. 1981) (citation modified), aff\u2019d sub nom. Niles By & Through Niles v. United\n 14 States, 710 F.2d 1391 (9th Cir. 1983).\n 15 Niles, however, is inapplicable because Musk\u2019s argument fails twice over. As\n 16 discussed, the case was not tried on alternative theories; Plaintiffs pursued fraud-on-the-\n 17 market only from the start. And more importantly, the Court does not have to speculate to\n 18 understand that the jury relied on the fraud-on-the-market presumption. Indeed, liability\n 19 could have only been premised on class-wide reliance. As explained, there was no\n 20 evidence of individual reliance in the record. How else could the jury find reliance where\n 21 one of the class representatives did not even testify if not for the fraud-on-the-market\n 22 presumption? Cf. UniRAM Tech., Inc. v. Taiwan Semiconductor Mfg. Co., No. C 04-\n 23 1268 VRW, 2008 WL 11515597, at *5 (N.D. Cal. Apr. 17, 2008) (\u201cAny doubt in a general\n 24 verdict in a civil case is resolved in favor of the prevailing party: Absent [special]\n 25 interrogatories, the law presumes the existence of findings necessary to support the verdict\n 26 the jury reached.\u201d (internal quotation omitted)).\n 27\n 28\n 29\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 30 of 38\n\n\n\n\n 1 Consequently, the Court denies Musk\u2019s motion.12\n 2\n 3 III. MOTION FOR PREJUDGMENT INTEREST\n 4 Plaintiffs ask the Court to award prejudgment interest based on the rate set by 26\n 5 U.S.C. \u00a7 6621(a)(2), compounded daily from October 4, 2022 (the end of the Class Period)\n 6 to April 3, 2026 (the entry of final judgment). MPI at 10. Musk argues that no\n 7 prejudgment interest is required and, in the alternative, the Court award simple interest\u2014or\n 8 at least interest compounded annually\u2014based on the rate set in 28 U.S.C. \u00a7 1961. MPI\n 9 Opp\u2019n (dkt. 576) at 13. The Court GRANTS the motion. The Court sets the rate at the\n 10 Treasury bill rate pursuant to Section 1961, compounded annually, and running from\n 11 October 4, 2022 through entry of final judgment.\n 12 A. Legal Standard\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Prejudgment interest serves a compensatory function, designed to make the injured\n 14 party whole. Knapp v. Ernst & Whinney, 90 F.3d 1431, 1441 (9th Cir. 1996). The\n 15 decision whether to award prejudgment interest is left to the sound discretion of the trial\n 16 court, guided by the factors from Osterneck v. Ernst & Whinney. Those factors include:\n 17 (1) whether prejudgment interest is necessary to compensate the plaintiff fully for his or\n 18 her injuries; (2) the degree of personal wrongdoing by the defendant; and (3) other\n 19 fundamental considerations of fairness. Osterneck v. Ernst & Whinney, 489 U.S. 169, 176\n 20 (1989). Prejudgment interest should not be \u201cspeculative\u201d or provide a \u201cwindfall\u201d to\n 21 plaintiffs. Knapp, 90 F.3d at 1442.\n 22 Courts have broad discretion to determine what rate of interest to apply and when\n 23 prejudgment interest begins. See Columbia Brick Works, Inc. v. Royal Ins. Co. of Am.,\n 24\n 12\n 25 Musk also argues that \u201c[i]mposing class-wide liability despite the lack of any jury finding\u201d for\n the fraud-on-the-market presumption violates his procedural due process rights. Mot. to Decertify\n 26 at 12. As discussed, the fraud-on-the-market presumption was the only basis that could support\n the jury\u2019s verdict of liability, so there are no due process implications for class-wide reliance here.\n 27 Cf. Finjan, Inc. v. Sophos, Inc., No. 14-CV-01197-WHO, 2016 WL 2988834, at *19 (N.D. Cal.\n May 24, 2016) (\u201c[A] general jury verdict can give rise to collateral estoppel only if it is clear that\n 28 the jury necessarily decided a particular issue in the course of reaching its verdict.\u201d (internal\n quotation omitted)).\n 30\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 31 of 38\n\n\n\n\n 1 768 F.2d 1066, 1068 (9th Cir. 1985). In deciding if and how much prejudgment interest\n 2 should be granted, courts must examine matters encompassed within the merits of the\n 3 underlying action. Osterneck, 489 U.S. at 176.\n 4 B. Discussion\n 5 The Court determines that all three Osterneck factors are applicable and support an\n 6 award of prejudgment interest.\n 7 1. Necessity for Full Compensation\n 8 Contrary to Musk\u2019s insistence, prejudgment interest is needed to fully compensate\n 9 the class members. As Plaintiffs note, due to Musk\u2019s fraud, members of the class \u201cwere\n 10 deprived of the use and value of their money\u201d for almost four years. See MPI at 3; see also\n 11 In re Vivendi Universal, S.A. Sec. Litig., 284 F.R.D. 144, 162 (S.D.N.Y. 2012) (\u201cPlaintiffs\n 12 have been deprived of the use of their funds for nearly ten years, and prejudgment interest\nNorthern District of California\n United States District Court\n\n\n\n\n 13 is necessary to fully compensate them for their loss.\u201d).\n 14 Musk argues that there is no basis to infer that the class members would have used\n 15 their proceeds and received a \u201cpredictable rate of return.\u201d MPI Opp\u2019n at 5. But similar\n 16 arguments have been rejected by courts awarding prejudgment interest. See, e.g., Hsu v.\n 17 Puma Biotechnology, Inc., No. SACV 15-00865 AG (SHKX), 2019 WL 4295285, at *2\n 18 (C.D. Cal. Sept. 9, 2019) (rejecting argument that awarding interest assumes that \u201cclass\n 19 members would have taken $4.50 per share and made a conservative investment\u201d). Musk\n 20 also contends that interest would serve as a windfall because \u201cclass members obtained cash\n 21 the moment they sold and were able to invest the proceeds as they saw fit.\u201d MPI Opp\u2019n at\n 22 5. But that is irrelevant because Plaintiffs are seeking interest on the amount of deflation\n 23 due to Musk\u2019s fraud, not their actual proceeds when selling their stock. See MPI Reply\n 24 (dkt. 581) at 4.\n 25 2. Degree of Personal Wrongdoing\n 26 Musk argues that the verdict did not indicate that he willfully defrauded investors\n 27 and that he did not personally profit from Plaintiffs selling their shares. MPI Opp\u2019n at 3\u20134.\n 28 Musk is correct that the jury could have found that he acted with deliberate recklessness\n 31\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 32 of 38\n\n\n\n\n 1 instead of with knowledge of falsity. See Jury Instructions at 21. But \u201calthough scienter is\n 2 not necessary to award interest, because the focus is on compensating plaintiffs,\u201d Musk\u2019s\n 3 potentially deliberate recklessness \u201cdoes not weigh against an award of interest.\u201d Vivendi,\n 4 284 F.R.D. at 162. Under both standards of intent available to the jury, Musk acted\n 5 intentionally. And \u201cintentional violations of the federal securities laws support an award\n 6 of prejudgment interest.\u201d Hsu, 2019 WL 4295285 at *2.\n 7 The Court does agree, however, that Musk\u2019s lack of personal profit from Plaintiffs\u2019\n 8 sales does cut against his level of wrongdoing. Nevertheless, on balance, Musk\u2019s\n 9 fraudulent conduct favors an award. See id. (\u201c[T]here is not a requirement that a defendant\n 10 be unjustly enriched in order to award prejudgment interest.\u201d); see also Vivendi, 284\n 11 F.R.D. at 163 (\u201cVivendi\u2019s argument that it never had use of plaintiffs\u2019 money is irrelevant,\n 12 because the prejudgment interest inquiry focuses on compensating plaintiffs, not\nNorthern District of California\n United States District Court\n\n\n\n\n 13 disgorging inequitable gains from defendants.\u201d).\n 14 3. Fairness\n 15 Musk also contends that it is unfair to reward investors\u2014particularly those who\n 16 \u201cpositioned themselves to profit from the alleged fraud\u201d\u2014with interest. MPI Opp\u2019n at 6.\n 17 But \u201c[s]hares are normally purchased with an eye toward a later sale.\u201d Dura, 544 U.S. at\n 18 342. It comes as no surprise that investors seek to profit from their investment. In doing\n 19 so, they buy and sell stock \u201cat the price set by the market\u201d by relying on \u201cthe integrity of\n 20 that price.\u201d Basic, 485 U.S. at 247. And an investor can still be harmed by deflation\n 21 attributable to fraud even if they also sought to profit from a lower price. Accordingly,\n 22 \u201cthe fair result is [still] to make the victims of [Musk\u2019s] fraud whole.\u201d Hsu, 2019 WL\n 23 4295285, at *2.\n 24 4. Appropriate Rate\n 25 The Court agrees with Musk that the Section 1961 rate is appropriate. The Section\n 26 6621 rate Plaintiffs propose is \u201cgenerally applied by the Internal Revenue Service\u201d to\n 27 \u201cpenalize individuals and corporations for the underpayment of taxes.\u201d Hsu, 2019 WL\n 28 4295285, at *2. In contrast, the Section 1961 rate is in line with the \u201cdefault rule in the\n 32\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 33 of 38\n\n\n\n\n 1 Ninth Circuit\u201d for securities actions. See id. The interest is based on the \u201crate equal to the\n 2 weekly average 1-year constant maturity Treasury yield.\u201d 28 U.S.C. \u00a7 1961(a). The Court\n 3 determines that the Treasury bill rate should be compounded annually pursuant to the\n 4 statute. See 28 U.S.C.A. \u00a7 1961(b).\n 5\n 6 IV. MOTION FOR APPROVAL OF CLASS NOTICE OF VERDICT AND\n CLAIMS PROCEDURE\n 7\n Plaintiffs also move for approval of their notice of verdict and claims administration\n 8\n process. MFA. Musk opposes, primarily asserting that he has a right to conduct post-trial\n 9\n discovery to test the individual reliance of class members, with additional jury trials as\n 10\n necessary. MFA Opp\u2019n (dkt. 577). The Court GRANTS the motion. The Court first\n 11\n discusses Musk\u2019s post-trial discovery request and then covers the other components of the\n 12\nNorthern District of California\n United States District Court\n\n\n\n\n claims process.\n 13\n A. Post-Trial Discovery\n 14\n Musk asks the Court to appoint a special master to conduct a second phase of the\n 15\n case that scrutinizes individual issues of reliance. MFA Opp\u2019n at 14. He cites his right to\n 16\n rebut the fraud-on-the-market presumption and argues that it entitles him to post-trial\n 17\n discovery for rebuttal. MFA Opp\u2019n at 2\u20136. In Basic, the Supreme Court acknowledged\n 18\n that defendants \u201cmay rebut proof of the elements giving rise to the presumption\u201d or show\n 19\n \u201cthat an individual plaintiff traded or would have traded despite his knowing the statement\n 20\n was false.\u201d 485 U.S. at 992. The Court certainly agrees that Musk had the right to rebut\n 21\n the presumption in this case. As discussed, he tried and was unsuccessful at trial. But that\n 22\n right does not extend to post-trial discovery.\n 23\n Hsu v. Puma Biotechnology, Inc. is illustrative. After being held liable at trial, the\n 24\n defendants made the same arguments Musk does here. They argued \u201cthat they have a right\n 25\n to obtain reasonable discovery to challenge the reliance element of the class action suit,\n 26\n that targeted discovery on individual reliance is necessary to prevent manifest injustice,\n 27\n and that [their] discovery requests are reasonable and proportionate.\u201d Hsu v. Puma\n 28\n 33\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 34 of 38\n\n\n\n\n 1 Biotechnology, Inc., No. SA CV 15-00865-DOC-SHK, 2021 WL 2644100, at *2 (C.D.\n 2 Cal. June 11, 2021). The Hsu court disagreed. It held that the defendants did not have \u201ca\n 3 right to obtain reasonable post-trial discovery to challenge the reliance element of the class\n 4 action suit.\u201d Id. The court concluded that Supreme Court precedent permitting rebuttal of\n 5 the fraud-on-the-market presumption on an individual basis did not extend that \u201cright to\n 6 challenge reliance through reasonable discovery [] post-trial.\u201d Id. The court rejected the\n 7 post-trial discovery request despite its final pretrial orders \u201cpermit[ting] an opportunity for\n 8 post-trial discovery\u201d because that was \u201conly an opportunity and not a right.\u201d Id.\n 9 Hsu is on all fours with the instant case. Musk was well-aware of his ability to\n 10 rebut the presumption before trial\u2014and he actually did so for one plaintiff. The Court\n 11 agreed that Musk rebutted the presumption when it deemed Steve Garrett \u201cnot an\n 12 appropriate class representative\u201d because he did not rely on Musk\u2019s fraud or the market\nNorthern District of California\n United States District Court\n\n\n\n\n 13 price when he sold his shares. Order Granting Class Certification (dkt. 106) at 9\u201310.\n 14 Musk\u2019s post-trial insistence that he should now get additional discovery and trials runs\n 15 contrary to the purpose of the class action device. Cf. Smith v. Pac. Pers. Servs., Inc., No.\n 16 17-CV-03594-SK, 2018 WL 11437641, at *4 (N.D. Cal. Oct. 11, 2018) (\u201c[R]esolving\n 17 disputes in a single class action is far more efficient than litigating individual cases.\u201d).\n 18 Further, Musk\u2019s cited authority in support of his position is inapposite. See MFA\n 19 Opp\u2019n at 3 (citing Lawrence E. Jaffe Pension Plan v. Household Int\u2019l Inc., 2005 WL\n 20 3801463 (N.D. Ill. Apr. 18, 2005) and In re Vivendi Universal, S.A. Sec. Litig., 284\n 21 F.R.D. 144 (S.D.N.Y. 2012)). As the Hsu court noted, \u201cthe defendants in those cases\n 22 sought discovery on individual reliance issues during the pre-trial fact discovery period,\n 23 the discovery was expressly stayed until after trial, and the final pretrial orders specifically\n 24 provided for post-trial discovery.