FOIAengine Previews an April Fool’s Day Courtroom Grudge Match
This week’s story is about two litigation magnets. One is a household name whose lawsuit against OpenAI dominated the news a few days ago.
That would be Elon Musk.
The other – Aaron Greenspan – is, at best, almost totally unknown to the world. But to Musk he represents evil personified. Greenspan is an outspoken Tesla (NASD:TSLA) short seller and Freedom of Information Act activist who seems to relish his legal battles with Musk, a frequent target of Greenspan’s FOIA requests.
Last year, after Musk dropped a suit he’d been pursuing against Greenspan, Greenspan said, in essence, “Not so fast.” He wanted to keep the litigation going. A California state court judge sided with Musk.
Between the two of them, Musk and Greenspan are keeping FOIA officers and the courts increasingly busy.
In addition to the lawsuit against OpenAI that was filed on February 29, Musk’s lawyers are managing at least 7,460 other lawsuits involving Tesla and another 213 cases naming Musk personally. Docket Alarm lists dozens of law firms in on the defense work, with two of those firms handling caseloads numbering in the hundreds.
Commentators have taken note of Musk’s growing number of high-profile, long-shot cases. The morning after Musk filed his OpenAI lawsuit in California Superior Court in San Francisco, Bloomberg noted that “Musk has been building a trail of legal challenges.” The article cited recent lawsuits the billionaire’s X Corp. (formerly Twitter) filed against two non-profits, Media Matters for America and the Center for Countering Digital Hate; X’s unsuccessful efforts to block a California law targeting social-media hate speech; Musk’s threatened lawsuits against Microsoft and Meta Platforms; and a SpaceX lawsuit seeking to have the National Labor Relations Board declared unconstitutional.
Meanwhile, Greenspan and his affiliates, Think Computer and PlainSite, have filed 129 FOIA requests since 2021, according to our database FOIAengine, which tracks FOIA requests in as close to real time as their availability allows. One-fourth of Greenspan’s FOIA requests targeted Tesla or Musk.
FOIA requests to the federal government can be an important early warning of bad publicity, litigation to come, or uncertainties to be hedged and gamed out. In this case, the FOIA requests and ongoing litigation provide evidence of the enmity between the world’s second-richest man and his short-seller critics.
Greenspan filed a FOIA lawsuit against the Securities and Exchange Commission in 2022 seeking Tesla-related documents. That action, one of five FOIA lawsuits that he has filed (among 43 lawsuits in all), has been on hold since last August as the SEC goes through a privacy review of more than a thousand pages of records. “That FOIA case has been idle for a while, but I am considering filing a motion to amend the complaint again,” Greenspan emailed this week in comments for this story. “The SEC has not been responding to FOIAs properly.” Greenspan also stated that he no longer has a short position in Tesla stock. “On net, I lost money.”
We last wrote about Greenspan, and a 2020 lawsuit that he filed against Musk, a year ago in “Clash of the Titans: Elon Musk Battles a FOIA Activist” (March 15, 2023). Greenspan’s lawsuit accused Musk, among other things, of libel, intentional infliction of emotional distress, copyright infringement, and violations of federal securities laws.
That case now is on appeal. Here’s the story thus far: 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.”
The feud between Musk and his nemesis was plenty interesting then. But today it is even more so.
Three weeks from now, on April 1, the long-running grudge match between Musk and Greenspan is set for its latest round, this time before three judges in a federal appeals courtroom in San Francisco. Thus far, the upcoming hearing – centered on procedural questions about securities fraud litigation – has been ignored by mainstream media.
Although a federal judge dismissed his lawsuit in 2022, Greenspan was able to get the Ninth Circuit to take his appeal based in part on a novel legal theory: that the Private Securities Litigation Reform Act, a law passed by Congress in 1995 to curtail frivolous securities lawsuits – and which the trial judge had cited to knock out Greenspan’s case – is no longer in force because of subsequent changes to the Federal Rules of Civil Procedure.
“Tempting as it is to think that this is probably an April Fool’s joke – it’s not,” Greenspan wrote in a recent email.
Greenspan is a non-lawyer (he studied economics at Harvard) who represents himself. He is the first to admit that the odds are against him. What’s noteworthy, however, is that Greenspan is still in the game at all.
“Those of you who know me know that I am not a lawyer, and as far as I can tell, it’s pretty rare that the Ninth Circuit asks for oral argument in non-prisoner civil cases where pro se (non-lawyer) plaintiffs are involved,” Greenspan said. “Being pro se is typically akin to filing a lawsuit with a neon sign attached that says ‘Dismiss Me.’ But that’s part of what this lawsuit is about: how, in the past 29 years, under the PSLRA, there have been a total of zero pro se securities cases in the United States because they were all dismissed.”
Two years ago, it appeared that Greenspan’s lawsuit against Musk was dead. The fact that, as a pro se litigant, Greenspan was able to revive it, and keep it going on appeal, demonstrates Musk’s vulnerability as he and his companies fight what they consider to be thousands of nuisance lawsuits, while pursuing a growing number of high-profile cases like the one against OpenAI.
In their reply brief to the Ninth Circuit, Musk’s lawyers called Greenspan a disgruntled short-seller who bet against Tesla and “lost his bet.” Musk’s lawyers are asking the Ninth Circuit to throw out the case.
“Statistically, I will probably still lose the appeal,” Greenspan confessed last month. After all, he’s a Harvard mathematician. He can calculate the odds. Still, this Ninth Circuit grudge match should make for interesting April Fool’s theatre, streamed in real time at 9 a.m. Pacific Time on the court’s You Tube channel.
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Next: The latest hedge fund FOIA requests to the Food and Drug Administration.
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 review FOIA requests mentioned in this article, subscribe to FOIAengine.
Write to John A. Jenkins at JAJ@PoliScio.com.