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MELISSA ARMSTRONG (Tex. Bar No. 24050234) 

 ArmstrongMe@sec.gov 

100 F Street, NE 

Washington, DC 20549 

Telephone: (202) 551-4724 

Facsimile: (703) 772-9292 

MONIQUE WINKLER (Cal. Bar No. 213031) 

BERNARD B. SMYTH (Cal. Bar No. 217741) 

 SmythB@sec.gov 

ROBIN ANDREWS (Ill. Bar No. 6285644) 

 AndrewsR@sec.gov 

44 Montgomery Street, Suite 2800 

San Francisco, CA 94104 

Telephone: (415) 705-2500 

Facsimile: (415) 705-2501 

Attorneys for Applicant 

Securities and Exchange Commission 

SECURITIES AND EXCHANGE COMMISSION, 

 Applicant, 

 v. 

ELON MUSK, 

 Respondent. 

Misc. No. 

SECURITIES AND EXCHANGE 

COMMISSION’S NOTICE AND 

APPLICATION FOR AN ORDER 

COMPELLING COMPLIANCE 

WITH AN ADMINISTRATIVE 

SUBPOENA AND 

MEMORANDUM IN SUPPORT 

Date Filed: October 5, 2023 

Hearing Date: November 9, 2023 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION

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TABLE OF CONTENTS 

 NOTICE AND APPLICATION ...................................................................................... 1 

 MEMORANDUM OF POINTS AND AUTHORITIES .................................................. 2 

I. INTRODUCTION ............................................................................................................ 2

II. STATEMENT OF FACTS ............................................................................................... 3

A. The SEC’s Investigation and Respondent’s Involvement .................................... 3

B. The SEC’s May 2023 Subpoena to Respondent ................................................... 4 

C. Respondent’s Failure to Comply with the SEC’s Subpoena ................................ 5 

III. ARGUMENT .................................................................................................................... 6

A. This Court Has Jurisdiction to Enforce the SEC’s Validly 

Issued Administrative Subpoena in a Summary Proceeding ................................ 6

B. The SEC’s Administrative Subpoena to Musk Should Be 

Enforced ................................................................................................................ 7

C. Musk Has No Valid Basis for Failing to Comply with the 

SEC’s Subpoena ................................................................................................. 10 

IV. CONCLUSION ............................................................................................................... 12

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TABLE OF AUTHORITIES 

CASES

Administrator, US EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443 (9th Cir. 1988) .......................... 9

EEOC v. Fed. Exp. Corp., 558 F.3d 842 (9th Cir. 2009) ...................................................................... 9

EEOC v. St. Regis Paper Co.-Kraft Div., 717 F.2d 1302 (9th Cir. 1983) ............................................ 6

Endicott Johnson v. Perkins, 317 U.S. 501 (1943) ............................................................................... 9

Flatt v. SEC, Case No. 10-60073-MC, 2010 WL 1524328 (S.D. Fla. Apr. 14, 2010) ......................... 8

Gewerter v. SEC, Case No. 16-02556-PHX, 2016 WL 4074117 (D. Ariz. July 29, 2016) .................. 9

Nelson v. SEC, Case No. 08-80080-JF, 2008 WL 2444794 (N.D. Cal. June 16, 2008) ....................... 9

RNR Enters., Inc. v. SEC, 122 F.3d 93 (2d Cir. 1997) .......................................................................... 7

Rosiere v. SEC, Case No. 09-01975-JCM, 2010 WL 489526 (D. Nev. Feb. 5, 2010) ......................... 8 

Sansend Fin. Consultants Ltd. v. Fed. Home Loan Bank Bd., 878 F.2d 875 (5th Cir. 1989) ............... 8

SEC v. Blackfoot Bituminous, Inc., 622 F.2d 512 (9th Cir. 1980) .................................................. 7, 10 

