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Column: A judge voids Musk's huge Tesla pay package as dishonest, and hoo boy, is he steamed

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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by Delaware Chancellor Kathaleen McCormick, who ordered his groundbreaking $56-billion 2018 pay package from Tesla rescinded, dealing a potentially permanent blow to Musk’s reign as the world’s richest man.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

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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.

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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.

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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.

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“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.

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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.

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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.

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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.

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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?

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“Was the richest person in the world overpaid?” McCormick asks. That, she writes, is “the $55.8 billion question.”

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California’s gas prices push Uber and Lyft drivers off the road

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California’s gas prices push Uber and Lyft drivers off the road

The highest gas prices in the country are making it tougher for some gig drivers to make a living.

Gas prices have shot up amid the war in the Middle East. On average, California gas prices are the most expensive in the United States, according to data from the American Automobile Assn. The average price of regular gas in California is almost $6. The national average is a little above $4.

While Uber and Lyft drivers have concocted clever ways to cut gas consumption, they say that without some relief they will be forced to leave the ride-hailing business.

John Mejia was already struggling to make money as a part-time Lyft driver when soaring gas prices made his side hustle even harder.

“Unfortunately, it’s the economics of paying less to drivers and gas prices,” he said. “It actually is pulling people out of the business.”

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Guests at The Westin St. Francis hotel get into an Uber.

(Jess Lynn Goss / For The Times)

Gig work offers drivers the freedom to work for themselves and more flexibility, but being independent contractors also means they must shoulder unexpected costs.

Ride-sharing companies say they’re trying to help, but drivers say the gas relief comes with caveats. For now, drivers say they’re being pickier about what rides they accept, cutting hours and are looking at other ways to make money.

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Mejia, who started driving for Lyft more than a decade ago, said in his early days, he would sometimes make $400 in three hours. Now it takes 12 hours to rake in $200.

The San Francisco Bay Area consultant is an active member of the California Gig Workers Union, so he knows he isn’t alone. California has more than 800,000 gig rideshare drivers, according to the group, which is affiliated with the Service Employees International Union.

On social media sites such as Reddit and Facebook, gig workers have posted about how the higher gas prices are eating into their earnings. Among the tricks they are suggesting: reducing the number of times the ignition is turned on or off, avoiding traffic, working in specific neighborhoods and at times with high demand and switching to electric vehicles.

Gig drivers usually have only seconds to decide whether to accept a ride on the app, but they have become more strategic about which rides and deliveries they accept.

That means they are more likely to sit back in their cars and wait for higher fares for quick pick-up and drop-off.

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“I highly recommend the ‘decline and recline’ strategy, rejecting unprofitable rides until a better one appears,” wrote Sergio Avedian, a driver, in the popular blog the Rideshare Guy.

Pedestrians cross the street in front of a Lyft and Uber driver.

Pedestrians cross the street in front of a Lyft and Uber driver on Wednesday. High gas prices have made it hard for gig drivers to make a living, cutting into their profits.

(Jess Lynn Goss / For The Times)

Uber, Lyft and other companies have unveiled several ways to help drivers save on gas.

Uber said drivers can get up to 15% cash back through May 26 with the Uber Pro card, a business debit Mastercard for drivers and couriers. Based on a worker’s tier, they can get up to $1 off per gallon of gas through Upside — an app that offers cash rewards — and up to 21 cents off per gallon of gas with Shell Fuel Rewards. The company also offers incentives for drivers who want to switch to electric vehicles.

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“We know the price of gas is top of mind for many rideshare and delivery drivers across the country right now,” Uber said in a blog post about its gas savings efforts.

Lyft also said it’s expanding gas relief through May 26 because the company knows that the extra cost “hits hardest for drivers who depend on driving for their income.”

The company is offering more cash back, depending on the driver’s tier, for drivers who use a Lyft Direct business debit card to pay for gas at eligible gas stations. They can get an additional 14 cents per gallon off through Upside.

Drivers say the fine print on the offers dictates which card they use and where they fill up gas, making it difficult for them to save money.

“If I do the math, it’s ridiculous,” Mejia said. “They’re offering us nothing.”

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Uber declined to comment, but pointed to its blog post about the gas relief efforts. Lyft also referenced the blog post and said “the gas savings were structured through rewards to maximize stackable opportunities.”

Guests at The Westin St. Francis hotel get into an Uber.

Guests at The Westin St. Francis hotel get into an Uber.

(Jess Lynn Goss / For The Times)

Gig workers have struggled with rising gas prices in the past.

In 2022, Lyft and Uber temporarily added a surcharge to their fares amid record-high gas prices following Russia’s invasion of Ukraine. This year, Uber is adding a fuel charge to its fares in Australia for roughly two months to offset the high cost of gas for drivers. Lyft said it hasn’t added a fuel charge in the U.S. or elsewhere.

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Margarita Penalosa, who drives full time for Uber and Lyft in Los Angeles, started as a rideshare driver in 2017. Back then, gas was cheaper. She would easily hit her goal of making $300 in eight hours. Now she’s making just $250 after working as much as 14 hours.

