Business
Column: A judge voids Musk's huge Tesla pay package as dishonest, and hoo boy, is he steamed
Elon Musk may be learning the hard way that his streak of always having things his own way is coming to an end.
The most recent clue was delivered Tuesday by Delaware Chancellor Kathaleen McCormick, who ordered his groundbreaking $56-billion 2018 pay package from Tesla rescinded, dealing a potentially permanent blow to Musk’s reign as the world’s richest man.
If McCormick’s blockbuster 201-page order in the lawsuit brought by a Tesla shareholder survives a likely appeal to the Delaware Supreme Court, Musk would have to give up the options on nearly 304 million shares that the Tesla board awarded him in that 2018 pay deal.
Musk wielded the maximum influence that a manager can wield over a company.
— Delaware Chancellor Kathaleen McCormick
Of those options, 25.3 million are still unvested because their vesting dates haven’t yet been reached. Musk hasn’t yet exercised any of the options that have vested thus far; in McCormick’s view, that makes reversing the pay package a relatively simple matter.
Musk reacted to McCormick’s ruling with characteristic truculence. “Never incorporate your company in the state of Delaware,” he tweeted soon after the ruling was released.
He then tweeted a poll asking users if Tesla should change its state of incorporation to Texas, its headquarters state. By midday Wednesday, more than 87% of the nearly 1 million respondents voted “yes” (though respondents to Musk’s tweeted polls invariably see things his way).
In responding this way, Musk validated one of McCormick’s points — that his personal interests often have outweighed those of other Tesla shareholders in corporate decision-making. The truth is that most major corporations incorporate in Delaware because its laws and courts are extremely business-friendly.
Musk had encountered McCormick before, perhaps to his enduring regret. It was she who presided over the Chancery Court lawsuit brought by the Twitter board in 2022 to force him to complete his purchase of the social media platform after he attempted to back out.
With a trial of the lawsuit drawing near and McCormick signaling, if subtly, that she wasn’t going to be intimidated by Musk’s usual bluster, he completed the deal in October 2022.
Since then, he has sold tens of billions of dollars of his Tesla holdings to shore up the finances of Twitter (now X), even as he drives off advertisers and users through his open embrace on the platform of antisemitism and other varieties of hate speech.
That brings us to McCormick’s ruling on the pay deal. There’s a lot to find fascinating, even entertaining, in a text punctuated with quotations from Shakespeare and “Star Trek.”
The inner workings of corporate management can be opaque to laypersons, but McCormick lays out with admirable clarity how the deal came to pass and why it deserves to be reversed.
Along the way, she raises important questions about how a corporate board should deal with a “superstar CEO” like Musk, and how to strike the proper balance between the value a CEO has created for shareholders, and how much of that value should flow back to the CEO. Accomplished CEOs arguably deserve plenty in compensation; the issue is how much plenty is enough, or too much.
A brief outline of the 2018 pay deal is in order.
The Tesla board awarded Musk as much as 12% of Tesla shares over 10 years in 12 blocks, or tranches. Each tranche would vest with each increase in Tesla’s market value of $50 billion and with specified targets of revenue and operating earnings growth. Altogether, the deal was valued at up to $55.8 billion.
The plan’s magnitude was indescribable in conventional executive compensation terms. McCormick called it “the largest potential compensation opportunity ever observed in public markets by multiple orders of magnitude.” It was 250 times larger than median pay packages in comparable corporations, and more than 33 times larger than the closest comparison — which was the previous pay package Tesla had awarded Musk, in 2012.
McCormick concluded, following a five-day trial in 2022, that Musk’s dominating role at Tesla warranted that the board conduct an especially stringent arms-length process to reach a pay settlement. This it did not do.
“Rather than negotiating against Musk,” she writes, the board’s compensation committee “engaged in a ‘cooperative [and] collaborative’ process antithetical to arm’s-length bargaining…. In the end, Musk dictated the Grant’s terms, and the committee effected those wishes.”
That could not have been a surprise, considering the makeup of the committee and the board as a whole. The chair of the committee, board member Ira Ehrenpreis, had invested tens of millions of dollars in Musk companies. He, Musk and Musk’s brother Kimbal (also a Tesla board member) had known one another for 15 years.