\u201d13 2021 WL 2644100, at *2. Musk also cites\n 25\n 26 13\n At the motion hearing, Musk urged the Court to consider a pretrial dispute where Plaintiffs\n 27 objected to discovery about unnamed plaintiffs and said it was a post-judgment claims process\n issue. See June 18, 2026 Hr\u2019g Tr. at 89:9\u201391:18 (discussing Joint Discovery Letter Brief (dkt.\n 28 175)). But as Musk conceded, that dispute \u201cwasn\u2019t about reliance.\u201d Id. at 89:15. And Musk\n never sought review after Magistrate Judge Ryu ruled on the issue. Id. at 94:7\u201310;\n 34\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 35 of 38\n\n\n\n\n 1 Jaroslawicz v. Engelhard Corp. MFA Opp\u2019n at 1. Although that court ordered post-trial\n 2 rebuttal proceedings, it decided that issue before trial alongside a motion to dismiss.\n 3 Jaroslawicz v. Engelhard Corp., 724 F. Supp. 294, 303 (D.N.J. 1989).\n 4 Accordingly, the Court denies Musk\u2019s request.14\n 5 B. Schedule\n 6 The Court adopts Plaintiffs\u2019 proposed notice and claims schedule. See MFA at 1\u20132.\n 7 Musk only objects to the extent it does not permit him sufficient time (30 days) to evaluate\n 8 claims to test individual reliance or damages and asks for 120 days to review claims. MFA\n 9 Opp\u2019n at 14. But as Plaintiffs note, Musk will actually have more than 30 days to review\n 10 claims. MFA Reply (dkt. 582) at 9. Starting 60 days after publication of the notice, the\n 11 Claims Administrator will start providing the parties with a summary update on the\n 12 received claims. See MFA at 1. The Administrator will then send updates to the\nNorthern District of California\n United States District Court\n\n\n\n\n 13 summaries every 30 days. Id. This builds in enough time for advanced preparation.\n 14 The approved schedule is reproduced below:\n 15\n 16\n 17\n 18\n 19\n 20\n 21\n 22\n 23\n 24\n 25\n 26\n 27\n 14\n 28 To the extent Musk makes his post-trial discovery argument to challenge other parts of the\n claims process, the Court rejects it.\n 35\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 36 of 38\n\n\n\n\n 1 C. Claims Administrator\n 2 As both parties agree, the Court appoints Epiq Class Action and Claims Solutions as\n 3 the Claims Administrator. See MFA at 2; MFA Opp\u2019n at 10.\n 4 D. Notice of Verdict and Proof of Claim Form\n 5 The Court also adopts Plaintiffs\u2019 proposed notice of verdict and proof of claim\n 6 form. The proposed notice concisely covers the necessary information regarding the case,\n 7 judgment, and class member rights. Musk\u2019s request for additional information would only\n 8 create confusion and potential intimidation. Aside from his rejected right to post-trial\n 9 discovery, Musk asks the Court to include language that he will have access to the\n 10 submitted information and has the right to challenge submissions. MFA Opp\u2019n at 13. The\n 11 Court agrees with Plaintiffs that the proposed claim form adequately explains that claims\n 12 and documentation will be reviewed without raising the specter that Musk\u2014a significant\nNorthern District of California\n United States District Court\n\n\n\n\n 13 public figure\u2014will be waiting in the wings for a potential challenge. See MFA Reply at 8.\n 14 Plaintiffs must, however, fix the mistaken inclusion of \u201cSettlement\u201d on page three of the\n 15 notice, as Musk identified. See MFA Opp\u2019n at 10.\n 16 In addition to his post-trial discovery argument, Musk makes a host of challenges to\n 17 the proof of claim and its underlying process.\n 18 First, he argues that the Court should make clear to Epiq that its \u201cvalidation\u201d of\n 19 claims is not adjudication. MFA Opp\u2019n at 11. That is easy enough. Plaintiffs point out\n 20 that the \u201cvalidation\u201d Musk is referring to is simply verification of information for the\n 21 Court\u2019s eventual approval. MFA Reply at 6.\n 22 Second, Musk asserts that the proposed process does not actually require claimants\n 23 to submit documentation in support of their claim. MFA Opp\u2019n at 11. That is wrong.\n 24 Epiq requires documentation and flags ineligibility when it is missing. Azari Decl. (dkt.\n 25 567-3) \u00b6\u00b6 51\u201352. Even claim forms submitted electronically are flagged for deficiencies\n 26 and follow up. Id. \u00b6577.\n 27 Third, Musk asks the Court to require claimants to submit government-issued\n 28 identification to verify identity. MFA Opp\u2019n at 12. That is unnecessary; the\n 36\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 37 of 38\n\n\n\n\n 1 documentation requested in the claim form is sufficient. Claimants must already submit\n 2 their names, contact information, addresses, Social Security Numbers or Taxpayer\n 3 Identification Numbers, and trading account numbers. See Claim Form (dkt. 567-5).\n 4 Musk provides no reason why additional verification would be required.\n 5 Fourth, Musk requests that Epiq provide the parties with \u201cread-only\u201d access to the\n 6 claims database so he can prepare in advance for any challenges. MFA Opp\u2019n at 12. As\n 7 Plaintiffs note, the process already contemplates real-time access and monthly reports.\n 8 MFA Reply at 7; Azari Decl. \u00b6 68 (party access to file transfer protocol site for document\n 9 storage).\n 10 And fifth, Musk objects that the Court should not permit late claims. MFA Opp\u2019n\n 11 at 13. Plaintiffs propose that Epiq should be able to accept all late, but valid, claims that\n 12 are filed before it submits its final claims report with the Court. MFA at 6. Plaintiffs\nNorthern District of California\n United States District Court\n\n\n\n\n 13 assert that this process would sweep in otherwise valid claims from claimants who may be\n 14 abroad or difficult to reach. MFA Reply at 8. As there is still a hard deadline for such late\n 15 claims, the Court agrees with Plaintiffs that the process is appropriate. Cf. Lemus v. H &\n 16 R Block Enters., LLC, No. C 09-03179 SI, 2013 WL 3831866, at *2 (N.D. Cal. July 23,\n 17 2013) (\u201cA district court has discretion to allow late claims to a settlement fund.\u201d).\n 18 E. Calculating Damages\n 19 The parties have two disputes as to damages calculation. They disagree on which\n 20 accounting method to use and whether class members who did not purchase stock during\n 21 the Class Period need documentation for when they bought it.\n 22 As to the accounting method, courts apply either the first-in-first-out method\n 23 (\u201cFIFO\u201d) or the last-in-first-out method (\u201cLIFO\u201d). Both methods aim to evaluate the order\n 24 in which securities sold during the Class Period will be matched against securities held or\n 25 bought in the period. Under FIFO, sales of stock during the Class Period are matched first\n 26 against holdings at the start of the Class Period and then purchases made during the Period\n 27 in chronological order. LIFO operates in reverse, matching sales against the most recent\n 28 shares purchased. Plaintiffs urge the Court to adopt FIFO. MFA at 9. Musk asks for\n 37\n\f Case 3:22-cv-05937-CRB Document 590 Filed 07/06/26 Page 38 of 38\n\n\n\n\n 1 LIFO. MFA Opp\u2019n at 8.\n 2 The Court adopts FIFO. It is an accepted method of calculating damages. See, e.g.,\n 3 Plumbers & Pipefitters Loc. 572 Pension Fund v. Cisco Sys., Inc., No. C 01-20418 JW,\n 4 2004 WL 5326262, at *3 (N.D. Cal. May 27, 2004) (FIFO is \u201ca legitimate method for\n 5 computing losses or gains from stock purchases or sales.\u201d); Gruber v. Gilbertson, 647 F.\n 6 Supp. 3d 100, 120 (S.D.N.Y. 2022) (approving FIFO). Musk rightly points out that many\n 7 courts prefer LIFO. See MFA Opp\u2019n at 9. But the concerns some courts have about using\n 8 FIFO are not applicable here. Courts prefer LIFO because it accounts for \u201cgains that might\n 9 have accrued to plaintiffs during the class period due to the inflation of the stock price.\u201d\n 10 Cf. Gruber, 647 F. Supp. 3d at 119\u201320 (internal quotation omitted). That is not an issue in\n 11 a seller case with deflation. And Plaintiffs have also proposed adjustments to offset\n 12 windfalls. See MFA Reply at 5.\nNorthern District of California\n United States District Court\n\n\n\n\n 13 Musk also urges the Court to require class members who only purchased before the\n 14 Class Period to provide records of when they bought their shares as it would be relevant to\n 15 damages calculation. MFA Opp\u2019n at 10. The Court disagrees. As Plaintiffs point out, for\n 16 shares purchased before the Class Period, the date of purchase does not matter as there was\n 17 no fraud-related deflation at the time\u2014a deflated price upon sale is the damage. See MFA\n 18 Reply at 6.\n 19 V. CONCLUSION\n 20 For the foregoing reasons, the Court GRANTS Musk\u2019s motion for judgment as a\n 21 matter of law for Musk\u2019s May 17 tweet and DENIES the remainder of the motion. 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Breyer. Court Reporter Ruth Levine Ekhaus, RMR, RDR, FCRR, CCG, CSR No. 12219, email/telephone number ruth_ekhaus@cand.uscourts.gov/(415)-336-5223. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 586 Transcript Order ) Release of Transcript Restriction set for 9/18/2026. (Related documents(s) 586 ) (Ekhaus, Ruth) (Filed on 6/20/2026) (Entered: 06/20/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/468060736/","id":468060736,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/65412803/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/483338002/","id":483338002,"tags":[],"absolute_url":"/docket/65412803/585/giuseppe-pampena-v-elon-rmusk/","date_created":"2026-06-18T13:17:28.409447-07:00","date_modified":"2026-07-22T21:08:42.028607-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"585","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Motion Hearing","acms_document_guid":""}],"date_created":"2026-06-18T13:17:28.290518-07:00","date_modified":"2026-07-22T21:08:41.995321-07:00","date_filed":"2026-06-18","time_filed":null,"entry_number":585,"recap_sequence_number":"2026-06-18.001","pacer_sequence_number":null,"description":"Minute Entry for proceedings held before Judge Charles R. Breyer: Motion Hearing held on 6/18/2026 - Re 570 Motion for Judgment as a Matter of Law or, in the Alternative, a New Trial filed by Elon Musk; 567 Motion (Lead Plaintiffs' Motion for Approval of Class Notice of Verdict and Claims Administration Procedure) filed by John Garrett, Brian Belgrave, Nancy Price; 565 Motion (Lead Plaintiffs' Motion for the Award of Prejudgment Interest) filed by John Garrett, Brian Belgrave, Nancy Price; 571 Moition to Decertify Class Action Pursuant to Fed. R. Civ. P. 23(c) filed by Elon Musk. The Court will issue an order. (Total Time in Court: 2 Hours and 11 Minutes) Court Reporter: Ruth Levine Ekhaus. Plaintiff Attorney: Joesph W. Cotchett, Mark C. Molumphy, Tyson C. Redenberger, Gia Jung, Caroline A. Yuen, Francis A. Bottini, Jr., Aaron P. Arnzen, Elle D. Lewis. Defendant Attorney: Jesse A. Bernstein, Michael T. Lifrak, Stephen A. Broome. (This is a text-only entry generated by the court. There is no document associated with this entry.) 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Breyer for Court Reporter Ruth Ekhaus (Ekhaus, Ruth) (Filed on 6/15/2026) (Entered: 06/15/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/465560489/","id":465560489,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/65412803/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/480767581/","id":480767581,"tags":[],"absolute_url":"/docket/65412803/581/giuseppe-pampena-v-elon-rmusk/","date_created":"2026-05-28T17:35:10.410411-07:00","date_modified":"2026-07-22T21:08:41.755431-07:00","sha1":"5d894c578ad3c5a643fba957675d5a3506f0137e","page_count":13,"file_size":295558,"filepath_local":"recap/gov.uscourts.cand.401655/gov.uscourts.cand.401655.581.0_2.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.401655/gov.uscourts.cand.401655.581.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 1 of 13\n\n\n\n 1 COTCHETT, PITRE & MCCARTHY, LLP\n Joseph W. Cotchett (SBN 36324)\n 2 jcotchett@cpmlegal.com\n Mark C. Molumphy (SBN 168009)\n 3\n mmolumphy@cpmlegal.com\n 4 Tyson C. Redenbarger (SBN 294424)\n tredenbarger@cpmlegal.com\n 5 Elle D. Lewis (SBN 238329)\n elewis@cpmlegal.com\n 6 Gia Jung (SBN 340160)\n gjung@cpmlegal.com\n 7\n Caroline A. Yuen (SBN 354388)\n 8 cyuen@cpmlegal.com\n San Francisco Airport Office Center\n 9 840 Malcolm Road, Suite 200\n Burlingame, California 94010\n10 Telephone: (650) 697-6000\n11\n BOTTINI & BOTTINI, INC.\n12 Francis A. Bottini, Jr. (SBN 175783)\n fbottini@bottinilaw.com\n13 Aaron P. Arnzen (SBN 218272)\n aarnzen@bottinilaw.com\n14 7817 Ivanhoe Avenue, Suite 102\n15 La Jolla, California 92037\n Telephone: (858) 914-2001\n16\n Lead Counsel for Plaintiffs and the Class\n17\n UNITED STATES DISTRICT COURT\n18 NORTHERN DISTRICT OF CALIFORNIA\n19 SAN FRANCISCO DIVISION\n\n20 GIUSEPPE PAMPENA, on behalf of CASE NO. 3:22-CV-05937-CRB\n himself and all others similarly situated,\n21 LEAD PLAINTIFFS\u2019 REPLY IN\n SUPPORT OF MOTION FOR THE\n Plaintiff,\n22 AWARD OF PREJUDGMENT\n INTEREST\n23 vs.\n Date: June 18, 2026\n24 ELON R. MUSK, Time: 10:00 a.m.