accompanying tweet, and he said, well, that was
the trigger for the statute of limitations. I expect you recall that from
the conversation this morning. And I think, I think to that, we have to
respectfully say nonsense, members of the jury. You've seen the evidence that Musk
was on notice long before twenty twenty-two. For years,
um, this wasn't Musk finding out about what OpenAI was doing.
This was when OpenAI had suddenly become very successful as ChatGPT was launched.
As Mr. Musk realized he'd made a big mistake, that he'd gotten the whole thing
wrong, then he shows up. But there was-- it wasn't new information.
What was new is his realization that he'd gotten it wrong. But this was how can they
look to the twenty twenty-three
event as the triggering event for their statute of limitations when this happened
in twenty twenty-two? It doesn't make any sense. Fact is, he was on notice from
twenty seventeen, twenty nineteen, twenty twenty.
And as to the,
as to the twenty twenty-three as the date of the claim,
um,
you, you, you heard, I'm sure, members of the jury, that Mr. Mollo said that the
twenty nineteen and twenty twenty-one Microsoft deals were not breaches. The
twenty twenty-three was a breach.
Um, you heard that the breach happened in twenty twenty-three, even though there's
no conceptual difference between the three,
the three investments.
Have in mind,
the things Musk is complaining about, those happened in twenty twenty-three, and
you heard a lot about Brockman getting equity. That happened in twenty nineteen.
You heard about Microsoft getting its license. That was in twenty nineteen.
Uh, all-- You heard about the caps being so important. The twenty twenty-three deal
was capped. The pieces of this puzzle don't fit together, members of the jury.
Uh, let me speak briefly about the two remaining issues, which you'll probably
get to last in the order of operations when you all go back into the, into the
jury room. One is called latches. Latches is a cousin of the statute of limitations.
It says if you wait too long, you can't bring a claim, and there has to be a
showing of prejudice. The prejudice to our clients here is, um, obvious. OpenAI has
relied for years
on the structure that it put in place first in twenty nineteen and then in, in
twenty twenty-one. It relied on that for years. It accepted investment for years.
It paid people for years. It entered into contracts for years.
You can't put someone in the position
of waiting for years to sue and upending everything they've been doing. If you find
that there was notice here and that there was prejudice, which there is,
um, you need to find latches, and respectfully, we think you should.
Finally, unclean hands is the last defense. It's sort of at the tail end of
the argument, but it's kind of a nice summary of the trouble here. Unclean hands
is an old-fashioned legal defense. It applies when the person who brings the
claim here, Mr. Musk,
has engaged in unconscionables, a legal word, but bad conduct related to the
claims. If you don't act-- If you act badly, you don't get relief, and that's
what we have here. Mr. Musk's pursuit of these claims is the definition of
unconscionable. Mr. Musk kept tabs on OpenAI through a close associate whose
relationship was concealed. He repeatedly poached and tried to poach OpenAI
employees. He promised to fund the organization to a tune of billion dollars
and then used his funding promise as leverage to get control. And then only
after OpenAI succeeded against Musk's prediction, only then did he start
threatening litigation. Only after he was launching a competitor did he
threat-threaten litigation. And then finally, after bringing suit, Musk
coordinated a campaign with other folks in the tech sector to organize, um, an
OpenAI investigation. This
a, um, back and forth with,
with Mr. Zuckerberg.
And then he tried to generate leverage by lobbying in a bid
to buy OpenAI, completely inconsistent with the claim that this was going to be a
not-for-profit. xAI was gonna buy it and make it a totally for-profit, zero
mission-driven, closed source e-e-enterprise. None of all this is in
good faith.
I'm gonna close quickly. I want to say a word about credibility because you've
heard a lot about it. Um,
Mr. Musk isn't here today.
Um,
m-my clients are. You see Greg Brockman,
Sam Altman. Next to them is Josh Akiam, who is the corporate representative for
OpenAI. These are, these are my clients, and they're here because they care a lot
about this. They care a lot about it. Mr. Musk isn't here. Mr. Musk came to this
court for exactly one witness,
Elon Musk,
and he hasn't been seen since. Now he's in parts unknown. Mr. Musk's counsel
is happy to take shots at other people's credibility, but Mr. Musk claims
he doesn't remember things that are inconvenient. He claims to remember things
that he used to not remember when that's con-convenient. The key witness in this
case is Elon Musk, make no mistake, and he has had the most selective amnesia one
can imagine. He's the witness who claims to have heard promises that no one else
heard. He heard promises that the other people involved in the discussions,
including the people who worked for him,
never heard. He claims to have heard things high atop a windy hill where no one
else can hear.
No one else heard them.
Elon Musk heard them.
