Wearing Two Hats: Elon Musk As A Case Study

Much has already been written about Elon Musk's famous tweet offering to take Tesla private. Most of the coverage has focused on whether he violated Regulation FD's prohibition on selective disclosure by communicating material nonpublic information through Twitter, rather than a more recognized channel of communication, or whether he violated Rule 10b-5 by lacking a sufficient basis for his claim to have "funding secured."

What is perhaps more surprising is that, by tweeting, Musk appears to have thought that he could use his Twitter feed to communicate information about Tesla solely in his personal capacity, without regard to his role as Chairman and Chief Executive Officer of Tesla. Ordinarily, when a CEO speaks publicly about the company that he or she leads, investors would generally presume – quite reasonably – that the information is being imparted on behalf of the company. While CEOs can certainly speak publicly in an individual capacity, it is incumbent upon