On Saturday, his lawyers filed a motion asking the judge to declare a mistrial, alleging that misconduct by opposing lawyers and even the court has made it impossible for Musk to get a fair trial. The request does not ask for the case to be dismissed outright, but rather for a retrial with an entirely new jury.
The case stems from a lawsuit in which Musk was accused of violating securities law by allegedly making misleading public statements in an attempt to drive down Twitter’s stock price ahead of purchasing the platform in October 2022.
“The Twitter deal is temporarily put on hold pending details supporting the calculation that spam/fake accounts actually represent less than 5% of users,” Musk wrote in a post on May 13, 2022.
The lawsuit was filed on behalf of shareholders who sold Twitter stock between the time that tweet was posted and the beginning of October 2022.
Now, Musk’s lawyers are trying to paint a picture that the lawsuit has been derailed. In the motion, he argued that although each issue “independently may not warrant a mistrial,” “cumulative prejudice requires one.”
First, he accused the plaintiffs’ lawyers of repeatedly violating a pre-trial ruling that barred them from suggesting to the jury that Musk violated securities laws by waiting too long to tell regulators that he had acquired his initial 5% stake in Twitter in early 2022. That issue is being litigated in a separate case brought by the U.S. Securities and Exchange Commission. Last month, a judge refused to dismiss that case.
Another reason Musk’s lawyers say he deserves another shot is that Judge Charles Breyer allegedly exceeded his “supervisory role” when investigating Twitter’s former CFO Ned Segal and its former CEO Parag Agarwal.
The Daily Journal reported Friday that Musk’s lawyers told the court they wanted it on the record that Breyer had asked Segal, now a housing and economic policy adviser to San Francisco Mayor Daniel Lurie, to “say hello to the mayor for me” during Thursday’s proceedings.
However, the motion states, “Mr. Musk does not object to the Court’s out-of-court friendliness, but rather to the Court’s repeated interference that has impeded defense counsel’s ability to conduct his examination.”
Additionally, Musk’s lawyers argued that this all boils down to community hostility towards Musk.
Bloomberg Law reported in February that Breyer immediately removed 40 potential jurors from the pool of 93 who expressed they could not put aside their biases. The outlet writes:
Musk’s attorney Stephen Broome of Quinn Emanuel Urquhart & Sullivan LLP objected to several potential jurors, claiming they could set aside their negative views on Musk.
“There are so many people in our community who hate him so much that we are becoming insensitive,” Broome said. In any other case where a potential juror said in the questionnaire that they hated the defendant, “there would be no question” that they would be excluded, Broome said.
“The Court has a duty to protect Mr. Musk’s right to a fair trial. This duty is even more important given the apparent hostility in the community toward Mr. Musk during jury selection,” says the mistrial motion filed in federal court in San Francisco over the weekend.
Musk’s lawyers did not immediately respond to Gizmodo’s request for comment.
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