SEC v. Brigadoon Scotch Distributing Co., 480 F.2d 1047 (2d Cir. 1973) .................................... 7, 10

SEC v. Custodian of Records R.R. Donnelley & Sons Co., Case No. 12-07331-SVW, 

 2012 WL 12930953 (C.D. Cal. Oct. 11, 2012) ............................................................................. 6, 7 

SEC v. Harman Wright Group, LLC, Case No. 18-00190-CMA, 

 2018 WL 6102758 (D. Colo. Nov. 21, 2018) ............................................................................... 7, 9

SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735 (1984) ............................................................................. 8

SEC v. McCarthy, 322 F.3d 650 (9th Cir. 2003) ................................................................................... 6 

SEC v. Musk, Case No. No. 22-1291, 2023 WL 3451402 (2d Cir. May 15, 2023) ............................ 11

SEC v. Obioha, Case No. 12-80109-WHA, 2012 WL 4889286 (N.D. Cal. Oct. 12, 2012) ................. 7

SEC v. Sprecher, 594 F.2d 317 (2d Cir. 1979) ..................................................................................... 6

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SEC v. Tajyar, Case No. 18-00113-DMG, 2018 WL 6313475 (C.D. Cal. Oct. 15, 2018) ................... 7

United States v. Morton Salt Co., 338 U.S. 632 (1950) ........................................................................ 8

United States v. Jose, 131 F.3d 1325 (9th Cir. 1997) ...................................................................... 7, 10

United States v. Powell, 379 U.S. 48 (1964) ......................................................................................... 7 

REGULATIONS

17 C.F.R § § 200.30-4(a)(1) ................................................................................................................. 10 

STATUTES

15 U.S.C. § 77s(b) ................................................................................................................................. 3 

15 U.S.C. § 77s(c) ............................................................................................................................... 10 

15 U.S.C. § 77t(a) ................................................................................................................................. 8 

15 U.S.C. § 77u(b) .............................................................................................................................. 10 

15 U.S.C. § 77v(b) ............................................................................................................................ 1, 6 

15 U.S.C. § 78u(b) ...................................................................................................................... 3, 8, 11 

15 U.S.C. § 78u(c) ............................................................................................................................ 1, 6 

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NOTICE AND APPLICATION 

PLEASE TAKE NOTICE that on November 9, 2023 at 1:30 p.m., or as soon thereafter 

as the matter can be heard, in the courtroom of the assigned General Duty Judge located at 450 

Golden Gate Avenue, San Francisco, California, Applicant Securities and Exchange 

Commission will and hereby does apply for an order compelling Respondent Elon Musk to 

comply with the administrative subpoena issued by Applicant. 

This is an administrative subpoena enforcement action. The Court has jurisdiction under 

Section 22(b) of the Securities Act of 1933 (“Securities Act”), 15 U.S.C. § 77v(b), and Section 

21(c) of the Securities and Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78u(c). Venue 

is appropriate under Section 22(a) of the Securities Act, 15 U.S.C. § 77v(b), and Section 21(c) of 

the Exchange Act, 15 U.S.C. § 78u(c). This application is based on Respondent’s failure to 

comply with a valid administrative subpoena without excuse. This application is supported by 

the accompanying Memorandum of Points and Authorities, the Declaration of Robin Andrews in 

support thereof, the proposed order, and such further evidence and argument as the Court may 

consider. 

 

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MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

The Securities and Exchange Commission (“SEC” or “Commission”) asks this Court to 

compel Respondent Elon Musk to appear for investigative testimony pursuant to an SEC 

investigative subpoena. 