\n25 Ctrm: 6, 17th Floor\n Defendant. Judge: Hon. Charles R. Breyer\n26\n\n27\n\n28\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 2 of 13\n\n\n\n 1 TABLE OF CONTENTS\n 2 Page\n 3 SUMMARY OF ARGUMENT ..................................................................................................... iii\n 4 ARGUMENT ...................................................................................................................................1\n 5 I. MUSK\u2019S ARGUMENT AGAINST PREJUDGMENT INTEREST IS\n CONTRARY TO THE FACTS AND UNPERSUASIVE ..................................................1\n 6\n A. Musk\u2019s Personal Wrongdoing Was Egregious ........................................................1\n 7\n B. SEC Disgorgement Cases Are Instructive and Particularly Favor a\n 8 Prejudgment Interest Award Here ...........................................................................2\n 9\n C. Pre-Judgment Interest is Necessary to Make Class Members Whole......................3\n10\n D. The Lack of Delay Weighs in Favor of Awarding Prejudgment Interest ................4\n11\n E. Other Considerations Weigh in Favor of Awarding Prejudgment Interest..............4\n12\n II. THE COURT SHOULD AWARD PREJUDGMENT INTEREST AT THE \u00a7 6621\n13 RATE ...................................................................................................................................5\n14 A. Courts Weigh the Equities to Determine the Appropriate Prejudgment\n Interest Rate, and the Equities Here Support the \u00a7 6621 Rate .................................5\n15\n B. Musk\u2019s Arguments for a Lower Rate Are Unpersuasive .........................................6\n16\n C. Prejudgment Interest Should Be Compounded At Least Quarterly .........................8\n17\n\n18 CONCLUSION ................................................................................................................................8\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST i\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 3 of 13\n\n\n\n 1 TABLE OF AUTHORITIES\n 2 Cases Page(s)\n 3 In re Apollo Grp. Inc. Sec. Litig.\n 4 2012 WL 1378677 (D. Ariz. Apr. 20, 2012) .............................................................................7\n\n 5 Hsu v. Puma Biotechnology, Inc.\n 2019 WL 4295285 (C.D. Cal. Sept. 9, 2019) ............................................................................5\n 6\n Knapp v. Ernst & Whinney\n 7 90 F.3d 1431 (9th Cir. 1996) .................................................................................................1, 7\n 8 Liu v. SEC\n 591 U.S. 71 (2020) .....................................................................................................................3\n 9\n10 Nguyen v. Endologix, Inc.\n 962 F.3d 405 (9th Cir. 2020) .....................................................................................................2\n11\n Osterneck v. Ernst & Whinney\n12 489 U.S. (1989) ......................................................................................................................1, 4\n13 State Farm Mut. Auto. Ins. Co. v. Campbell\n 538 U.S. 408 (2003) ...............................................................................................................3, 6\n14\n\n15 United States v. Seley\n 957 F.2d 717 (9th Cir. 1992) .....................................................................................................2\n16\n In re Vivendi Universal, S.A.\n17 284 F.R.D. 144 (S.D.N.Y. 2012) ...............................................................................................5\n\n18 Statutes\n19 22 U.S.C. \u00a7 6621 .................................................................................................................... passim\n20 26 U.S.C. \u00a76622(a) ..........................................................................................................................8\n21\n 28 U.S.C. \u00a7 1961 ..............................................................................................................................5\n22\n ERISA ..............................................................................................................................................7\n23\n Other Authorities\n24\n 17 CFR \u00a7 201.600 ............................................................................................................................8\n25\n\n26\n\n27\n\n28\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST ii\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 4 of 13\n\n\n\n 1 SUMMARY OF ARGUMENT\n 2 In his opposition to Plaintiffs\u2019 motion for prejudgment interest (\u201cPJI\u201d), Musk advances\n 3 scattershot arguments in an unsuccessful effort to avoid PJI at the rate set forth in 26 U.S.C. \u00a7\n 4 6621(a)(2). Musk appears to concede that PJI is appropriate if it is necessary to compensate the\n 5 class for its injuries, Musk\u2019s wrongdoing was significant, the class had other investment\n 6 opportunities, Plaintiffs did not delay in bringing their action, and other fairness considerations\n 7 favor PJI. Each of these conditions exist, as established through voluminous and persuasive\n 8 evidence. Musk attempts to re-imagine the record to support his assertions that the factors disfavor\n 9 PJI, but the overwhelming evidence supporting the jury\u2019s verdict that Musk committed securities\n10 fraud also supports a PJI award.\n11 Musk makes much of the fact that the \u00a7 6621 rate has not been awarded in a private\n12 securities class action, but that is undoubtedly because there are an exceptionally small number of\n13 trial verdicts in private securities class actions in the entire country. And the cases that Musk cites\n14 in his opposition make clear that the Court may award the \u00a7 6621 rate when the equities support\n15 doing so. The equities here favor PJI at the higher rate.\n16 For these reasons, as elaborated below, the Court should award PJI at the \u00a7 6621 rate, to\n17 be compounded daily, or at least quarterly.\n18\n\n19 * * *\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST iii\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 5 of 13\n\n\n\n 1 ARGUMENT\n 2 I. MUSK\u2019S ARGUMENT AGAINST PREJUDGMENT INTEREST IS CONTRARY\n TO THE FACTS AND UNPERSUASIVE\n 3\n Musk agrees that the Court should assess several factors in determining whether to award\n 4\n prejudgment interest (\u201cPJI\u201d). ECF 576 at 2. These factors include \u201c(1) whether PJI is necessary\n 5\n to compensate the plaintiff fully for his injuries; (2) the degree of wrongdoing on the part of the\n 6\n defendant; (3) the availability of alternative investment opportunities to the plaintiff; (4) whether\n 7\n the plaintiff delayed in bringing or prosecuting the action; and (5) other fundamental\n 8\n considerations of fairness.\u201d Id. (citing Osterneck v. Ernst & Whinney, 489 U.S. at 169, 176\n 9\n (1989)). 1 All of these factors weigh in Plaintiffs\u2019 favor, and Musk\u2019s argument to the contrary\n10\n should be rejected.\n11\n A. Musk\u2019s Personal Wrongdoing Was Egregious\n12\n Musk first argues that \u201cthe degree of [his] personal wrongdoing is low.\u201d ECF 576 at 3.\n13\n The record strongly supports the opposite conclusion, which is no surprise given the jury\u2019s finding\n14\n that Musk defrauded investors. Musk began the saga leading to this trial by deciding that he\n15\n wanted to buy Twitter for himself. This desire evolved into a so-called \u201cJiu Jitsu\u201d strategy which\n16\n led to Musk\u2019s waiver of due diligence, a seller-friendly merger agreement, and immense pressure\n17\n on Twitter to accept his offer. The result: Musk entered into a deal that he proposed, he drafted,\n18\n and he signed. But just weeks later, he suddenly changed his mind. Musk wanted a different deal,\n19\n one where he paid investors less money for their company. So he mounted a public spectacle to\n20\n attack the reputation of Twitter\u2019s management team, disparage the company, threaten Twitter\u2019s\n21\n board and executive management with \u201cWorld War III until the end of time,\u201d and try to renegotiate\n22\n or escape the deal. And he did all of this with full knowledge that his statements and actions had\n23\n\n24\n 1\n25 Despite citing these factors, Musk pushes for an analysis that begins and ends with state\n of mind, imagining a rule that unambiguously states that PJI should be denied unless \u201cthe evidence\n26 points to a state of mind less than a malicious intent to defraud investors. ECF 576 at 3. But in the\n case he cites, Knapp v. Ernst & Whinney, 90 F.3d 1431 (9th Cir. 1996), the Ninth Circuit made\n27 clear that PJI was properly denied due to a combination of circumstances, including that (1) the\n investment at issue was \u201cexceptionally speculative,\u201d and (2) PJI was unnecessary to compensate\n28 victims where plaintiffs would receive more from settling defendants than they would through the\n verdict against the trial defendant who was challenging PJI. Id. at 1441-42. Such circumstances\n that disfavor prejudgment interest are not present here.\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 1\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 6 of 13\n\n\n\n 1 an outsized impact on Twitter\u2019s stock price. When Twitter\u2019s share price plunged\u2014an obvious\n 2 consequence of his actions\u2014the company\u2019s market capitalization plummeted by billions of\n 3 dollars, and investors like Brian Belgrave, John Garrett, and Nancy Price suffered financial losses.\n 4 Worse still\u2014as the jury found\u2014Musk did all of this with scienter. See ECF 573 at 12-18.\n 5 Musk\u2019s attempt to avoid this evidence is far from compelling. He argues that the jury may\n 6 have only found deliberate recklessness to support its scienter finding. But even if that were true,\n 7 deliberate recklessness represents an egregiously culpable state of mind.\n 8 Deliberate recklessness is more than mere recklessness or a motive to commit fraud.\n It is instead an extreme departure from the standards of ordinary care, which\n 9 presents a danger of misleading buyers or sellers that is either known to the\n10 defendant or is so obvious that the actor must have been aware of it.\n\n11 Nguyen v. Endologix, Inc., 962 F.3d 405, 414 (9th Cir. 2020) (cleaned up, internal citations and\n\n12 quotations omitted, emphasis added). Musk\u2019s opposition also argues that he believed his\n\n13 statements were true, citing his own trial testimony. ECF 576 at 3:23-24. The jury, however, had\n\n14 every reason to discredit and/or reject Musk\u2019s testimony, including his outright refusal to answer\n\n15 question after question that he didn\u2019t like during his direct examination.\n\n16 Musk also points out that he was not found liable for carrying out a fraudulent scheme.\n\n17 That, too, is cold comfort. The fact is, the jury found that Musk made false, misleading, and\n\n18 fraudulent statements to the investing public, which is wrongful conduct in its own right. In all\n\n19 likelihood, the jury\u2019s decision to hold Musk liable only for the May 13 and May 17 tweets, and\n\n20 not for the scheme, merely reflects lenity or compromise. Cf., United States v. Seley, 957 F.2d\n\n21 717, 723 (9th Cir. 1992) (\u201cThe jury may have acquitted for reasons of lenity or compromise, but\n\n22 this did not invalidate the convictions they did reach.\u201d).\n\n23 B. SEC Disgorgement Cases Are Instructive and Particularly Favor a\n Prejudgment Interest Award Here\n24\n Federal courts regularly award PJI in SEC injunctive actions, including those cited in\n25\n Plaintiffs\u2019 opening brief. ECF 565 at 3-4. Musk argues that those cases are \u201cinapposite\u201d because\n26\n defendants there \u201cobtained and retained the fruits of their fraud.\u201d ECF 576 at 4. Musk misses the\n27\n forest for the trees. It is true that SEC cases are different than private securities actions, but in a\n28\n way that clearly demonstrates how readily federal courts award PJI.\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 2\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 7 of 13\n\n\n\n 1 Musk concedes, as he must, that PJI is compensatory (e.g., ECF 576 at 2, 5, 7, 9, 10), but\n 2 then ignores the fact that compensatory relief mostly focuses on the victim, and not on the\n 3 wrongdoer. As the Supreme Court has noted, \u201ccompensatory and punitive damages\u2026serve\n 4 different purposes. Compensatory damages are intended to redress the concrete loss that the\n 5 plaintiff has suffered by reason of the defendant\u2019s wrongful conduct. By contrast, punitive\n 6 damages serve a broader function; they are aimed at deterrence and retribution.\u201d State Farm Mut.\n 7 Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (internal citations, quotations omitted,\n 8 emphasis added).\n 9 This is important because, even though SEC disgorgement cases are not easily categorized\n10 as compensatory, courts regularly award PJI. More specifically, wronged investors do not\n11 necessarily receive the disgorgement or PJI ordered against defendants in SEC cases; these\n12 payments often go to the U.S. Treasury. See generally Liu v. SEC, 591 U.S. 71, 85 (2020) (noting\n13 that courts \u201chave occasionally awarded disgorgement\u2026by ordering the proceeds of fraud to be\n14 deposited in Treasury funds instead of disbursing them to victims.