FOIAengine REVEALS A GROWING LEGAL FEUD
Sometimes FOIAengine sends us in an unexpected direction as we scan for trends and early warnings. That’s what happened this week. Scrolling through dozens of recent Freedom of Information Act requests about Elon Musk, Twitter, and Tesla, we discovered one FOIA requester who stood out. We dug further. That led us to this story.
Aaron Greenspan is one of the Securities and Exchange Commission’s most prolific FOIA requesters. Greenspan filed 86 requests at the agency in the past 14 months, according to the FOIAengine database.
Greenspan casts himself as a champion of the little guy, a crusader standing up for the public’s right to know. His FOIA requests frequently result in disclosures that he posts on his website, PlainSite.org. Occasionally, Greenspan turns to litigation, giving further muscle to his requests.
In 2021, Greenspan asked the Federal Reserve Board for all emails or texts containing the worlds “bubble” or “tantrum” that were sent to or from Fed Chair Jerome Powell. He later sued the Fed for denying his request; late last year, that case was dismissed. But in 2022, Greenspan got busier with litigation, filing several FOIA lawsuits against the SEC and the National Highway Traffic Safety Administration (NHTSA) seeking information about, among other things, Tesla and its CEO, Elon Musk.
FOIA requests to the federal government can be an important early warning of bad publicity or litigation to come. That is why PoliScio Analytics’ competitive-intelligence database FOIAengine tracks FOIA requests in as close to real-time as their availability allows. Of particular interest are requests that may significantly affect stocks and markets once the stories hit.
FOIA’s market-moving importance was demonstrated by professors from the University of Maryland and the University of Melbourne (Australia) who studied the FOIA process in 2014. The scholars concluded that self-interested financial players – in their research, they focused on securities analysts and hedge funds – could use FOIA to make better buy/sell/hold recommendations (the analysts) and generate abnormally large investment returns (the hedge funds). The behavior they studied was both entirely lawful – anyone can file a FOIA request – yet opaque to the broader market. In other words, having special FOIA knowledge gives an advantage only to those traders who possess it. The idea behind Greenspan’s website is to blunt that advantage by vacuuming up FOIA documents and then posting them for all to see.
Greenspan’s FOIA lawsuits can seem obsessive: In one complaint, still making its way through federal court, Greenspan is seeking FOIA evidence to prove that the SEC purposely downplayed fraud charges against Musk and Tesla. After painstakingly analyzing metadata, Greenspan claimed in his lawsuit that the SEC placed a line of code “on the 89th line in the robots.txt file for the www.sec.gov website, instructing search engines to not index a previously visible press release concerning the charges of securities fraud filed against Elon Musk by the SEC in 2018.” (Musk and Tesla each were fined $20 million by the SEC in 2018. Here’s the press release.)
Greenspan’s activism has given him a certain renown as an antagonist of what the New York Times called, in a 2021 article, “the slander industry” – “the growing ecosystem of websites whose primary purpose is destroying reputations.” The Times wrote approvingly of Greenspan’s online sleuthing skills.
Greenspan, the Times explained, was posting court documents on his PlainSite.org website, and that made people’s criminal records easier to find. But one of those people, a convicted murderer, had set out to destroy Greenspan’s and his family’s online reputations by posting negative information about him online, according to the Times. Who was behind that? Greenspan used his knowledge of software and the law – he holds an economics degree from Harvard and was a postgraduate fellow in law and engineering at Stanford – to help unmask the perpetrator. It made for a compelling story: Greenspan was a hero.
But to Musk, Greenspan seems to represent something else entirely, and the two have taken their feud to the courts in lawsuits against each other that raise broader questions about the motivations of FOIA requesters.
Greenspan sued Musk in 2020. He accused Musk, among other things, of libel, intentional infliction of emotional distress, copyright infringement, and violations of federal securities laws. Greenspan had been posting documents that questioned Tesla’s financial integrity. As Greenspan described it, Musk was using his huge Twitter following to intimidate Greenspan into stopping his crusade. He accused Musk of “hurling insults and falsehoods” in an attempt to discredit Greenspan’s in-depth research on Tesla and Musk. Greenspan was, indeed, compiling a mountain of documents about Tesla and Musk, and he posted them on his website. Arguably, he was fighting for the public’s right to know.
Acting as his own attorney, Greenspan wrote in the complaint: “This is a case about whether or not the wealthiest members of society should be permitted to lie with impunity, and the means they sometimes use to silence those who justifiably question them.” A federal judge dismissed Greenspan’s lawsuit in 2022.
Musk struck back last month, in a lawsuit that has received scant notice. It’s one of a growing number involving Musk, as shown by Docket Alarm analytics.
The February 24 complaint filed in California Superior Court by Musk against Greenspan alleges that Musk himself is a victim. Greenspan, Musk’s lawsuit asserts, “is a short seller of Tesla stock and member of the $TSLAQ anti-Tesla group on social media. . . . a community whose perverse goal is to bankrupt Tesla in order to enrich short sellers such as Mr. Greenspan.” (The “Q” at the end of the mock Tesla ticker symbol is the Nasdaq market’s designation for a company in bankruptcy. And the $ sign in front is. . . well, you get the idea.)
Musk filed the lawsuit in an effort to drag Greenspan into a libel suit, filed by a third party, that Musk himself has been unsuccessful in getting out of. Musk blames that case, scheduled for trial in October, on Greenspan’s posting documents on PlainSite.org. His lawsuit, which seeks contribution from Greenspan, claims Greenspan “sustains PlainSite.org’s operations through funding from short selling[,] . . . donations from other short sellers, and vexatious lawsuits that Mr. Greenspan has filed against various corporations.”
Neither Greenspan nor attorneys for Musk responded to requests for comment.
Is Greenspan an abusive “serial litigator,” as Musk alleges? Or a FOIA hero? Come back here for updates.
Coming next from FOIAengine: We dig into the FOIA queries about Neuralink, Elon Musk’s brain-implant start-up.
John A. Jenkins, co-creator of FOIAengine, is a Washington journalist and publisher whose work has appeared in The New York Times Magazine, GQ, and elsewhere. He is a four-time recipient of the American Bar Association’s Gavel Award Certificate of Merit for his legal reporting and analysis. His most recent book is The Partisan: The Life of William Rehnquist. Jenkins founded Law Street Media in 2013. Prior to that, he was President of CQ Press, the textbook and reference publishing enterprise of Congressional Quarterly. FOIAengine is a product of PoliScio Analytics (PoliScio.com), a new venture specializing in U.S. political and governmental research, co-founded by Jenkins and Washington lawyer Randy Miller. Learn more about FOIAengine here. To subscribe to FOIAengine, click here.
Write to John A. Jenkins at JJenkins@LawStreetMedia.com.