Another committee member, board member Antonio Gracias, had a Tesla stake that had grown from $15 million to about $1 billion during Musk’s tenure. His family and Musk’s regularly spent vacations together and his friendships extended to Kimbal and to Musk’s mother and sister.
Among the other board members were James Murdoch, the son of Rupert Murdoch and a personal friend of Musk’s, and Linda Johnson Rice, a personal friend of Gracias’.
The non-director Tesla executives assigned to help craft the pay package tended to see themselves as Musk acolytes or were otherwise “beholden to Musk,” as McCormick describes the atmosphere. One was Tesla general counsel Todd Maron, who was Musk’s former divorce attorney and whose “admiration for Musk moved him to tears” during a pretrial deposition.
At the board level, this was “as close to … a controlled mindset as it gets,” McCormick writes. But there’s more, pertaining to the question of whether Musk is truly a “controlling” person at Tesla.
As she observes, at the time of the pay negotiations he owned 21.9% of the company shares, mathematically not enough for voting control. But there are other considerations.
Musk was then Tesla’s chairman, CEO and effectively its founder. (Although the company had been founded by others, it was Musk who after buying into the company in 2004 imposed a vision and strategy that transformed Tesla from a small startup with a single electric vehicle in its product lineup to the leading EV manufacturer in the world, with 100,000 employees as of the end of 2021 and a market value of more than $1 trillion.)
At the time of the pay negotiations, Musk had personal ties to three of the eight active board members (his brother, Gracias and Murdoch). His public renown and record as chair and CEO encouraged the board to believe that Tesla’s very survival depended on keeping Musk on board and placated.
They granted him extraordinary authority without any significant supervision, allowing him to make hiring and firing decisions, approving all financial plans, and unilaterally reassigning Tesla employees to his other companies, such as when he personally sent about 50 Tesla engineers to Twitter to evaluate the latter’s engineering.
And in 2016, when his solar power company SolarCity was floundering, the Tesla board waved through a merger into Tesla that rescued the solar firm’s shareholders at the expense of Tesla’s. Musk sat on both firms’ boards, two of his cousins and Gracias were on the SolarCity board, and Gracias and Brad Buss, a former SolarCity executive, were on Tesla’s board. The merger appeared to be as far from an arm’s-length transaction as human arms could allow.
“Musk wielded the maximum influence that a manager can wield over a company,” McCormick judged.
The board allowed Musk to dominate the design of his pay package as he dominated all other aspects of Tesla management. The board seemed disinclined to use outside guidance in benchmarking Musk’s pay against that of CEOs at comparable companies.
Tesla argued at trial that the pay plan was so much larger than any other in corporate history that it would be impossible to find comparable executives or pay plans. McCormick isn’t having any of that.
“As CEO, Musk’s job was the same as every other public company CEO: improve earnings and create value…. The extraordinary nature of the Grant should have made benchmarking more critical, not less.” Without that fundamental data, the Tesla board had no idea just how extraordinary it was.
The death blow to the pay package, as McCormick lays it out, is that the Tesla board misled shareholders about its nature and the process that brought it into being.
In its proxy statement for its 2018 annual meeting at which shareholders would be asked to vote on the package, the company stated that all the members of the compensation committee were “independent directors.” That was obviously untrue, given that Ehrenpreis and Gracias held two of its four seats and Ehrenpreis was its chair.
McCormick also noted that the proxy described the milestones that Musk would have to meet to acquire his shares would be “very difficult to achieve.” In fact, the nearer-term milestones fell within the company’s internal financial projections.
Although the two large institutional proxy advisory firms, Glass Lewis and ISS, advised their clients to vote against the pay deal — ISS described its magnitude as “staggering” — 73% of shareholders approved the package at a special meeting.
Things haven’t gone as well for Musk and Tesla lately as they appeared in 2018. After topping $1 trillion, the company’s market capitalization is now less than $600 billion. Tesla faces headwinds from competition in the EV market from legacy automakers and a consumer shift away from full EVs toward hybrids; these factors have forced Tesla to cut prices sharply, eroding its profit margin. Its shares have lost about 25% so far this year and about 36% since their most recent peak last July.