Musk failed to appear for testimony on September 15, 2023, as required by the 

investigative subpoena served by the SEC, despite (1) in May 2023, agreeing to appear for 

testimony on a date nearly four months later, in September 2023, (2) having been served with a 

subpoena in May 2023 requiring his appearance for testimony in the SEC’s San Francisco 

Regional Office on that mutually agreed upon date in September, (3) raising no objection to the 

subpoena at the time it was served or during the following months, and (4) approximately two 

weeks before his scheduled testimony, requesting and receiving an accommodation to move his 

scheduled testimony by one day. Instead, two days before his scheduled testimony, Musk 

abruptly notified the SEC staff that he would not appear. Musk attempted to justify his refusal to 

comply with the subpoena by raising, for the first time, several spurious objections, including an 

objection to San Francisco as an appropriate testimony location. 

Notwithstanding the specious nature of Musk’s untimely objections, the SEC staff 

attempted to negotiate in good faith with Musk to find an alternative date and location for his 

testimony. The SEC staff offered to conduct Musk’s testimony at the SEC’s Fort Worth, Texas 

office (the closest SEC office to Musk’s current personal residence) or any other of the 

Commission’s offices, and proposed multiple dates in October and November 2023. These good 

faith efforts were met with Musk’s blanket refusal to appear for testimony. 

The subpoena with which Musk failed to comply relates to an ongoing nonpublic 

investigation by the SEC regarding whether, among other things, Musk violated various 

provisions of the federal securities laws in connection with (1) his 2022 purchases of Twitter, 

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Inc. (“Twitter”)1 stock, and (2) his 2022 statements and SEC filings relating to Twitter. As 

described below, the SEC seeks Musk’s testimony to obtain information not already in the SEC’s 

possession that is relevant to its lawful investigation. The SEC has followed all appropriate 

administrative steps required in seeking Musk’s testimony. In the face of Musk’s blatant refusal 

to comply with the SEC’s subpoena, the SEC now asks the Court to intervene and compel 

Musk’s compliance. 

II. STATEMENT OF FACTS 

A. The SEC’s Investigation and Respondent’s Involvement 

On April 14, 2022, the Commission issued an Order Directing Private Investigation and 

Designating Officers to Take Testimony in an investigation titled In the Matter of Certain 

Purchases, Sales and Disclosures of Twitter Shares (SEC File No. SF-4519) (“Formal Order”). 

See Declaration of Robin Andrews (“Andrews Decl.”), ¶¶ 2, 5. On July 15, 2022, the 

Commission issued a Corrected Order Directing Private Investigation and Designating Officers 

to Take Testimony (“Corrected Formal Order”) in that same investigation. Among other things, 

the Formal Order and Corrected Formal Order authorize the SEC staff to investigate whether any 

persons or entities may have violated the federal securities laws in connection with Musk’s 2022 

purchases of Twitter’s stock, and his 2022 statements and SEC filings relating to Twitter. 

Andrews Decl., ¶ 3. The Formal Order and Corrected Formal Order also designate and authorize 

certain SEC staff to issue subpoenas in this investigation, to obtain documents, and to take 

testimony. See id., ¶ 5; 15 U.S.C. §§ 77s(b), 78u(b). 

As part of its investigation in this matter, in June 2022, the SEC served Musk with a 

subpoena seeking his testimony. Andrews Decl., ¶ 6. On July 12, 2022 and July 27, 2022, Musk 

appeared for half-day sessions of testimony by videoconference. Id. Since Musk’s last half-day 

of testimony on July 27, 2022, the Commission has received thousands of new documents from 

1 Musk acquired Twitter through X Holding Corp., a corporation that he established. He 

subsequently renamed Twitter, X Corp. As the conduct at issue in the SEC’s investigation 

involves the period in which Twitter was a publicly traded stock, this memorandum refers to 

the company as Twitter. 

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various parties as part of its investigation, including hundreds of new documents produced by 

Musk. Id., ¶ 7. Indeed, nearly half of the documents Musk has produced to the Commission in its 

investigation were produced after Musk’s last half-day session of testimony, including 

documents Musk authored. Id. The SEC has not yet had an opportunity to question Musk about 

those documents and other substantial information it has obtained in its investigation since July 

27, 2022. 