Gas prices, she said, used to be less than $3 per gallon. Now some gas stations are charging more than $8 per gallon.

“Take out the gas. Take out the mileage from my car and maintenance. How much [do] I really make? Probably I get $11 for an hour,” she said.

Jonathan Tipton Meyers wants to spend fewer hours as a rideshare driver.

He already juggles multiple gigs even while driving for Uber and Lyft in Los Angeles. He’s a mobile notary and loan signing agent, a writer and performer.

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Driving is “a very challenging, full-time job,” he said. “It’s very taxing and, of course, wages were just continually decreasing.”

A man stands for a portrait in a white button up shirt

John Mejia, a longtime Lyft and Uber driver, poses for a portrait before attending a meeting about unionizing gig drivers.

(Jess Lynn Goss / For The Times)

Even if oil continues to flow through the Strait of Hormuz, which Iran reopened Friday, it could take a while for gas prices to come down to earth, said Mark Zandi, the chief economist at Moody’s Analytics.

“There’s an old adage that prices rise like a rocket and fall like a feather,” he said. “I think that’ll apply.”

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In the meantime, it will be survival of the fittest drivers. If enough of them decide to leave the apps, the ride-hailing companies could be forced to raise fares further to attract some back.

“Those who approach rideshare driving strategically, tracking expenses, choosing trips carefully, and optimizing efficiency are far more likely to weather periods of high gas prices,” wrote Avedian in the Rideshare Guy blog. “For everyone else, a spike at the pump can quickly turn rideshare driving from a side hustle into a money-losing venture.”

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‘We’ve lost our way’: Clifton’s operator gives up on downtown Los Angeles

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‘We’ve lost our way’: Clifton’s operator gives up on downtown Los Angeles

The proprietor of Los Angeles’ legendary Clifton’s has given up on reopening the shuttered venue.

It’s just too difficult to do business in downtown’s historic core, he says.

Andrew Meieran bought Clifton’s on Broadway in 2010 and poured more than $14 million into repairs, renovations and upgrades, adding additional bar and restaurant spaces in the four-story building. In 2018, he found that demand for cafeteria food was too low to be profitable, and he pivoted to a nightclub and lounge concept called Clifton’s Republic, featuring multiple dining and drinking venues. Meieran has tried elaborate themed environments, such as a tiki bar and forest playgrounds, and renting out the location for big events to spark more interest.

It was never easy, but during and since the pandemic, the neighborhood has grown increasingly unsafe as downtown has emptied of office workers and visitors.

Storefronts are gated up due to vandalism in the historic district in downtown Los Angeles on Tuesday.

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(Eric Thayer / Los Angeles Times)

The alley behind Clifton's Cafeteria in the downtown historic district Tuesday.

The alley behind Clifton’s Cafeteria in the downtown historic district Tuesday.

(Eric Thayer / Los Angeles Times)

Vandalism has been rampant, with graffiti appearing on the historic structure almost daily. Vandals would use acid or diamond glass cutters to deface the windows, often cracking the glass. It would cost Meieran more than $30,000 each time to replace the windows. Insurance companies either stopped offering policies that covered vandalism or raised premiums by as much as 600%, he said.

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There has been continuous crime in the area, he said, including multiple assaults on people in front of his building. He last shut the venue last year, hoping things would improve and he could come back with a business that could work. Now he has given up. Someone else may take over the space or even the name of the historic spot, but he is done trying.

“We’ve lost our way,” Meieran said. “I want to get up on the tops of the skyscrapers and yell that people need to pay attention to this.”

The disenchantment of a business leader who used to be one of downtown L.A.’s biggest backers shines a spotlight on the stubborn safety concerns, rising costs and thinner foot traffic that have made it increasingly difficult for even iconic businesses to survive.

The once-popular institution dates back to 1935, when it was a Depression-era cafeteria and kitschy oasis that sold as many as 15,000 meals a day when Broadway was the city’s entertainment hub.

It served traditional cafeteria food such as pot roast, mashed potatoes and Jell-O in a woodsy grotto among fake redwood trees and a stone-wrapped waterfall reminiscent of Brookdale Lodge in Northern California.

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It’s not the only once-prominent destination that has failed to find a way to flourish in today’s market. Cole’s, one of L.A.’s most famous restaurants and often credited with inventing the French dip sandwich, closed last month after a 118-year run.

“The bigger problem for us and the rest of the industry is the high cost of doing business,” said Cedd Moses, who used to operate Cole’s and has backed many other bars and restaurants in historic buildings downtown for decades. “That’s what is killing independent restaurants in this city.”

Outside of Clifton's Cafeteria.

Outside of Clifton’s Cafeteria.

(Eric Thayer / Los Angeles Times)

Clifton's Republic owner Andrew Meieran stands next to a boat on the top floor of the historic restaurant in 2024.

Clifton’s Republic owner Andrew Meieran stands next to a boat on the top floor of the historic restaurant in 2024.