\u201d). In other words, courts in\n15 SEC cases are willing to award PJI\u2014which constitutes compensatory relief\u2014even where the\n16 proceeds do not ultimately go to victims. The upshot: courts grant PJI even when its compensatory\n17 purpose creates a far trickier fit than this case. Given that, this Court should easily find it\n18 appropriate to compensate actual victims of Musk\u2019s fraud who received less than they should have\n19 when they sold Twitter stock during the class period.\n20 C. Pre-Judgment Interest is Necessary to Make Class Members Whole\n21 Musk\u2019s argument that PJI is not needed to make the class whole sweeps aside the\n22 fundamental point of this entire seller case. Nobody disputes that class members received funds\n23 when they sold Twitter stock. Rather, the parties hotly disputed the amount of deflation in\n24 Twitter\u2019s stock, i.e., the difference between (1) the price at which the stock actually traded after\n25 Musk\u2019s tweets, and (2) the price at which the stock would have traded absent those tweets. It is\n26 therefore odd that Musk argues that his victims could have earned interest on the deflated sales\n27 price they obtained when they sold their stock. PJI, according to Musk, should not be awarded\n28 \u201cbecause every class member received cash at the time of their sale and had immediate,\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 3\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 8 of 13\n\n\n\n 1 unrestricted use of those proceeds.\u201d ECF 576 at 5; see also id. (\u201chere, class members obtained\n 2 cash the moment they sold and were able to invest the proceeds as they saw fit\u201d). This is nonsense.\n 3 As Musk knows, Plaintiffs seek PJI on the amount of deflation Musk caused, not on the money\n 4 they obtained when they sold. See ECF 538 (verdict sets forth as damages \u201cthe amount of artificial\n 5 deflation per share of Twitter stock\u201d). Musk\u2019s argument that PJI is not necessary to make class\n 6 members whole completely ignores the basis for damages in this case and should be soundly\n 7 rejected.\n 8 D. The Lack of Delay Weighs in Favor of Awarding Prejudgment Interest\n 9 Musk briefly acknowledges that one of the factors that the Supreme Court highlighted in\n10 deciding to award PJI was whether the plaintiff delayed in bringing or prosecuting the action, but\n11 Musk entirely fails to substantively address this factor. ECF 576 at 2 (citing Osterneck, 489 U.S.\n12 at 176). That is likely because it weighs in favor of PJI, as Plaintiffs filed their case just a few\n13 weeks after Musk\u2019s October 4, 2022, capitulation in the Delaware merger litigation.\n14 E. Other Considerations Weigh in Favor of Awarding Prejudgment Interest\n15 Musk also argues that there are other considerations that disfavor PJI. In so doing, he\n16 fixates on the details surrounding trades by Plaintiffs Brian Belgrave and John Garrett. ECF 576\n17 at 6. Specifically, Musk portrays Mr. Belgrave\u2019s trades as \u201cmerger arbitrage\u201d and cherry-picks\n18 deposition testimony\u2014not introduced at trial\u2014to characterize Mr. Garrett as a \u201cgambler.\u201d Id.\n19 These are extremely unfair portrayals of a small business owner who is diligent in managing his\n20 stock market investments (Belgrave) and an elderly couple who live on a very modest Canadian\n21 pension and were trying to economically participate in what they believed to be Twitter\u2019s future\n22 alongside Musk (Garrett and Price). Trial Tr. 270-72; Trial Tr. 1357. This fixation tracks Musk\u2019s\n23 pattern of ignoring the fact that Plaintiffs brought this as a class action, invoked the fraud-on-the-\n24 market presumption, proved the there was an efficient market for Twitter securities, and seek PJI\n25 for the benefit of the entire class. ECF 573 at 18-21. The jury decided that all class members\n26 (including, but certainly not limited to, Mr. Belgrave, Ms. Price, and Mr. Garrett), who sold Twitter\n27 stock and transacted in certain options during the class period received a deflated price due to\n28 Musk\u2019s false statements. See ECF 538.\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 4\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 9 of 13\n\n\n\n 1 Musk also leans into the fact that Mr. Belgrave invested in Tesla, \u201creinvesting in the very\n 2 CEO he accused of defrauding him,\u201d and still \u201ctrusted\u201d Musk. ECF 576 at 6. To be clear, Plaintiffs\n 3 are not attempting to hold Musk accountable for any misconduct (which some would argue is quite\n 4 substantial) aside from the two false statements for which the jury found him liable, and whether\n 5 Belgrave invested in Tesla has nothing to do with whether PJI is appropriate. Based on the\n 6 foregoing, the Court should award PJI to Plaintiffs. See, e.g., Hsu v. Puma Biotechnology, Inc.,\n 7 2019 WL 4295285, at *3 (C.D. Cal. Sept. 9, 2019) (awarding prejudgment interest following\n 8 securities trial verdict); In re Vivendi Universal, S.A., 284 F.R.D. 144, 162 (S.D.N.Y. 2012) (same).\n 9 II. THE COURT SHOULD AWARD PREJUDGMENT INTEREST AT THE \u00a7 6621\n RATE\n10\n Musk argues that the Court should apply a lower interest rate than the one set forth in 22\n11\n U.S.C. \u00a7 6621. His argument fails for several reasons.\n12\n A. Courts Weigh the Equities to Determine the Appropriate Prejudgment\n13\n Interest Rate, and the Equities Here Support the \u00a7 6621 Rate\n14\n Musk suggests there is a steadfast rule in private securities cases mandating the use of the\n15\n lower PJI rate set forth in 28 U.S.C. \u00a7 1961. ECF 576 at 7 (asserting that the \u00a7 6621 rate \u201chas no\n16\n application here because any PJI awarded must serve as an element of compensation, not a\n17\n penalty\u201d) (citation, internal quotation omitted). This is simply untrue\u2014caselaw, including the\n18\n cases cited in Musk\u2019s opposition, are clear that the higher \u00a7 6621 may be awarded where plaintiffs\n19\n make a proper showing. E.g., Puma Biotechnology, 2019 WL 4295285, at *2 (quoting Western\n20\n Pac. Fisheries, 730 F.2d 1280, 1289 (9th Cir. 1984): the \u00a7 1961(a) rate is \u201cappropriate for fixing\n21\n the rate for pre-judgment interest in cases where the award of prejudgment interest is left to the\n22\n discretion of the trial court unless the judge finds on substantial evidence\u2026the equities of the\n23\n particular case require a different rate\u201d) (cleaned up).\n24\n The equities here require the \u00a7 6621 rate. The jury found that Musk defrauded the market\n25\n and deflated Twitter\u2019s stock price for every day of the Class Period; investors who sold Twitter\n26\n were invested in the stock of large capitalization company with billions of dollars in annual\n27\n revenue, with expectations of commensurate risks and rewards (but certainly not the risk that Musk\n28\n was committing fraud); class members were deprived of the full value of their stock and were\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 5\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 10 of 13\n\n\n\n 1 unable to fully participate in the market\u2019s overall rise during the intervening 3.5 years; as one of\n 2 the world\u2019s richest persons, the higher rate would not put a dent in Musk\u2019s overall financial\n 3 condition; the class includes John Garrett and Nancy Price (and presumably many like them) who\n 4 live on a tight income and modest retirement accounts and would have greatly benefited from\n 5 receiving the full value of their Twitter shares, as opposed to the deflated value due to Musk\u2019s\n 6 fraud; and this is a sole defendant case, so the class has no other defendants from whom they can\n 7 recover.\n 8 B. Musk\u2019s Arguments for a Lower Rate Are Unpersuasive\n 9 In order to \u201cnickel and dime\u201d class members, Musk advances several arguments that\n10 supposedly weigh against the higher rate. None hold water. For example, Musk argues that SEC\n11 enforcement cases applying the \u00a7 6621 rate are inapposite because the agency \u201chas a longtime\n12 rule\u201d that applies the higher rate \u201con orders of disgorgement in all administrative proceedings.\u201d\n13 ECF 576 at 7-8. But federal courts presiding over civil injunctive actions have never been bound\n14 by the agency\u2019s rule in administrative proceedings, and the federal courts in SEC civil actions were\n15 surely aware that they could only apply the higher rate if they found, \u201con substantial evidence\u2026the\n16 equities of the particular case require a different rate.\u201d W. Pac. Fisheries, 730 F.2d at 1289.\n17 Musk also argues that courts in SEC cases applied the higher rate because defendants had\n18 unlawfully received money from investors by and through their fraud, whereas Musk received no\n19 money directly from his victims here. ECF 576 at 8 (\u201cDefendant \u2018borrowed\u2019 nothing, took\n20 nothing, and received nothing from class members so this reasoning simply does not apply.\u201d).\n21 This argument lacks merit for the same reason discussed above, i.e., prejudgment interest is\n22 compensatory in nature and therefore focuses on the victims and making them whole; the\n23 fraudster\u2019s behavior is fully considered when determining other (i.e., punitive) aspects of a\n24 judgment. State Farm, 538 U.S. at 416. Simply put, the question driving the decision over which\n25 rate to apply is what will make victims whole, not whether Musk received money directly from\n26 class members.\n27 Musk also asserts that the higher PJI rate has never been applied in a private securities case.\n28 This oversells the point. Musk\u2019s brief cites no fewer than five cases in claiming that the \u201cweight\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 6\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 11 of 13\n\n\n\n 1 of authority in this Circuit\u2014unbroken and unanimous in private securities class actions [two case\n 2 citations]\u2014rejects applying the Tax Penalty Rate to PJI. [3 additional case citations].\u201d ECF 576\n 3 at 12. What is not apparent without checking Musk\u2019s citations, though, is that three of the five\n 4 cases he cites are not securities cases at all. Id. (Erhart v. BofI Holding, Inc., concerns\n 5 whistleblower/wrongful termination allegations, and Santos v. Minnesota Life Ins. Co. and F. v.\n 6 Blue Shield of California are ERISA cases). What\u2019s more, only one of the two securities cases\n 7 Musk cites for this assertion is from this Circuit. The real reason there is not a robust history of\n 8 granting the higher PJI rate in private securities actions is that there are vanishingly few verdicts\n 9 awarding damages in the past few decades in the entire country, and fewer still in the Ninth Circuit.\n10 In re Apollo Grp. Inc. Sec. Litig., 2012 WL 1378677, at *7 (D. Ariz. Apr. 20, 2012) (\u201csecurities\n11 class actions rarely proceed to trial\u201d). Be that as it may, Plaintiffs\u2019 opening brief cited many\n12 private, civil, non-securities cases in which the higher rate was applied (ECF 565, passim), and\n13 Musk offers no reason why victims of other legal violations should receive the \u00a7 6621 rate but\n14 investors in private securities actions should not. Such disparate treatment would be completely\n15 unjustified.\n16 Musk further asserts that, had his victims received the amount of deflation caused by his\n17 fraud, they could have lost that money by investing it. ECF 576 at 11 (\u201cIt is equally possible that\n18 Plaintiffs and class members would have invested their proceeds in stocks that declined.\u201d). The\n19 Ninth Circuit rejected such an argument in Knapp v. Ernst & Whinney, 90 F.3d 1431, 1441 (9th\n20 Cir. 1996). There, the district court denied PJI and pointed out that the investment at issue was\n21 speculative. The Ninth Circuit disagreed and expressed \u201cdoubts about this reasoning.\u201d Id. at 1441\n22 (if the class \u201chad invested in a basket of securities as risky as ATV, the class as a whole would\n23 expect to receive from their investments a rate of return higher than the risk-free rate prevailing\n24 during the class period.\u201d). The same is true here\u2014an investment in an index fund tracking the\n25 overall stock market would have resulted in a total compounded return of 93.18% since the end of\n26 the class period. See ECF 565 at 6.\n27 In sum, awarding PJI at the \u00a7 6621 rate, which constitutes conservative relative stock\n28 market returns over the relevant period, is consistent with the equities and will further the interests\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 7\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 12 of 13\n\n\n\n 1 of making class members whole and remedying the damage done by Defendant\u2019s fraud.\n 2 C. Prejudgment Interest Should Be Compounded At Least Quarterly\n 3 In their opening brief, Plaintiffs advocated for prejudgment interest to be compounded\n 4 daily. ECF 565 at 9-10. Section 6621\u2019s accompanying statute expressly calls for daily\n 5 compounding. \u201cIn computing the amount of any interest required to be paid under this title\u2026such\n 6 interest and such amount shall be compounded daily.\u201d 26 U.S.C. \u00a76622(a). Musk argues that \u00a7\n 7 1969 provides for annual compounding, which should be applied here. As shown at trial (see\n 8 supra), the equities do not support the application of the \u00a7 1969 rate and instead favor applying\n 9 the \u00a7 6621 rate.