Musk’s holdings of Tesla have fallen to about 13% from 21.9% in 2008, due largely to his sales of Tesla stock to finance his Twitter deal. If he is able to liquidate his entire 2018 stock grant, that would bring his holdings back to about 22.5%. He recently informed the Tesla board that unless his holdings can be raised to 25%, he would prefer building AI and robotics products, which he has said are in Tesla’s future, “outside of Tesla.”
The fundamental question McCormick poses is why the board thought such an outsized pay grant was necessary to keep Musk at Tesla and focused on its growth. He had repeatedly stated in public that he intended to stay at Tesla to the end of his days.
The board may have been concerned that his other companies, including SpaceX and Twitter, would distract him from his duties at Tesla, but they evidently made no effort to write into the pay package any requirement that he devote a given number of hours exclusively to Tesla.
After all, his 21.9% stake in Tesla should have been enough to give him a powerful incentive to stay in place and maximize the company’s fortunes — every $50-billion increase in Tesla’s market capitalization meant $10 billion more in his pocket.
Notwithstanding his recent threat to take his AI and robotics work elsewhere, wouldn’t he have stayed at Tesla in 2018 even if the board offered him less, or even nothing?
“Was the richest person in the world overpaid?” McCormick asks. That, she writes, is “the $55.8 billion question.”
Business
A tale of two Ralphs — Lauren and the supermarket — shows the reality of a K-shaped economy
John and Theresa Anderson meandered through the sprawling Ralph Lauren clothing store on Rodeo Drive, shopping for holiday gifts.
They emerged carrying boxy blue bags. John scored quarter-zip sweaters for himself and his father-in-law, and his wife splurged on a tweed jacket for Christmas Day.
“I’m going for quality over quantity this year,” said John, an apparel company executive and Palos Verdes Estates resident.
They strolled through the world-famous Beverly Hills shopping mecca, where there was little evidence of any big sales.
John Anderson holds his shopping bags from Ralph Lauren and Gucci at Rodeo Drive.
(Juliana Yamada / Los Angeles Times)
One mile away, shoppers at a Ralphs grocery store in West Hollywood were hunting for bargains. The chain’s website has been advertising discounts on a wide variety of products, including wine and wrapping paper.
Massi Gharibian was there looking for cream cheese and ways to save money.
“I’m buying less this year,” she said. “Everything is expensive.”
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The tale of two Ralphs shows how Americans are experiencing radically different realities this holiday season. It represents the country’s K-shaped economy — the growing divide between those who are affluent and those trying to stretch their budgets.
Some Los Angeles residents are tightening their belts and prioritizing necessities such as groceries. Others are frequenting pricey stores such as Ralph Lauren, where doormen hand out hot chocolate and a cashmere-silk necktie sells for $250.
People shop at Ralphs in West Hollywood.
(Juliana Yamada / Los Angeles Times)
In the K-shaped economy, high-income households sit on the upward arm of the “K,” benefiting from rising pay as well as the value of their stock and property holdings. At the same time, lower-income families occupy the downward stroke, squeezed by inflation and lackluster income gains.
The model captures the country’s contradictions. Growth looks healthy on paper, yet hiring has slowed and unemployment is edging higher. Investment is booming in artificial intelligence data centers, while factories cut jobs and home sales stall.
The divide is most visible in affordability. Inflation remains a far heavier burden for households lower on the income distribution, a frustration that has spilled into politics. Voters are angry about expensive rents, groceries and imported goods.
“People in lower incomes are becoming more and more conservative in their spending patterns, and people in the upper incomes are actually driving spending and spending more,” said Kevin Klowden, an executive director at the Milken Institute, an economic think tank.
“Inflationary pressures have been much higher on lower- and middle-income people, and that has been adding up,” he said.
According to a Bank of America report released this month, higher-income employees saw their after-tax wages grow 4% from last year, while lower-income groups saw a jump of just 1.4%. Higher-income households also increased their spending year over year by 2.6%, while lower-income groups increased spending by 0.6%.