B. The SEC’s May 2023 Subpoena to Respondent 

In light of the substantial new information the SEC obtained following Musk’s last halfday session of testimony, in April 2023, the SEC staff discussed with Musk’s counsel the need 

for Musk to appear for another day of testimony. Id., ¶ 8. The SEC staff informed Musk’s 

counsel at that time that it intended to subpoena Musk for testimony in person at the SEC’s San 

Francisco Regional Office. Id. Although Musk’s counsel informed the SEC staff of certain 

scheduling conflicts between June and early August 2023, at no point during the April 2023 

conversation did Musk’s counsel object either to Musk’s appearance for another day of 

testimony or to having the testimony conducted in person in San Francisco. Id. 

After multiple communications between the SEC staff and Musk’s counsel in May 2023, 

on May 23, 2023, Musk’s counsel agreed that Musk would appear for investigative testimony on 

September 14, 2023. Id., ¶ 9. Later that same day, the SEC served a subpoena on Musk requiring 

his attendance for testimony at the SEC’s San Francisco Regional Office on September 14, 2023. 

Id., ¶ 9, Ex. 2. Musk did not raise any objection to the subpoena after having been served with it 

on May 23, 2023. Id., ¶ 10. 

On August 28, 2023, just over two weeks prior to the September 14, 2023 date for 

Musk’s testimony, Musk’s counsel requested that the SEC move Musk’s testimony date from 

September 14, 2023 to September 15, 2023. Id., ¶ 11. In requesting that Musk’s testimony be 

moved a day, Musk’s counsel raised no objection to Musk appearing for testimony or to San 

Francisco as the location for Musk’s testimony. Id. The SEC staff agreed to Musk’s requested 

accommodation and served him with a new subpoena requiring Musk to appear for testimony at 

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the SEC’s San Francisco Regional Office on September 15, 2023. Id., Ex. 3. Between August 28, 

2023 and September 13, 2023, Musk raised no objection to the subpoena, including as to the date 

or location of Musk’s testimony. Id., ¶ 12. 

C. Respondent’s Failure to Comply with the SEC’s Subpoena 

On September 13, 2023, Musk’s counsel sent a letter informing SEC staff for the first 

time that Musk would not appear for testimony on September 15, 2023, as previously agreed. Id., 

¶ 13, Ex. 4. Musk’s counsel also raised certain objections to the SEC’s subpoena for the first 

time, including an objection to San Francisco as the location for testimony. Id.

On September 14, 2023, the SEC responded to Musk’s letter and addressed Musk’s 

stated objections. Id., ¶ 14, Ex. 5. On September 15, 2023, Musk failed to appear for his 

testimony as required by the SEC’s subpoena. Id.

Following Musk’s failure to comply with the SEC’s subpoena, the SEC attempted to 

negotiate a new date for Musk’s testimony. On September 19, 2023, the SEC sent an email to 

Musk’s counsel offering to conduct Musk’s testimony on certain dates in October 2023. Id., ¶ 15, 

Ex. 6. As one of Musk’s stated objections was that the testimony was scheduled for San 

Francisco – where, he complained, he “does not live” – the SEC also offered to conduct Musk’s 

testimony at the Commission’s Fort Worth, Texas office (the closest office to Musk’s residence) 

or any of the other Commission offices across the country (there are eleven). Id., ¶¶ 13, 15, Exs. 

4, 6. On September 21, 2023, the SEC offered potential testimony dates in November 2023, in 

addition to the dates in October 2023 that the SEC had already offered. Id., ¶ 16, Ex. 7. 

On September 24, 2023, Musk’s counsel responded by informing the SEC that Musk 

would not appear for testimony in any location. Id., ¶ 17, Ex. 8. The next day, the SEC sent a 

letter to Musk’s counsel asking that Musk inform the Commission by September 29, 2023, if he 

had reconsidered and would agree to appear for testimony. Id., ¶ 18, Ex. 9. Musk did not do so. 