\n10 Plaintiffs continue to believe daily compounding is appropriate for that reason. However,\n11 in the event the Court determines that daily compounding is not warranted, Plaintiffs believe that\n12 at least quarterly compounding is appropriate. Indeed, in SEC administrative proceedings, which\n13 are instructive here for the reasons discussed above, PJI on disgorged sums is \u201ccomputed [under]\n14 26 U.S.C. 6621(a)(2), and shall be compounded quarterly.\u201d 17 CFR \u00a7 201.600; see also, e.g.,\n15 Molumphy Reply Decl., filed concurrently herewith, Ex. 7 at 4-5 (calculation, including quarterly\n16 compounding of prejudgment interest, in SEC v. Platforms Wireless Int\u2019l Corp., which the Ninth\n17 Circuit approved at 617 F.3d 1072, 1099 (9th Cir. 2010)).\n18 CONCLUSION\n19 For the foregoing reasons, Plaintiffs respectfully request that the Court award prejudgment\n20 interest in accordance with the rate set by 26 U.S.C. \u00a76621(a)(2), compounded at least quarterly\n21 from October 4, 2022, through the date of entry of the final judgment.\n22\n Dated: May 28, 2026 Respectfully submitted,\n23\n\n24 COTCHETT, PITRE & MCCARTHY, LLP\n Joseph W. Cotchett (SBN 36324)\n25 Mark C. Molumphy (SBN 168009)\n Tyson C. Redenbarger (SBN 294424)\n26 Elle D. Lewis (SBN 238329)\n Gia Jung (SBN 340160)\n27 Caroline A. Yuen (SBN 354388)\n\n28 /s/ Mark C. Molumphy\n Mark C. Molumphy\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 8\n\f Case 3:22-cv-05937-CRB Document 581 Filed 05/28/26 Page 13 of 13\n\n\n\n 1 San Francisco Airport Office Center\n 840 Malcolm Road, Suite 200\n 2 Burlingame, California 94010\n Telephone: (650) 697-6000\n 3\n BOTTINI & BOTTINI, INC.\n 4 Francis A. Bottini, Jr. (SBN 175783)\n Aaron P. Arnzen (SBN 218272)\n 5\n /s/ Aaron P. Arnzen\n 6 Aaron P. Arnzen\n 7 7817 Ivanhoe Avenue, Suite 102\n La Jolla, California 92037\n 8 Telephone: (858) 914-2001\n 9 Lead Counsel for Plaintiffs and the Class\n10\n\n11\n\n12\n\n13\n\n14 ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3)\n15 I, Mark C. Molumphy, attest that concurrence in the filing of this document has been\n16 obtained from the other signatory. I declare under penalty of perjury under the laws of the United\n17 States of America that the foregoing is true and correct.\n18 Executed this 28th day of May, 2026, at Burlingame, California.\n19\n\n20 /s/ Mark C. Molumphy\n21 Mark C. Molumphy\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY ISO MOTION FOR THE AWARD OF PREJUDGMENT INTEREST 9\n\f","ocr_status":2,"date_upload":"2026-06-18T09:45:44.668665-07:00","document_number":"581","attachment_number":null,"pacer_doc_id":"035027186811","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Reply to Opposition/Response","acms_document_guid":""}],"date_created":"2026-05-28T17:35:10.385591-07:00","date_modified":"2026-10-21T08:49:21.295159-07:00","date_filed":"2026-05-28","time_filed":"17:13:07","entry_number":581,"recap_sequence_number":"2026-05-28.003","pacer_sequence_number":1756,"description":"REPLY (re 565 MOTION (Lead Plaintiffs' Motion for the Award of Prejudgment Interest) ) filed byBrian Belgrave, John Garrett, Nancy Price. (Molumphy, Mark) (Filed on 5/28/2026) (Entered: 05/28/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/465560475/","id":465560475,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/65412803/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/480767567/","id":480767567,"tags":[],"absolute_url":"/docket/65412803/582/giuseppe-pampena-v-elon-rmusk/","date_created":"2026-05-28T17:35:09.486528-07:00","date_modified":"2026-07-22T21:08:41.822620-07:00","sha1":"3ce4261b9715c29cb6a8d298f0a1b05a1e7da7d7","page_count":17,"file_size":334043,"filepath_local":"recap/gov.uscourts.cand.401655/gov.uscourts.cand.401655.582.0_1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.401655/gov.uscourts.cand.401655.582.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 1 of 17\n\n\n\n\n 1 COTCHETT, PITRE & MCCARTHY, LLP\n Joseph W. Cotchett (SBN 36324)\n 2 jcotchett@cpmlegal.com\n Mark C. Molumphy (SBN 168009)\n 3 mmolumphy@cpmlegal.com\n Tyson C. Redenbarger (SBN 294424)\n 4\n tredenbarger@cpmlegal.com\n 5 Elle D. Lewis (SBN 238329)\n elewis@cpmlegal.com\n 6 Gia Jung (SBN 340160)\n gjung@cpmlegal.com\n 7 Caroline A. Yuen (SBN 354388)\n 8 cyuen@cpmlegal.com\n San Francisco Airport Office Center\n 9 840 Malcolm Road, Suite 200\n Burlingame, California 94010\n10 Telephone: (650) 697-6000\n11 BOTTINI & BOTTINI, INC.\n12 Francis A. Bottini, Jr. (SBN 175783)\n fbottini@bottinilaw.com\n13 Aaron P. Arnzen (SBN 218272)\n aarnzen@bottinilaw.com\n14 7817 Ivanhoe Avenue, Suite 102\n La Jolla, California 92037\n15 Telephone: (858) 914-2001\n16\n Lead Counsel for Plaintiffs and the Class\n17\n UNITED STATES DISTRICT COURT\n18 NORTHERN DISTRICT OF CALIFORNIA\n SAN FRANCISCO DIVISION\n19\n\n20 GIUSEPPE PAMPENA, on behalf of CASE NO. 3:22-CV-05937-CRB\n himself and all others similarly situated,\n21 LEAD PLAINTIFFS\u2019 REPLY IN\n Plaintiff, SUPPORT OF MOTION FOR\n22 APPROVAL OF CLASS NOTICE OF\n vs. VERDICT AND CLAIMS\n23\n ADMINISTRATION PROCEDURE\n24 ELON R. MUSK,\n Date: June 18, 2026\n25 Defendant. Time: 10:00 am\n Ctrm: 6, 17th Floor\n26 Judge: Hon. Charles R. Breyer\n27\n\n28\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 2 of 17\n\n\n\n\n 1 TABLE OF CONTENTS\n 2\n Page\n 3\n SUMMARY OF ARGUMENT ......................................................................................................... i\n 4\n ARGUMENT .................................................................................................................................... 1\n 5\n\n 6 I. MUSK HAS NOT BEEN \u201cPREVENTED\u201d FROM CHALLENGING RELIANCE ........... 1\n\n 7 A. Musk Had Ample Opportunity to Contest Reliance Before and At Trial................. 1\n\n 8 B. Musk Has No Right to Challenge Reliance Through Post-Trial Discovery ............. 2\n 9 C. Post-Trial Discovery is Not Justified By Musk\u2019s Speculation that Class Members\n10 Did Not Rely on His Fraud ....................................................................................... 4\n\n11 II. PLAINTIFFS\u2019 PROPOSED DAMAGES PLAN IS APPROPRIATE ................................. 5\n\n12 III. PLAINTIFFS\u2019 PROPOSED CLAIM PROCESS IS APPROPRIATE ................................. 6\n13\n A. The Proposed Process to Review and Verify Claims is Proper ................................ 6\n14\n B. The Proposed Notice and Claim Forms Are Accurate and Complete ...................... 7\n15\n C. Plaintiffs Proposed a Date Certain to Accept Late Claims ....................................... 8\n16\n D. The Proposed Schedule Provides Ample Time for Challenges ................................ 9\n17\n\n18 IV. THERE IS NO NEED FOR A SPECIAL MASTER ......................................................... 10\n\n19 V. THE COURT SHOULD ORDER MUSK TO PAY COSTS NOW................................... 10\n20 CONCLUSION ............................................................................................................................... 10\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT i\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 3 of 17\n\n\n\n TABLE OF AUTHORITIES\n 1\n Cases Page(s)\n 2\n\n 3 Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds,\n 568 U.S. 455 (2013) ...................................................................................................................1\n 4\n Basic, Inc. v. Levison,\n 5 485 U.S. 224 (1988) ...........................................................................................................1, 2, 4\n\n 6 Blackie v. Barrack,\n 524 F.2d 891 (9th Cir. 1975) .....................................................................................................3\n 7\n Burlington N. R. Co. v. Dep\u2019t of Revenue of State of Wash.,\n 8\n 934 F.2d 1064 (9th Cir. 1991) .................................................................................................10\n 9\n Gruber v. Gilbertson,\n10 647 F. Supp. 3d 100 (S.D.N.Y. 2022)............................................................................1, 2, 3, 5\n\n11 Halliburton Co. v. Erica P. John Fund, Inc.,\n 573 U.S. 258 (2014) ...............................................................................................................1, 2\n12\n Hoffmann-La Roche, Inc. v. Sperling,\n13 493 U.S. 165 (1989) ................................................................................................................... i\n14\n Hsu v. Puma Biotechnology, Inc.,\n15 2021 WL 2644100 (C.D. Cal. June 11, 2021) ................................................................... i, 2, 5\n\n16 Jaroslawicz v. Engelhard Corp.,\n 724 F. Supp. 294 (D.N.J. 1989) .................................................................................................4\n17\n Lawrence E. Jaffe Pension Plan v. Household Int\u2019l, Inc.,\n18 2005 WL 3801463 (N.D. Ill. Apr. 18, 2005) .........................................................................2, 3\n19\n Mathews v. Eldridge,\n20 424 U.S. 319 (1976) ...................................................................................................................3\n\n21 Morrissey v. Brewer,\n 408 U.S. 471 (1972) ...................................................................................................................3\n22\n Norton v. LVNV Funding, LLC,\n23 2022 WL 562831 (N.D. Cal. Feb. 24, 2022) .............................................................................8\n24 Pierce Cty. Hotel Emps. & Rest Emps. Health Tr. v. Elks Lodge B.P.O.E., No.\n25 1450,\n 827 F.2d 1324 (9th Cir. 1997) ...................................................................................................3\n26\n Rodriguez v. Google LLC,\n27 2022 WL 17905108 (N.D. Cal., Feb. 8, 2021) ........................................................................10\n28\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT ii\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 4 of 17\n\n\n\n Vasquez v. Leprino Foods Co.,\n 1 2023 WL 1868973 (E.D. Cal. Feb. 9, 2023) ..............................................................................3\n 2\n In re Vivendi Universal, S.A. Sec. Litig.,\n 3 765 F. Supp. 2d 512 (S.D.N.Y 2011).....................................................................................2, 3\n\n 4 In re Worldcom, Inc. Sec. Litig.,\n 2005 WL 517331 (S.D.N.Y. Mar. 4, 2005) ...............................................................................4\n 5\n Other Authorities\n 6\n Federal Rules of Civil Procedure:\n 7\n Rule 23 ............................................................................................................................... i, ii, 3\n 8\n\n 9 Rule 53(a)(1) ............................................................................................................................10\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT iii\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 5 of 17\n\n\n\n\n 1 SUMMARY OF ARGUMENT\n\n 2 Defendant Elon Musk\u2019s goal is to delay and reduce the financial implications of the jury\u2019s\n\n 3 verdict that he violated the federal securities laws. To that end, after taking voluminous fact\n\n 4 discovery, challenging Plaintiffs\u2019 experts and offering his own, moving for summary judgment,\n\n 5 taking this case to trial, calling a number of his own witnesses, and resting well before his time\n\n 6 expired, Musk now asserts that he is \u201centitled\u201d to conduct a brand new, \u201cPhase II\u201d of the litigation,\n\n 7 including post-trial discovery against 170,000 individual class members to suss out the extent to\n\n 8 which each relied on the integrity of the market for Twitter stock, followed by individual jury trials.\n\n 9 That\u2019s not how class actions (nor our justice system more broadly) work.\n\n10 Musk had every opportunity to rebut reliance through discovery, motion practice, and\n\n11 ultimately at trial. And in the proposed claims process, Musk will have the opportunity to challenge\n\n12 individual class members who submit claims. However, Musk has no due process right to conduct\n\n13 \u201creliance\u201d discovery after trial to try to support his challenges, particularly where he never even\n\n14 mentioned, let alone preserved, that right at any time before trial. Hsu v. Puma Biotechnology, Inc.,\n\n15 2021 WL 2644100, at *3-4 (C.D. Cal. June 11, 2021) (rejecting post-trial discovery to challenge\n\n16 individual reliance). Indeed, Musk fails to cite a single statute, case or order of the Court that\n\n17 conveys such a right, and the primary case he relies on, decided outside this Circuit, was later\n\n18 limited by the same district court that decided it. Musk offers no serious response to Puma or its\n\n19 reasoning, and his sweeping \u201cPhase II\u201d proposal\u2014which will extend the claims schedule by months\n\n20 if not years\u2014runs counter to the very purposes of Rule 23, as well as the Court\u2019s broad authority\n\n21 to manage class proceedings efficiently and in a manner that does not render class actions\n\n22 unworkable. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989) (\u201cThe judicial system\n\n23 benefits by efficient resolution in one proceeding of common issues of law and fact.\u201d).