The executives at the companies behind the two Ralphs say they are seeing the trend nationwide.
Ralph Lauren reported better-than-expected quarterly sales last month and raised its forecasts, while Kroger, the grocery giant that owns Ralphs and Food 4 Less, said it sometimes struggles to attract cash-strapped customers.
“We’re seeing a split across income groups,” interim Kroger Chief Executive Ron Sargent said on a company earnings call early this month. “Middle-income customers are feeling increased pressure. They’re making smaller, more frequent trips to manage budgets, and they’re cutting back on discretionary purchases.”
People leave Ralphs with their groceries in West Hollywood.
(Juliana Yamada / Los Angeles Times)
Kroger lowered the top end of its full-year sales forecast after reporting mixed third-quarter earnings this month.
On a Ralph Lauren earnings call last month, CEO Patrice Louvet said its brand has benefited from targeting wealthy customers and avoiding discounts.
“Demand remains healthy, and our core consumer is resilient,” Louvet said, “especially as we continue … to shift our recruiting towards more full-price, less price-sensitive, higher-basket-size new customers.”
Investors have noticed the split as well.
The stock charts of the companies behind the two Ralphs also resemble a K. Shares of Ralph Lauren have jumped 37% in the last six months, while Kroger shares have fallen 13%.
To attract increasingly discerning consumers, Kroger has offered a precooked holiday meal for eight of turkey or ham, stuffing, green bean casserole, sweet potatoes, mashed potatoes, cranberry and gravy for about $11 a person.
“Stretch your holiday dollars!” said the company’s weekly newspaper advertisement.
Signs advertising low prices are posted at Ralphs.
(Juliana Yamada / Los Angeles Times)
In the Ralph Lauren on Rodeo Drive, sunglasses and polo shirts were displayed without discounts. Twinkling lights adorned trees in the store’s entryway and employees offered shoppers free cookies for the holidays.
Ralph Lauren and other luxury stores are taking the opposite approach to retailers selling basics to the middle class.
They are boosting profits from sales of full-priced items. Stores that cater to high-end customers don’t offer promotions as frequently, Klowden of the Milken Institute said.
“When the luxury stores are having sales, that’s usually a larger structural symptom of how they’re doing,” he said. “They don’t need to be having sales right now.”
Jerry Nickelsburg, faculty director of the UCLA Anderson Forecast, said upper-income earners are less affected by inflation that has driven up the price of everyday goods, and are less likely to hunt for bargains.
“The low end of the income distribution is being squeezed by inflation and is consuming less,” he said. “The upper end of the income distribution has increasing wealth and increasing income, and so they are less affected, if affected at all.”
The Andersons on Rodeo Drive also picked up presents at Gucci and Dior.
“We’re spending around the same as last year,” John Anderson said.
At Ralphs, Beverly Grove resident Mel, who didn’t want to share her last name, said the grocery store needs to go further for its consumers.
“I am 100% trying to spend less this year,” she said.
Business
Instacart ends AI pricing test that charged shoppers different prices for the same items
Instacart will stop using artificial intelligence to experiment with product pricing after a report showed that customers on the platform were paying different prices for the same items.
The report, published this month by Consumer Reports and Groundwork Collaborative, found that Instacart sometimes offered as many as five different prices for the same item at the same store and on the same day.
In a blog post Monday, Instacart said it was ending the practice effective immediately.
“We understand that the tests we ran with a small number of retail partners that resulted in different prices for the same item at the same store missed the mark for some customers,” the company said. “At a time when families are working exceptionally hard to stretch every grocery dollar, those tests raised concerns.”
Shoppers purchasing the same items from the same store on the same day will now see identical prices, the blog post said.
Instacart’s retail partners will still set product prices and may charge different prices across stores.
The report, which followed more than 400 shoppers in four cities, found that the average difference between the highest and lowest prices for the same item was 13%. Some participants in the study saw prices that were 23% higher than those offered to other shoppers.
At a Safeway supermarket in Washington, D.C., a dozen Lucerne eggs sold for $3.99, $4.28, $4.59, $4.69 and $4.79 on Instacart, depending on the shopper, the study showed.