Consider whether that's credible. Consider whether a man as sophisticated and as
lawyer as Elon Musk would make donations of this magnitude with a significant
condition that he just never bothered to write down or tell anyone. It's not
credible at all, Your Honor, members of the jury, and I'll tell you, that's the
relevant credibility question for this case. Members of the jury, I want to say
thank you. You've been very patient with me. We've walked through, by our count,
the various independent grounds on which Mr. Musk claims fail.
He's come to this court
claiming that promises were made to him and broken, but the pieces of the puzzle
don't fit together that way. And that's not the reason we're here. The reason
we're here is that Mr. Musk didn't get his way at OpenAI. We're here because he
turned outTo have been very vocal about OpenAI. We're here because Mr. Musk is now
a competitor to OpenAI and has every motive to attack it. And you'll recall
that motive is a primary basis to evaluate,
um, cre-credibility per the judge. We don't have another opportunity to address
you, members of the jury.
Um,
Mr. Molla will stand up, and he'll argue his case one last time.
Um,
I wanna say before sitting down that I feel like I'm gonna miss you all. It's,
um, it's been a pretty intense number of weeks, and we really do appreciate your
patience.
Um, and I ask of you three things.
Um, keep the evidence in mind, members of the jury.
Keep in mind the judge's instruction. Judge Gonzales Rogers has lit a clear
pathway for you. We urge you to follow that pathway. Follow it carefully, follow
it faithfully, and consider your common sense about what you know goes on in the
world. And if you do those things, we know you're gonna bring a verdict for the
defense. I really do appreciate it. Thank you.
Okay.
Um, so I'm gonna stand and stretch as, uh, Mr. Cohen, uh, gets ready for the,
his closing.
After that, we'll take a short break, and then we'll get the rebuttal. So it is,
it's going to be longer
than 3:00.
Anybody need to make a phone call?
It's gonna be longer than 3:00.
Does anybody need to go make a phone call?
See.
-Yeah. Yeah, we'll quite visible. -Okay.
Be good.
Yeah.
Seems to be very good.
Okay.
All right, so we're gonna take a short break. I think someone... I think, uh...
Go ahead. You need to make a phone call?
Go ahead.
Go ahead. Okay.
It's
gonna
be long.
See what I told you all about uncomfortable silence?
[laughs]
Okay.
All right, let's get going.
Okay, we're back on the record. Mr. Cohen, you may proceed.
Uh, thank you, Your Honor.
Members of the jury,
I appreciate this one last chance to speak with you.
I just wanna thank you in advance on behalf of myself,
my team, Ms. Patel, Mr. Gerada,
and our client, Becky Francis from Microsoft, who's been sitting in the
courtroom every day along with you.
I told you in my opening statement that you wouldn't hear very much from
Microsoft, and over the past three weeks, I think you haven'tAnd
I think you all know why that is.
Microsoft wasn't involved in the key events
that are at the center of this case. Microsoft only became involved
beginning in twenty-nineteen
after Mr. Musk left, and OpenAI needed massive amounts of capital and compute.
And when it did get involved,
I told you that the evidence would show that Microsoft was a responsible partner
at every step.
You've now heard that Microsoft did its diligence before partnering,
and that the partnership helped OpenAI obtain the capital and the compute that it
needed to advance its research.
And you also heard
how that partnership helped Microsoft better compete with Google.
And I told you that the evidence would show
that Microsoft never learned anything
about specific conditions on Mr. Musk's donations to OpenAI.
And now you've heard why that is.
There were no specific conditions.
Nobody knew about those conditions.
Nobody told Microsoft about those conditions,
and Microsoft never found a single page of a single document that referenced any
such conditions.
But it's even worse than that because not even Mr. Mollo and Mr. Musk
can keep these specific purposes straight.
They said the purposes were nonprofit and open source.
But then you heard
that
a for-profit with caps, well, that was okay, but
caps couldn't be too high. They said a nonprofit with a for-profit that is an
adjunct,
well, that's okay if it was a subsidiary of the nonprofit. But if it's not an
adjunct, that's not okay. They said three billion dollars, that was okay, but
ten billion dollars was not.
They said a lot of things, but if they can't keep it straight,
how could Microsoft possibly know,
actually know, as the judge has instructed you, about the specific charitable
purposes of Mr. Musk's donations?
So I'm gonna spend the next forty minutes or so showing you how,
in the judge's words, these pieces fit together and why Mr. Musk can't prove his
one claim against Microsoft.
So let me start with a roadmap.
The court explained to you that there is only one claim against Microsoft for
aiding and abetting a breach of charitable trust.