\n\n24 Musk also wants to rewrite Plaintiffs\u2019 proposed notice and claims procedures to dilute the\n\n25 result of the trial and deter class members from filing claims with threats of impending document\n\n26 requests, interrogatories, depositions and jury trials. And he wants a damages formula slanted in\n\n27 every respect to benefit him and reduce the recovery of class members who were harmed by his\n\n28 fraud. However, Plaintiffs\u2019 proposed forms, designed with the assistance of an experienced claims\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT i\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 6 of 17\n\n\n\n\n 1 administrator, Epiq, are fair, accurate, and consistent with the law. The notice clearly explains the\n\n 2 jury\u2019s verdict and the requirements for class members to submit claims. The claims form requires\n\n 3 standard information to confirm a class member has a valid claim and to calculate damages based\n\n 4 on the jury\u2019s verdict.\n\n 5 A fundamental goal of Rule 23 is to \u201cprotect class members and fairly conduct the action.\u201d\n\n 6 Fed. R. Civ. P. 23(d)(1)(B). Here, Musk\u2019s proposed alterations to the notice and claims schedule,\n\n 7 including post-trial discovery against thousands of class members, are designed to discourage\n\n 8 claims, delay the claims process, and reduce the class members\u2019 recovery. They should be rejected,\n\n 9 and the notice and claims administration procedure proposed by Plaintiffs should be approved by\n\n10 the Court, allowing class members to recover for the harm caused by Musk\u2019s fraud as expeditiously\n\n11 as possible.\n\n12\n\n13 * * *\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT ii\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 7 of 17\n\n\n\n\n 1 ARGUMENT\n\n 2 I. MUSK HAS NOT BEEN \u201cPREVENTED\u201d FROM CHALLENGING RELIANCE\n\n 3 A. Musk Had Ample Opportunity to Contest Reliance Before and At Trial\n\n 4 While caselaw preserves a defendant\u2019s right to rebut the fraud-on-the-market presumption,\n\n 5 that right is not unlimited. Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 276 (2014)\n\n 6 (\u201cHalliburton II\u201d). This is particularly true given that Musk has had every opportunity to contest\n\n 7 reliance through discovery, motion practice, and ultimately at trial.\n\n 8 Prior to trial, Musk filed multiple briefs contesting reliance. See ECF 99 (opposition to\n\n 9 class certification); and 255 (Musk\u2019s motion for summary judgment). And at trial, both sides\u2019\n\n10 reliance arguments necessarily culminated before the jury\u2014Plaintiffs Brian Belgrave and Nancy\n\n11 Price testified about their reliance on the integrity of the market; Plaintiffs\u2019 expert gave a detailed\n\n12 explanation of the factors he considered in finding an efficient market; Plaintiffs advanced the fraud\n\n13 on the market presumption in opening statement and closing argument; and Musk crossed\n\n14 Plaintiffs\u2019 witnesses, had the opportunity to put on his own witnesses, and argued against reliance\n\n15 during his closing. Tr. 229:14-191 (Plaintiffs\u2019 opening); Tr. 277:2-7 (Mr. Belgrave); Tr. 1368:2-5\n\n16 (Ms. Price); Tr. 1810:21-1811:4 (Dr. Tabak); Tr. 2219:12-14 (Plaintiffs\u2019 closing); Tr. 2271:24-13\n\n17 (Musk\u2019s closing). Based on this evidence and argument, the jury returned a verdict that incorporates\n\n18 class-wide liability based on an efficient market and the fraud on the market presumption. See ECF\n\n19 573 at 18-21 (JMOL opposition).\n\n20 Trial was certainly the appropriate time for Musk to attempt to rebut classwide reliance.\n\n21 Basic, Inc. v. Levison, 485 U.S. 224, 249 fn. 29 (1988) (\u201cProof of that sort is a matter for trial,\n\n22 throughout which the District Court retains the authority to amend the certification order as may be\n\n23 appropriate); Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 481, (2013) (if\n\n24 plaintiffs fails to prove materiality at trial, \u201cthe fraud-on-the-market presumption of classwide\n\n25 reliance will collapse\u2026the class members\u2019 claims will have failed on their merits, thus bringing the\n\n26 litigation to a close.\u201d); Gruber v. Gilbertson, 647 F. Supp. 3d 100, 124 (S.D.N.Y. 2022) (defendant\n\n27 cannot \u201cyears into this action and long past not just the close of discovery but trial itself, demand\n\n28 additional individualized discovery of absent class members in order to better substantiate\n\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 1\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 8 of 17\n\n\n\n\n 1 arguments rejected at the class certification stage in order to disprove elements already proved\n\n 2 against him on a classwide basis at trial.\u201d)\n\n 3 B. Musk Has No Right to Challenge Reliance Through Post-Trial Discovery\n\n 4 Musk claims he is \u201centitled\u201d to post-trial discovery to challenge claims of reliance, but fails\n\n 5 to cite a single statute, case, or order by this Court recognizing such a right. In fact, discovery has\n\n 6 only been permitted in extremely limited situations where, pre-trial, the parties expressly\n\n 7 contemplated, raised and preserved the right to conduct such discovery post-trial. Absent such\n\n 8 unique circumstances, post-trial discovery has uniformly been rejected. Compare Puma, 2021 WL\n\n 9 2644100 at *2-4 (rejecting post-trial discovery that had not been stayed or preserved pre-trial, and\n\n10 holding that Basic and Halliburton II did not provide a right to challenge reliance through post-trial\n\n11 discovery) and Gruber, 647 F. Supp. 3d at 125-126 (S.D.N.Y. 2022) (rejecting post-trial discovery)\n\n12 with Household, 2005 WL 3801463 at *4 (post-trial discovery only allowed after defendants\n\n13 explicitly preserved the right and plaintiffs agreed to such discovery) and Vivendi, 765 F. Supp. 2d\n\n14 at 585 fn. 63 (same). 1\n\n15 Musk fails to cite Gruber, nor seriously distinguish Puma, the only precedent-setting case\n\n16 in this Circuit, suggesting discovery was only rejected there because the defendant waited too long\n\n17 and sought too broad a scope. But Musk\u2019s request fails for the same reasons. Puma, 2021 WL\n\n18 2644100 at *3 (\u201cDefendants could have taken discovery on the issue of reliance during the fact\n\n19 discovery period\u201d). Indeed, in Puma, discovery was denied even though the defendant had raised,\n\n20 and the final pre-trial order reflected, an opportunity to request post-trial discovery. Here, Musk\n\n21 never once raised, much less preserved, any intent to conduct post-trial discovery, and there is no\n\n22 pre-trial order permitting post-trial discovery. Distinguishing the same cases cited by Musk on this\n\n23 very basis, the Puma court added: \u201cWhen rebutting the presumption of reliance under the fraud-on-\n\n24 the-market theory, the only question to be asked of the representative plaintiff is whether the\n\n25 plaintiff would have bought stock at the same price, had it known of the alleged fraud. This question\n\n26 is exactly what the jury has already answered.\u201d Puma, 2021 WL 2644100 at *4 (citing Basic, 485\n\n27\n\n28\n 1\n In Gruber, decided in the same district as Vivendi, the court rejected post-trial discovery and\n distinguished Vivendi and Household on their unique facts. Gruber, 647 F. Supp. 3d at fn 16.\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 2\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 9 of 17\n\n\n\n\n 1 U.S. at 248-49; emphasis added).\n\n 2 Musk could have requested discovery from unnamed plaintiffs during discovery\u2014including\n\n 3 from the list of the twenty top sellers of Twitter stock, which Musk\u2019s expert prepared\u2014or attempted\n\n 4 to call additional investors to the stand at trial to challenge the fraud on the market presumption.\n\n 5 ECF 99-6 at 42. But Musk failed to take such discovery, preserve his right to do so later, and failed\n\n 6 to rebut the presumption of reliance at trial. See Pierce Cty. Hotel Emps. & Rest Emps. Health Tr.\n\n 7 v. Elks Lodge B.P.O.E., No. 1450, 827 F.2d 1324, 1328-29 (9th Cir. 1997) (\u201cIssues not preserved\n\n 8 in the pretrial order are eliminated from the action.\u201d); see e.g., Household, 2005 WL 3801463 at *4\n\n 9 (preserving the right to take post-trial discovery); Vivendi., 765 F. Supp. 2d at 585 n.63 (same);\n\n10 Gruber, 647 F. Supp. 3d at 125 (post-trial discovery denied, in part, because \u201cdefendant had the\n\n11 opportunity at trial to rebut the presumption of reliance,\u201d but failed.)\n\n12 Nor does Plaintiffs\u2019 proposal present any due process issues, as Musk had every opportunity\n\n13 to rebut reliance at trial or preserve his right to post-trial discovery. See Mathews v. Eldridge, 424\n\n14 U.S. 319, 348\u201349 (1976) (\u201cThe essence of due process is the requirement that a person in jeopardy\n\n15 of serious loss (be given) notice of the case against him and opportunity to meet it.\u201d) (citing Joint\n\n16 Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-172 (1951) (Frankfurter, J., concurring));\n\n17 Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (\u201cdue process is flexible and calls for such\n\n18 procedural protections as the particular situation demands\u201d); Blackie v. Barrack, 524 F.2d 891, 907\n\n19 n. 22 (9th Cir. 1975) (\u201cA defendant does not have unlimited rights to discovery against unnamed\n\n20 class members\u201d); Vasquez v. Leprino Foods Co., 2023 WL 1868973, at *11 (E.D. Cal. Feb. 9, 2023)\n\n21 (\u201c[D]enying Defendants from calling every member of the class to rebut Plaintiffs\u2019 on-call claim\n\n22 will not violate Leprino\u2019s due process rights \u2026 Such a right would obliterate the use of\n\n23 representative evidence and defy the class action device\u2019s purpose to save the resources of both the\n\n24 courts and the parties (citation omitted). Indeed, \u201cRule 23 would be near to useless if defendants\n\n25 who lose at trial as to common questions could then indefinitely prolong litigation by seeking to\n\n26 relitigate those questions as to each absent class member.\u201d Gruber, 647 F. Supp. 3d at 125.\n\n27 Lacking cases on point, Musk cites Jaroslawicz v. Engelhard Corp., 724 F. Supp. 294\n\n28 (D.N.J. 1989), decided on entirely different circumstances. In addressing pre-trial whether the jury\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 3\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 10 of 17\n\n\n\n\n 1 could award a \u201clump sum,\u201d the court ruled that plaintiff-specific issues of direct reliance under\n\n 2 New Jersey law prevented an aggregate damages award. Id. at n. 11. That unique circumstance\n\n 3 does not arise here, as the jury reached a per-share verdict solely applying federal law and Musk\n\n 4 did not rebut the presumption of reliance. See In re Worldcom, Inc. Sec. Litig., 2005 WL 517331\n\n 5 at *5 (S.D.N.Y. Mar. 4, 2005) (\u201cBecause the Lead Plaintiff has not brought state law claims, and\n\n 6 because the likelihood of any effective rebuttal to the presumption of reliance is, in this case,\n\n 7 speculative and remote, the concerns in Jaroslawicz do not apply here\u201d).\n\n 8 C. Post-Trial Discovery is Not Justified By Musk\u2019s Speculation that Class\n Members Did Not Rely on His Fraud\n 9\n Musk does not dispute that post-trial \u201creliance\u201d discovery on tens of thousands of absent\n10\n class members, followed by individual trials, will substantially delay the case and waste resources.\n11\n Instead, Musk claims his requests might allow him to identify some subset of absent class members\n12\n who did not rely on his fraud. ECF 557 at 8. The immense burden of such discovery is not justified.\n13\n Musk cites Goldman Sachs as an example, suggesting the firm engaged in illegal insider\n14\n trading in Twitter stock because certain M&A employees commented via email on Musk\u2019s 2022\n15\n tweets in real time, and the bank sold Twitter stock during the class period. See ECF 577 at 8. But\n16\n these emails do not prove that Goldman Sachs as an entity or its stock traders (1) believed that\n17\n Musk\u2019s statements were false, (2) \u201cconsequently believed that [Twitter\u2019s] stock was artificially\n18\n underpriced,\u201d and (3) sold their \u201cshares nevertheless because of other unrelated concerns.\u201d Basic,\n19\n 485 U.S. at 249. Musk also ignores Goldman Sachs\u2019 policy against insider trading, which \u201cwall[s]\n20\n off\u201d employees and implements \u201cinformation barriers\u201d to prevent such conduct. See Molumphy\n21\n Reply Decl., Ex. 4, at p. 23; Ex. 5 at p. 9. The claim that two emails among M&A employees\u2014\n22\n which were not introduced at trial\u2014rebut reliance for Goldman Sachs borders on the absurd.\n23\n Similarly, Musk offers no evidence suggesting that JPMorgan, Twitter\u2019s other banker, engaged in\n24\n insider trading or that related discovery is likely to \u201cglean evidence\u201d that Musk could use to rebut\n25\n the presumption. ECF 577 at 7; see Basic at 249. Finally, while Musk points out that Steve Garrett\n26\n was not appointed to serve as a lead plaintiff because he did not mention at deposition that he relied\n27\n on the market price for Twitter stock (ECF 106 at 9-10), Garrett never disclaimed reliance on\n28\n Twitter\u2019s market price and his stated reason for selling (he saw news of Musk\u2019s July 8, 2022\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 4\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 11 of 17\n\n\n\n\n 1 termination letter) is consistent with relying on the integrity of the market. The Court\n\n 2 understandably took these nuances into account when certifying the class, but it is fair to apply the\n\n 3 presumption that absent class members relied on Twitter\u2019s market price given the evidence\n\n 4 presented at trial.