Id.

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III. ARGUMENT 

Musk’s ongoing refusal to comply with the SEC’s administrative subpoena is hindering 

and delaying the SEC staff’s investigation to determine whether violations of the federal 

securities laws have occurred. Accordingly, the SEC now asks the Court to compel Musk to 

appear for investigative testimony. 

A. This Court Has Jurisdiction to Enforce the SEC’s Validly Issued 

Administrative Subpoena in a Summary Proceeding 

When a subpoenaed party, such as Musk, refuses to comply with an SEC administrative 

subpoena issued in the course of an investigation, the SEC is authorized to seek a court order 

compelling compliance. See 15 U.S.C. §§ 77v(b), 78u(c). Section 22(b) of the Securities Act of 

1933 (“Securities Act”) and Section 21(c) of the Securities Exchange Act of 1934 (“Exchange 

Act”) specifically grant jurisdiction over these subpoena enforcement actions to district courts. 

Moreover, an SEC subpoena enforcement action may be brought in any federal court 

“within the jurisdiction of which such investigation or proceeding is carried on.” 15 U.S.C. § 

78u(c); see also 15 U.S.C. § 77v(b). This Court is therefore the proper venue for this subpoena 

enforcement action because the Commission’s San Francisco Regional Office is conducting the 

investigation at issue. See SEC v. Custodian of Records R.R. Donnelley & Sons Co., Case No. 

12-07331-SVW, 2012 WL 12930953, at *1 (C.D. Cal. Oct. 11, 2012) (holding U.S. District 

Court for Central District of California was a proper court to consider subpoena enforcement 

action in investigation conducted by the SEC’s Los Angeles Regional Office). 

The court may grant an application to enforce an investigative subpoena in a summary 

proceeding. EEOC v. St. Regis Paper Co.-Kraft Div., 717 F.2d 1302, 1304 (9th Cir. 1983) (“[a] 

subpoena enforcement action is a summary procedure” with no discovery absent “exceptional 

circumstances”); see also SEC v. McCarthy, 322 F.3d 650, 655-59 (9th Cir. 2003) (explaining 

that Section 21(e) of the Exchange Act permits the court to enforce an SEC subpoena in a 

summary proceeding “upon application from the Commission”); SEC v. Sprecher, 594 F.2d 317, 

319-20 (2d Cir. 1979) (Section 22(b) of the Securities Act permits courts to enforce a subpoena 

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in summary proceeding “upon application by the Commission”). This summary procedure, 

rather than an action instituted by complaint, is appropriate because investigative agencies, like 

the SEC, “must be free without undue interference or delay to conduct an investigation which 

will adequately develop a factual basis for a determination as to whether particular activities 

come within the Commission’s regulatory authority.” SEC v. Brigadoon Scotch Distributing Co., 

480 F.2d 1047, 1053 (2d Cir. 1973). This Court may therefore rule upon the SEC’s application in 

a summary show cause proceeding. 

B. The SEC’s Administrative Subpoena to Musk Should Be Enforced 

An administrative agency’s investigative subpoena should be judicially enforced if the 

following criteria are met: (1) the SEC’s “investigation will be conducted pursuant to a 

legitimate purpose,” (2) the subpoena seeks information that “may be relevant to that purpose,” 

(3) “the information sought is not already within the [SEC’s] possession,” and (4) all 

“administrative steps required . . . have been followed.” United States v. Powell, 379 U.S. 48, 57-

58 (1964) (enforcing IRS subpoena); see also United States v. Jose, 131 F.3d 1325, 1327-28 (9th 

Cir. 1997) (quoting Powell); SEC v. Blackfoot Bituminous, Inc., 622 F.2d 512, 513-14 (9th Cir. 