(Wally Skalij / Los Angeles Times)

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Clifton’s opened and closed repeatedly during the pandemic and, more recently, after a burst pipe caused extensive damage. Meieran opened it for special events such as last Halloween, but it has otherwise been closed.

Police are woefully understaffed and hampered by public policy, said Blair Besten, president of downtown’s Historic Core Business Improvement District, a nonprofit that arranges graffiti removal, trash pickup and safety patrols in the area.

Businesses and residents in the area would like to see a bigger police presence, but there have been protests against that by people who are not from downtown, she said.

“People are starting to see the fruits of the defunding movement,” she said. “It has not led us to a better place as a city.”

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The Los Angeles Police Department is making progress downtown, Captain Kelly Muniz said, with violent crime down more than 10% from last year.

“While we’re working very hard to solve crime, to prevent crime, there are still elements such as trash, open-air drug use, homelessness and graffiti,” she said. “We’re swinging in the right direction.”

Retailers have been opting out of downtown L.A., said real estate broker Derrick Moore of CBRE, who helps arrange commercial property leases. Brands have headed to more vibrant nearby neighborhoods such as Echo Park and Silver Lake.

“A lot of operators are just electing to skip over downtown,” he said. “They’re leasing spaces elsewhere, where they feel they have a greater chance at higher sales.”

A man walks past a pile of trash left on the street in the historic district.

A man walks past a pile of trash left on the street in the historic district.

(Eric Thayer / Los Angeles Times)

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While some businesses are struggling, many downtown residents say their perceptions of safety are improving and that the area is regaining some vibrancy.

“A lot of people live here. I think people forget that,” Besten said. “We’re all surviving. It’s just hard for all the businesses to survive.”

A green shoot for the Historic Core is Art Night on the first Thursday of every month, when 50 or 60 locations, including permanent art galleries and pop-up galleries in unused storefronts, display art to map-toting visitors who come for the occasion.

They often end up in Spring Street bars, which more typically thrive on weekend nights but are still a draw to downtown.

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“I think nightlife will thrive downtown, since bars attract people that don’t mind a little grittier atmosphere,” said Moses. “Our sales are hitting new records at our bars downtown, fortunately, but our costs have risen dramatically.”

A closed sign for Clifton's Cafeteria.

A closed sign for Clifton’s Cafeteria.

(Eric Thayer / Los Angeles Times)

Clifton’s former backer, Meieran, says he doesn’t think things are going to bounce back enough to warrant more massive investment. He has sold the building, and the owner is looking for a new tenant to occupy Clifton’s space. He still controls the Clifton’s name.

While there is still a chance he could let someone else use the name Clifton’s, Meieran is done for now — too many bad memories.

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“There was a guy who was terrorizing the front of Clifton’s because he decided he wanted to live in the vestibule in front, and he didn’t want us to operate there,” Meieran said. “He would threaten to kill anybody who came through.”

He doesn’t believe official statistics that show crime and homelessness are way down in the area, and he doesn’t want to restart a business when criminals can so easily erase his hard work.

“What business that’s already on thin margins can survive that?” he said.

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If you shop at Trader Joe’s, it may owe you $100

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If you shop at Trader Joe’s, it may owe you 0

Trader Joe’s customers might soon get a payout from the popular grocery chain.

The Monrovia-based company agreed to a $7.4-million settlement in a class action lawsuit that claimed customers were left vulnerable to identity theft.

Customers who purchased items with a credit or debit card from March to July in 2019 might be eligible for a payment as part of the settlement.

The plaintiff alleged that some receipts printed in 2019 included 10-digit credit or debit card numbers —double what’s allowed under the Fair and Accurate Credit Transactions Act.

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Trader Joe’s “vigorously denies any and all liability or wrongdoing whatsoever,” the grocery chain said in the settlement website. The grocery chain decided to settle to avoid a long and costly litigation process.

The payout will go toward paying impacted customers as well as attorney fees and other expenses.

About $2.6 million will go toward attorney fees, and the plaintiff will receive a $10,000 incentive payment, according to the settlement. The remaining funds will be distributed evenly among customers who submit valid claims.

It’s unclear how much money each customer would get, but the payout could be about $102, according to the settlement notice.

To receive the payout, customers must have received a receipt displaying the first six and last four digits of the card number.

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Some customers identified as part of the settlement class have been notified and received a class ID number to file a claim.

Customers have from now until June 6 to file a claim online or by phone.

A customer not identified in the settlement can still submit a claim by entering the first six and last four digits of the card used, along with the date it was used at Trader Joe’s.

Brian Keim, the plaintiff who brought the case, used his debit card at stores in Florida in 2019. He said some stores printed transaction receipts that included the first six and last four digits of customers’ card numbers.

The receipts did not include other personal information, such as the middle digits of the users’ cards, the cards’ expiration dates, or the users’ addresses. No customer has reported identity theft as a result of the receipts since the lawsuit was filed, the grocer said.

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However, identity theft doesn’t require submitting a claim for payment.

The settlement was agreed upon by both the grocer and the plaintiff, but still has to be approved by a court. A hearing is set in August.

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