\n\n 5 II. PLAINTIFFS\u2019 PROPOSED DAMAGES PLAN IS APPROPRIATE\n\n 6 Musk only takes issue with a few aspects of Plaintiffs\u2019 proposed plan to calculate damages.\n\n 7 First, Musk argues that LIFO should be used instead of FIFO to calculate damages because FIFO\n\n 8 might, in some hypothetical instances, result in a possible \u201cwindfall\u201d for class members. To support\n\n 9 his claim, Musk provides a simple, cherry-picked, and incomplete hypothetical example. ECF 577\n\n10 at 9. But even Musk\u2019s incomplete hypothetical shows that FIFO can return lower damages than\n\n11 LIFO. For example, Musk\u2019s hypothetical investor has two shares, but Musk calculates gains by\n\n12 having the investor sell only one of his shares on a day when the prices favor his position. What\n\n13 happens when the investor sells that second share? Depending on when he sells the second share,\n\n14 total damages using LIFO are higher than the damages using FIFO on those two transactions. See\n\n15 Molumphy Reply Decl., Ex. 6. Musk fails to show a categorical windfall from FIFO.\n\n16 Musk also does not dispute that numerous other courts have applied FIFO to class-wide\n\n17 distribution, nor that FIFO is a widely accepted accounting practice in many instances, including in\n\n18 securities cases. See Molumphy Reply Decl., \u00b6 5 (listing 96 cases in which courts in the Ninth\n\n19 Circuit have approved the use of FIFO); see also ECF 567-2, Tabak Decl. (\u201cFIFO is indeed a valid\n\n20 and widely accepted method for matching purchases and sales of a security.\u201d). Ultimately, this\n\n21 issue is subject to the Court\u2019s discretion, and Musk has failed to cite any authority precluding the\n\n22 Court from approving FIFO instead of LIFO. See Puma, 2019 WL 4295285, at *5; Gruber, 647 F.\n\n23 Supp. 3d at 119 (court exercised discretion and approved use of FIFO.)\n\n24 Musk also wrongly suggests that Plaintiffs proposed no offsets or adjustments. ECF 577 at\n\n25 10. Plaintiffs propose that the claims administrator remove any gains made on trades executed\n\n26 during the class period, thus offsetting any potential windfalls. See ECF 567-3 at ECF p. 28.\n\n27 (damages per share shall \u201cequal the deflation on the disposition date less the deflation on the\n\n28 acquisition date.\u201d) (emphasis added).\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 5\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 12 of 17\n\n\n\n\n 1 Lastly, Musk complains that class members will not have to submit records concerning\n\n 2 shares acquired before the class period. But in those transactions, the date of the original purchase\n\n 3 is irrelevant to calculating damages. ECF 577 at 10. \u201c[A]s there was no deflation at the time of\n\n 4 acquisition, the deflation upon disposition represents the full damage.\u201d ECF 567-3 at ECF p. 28.\n\n 5 III. PLAINTIFFS\u2019 PROPOSED CLAIM PROCESS IS APPROPRIATE\n\n 6 Musk does not object to appointing Epiq to serve as Claims Administrator (ECF 577 at 10),\n\n 7 but contends that its proposed claims process is \u201cdeficient\u201d because it utilizes notice and review\n\n 8 procedures commonly used in other securities class actions. Instead, Musk asks for special\n\n 9 procedures designed to deter Class members from filing claims, including threats to subject absent\n\n10 class members to litigation, discovery, and even jury trials, along with the expense of hiring\n\n11 counsel. The Court should reject Musk\u2019s transparent intimidation tactics.\n\n12 A. The Proposed Process to Review and Verify Claims is Proper\n\n13 Musk objects to the extent Epiq is tasked with \u201cvalidating\u201d claims, and asks the Court to\n\n14 resolve any challenges. Plaintiffs agree. The process described in Plaintiffs\u2019 motion, which has\n\n15 been approved by federal courts in connection with hundreds of securities class action claims\n\n16 administrations throughout the country, explicitly gives the Court ultimate authority to consider\n\n17 and resolve any challenges on validity. ECF 567 at 12.\n\n18 The term \u201cvalidate,\u201d as used by Epiq, does not mean that Epiq is adjudicating factual or\n\n19 legal issues. See, e.g., Azari Decl., ECF 567-3, \u00b6\u00b667-68 (describing processes used to \u201cvalidate or\n\n20 reject\u201d Claim Forms). Rather, Epiq will simply confirm that the information provided on the Claim\n\n21 Form is supported in order to determine whether the claimant sold eligible securities during the\n\n22 Class Period. Epiq then uses the information on the Court-approved Claim Form to calculate the\n\n23 claimant\u2019s recognized loss pursuant to the Plan of Allocation approved by the Court.\n\n24 Musk\u2019s other objections to the validation process\u2014that it does not require sufficient proof,\n\n25 verify the identities of claimants, or include interrogatories \u201cto test individual reliance\u201d\u2014are also\n\n26 unsupported. The claims process does require proof and verification, and Epiq\u2019s processors will\n\n27 confirm that the submitted information demonstrates a valid claim, including: (1) the claimant\n\n28 traded in the eligible Twitter securities during the Class Period; (2) documentation supports the\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 6\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 13 of 17\n\n\n\n\n 1 transaction information entered on the Claim Form; (3) the claimant did not have any additional\n\n 2 trades not reflected on the Claim Form; (4) the name of the claimant matches the information on\n\n 3 the documentation, or that additional documentation was provided to support any name changes;\n\n 4 and (5) that the beneficial owner identified on the trade documentation\u2014or a valid representative\u2014\n\n 5 is the person who signed the Claim Form. Epiq\u2019s processors also confirm that the claim calculates\n\n 6 to the recognized loss under the Plan of Allocation approved by the Court and is submitted only\n\n 7 once. See e.g., ECF 567-3, \u00b6\u00b651-52.\n\n 8 For claims submitted by paper Claim Form and online, documentation is required and\n\n 9 reviewed. Id. \u00b6\u00b6 51-53. For electronic claims submitted by or on behalf of large custodial banks,\n\n10 brokerage firms, hedge funds, retirement funds, and similar institutions\u2014which often submit\n\n11 hundreds or thousands of claims encompassing hundreds of thousands of transactions in one\n\n12 \u201csubmission\u201d\u2014there should be a presumption of data accuracy given that these entities are subject\n\n13 to regulatory books and records requirements. See e.g., 17 CFR \u00a7240.17a-3. Requiring individual\n\n14 document review for each transaction would be inefficient, and the burden of requiring full\n\n15 documentation may deter entities from filing claims at all. Epiq will conduct an additional sampling\n\n16 of electronic submissions (ECF 567-3, \u00b658) as a data integrity review, selecting transactions from\n\n17 claims across various submitted files and requiring documentation for those transactions. Unless\n\n18 able to confirm those transactions, and additional documentation is not provided, the entire\n\n19 submission is denied in full.\n\n20 All of these practices are designed to prevent improper claims from being filed. Musk\u2019s\n\n21 demand for additional information, like driver\u2019s licenses and responses to interrogatories, would\n\n22 impose significant barriers to legitimate claims. Similarly, Musk\u2019s request for \u201creal time\u201d access\n\n23 to Epiq\u2019s claims database to \u201cidentify potential flaws\u201d so that they can be corrected is a solution\n\n24 without a problem. The process already contemplates real time access to the parties, as well as\n\n25 monthly reports, allowing the parties contemporaneous information as Epiq processes claims.\n\n26 B. The Proposed Notice and Claim Forms Are Accurate and Complete\n27 Musk claims the proposed Notice and Claim Forms are \u201cincomplete\u201d and \u201cmisleading\u201d\n\n28 because they don\u2019t inform class members that, by submitting claims, they may be subject to Musk\u2019s\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 7\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 14 of 17\n\n\n\n\n 1 threatened litigation against them, including future document requests, depositions, and even\n\n 2 individual jury trials. ECF 577 at 13. As noted above, since Musk is not entitled to conduct post-\n\n 3 trial discovery against class members, let alone jury trials, there is no reason to add such references\n\n 4 here. Indeed, Musk\u2019s proposed language indicating his intent to litigate against any class member\n\n 5 who submits a claim\u2014which sounds eerily similar to litigation threats made to Twitter\u2019s executives\n\n 6 who refused to terminate the deal\u2014smacks of rank intimidation aimed at discouraging claims rather\n\n 7 than providing informative notice.\n\n 8 Consistent with established practice, the proposed Notice and Claim Forms, attached as\n\n 9 Exhibits 1 and 2 to the Cam Azari Declaration (ECF 567-3), adequately inform class members of\n\n10 the verdict and claims process. The Claim Form requests information regarding the claimants\u2019\n\n11 identification, relevant holdings and transactions in Twitter stock or options, and supporting\n\n12 documentation, under penalty of perjury, consistent with what is requested in similarly situated\n\n13 claims processes. ECF 567-3 at \u00b6 46. And, to the extent Musk is truly concerned that class members\n\n14 understand the claims process, and that future requests may be made for additional information, the\n\n15 Claim Form explicitly notes that claims are still subject to review, verification, and possible\n\n16 requests for additional information, and that they are submitting to the Court\u2019s jurisdiction. Adding\n\n17 language that Musk reserves the right to litigate against any claimant, including depositions and\n\n18 trial, is unnecessary and obviously designed to dissuade participation.\n\n19 C. Plaintiffs Proposed a Date Certain to Accept Late Claims\n20 Based on the Claims Administrator\u2019s unique experience in securities class actions, where it\n\n21 commonly receives a significant number of otherwise valid claims after the submission deadline\n\n22 (ECF 567-3 at \u00b6 65), Plaintiffs requested that such late claims be allowed if valid. The reasons are\n\n23 manifest, including the anticipated presence of class members living abroad or serving overseas\n\n24 (who may be slow to receive the Notice and Claim Form) and, given the unique circumstances of a\n\n25 securities class action, the inclusion of nominee holders or brokers (who may not promptly forward\n\n26 the Notice and Claim Form to Class members or delay in providing contact information to Epiq).\n\n27 Courts routinely approve late, but otherwise valid claims. See e.g., Norton v. LVNV Funding, LLC,\n\n28 2022 WL 562831, at *6 (N.D. Cal. Feb. 24, 2022) (\u201cA district court has discretion to allow late\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 8\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 15 of 17\n\n\n\n\n 1 claims to a settlement fund.\u201d) (quoting Lemus v. H & R Block Enters., LLC, 2013 WL 3831866, at\n\n 2 *2 (N.D. Cal. July 23, 2013) (citing In re Valdez, 289 F. App\u2019x 204, 206 (9th Cir. 2008)).\n\n 3 However, Musk objects to late claims based on his mistaken belief that, because Plaintiffs\n\n 4 want to keep the deadline open \u201cin perpetuity,\u201d it will delay the claims administration process. ECF\n\n 5 577 at 13. Plaintiffs do not seek an open-ended deadline. Rather, consistent with the practice\n\n 6 commonly utilized in securities settlements, Plaintiffs proposed to permit otherwise valid claims to\n\n 7 be accepted until the Claims Administrator files its final claims report with the Court. ECF 567 at\n\n 8 1, 6 (\u201cin conjunction with the filing of the final claims report, the Claims Administrator will identify\n\n 9 all valid claims that were filed after the claims deadline and treat those claims as accepted\u201d). This\n\n10 is a date certain which will occur months before any challenges are resolved and the claims\n\n11 administration process is completed, and thus, will not delay the claims administration process.\n\n12 D. The Proposed Schedule Provides Ample Time for Challenges\n\n13 Musk asserts that Plaintiffs\u2019 proposed schedule to challenge claims, including a detailed\n\n14 validation and claims reporting process by the Claims Administrator, is \u201cunreasonable.\u201d Instead,\n\n15 Musk proposes an alternative challenge schedule without any deadline. In fact, Musk claims that\n\n16 he initially needs at least 120 days\u2014four months\u2014just to review the claims, and some unspecified\n\n17 additional amount of time thereafter to conduct \u201cindividual-reliance discovery\u201d on class members,\n\n18 followed by an additional unspecified period to \u201cchallenge and raise any issues\u201d with class\n\n19 members, presumably through trials conducted by the Court. Musk\u2019s schedule would push any\n\n20 challenge process out months, if not years. The Court should reject such unnecessary delay.