1980). Indeed, courts routinely grant relief in SEC subpoena enforcement proceedings upon the 

requisite showing. See, e.g., R.R. Donnelley & Sons, 2012 WL 12930953; SEC v. Tajyar, Case 

No. 18-00113-DMG, 2018 WL 6313475 (C.D. Cal. Oct. 15, 2018), adopted by 2018 WL 

6308106 (C.D. Cal. Nov. 30, 2018); SEC v. Obioha, Case No. 12-80109-WHA, 2012 WL 

4889286 (N.D. Cal. Oct. 12, 2012). A declaration from a government official is sufficient to 

establish that the Powell requirements have been met. See RNR Enters. v. SEC, 122 F.3d 93, 97 

(2d Cir. 1997); see also SEC v. Harman Wright Group, LLC, Case No. 18-00190-CMA, 2018 

WL 6102758, at *2 (D. Colo. Nov. 21, 2018) (clarifying that the SEC’s burden is a “slight one” 

generally satisfied by an affidavit from the agent seeking enforcement). 

In this case, all of the requirements are met for enforcement of the SEC’s subpoena. First, 

the SEC’s investigation is being conducted pursuant to a lawfully authorized and legitimate 

purpose. “The provisions vesting the SEC with power to issue and seek enforcement of 

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subpoenas are expansive.” SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743 (1984); see also 

United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950). When Congress created the SEC 

and assigned it the responsibility of protecting investors, it gave the SEC broad authority to 

conduct investigations. O’Brien, Inc., 467 U.S. at 741. This authority includes the power to 

“subpoena witnesses, compel their attendance, take evidence, and require the production of any 

books, papers, correspondence, memoranda, or other records which the Commission deems 

relevant or material to the inquiry.” 15 U.S.C. § 78u(b); see also 15 U.S.C. § 77t(a). 

Here, the SEC has exercised its broad statutory authority and authorized the SEC staff to 

investigate, among other things, whether provisions of the federal securities laws have been 

violated in connection with Musk’s 2022 purchases of Twitter stock and his 2022 statements and 

SEC filings relating to Twitter. Andrews Decl., ¶ 3. The SEC authorized this investigation by 

issuing a Formal Order on April 14, 2022. Id., ¶ 5. The Commission issued a Corrected Formal 

Order on July 15, 2022. Id. The SEC’s investigation and the subpoena issued to Musk are 

unquestionably within the scope of the Formal Order, Corrected Formal Order, and the SEC’s 

authorized law-enforcement powers. 

Second, the information sought by the SEC’s subpoena is relevant to the SEC’s 

investigation. The subpoena seeks the testimony of Musk so that the Commission may obtain 

information from him regarding his 2022 purchases of Twitter stock and his 2022 statements and 

SEC filings relating to Twitter. Musk’s testimony on those subjects is plainly relevant to the 

Commission’s investigation. Moreover, in the context of an administrative investigation, “the 

notion of relevance is a broad one. An agency can investigate merely on the suspicion that the 

law is being violated, or even just because it wants assurance that it is not. So long as the material 

requested touches a matter under investigation, an administrative subpoena will survive a 

challenge that the material is not relevant.” Flatt v. SEC, Case No. 10-60073-MC, 2010 WL 

1524328, at *5 (S.D. Fla. Apr. 14, 2010) (quoting Sansend Fin. Consultants Ltd. v. Fed. Home 

Loan Bank Bd., 878 F.2d 875, 882 (5th Cir. 1989)); see also Rosiere v. SEC, Case No. 09-01975-

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JCM, 2010 WL 489526 (D. Nev. Feb. 5, 2010); Gewerter v. SEC, Case No. 16-02556-PHX, 

2016 WL 4074117, at *2 (D. Ariz. July 29, 2016). 

The relevance required to enforce an investigative subpoena is much broader than in 

litigation. See Nelson v. SEC, Case No. 08-80080-JF, 2008 WL 2444794, at *2 (N.D. Cal. June 

16, 2008). For that reason, as the Ninth Circuit has explained, “The scope of the judicial inquiry 

in an . . . agency subpoena enforcement proceeding is quite narrow.” EEOC v. Fed. Exp. Corp., 

558 F.3d 842, 848 (9th Cir. 2009) (internal quotation marks and citations omitted). Thus, a court 

must enforce an administrative subpoena unless the evidence sought by the subpoena is plainly 

incompetent or irrelevant to any lawful purpose of the agency. Id. at 854; see also Endicott 

Johnson v. Perkins, 317 U.S. 501, 509 (1943); Administrator, US EPA v. Alyeska Pipeline Serv. 