But the court also explained to you that if you find that Musk did not prove that
Altman, Brockman, or the OpenAI Foundation
committed a breach of charitable trust,
you must find that Microsoft is not liable for aiding and abetting. In other words,
you have to find that
Musk created a charitable trust and that it was breached to even consider a claim
against Microsoft. If the answer to either of those questions is no,
then there is no claim against Microsoft.
And as you've just heard from OpenAI,
Mr. Musk cannot prove with evidence in this case, bearing the burden,
that there was a charitable trust because there were no specific conditions on his
donations and no breach.
And that means you don't even reach the claim against Microsoft.
Now, every one of these witnesses said that they didn't know about any conditions
or restrictions
or specific charitable purposes, it's the same thing, for Musk's donations, or they
don't recall them at all.
And that includes Mr. Birchall,
the person who helped Mr. Musk make these donations. It includes Mr. Teller, his
right-hand man, and Ms. Zillis, who helped Musk communicate
with OpenAI.
No one knew.
And no one knew because there is no specific charitable purpose.
And if there's no specific charitable purpose, there is no charitable trust,
which means there is no claim against Microsoft. And that, that should be the
end of it.
But let me also walk you step by step
and show you why Mr. Musk can't prove his aiding and abetting claim against
Microsoft either.
So the first thing he has to show is that Microsoft
actually knew of Musk's specific charitable purpose, and he can't do that.
But let me start with the burden of proof. You heard the judge explain it to you,
and it's important
because on this claim,
Mr. Musk has the burden. On the claim against Microsoft, Mr. Musk has the
burden. It means he has to show you the evidence.
For each step, he has to show you enough evidence to persuade you that his story is
more likely true than not.
And on that first step, what does he need to prove? He needs to prove that Microsoft
had actual knowledge that Musk made his donations for specific charitable
purposes, that Microsoft actually knew,
actually knew why Musk made those donations to OpenAI.
Not that Musk made donations to OpenAI,
not that Musk was a donor, but that he made the donations to do something
specific.
And ask yourself, did you see any evidence that Microsoft actually knew that?
This is what else the judge told you.
A vague suspicion of wrongdoing or a hunch is not actual knowledge, and that's
important.
It's a high barShe also told you
should have known is not enough. Should have known is not enough.
Mr. Musk has a high standard here, and let me show you why he doesn't even come
close.
So you recall that Microsoft was not there at the founding of OpenAI. It was not
there when Mr. Musk made his donations.
It was not there when the founders discussed the formation of a for-profit.
It was not there when Micro-- when Mr. Musk left.
It was not involved in OpenAI creating the for-profit subsidiary, and it was not
involved in the transfer of employees and IP to the for-profit subsidiary. And why
does that matter?
Because if Microsoft wasn't there,
it wouldn't have any first-hand knowledge of any specific charitable purpose for Mr.
Musk's donations.
And that means that Microsoft would only know if someone told Microsoft,
somebody told them about the specific charitable purposes.
But the evidence is that no one did.
In this courtroom, you heard us ask the same question
about conditions, about restrictions over and over and over again, and every time
the answer was the same. Sam Altman never told Microsoft. Greg Brockman never told
Microsoft. Ilya Sutskever
never told Microsoft. Mira Murati, Tasha McCauley never told Microsoft.
Mr. Musk's associates,
Siobhan Sylas didn't recall telling Microsoft.
Same with Jared Birchall.
Same with Sam Teller.
No one told Microsoft because there was nothing to tell.
And Mr. Musk never told Microsoft either.
You heard Mr. Nadella testify. Mr. Musk had his phone number.
He never told Microsoft about any specific charitable purposes for his donations.
So how could Microsoft have known about specific charitable purposes if it wasn't
there
and it wasn't told?
Well, maybe if somebody had written it down.
But Microsoft confirmed for itself through its due diligence that there was nothing
that would stop OpenAI from partnership.
You heard from Mr. Scott and from Mr. Wetter just yesterday.
Microsoft spent more than a year from first learning about OpenAI's plans for a
commercial venture before it got comfortable recommending a partnership to
its own board.
And then it spent another three months before it was finalized.
Even Mr. Mullow said that Microsoft did its diligence,
and Microsoft never found a single page referencing any conditions on Mr. Musk's
donations, you heard the testimony, let alone specific charitable purposes that
would prevent it from partnering. Now,
maybe the diligence testimony wasn't the most interesting testimony at this trial,
but I hope you realize how seriously Microsoft took the due diligence.
So this timeline really shows just how deliberate and responsible Microsoft was
before partnering.
You recall Mr. Nadella testified hearing from Mr. Altman
about a proposal in February of twenty-eight-- twenty eighteen.
Mr. Scott wrote his email raising questions about it in March of twenty
eighteen
and then began gathering information, had conversations with Satya, had
conversations with Reid Hoffman,
did a site visit, learned more.