\n\n21 Under the proposed schedule, Musk will have far more than 30 days to review claims. As\n\n22 detailed by the Claims Administrator, beginning 60 days after publication of the notice, the Claims\n\n23 Administrator will provide the parties with a summary case profile identifying the name and address\n\n24 of each claimant and the preliminary status of the damages calculation for each claim. ECF 567-3\n\n25 at \u00b6 66. The Claims Administrator will also provide an updated summary case profile to the parties\n\n26 on a monthly basis until the claims report is finalized. Id., \u00b6 67. At the end of this process, the\n\n27 Claims Administrator will provide a final claims report identifying each valid and rejected claim,\n\n28 including the total damages suffered by the claimant (id., \u00b6 67-68), and by that point, both Parties\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 9\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 16 of 17\n\n\n\n\n 1 will have had extensive information about the claimants and the same ability to review individual\n\n 2 claims before making any challenges. Additional time would be delay for delay\u2019s sake.\n\n 3 IV. THERE IS NO NEED FOR A SPECIAL MASTER\n\n 4 Musk asks the Court to appoint a special master under Rule 53(a)(1) to oversee a sprawling\n\n 5 \u201cPhase II\u201d of this action. ECF 577 at 14-15. But since Musk failed to establish a basis for \u201cPhase\n\n 6 II\u201d in the first place, there is no need for a special master. Musk also failed to carry his burden\n\n 7 under Rule 53(a)(1). While unstated, Musk seems to suggest there is an \u201cexceptional condition\u201d\n\n 8 warranting a special master under Rule 53(a)(1)(B)(i). But Musk never even identifies the allegedly\n\n 9 exceptional condition (other than his proposed Phase II), let alone explains why that now requires\n\n10 this Court to step aside. This omission is fatal to his request. The Ninth Circuit holds that reference\n\n11 to a special master \u201cshall be the exception and not the rule\u201d and shall be \u201cmade only upon a showing\n\n12 that some exceptional condition requires it\u201d\u2014a standard which the Ninth Circuit \u201cstrictly applies.\u201d\n\n13 Burlington N. R. Co. v. Dep\u2019t of Revenue of State of Wash., 934 F.2d 1064, 1071 (9th Cir. 1991);\n\n14 see also, Rodriguez v. Google LLC, 2022 WL 17905108 (N.D. Cal., Feb. 8, 2021) (J. Seeborg)\n\n15 (denying request for special master where party failed to provide \u201cargument or evidence\u201d that issue\n\n16 could not be addressed by district court).\n\n17 V. THE COURT SHOULD ORDER MUSK TO PAY COSTS NOW\n\n18 Musk acknowledges the Court\u2019s discretion to order a defendant to pay for class notification\n\n19 after it has been found liable. See ECF 567 at 14-5 (listing cases). However, citing Vivendi, 284\n\n20 F.R.D. at 161, Musk asks the Court to defer its decision until the post-trial motions for judgment as\n\n21 a matter of law and a new trial are resolved. ECF 577 at 15. Plaintiffs do not object to that timing.\n\n22 However, the Court should reject Musk\u2019s additional request for \u201coversight\u201d of Epiq and \u201ccontrol\u201d\n\n23 over \u201cthe costs of the process.\u201d Id. Giving Musk \u201coversight\u201d or \u201ccontrol\u201d over notice provided by\n\n24 a court-appointed administrator would be like having the fox guard the henhouse.\n\n25 CONCLUSION\n\n26 For the reasons stated above, the Court should appoint Epiq as the Claims Administrator,\n\n27 approve the proposed Notice and Claim Forms, and direct that the proposed notice and claim\n\n28 administration processes be implemented.\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 10\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f Case 3:22-cv-05937-CRB Document 582 Filed 05/28/26 Page 17 of 17\n\n\n\n Dated: May 28, 2026 COTCHETT, PITRE & MCCARTHY, LLP\n 1 Joseph W. Cotchett (SBN 36324)\n 2 Mark C. Molumphy (SBN 168009)\n Tyson C. Redenbarger (SBN 294424)\n 3 Elle D. Lewis (SBN 238329)\n Gia Jung (SBN 340160)\n 4 Caroline A. Yuen (SBN 354388)\n 5 /s/ Mark C. Molumphy\n Mark C. Molumphy\n 6\n San Francisco Airport Office Center\n 7 840 Malcolm Road, Suite 200\n Burlingame, California 94010\n 8 Telephone: (650) 697-6000\n 9\n BOTTINI & BOTTINI, INC.\n10 Francis A. Bottini, Jr. (SBN 175783)\n Aaron P. Arnzen (SBN 218272)\n11\n /s/ Francis A. Bottini Jr. _\n12 Francis A. Bottini Jr.\n13 7817 Ivanhoe Avenue, Suite 102\n La Jolla, California 92037\n14 Telephone: (858) 914-2001\n15 Lead Counsel for Plaintiffs and the Class\n16\n\n17\n\n18 ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3)\n19 I, Mark C. Molumphy, attest that concurrence in the filing of this document has been\n20 obtained from the other signatory. I declare under penalty of perjury under the laws of the United\n21 States of America that the foregoing is true and correct.\n22 Executed this 28th day of May, 2026, at Burlingame, California.\n23\n /s/ Mark C. Molumphy\n24 Mark C. Molumphy\n25\n\n26\n\n27\n\n28\n Case No: 3:22-CV-05937-CRB\n LEAD PLAINTIFFS\u2019 REPLY IN SUPPORT OF MOTION FOR APPROVAL OF NOTICE OF VERDICT 11\n AND CLAIMS ADMINISTRATION PROCEDURE\n\f","ocr_status":2,"date_upload":"2026-06-18T09:51:04.634777-07:00","document_number":"582","attachment_number":null,"pacer_doc_id":"035027186837","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Reply to Opposition/Response","acms_document_guid":""}],"date_created":"2026-05-28T17:35:09.462425-07:00","date_modified":"2026-07-22T21:08:41.791182-07:00","date_filed":"2026-05-28","time_filed":"17:15:25","entry_number":582,"recap_sequence_number":"2026-05-28.002","pacer_sequence_number":1759,"description":"REPLY (re 567 MOTION (Lead Plaintiffs' Motion for Approval of Class Notice of Verdict and Claims Administration Procedure) ) filed byBrian Belgrave, John Garrett, Nancy Price. 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Molumphy in Support of 581 Reply to Opposition/Response, 582 Reply to Opposition/Response filed byBrian Belgrave, John Garrett, Nancy Price. (Attachments: # 1 Exhibit 4, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7)(Related document(s) 581, 582 ) (Molumphy, Mark) (Filed on 5/28/2026) (Entered: 05/28/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/465339423/","id":465339423,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/65412803/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/480541112/","id":480541112,"tags":[],"absolute_url":"/docket/65412803/580/giuseppe-pampena-v-elon-rmusk/","date_created":"2026-05-27T10:34:27.821285-07:00","date_modified":"2026-07-22T21:08:41.684778-07:00","sha1":"a201525eca24a56ee9604aab23850116b814b72b","page_count":3,"file_size":330191,"filepath_local":"recap/gov.uscourts.cand.401655/gov.uscourts.cand.401655.580.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.cand.401655/gov.uscourts.cand.401655.580.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case 3:22-cv-05937-CRB Document 580 Filed 05/27/26 Page 1 of 3\n\n\n\n\n 1 QUINN EMANUEL URQUHART & SULLIVAN, LLP\n Alex Spiro (pro hac vice)\n 2 alexspiro@quinnemanuel.com\n Jesse A. Bernstein (pro hac vice)\n 3 Jessebernstein@quinnemanuel.com\n\n 4 Ellyde R. Thompson (pro hac vice)\n ellydethompson@quinnemanuel.com\n 5 295 Fifth Ave., New York, NY 10010\n Telephone: (212) 849-7000\n 6 Facsimile: (212) 849-7100\n 7\n Michael T. Lifrak (Bar No. 210846)\n 8 michaellifrak@quinnemanuel.com\n Stephen A. Broome (Bar No. 314605)\n 9 stephenbroome@quinnemanuel.com\n Alex Bergjans (Bar No. 302830)\n10 alexbergjans@quinnemanuel.com\n 865 S. Figueroa Street, 10th Floor\n11 Los Angeles, California 90017\n Telephone: (213) 443-3000\n12 Facsimile: (213) 443-3100\n13 Attorneys for Defendant Elon Musk\n\n14 UNITED STATES DISTRICT COURT\n15 NORTHERN DISTRICT OF CALIFORNIA\n16\n\n17 GIUSEPPE PAMPENA, on behalf of CASE NO. 3:22-CV-05937-CRB\n himself and all others similarly situated,\n18 [PROPOSED] ORDER GRANTING\n Plaintiff, DEFENDANT ELON MUSK\u2019S\n19 ADMINISTRATIVE MOTION TO SEAL\n DOCUMENTS IN SUPPORT OF\n20 vs. OPPOSITION TO MOTION FOR\n APPROVAL OF CLASS NOTICE OF\n21 ELON R. MUSK, VERDICT AND CLAIMS\n ADMINISTRATION PROCEDURE AND\n22 Defendant. OPPOSITION TO MOTION FOR\n AWARD OF PREJUDGMENT INTEREST\n23\n Judge: Hon. Charles R. Breyer\n24\n\n25\n\n26\n\n27\n\n28\n\n Case No. 3:22-CV-05937-CRB\n [PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK\u2019S ADMINISTRATIVE MOTION TO SEAL\n\f Case 3:22-cv-05937-CRB Document 580 Filed 05/27/26 Page 2 of 3\n\n\n\n\n 1 [PROPOSED] ORDER\n\n 2 Having considered Defendant Elon Musk\u2019s Administrative Motion to Seal, the Court hereby\n\n 3 GRANTS (IN PART) / DENIES (IN PART) the Motion and ORDERS that the following materials\n\n 4 shall be sealed:\n\n 5 Material to Be Filed Under Seal Under 79-5(f)\n\n 6 Document Description Designating Party\n 7 Exhibit 1 to the Declaration Exhibit 37 to the Deposition Non-Party Goldman Sachs\n of Alex Bergjans in Support of Stefani Silverstein\n 8 of Defendant\u2019s Opposition to\n 9 Motion for Approval of\n Notice of Verdict and Claims\n10 Administration Procedure\n\n11 Exhibit 2 to the Declaration Exhibit 42 to the Deposition Non-Party Goldman Sachs\n of Alex Bergjans in Support of Stefani Silverstein\n12 of Defendant\u2019s Opposition to\n13 Motion for Approval of\n Notice of Verdict and Claims\n14 Administration Procedure\n\n15 Exhibit 3 to the Declaration Excerpts of the Deposition of Non-Party Goldman Sachs\n of Alex Bergjans in Support Stefani Silverstein\n16\n of Defendant\u2019s Opposition to\n17 Motion for Approval of\n Notice of Verdict and Claims\n18 Administration Procedure\n19 Portions of Defendant\u2019s Excerpts of Opposition Non-Party Goldman Sachs\n20 Opposition to Motion for discussing materials\n Approval of Notice of Verdict designated confidential by\n21 and Claims Administration Goldman Sachs.\n Procedure\n22 Exhibit 3 to the Declaration Excerpts of the Deposition of Plaintiffs\n of Alex Bergjans in Support John Garrett\n23 of Defendant\u2019s Opposition to\n24 Motion for Award of\n Prejudgment Interest\n25 Portions of Defendant\u2019s Excerpts of Opposition Plaintiffs\n Opposition to Motion for discussing materials\n26 Award of Prejudgment designated confidential by\n Interest Plaintiffs.\n27\n\n28\n\n -1- Case No. 3:22-CV-05937-CRB\n [PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK\u2019S ADMINISTRATIVE MOTION TO SEAL\n\f Case 3:22-cv-05937-CRB Document 580 Filed 05/27/26 Page 3 of 3\n\n\n\n\n 1 IT IS SO ORDERED\n\n 2\n Date: May 27, 2026\n 3 Hon. Charles R. Breyer\n UNITED STATES DISTRICT JUDGE\n 4\n\n 5\n\n 6\n\n 7\n\n 8\n\n 9\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\n26\n\n27\n\n28\n\n -2- Case No. 3:22-CV-05937-CRB\n [PROPOSED] ORDER GRANTING DEFENDANT ELON MUSK\u2019S ADMINISTRATIVE MOTION TO SEAL\n\f","ocr_status":2,"date_upload":"2026-07-05T05:32:25.265856-07:00","document_number":"580","attachment_number":null,"pacer_doc_id":"035027178094","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Order on Administrative Motion to File Under Seal","acms_document_guid":""}],"date_created":"2026-05-27T10:34:27.796517-07:00","date_modified":"2026-07-22T21:08:41.647111-07:00","date_filed":"2026-05-27","time_filed":"10:04:47","entry_number":580,"recap_sequence_number":"2026-05-27.001","pacer_sequence_number":1754,"description":"ORDER GRANTING DEFENDANT ELON MUSKS ADMINISTRATIVE MOTION TO SEAL DOCUMENTS IN SUPPORT OF OPPOSITION TO MOTION FOR APPROVAL OF CLASS NOTICE OF VERDICT AND CLAIMS ADMINISTRATION PROCEDURE AND OPPOSITION TO MOTION FOR AWARD OF PREJUDGMENT INTEREST by Judge Charles R. Breyer: Granting 575 Administrative Motion to File Under Seal. (ls, COURT STAFF) (Filed on 5/27/2026) (Entered: 05/27/2026)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/465278910/","id":465278910,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/65412803/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/480479303/","id":480479303,"tags":[],"absolute_url":"/docket/65412803/572/giuseppe-pampena-v-elon-rmusk/","date_created":"2026-05-27T01:59:03.106209-07:00","date_modified":"2026-07-22T21:08:41.057614-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"572","attachment_number":null,"pacer_doc_id":"","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Clerk's Notice","acms_document_guid":""}],"date_created":"2026-05-27T01:59:02.522362-07:00","date_modified":"2026-07-22T21:08:41.023528-07:00","date_filed":"2026-05-05","time_filed":null,"entry_number":572,"recap_sequence_number":"2026-05-05.001","pacer_sequence_number":null,"description":"CLERK'S NOTICE VACATING Motion (Lead Plaintiffs' Motion for Approval of Class Notice of Verdict and Claims Administration Procedure Hearing; Motion for Judgment as a Matter of Law or, in the Alternative, a New Trial Hearing; Motion to Decertify Class Action Pursuant to Fed. R. Civ. P. 23(c) Hearing; Motion (Lead Plaintiffs' Motion for the Award of Prejudgment Interest) hearing set for June 11, 2026 before the Honorable Charles R. Breyer. (This is a text-only entry generated by the court. There is no document associated with this entry.) Motion Hearing set for 6/18/2026 at 10:00 AM in San Francisco, Courtroom 06, 17th Floor before Judge Charles R. Breyer. (ls, COURT STAFF) (Filed on 5/5/2026) (Entered: 05/05/2026)","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=65412803&page_size=40"}