Co., 836 F.2d 443, 447 (9th Cir. 1988); Harman Wright Group, 2018 WL 6102758, at *2. 

The minimal relevance required to enforce the administrative subpoena served on Musk 

is easily satisfied here. The SEC’s investigation here pertains to purchases of securities by Musk 

and statements and SEC filings made by Musk relating to his purchases of securities. The 

subpoena seeks Musk’s testimony so that the SEC staff may question Musk on those topics. 

Because he is the very individual who made the securities purchases, statements, and filings at 

issue, the SEC’s subpoena for Musk’s testimony meets the relevance requirement. 

Third, the information sought pursuant to the SEC’s subpoena is not in the SEC’s 

possession. Musk has not appeared for testimony in this investigation since July 2022 when he 

appeared for two separate half-day sessions. Andrews Decl., ¶ 6. Since that time, the SEC has 

received thousands of new documents from various parties as part of its investigation, including 

hundreds of documents produced by Musk. Id., ¶ 7. Nearly half of the documents produced to 

the Commission by Musk in this investigation were produced after Musk’s prior investigative 

testimony over a year ago, including documents Musk authored. Id. The SEC has therefore not 

yet had the opportunity to question Musk regarding, among other things, the information 

contained in those documents. 

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Fourth, the SEC has satisfied all administrative prerequisites. The federal securities laws 

authorize the SEC to compel the attendance of witnesses that the SEC deems relevant or material 

to its investigation. See 15 U.S.C. §§ 77s(c), 77u(b). Here, the SEC’s subpoena was issued 

pursuant to a Corrected Formal Order and signed by an SEC attorney who is specifically 

designated by the Corrected Formal Order to issue subpoenas. See 17 C.F.R. § 200.30-4(a)(1). 

The SEC served Musk with the subpoena and Musk’s attorney confirmed that he received the 

subpoena. Nevertheless, Musk refuses to make himself available for testimony as the subpoena 

requires. 

C. Musk Has No Valid Basis for Failing to Comply with the SEC’s Subpoena 

Because the SEC has established that its subpoena was lawfully issued, the burden shifts 

to Respondent to establish an affirmative defense for failing to comply with the subpoena. Musk 

bears a heavy burden where, as here, “the agency inquiry is authorized by law and the 

[information] sought [is] relevant to the inquiry.” Brigadoon Scotch Dist. Co., 480 F.2d at 1056; 

see also United States v. Jose, 131 F.3d at 1328 (after prima facie case made to enforce 

investigative summons, heavy burden fell on respondent); Blackfoot Bituminous, 622 F.2d at 515 

(respondent has burden of showing a defense to enforcement). 

Musk cannot meet this high burden. He did not raise any objection to the SEC’s 

subpoena until only two days prior to the date he was to appear for testimony. He then raised, for 

the first time, a total of five objections. Andrews Decl., ¶ 13, Ex. 4. Not only are Musk’s stated 

objections untimely, they are without merit. 

First, Musk objected on the basis that Musk “has already sat for testimony twice in this 

matter” and that it is unclear why the SEC needs him to appear for another day of testimony. Id.