At a Safeway in Seattle, a box of 10 Clif Chocolate Chip Energy bars sold for $19.43, $19.99 and $21.99 on Instacart.
The study found that an individual shopper on Instacart could theoretically spend up to $1,200 more on groceries in one year if they had to deal with the price differences observed in the pricing experiments.
The price experimentation was part of a program that Instacart advertised to retailers as a way to maximize revenue.
Instacart probably began adjusting prices in 2022, when the platform acquired the artificial intelligence company Eversight, whose software powers the experiments.
Instacart claimed that the Eversight experimentation would be negligible to consumers but could increase store revenue by up to 3%.
“Advances in AI enable experiments to be automatically designed, deployed, and evaluated, making it possible to rapidly test and analyze millions of price permutations across your physical and digital store network,” Instacart marketing materials said online.
The company said the price chranges were not dynamic pricing, the practice used by airlines and ride-hailing services to charge more when demand surges.
The price changes also were not based on shoppers’ personal information such as income, the company said.
“American grocery shoppers aren’t guinea pigs, and they should be able to expect a fair price when they’re shopping,” Lindsey Owens, executive director of Groundwork Collaborative, said in an interview this month.
Shares of Instacart fell 2% on Monday, closing at $45.02.
Business
Apple, Google and others tell some foreign employees to avoid traveling out of the country
Big Tech companies, including Apple, Google, Microsoft, and ServiceNow, have warned employees on visas to avoid leaving the country amid uncertainty about changing immigration policy and procedures.
Following an attack on National Guard members in Washington, the Trump administration expanded travel bans earlier this month, and beefed up vetting and data collection for visa applicants. The new policy now includes screening the social media history of some visa applicants and their dependents.
Soon after the announcement, U.S. consulates began rescheduling appointments for future dates, some as late as summer 2026, leaving employees who required appointments unable to return.
“Please be aware that some U.S. Embassies and Consulates are experiencing significant visa stamping appointment delays, currently reported as up to 12 months,” noted an email sent by Berry Appleman & Leiden LLC, the immigration firm that represents Google. The advisory also recommended “avoiding international travel at this time.”
Business Insider earlier reported on the travel advisories.
Microsoft’s memo noted that much of the rescheduling is occurring in India, in cities such as Chennai and Hyderabad, and that new stamping dates are as far out as June 2026.
The company advised employees with valid work authorization who were traveling outside the U.S. for stamping to return before their current visa expires. Those still in the U.S. scheduling upcoming travel for visa stamping should “strongly consider” changing their travel plans.
Apple’s immigration team also recommended that employees without a valid H1-B visa stamp avoid international travel for now.
ServiceNow, a business software company, similarly issued an advisory recommending that those with valid visa stamps return to the U.S.
Microsoft declined to comment on its memo. Apple, Google and ServiceNow did not immediately respond to requests for comment.
Companies warned that delays due to enhanced screening is for H-1B, H-4, F, J and M visas.
H-1B is a high-skilled immigration visa program that allows employers to sponsor work visas for individuals with specialized skills. The program, capped at 85,000 new visas per year, is a channel for American tech giants to source skilled workers, such as software engineers.
Big Tech companies such as Amazon, Google, and Meta have consistently topped the charts in terms of the number of H-1B approvals, with Indian nationals as the largest beneficiaries of the program, accounting for 71% of approved H-1 B petitions.
H-1B visas are awarded through a lottery system, which its critics say has been exploited by companies to replace American workers with cheap foreign labor.
In September, the Trump administration announced a $100,000 fee for new H-1B employee hires. But after severe pushback, it clarified that it applied only to employers seeking to use the H-1B visa to hire foreign nationals not already in the U.S.
The H-1B program is an issue that has not only animated the right but also splintered it. Those on the tech-right, such as Elon Musk and David Sacks, are strongly in favor of strengthening skilled immigration, while the core MAGA base is vehemently opposed to it.
Proponents of the program often highlight that skilled worker immigration made the U.S a technological leader, and nearly half of the fortune 500 companies were founded by immigrants or their children, creating jobs for native-born Americans.
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