Musk never raised this objection in April 2023, when the SEC staff discussed with his counsel 

the need for further testimony. He did not raise this objection in May 2023, when he was served 

with a subpoena requiring his testimony. Nor did he raise it on August 28, 2023, when he 

requested and received an accommodation as to the date of the testimony and was served with a 

subpoena with the new date. In any event, as described above, the SEC has obtained a substantial 

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amount of new information since Musk sat for two half-day sessions of testimony more than one 

year ago, including new information produced by Musk himself. The SEC is entitled to question 

Musk regarding that information as part of its investigation. 

Second, Musk objected to the SEC’s subpoena on the grounds that “[i]n the context of an 

investigation into the timing and substance of a Schedule 13G, enough is enough.” Id. This 

objection fails at its premise. The SEC’s investigation pertains to considerably more than the 

timing and substance of a particular SEC filing; it also relates to all of Musk’s purchases of 

Twitter stock in 2022 and his 2022 statements and SEC filings. See id., ¶ 3 (describing the nature 

of the SEC’s investigation). But even if the SEC’s investigation were focused on the timing and 

substance of a particular SEC filing, the SEC’s subpoena would be enforceable. Recipients of 

lawfully issued subpoenas do not get to pick and choose whether to comply with those 

subpoenas depending on the potential securities law violations at issue. 

Third, Musk objected to San Francisco as a testimony location. Id., ¶ 13, Ex. 4. Musk’s 

subsequent refusal to appear for testimony at any of the SEC’s offices, including its Fort Worth, 

Texas office, which is closest to where Musk resides, has exposed this objection as mere pretext. 

Moreover, the SEC has statutory authority to compel attendance of witnesses for investigative 

testimony in any place in the United States. 15 U.S.C. § 78u(b). 

Fourth, Musk objected to compliance with the SEC’s subpoena on the grounds that the 

Commission is using its subpoena power to “harass” him. Andrews Decl., ¶ 13, Ex. 4. This is not 

the first time that Musk has characterized legitimate government investigatory steps as 

“harassment.” The Second Circuit recently rejected Musk’s claim of SEC “harassment” in 

affirming a district court’s denial of Musk’s motion to terminate a 2018 SEC consent decree, 

finding it unsupported. See SEC v. Musk, Case No. 22-1291, 2023 WL 3451402, at *2 (2d Cir. 

May 15, 2023) (affirming district court’s denial of Musk’s motion to terminate SEC consent 

decree and finding “no evidence to support Musk’s contention” that SEC investigations 

constituted harassment). Musk’s vague assertion of SEC harassment here is similarly 

unsupported. For the reasons described above, the SEC’s subpoena to Musk is proper and well 

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within the SEC’s power to conduct investigations into potential violations of the federal 

securities laws. 

Fifth, Musk objected to his testimony on the grounds that a biography of Musk was 

published on September 12, 2023, “containing new information potentially relevant to this 

matter.” Andrews Decl., ¶ 13, Ex. 4. Musk claims that his “[c]ounsel require time to review this 

material.” Id. The publication of Musk’s biography is not a legitimate basis for Musk to avoid 

compliance with a lawfully issued investigative subpoena. In any event, Musk’s initial refusal to 

comply with the subpoena has now presented his counsel with plenty of time to review the 

biography for any relevant information, and so this objection is now moot in addition to being 

legally insufficient from inception.

None of Musk’s objections has any legal validity, and he has no justifiable excuse for his 

non-compliance with the SEC’s subpoena. 

IV. CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that the Court issue an 

order compelling Elon Musk to comply with the Commission’s administrative subpoena 

requiring his testimony.2 A proposed order granting such relief is filed concurrently with this 

application. 

Dated: October 5, 2023 Respectfully submitted, 

/s/ Bernard B. Smyth 

BERNARD B. SMYTH 

Attorney for Applicant 

SECURITIES AND EXCHANGE COMMISSION 

2 The Commission staff is available to conduct Musk’s testimony the week of November 13, 

2023. The SEC staff can also be available the weeks of November 27, 2023, December 4, 

2023, and December 11, 2023. 

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