And then in November twenty eighteen, he started to get answers. He learned that
OpenAI had created a for-profit subsidiary that was controlled by the nonprofit
and that they had investors. That was important.
Every step of the way, at no step of the way did he learn anything about Mr. Musk,
about Mr. Musk's donations, or about any specific charitable purpose.
And then finally, yesterday, you heard from Mr. Wetter about Microsoft's
comprehensive formal due diligence process, and that showed nothing about Mr.
Musk's specific charitable purpose.
So Microsoft only partnered after more than a year of consideration, and in that
year never found anything showing that Musk made his donations for specific
charitable purposes because there was nothing to find.
And because there was nothing to find,
as Mr. Wetter explained,
OpenAI, right in the contracts themselves,
represented and warranted
that the partnership was authorized,
that it was authorized by the nonprofit board, and that it wouldn't violate any
third-party rights. And who is the third party?
It could be any donor, including Mr. Musk, and of course,
no other donor has ever sued.
So OpenAI made this representation in twenty nineteen,
and it did it again
and again in every agreement after that.
And finally,
these three witnesses, Mr. Musk's witnesses,
who are laser-focused on the mission,
they approved the partnership on behalf of OpenAI's nonprofit board
because they all thought it was in the best interest
of OpenAI.
Did you hear Mr. Mullow mention even once this fact?
Everything Microsoft was told, everything it reviewed, and every assurance by
OpenAI, especially the approval of the OpenAI nonprofit board, this board
confirmed there were no specific charitable purposes on Mr. Musk's
donations.So on this first step of proving Microsoft's actual knowledge, there,
there is no evidence. There's no evidence that Microsoft had actual knowledge that
Mr. Musk made his donations for specific charitable purposes, and indeed, there is
overwhelming evidence showing the opposite.
So what does Mr.
Mullow say about this?
Uh, to-today he said very little, frankly.
But I wanna take you back to something he said at the very start of this case in his
opening statement,
because I think it tells you everything you need to know.
You remember in his opening,
Mr. Mullow told you to write down three questions. This was question number three.
He asked you
to write down, did Microsoft know about the charitable mission?
But that's not enough. That is the wrong question.
The judge has now instructed you on the law, and she has given you the right
question.
The right question is that Microsoft had actual knowledge that Musk made his
donation for a specific charitable purpose,
and that difference is so important.
So why do you think Mr. Mullow did that?
'Cause he doesn't have any evidence that Microsoft knew anything
about a specific charitable purpose. He only has evidence that Microsoft knew
about the mission of the nonprofit,
but that's not enough.
Remember in the instructions there was an example involving a hospital about what a
specific charitable purpose is.
Well, first of all, what it's not, it's not a gift to the hospital generally.
It is a gift to a hospital to support medical research on a particular disease.
So what is it that Microsoft knew?
Microsoft knew that OpenAI was a nonprofit. It knew that Musk gave to
OpenAI.
Microsoft knew that OpenAI had a charitable mission.
But that's very different from knowing that Mr. Musk made his donations for
specific charitable purposes.
And what does Musk rely on to show Microsoft's knowledge?
Well,
you've seen this document a lot. It's the certificate of incorporation. Mr. Mullow
kept coming back to this.
Microsoft knew about the certificate of incorporation.
Mr. Mullow read to you from today, but as Professor Hemel explained yesterday,
it contains boilerplate language,
language that the IRS requires be included in this document.
The certificate of incorporation is like the general gift to a hospital. The
mission is like a general gift to the hospital.
The certificate of incorporation does not mention Mr. Musk or specific charitable
purposes for his donation. It does not prove anything.
And remember, I asked Mr. Wetter the question,
how could you look at the certificate of incorporation and proceed with
partnership? And he explained to you,
well, the other thing we looked at is that the nonprofit board itself created the
for-profit structure,
and it authorized the partnership.
The certificate of incorporation does not prove anything.
Mr. Mullow also pointed to this email.
He pointed to it in his opening statement, and he referenced it just a few hours
ago. He said, "This email from Mr. Scott means that Microsoft knew what it was
doing."
But you heard Mr. Scott testify about this yesterday.
He never knew,
he was never told, and he never found out anything about Mr. Musk's donations.
Mr. Scott asked questions, he got answers, and he did due diligence.
This email is not evidence of knowledge. It's not evidence of anything except that
Mr. Scott had questions and that Microsoft took time to get answers to those
questions before entering a risky and important partnership.
Now, Mr. Musk has not proved actual knowledge. He has not proved that
Microsoft actually knew there was a specific charitable purpose, and on that
ground alone,
the claim fails.
And if you see the evidence as I see it,
you don't even get to the next step,
but Mr. Musk fails here as well.
He also has the burden to show you that there is evidence that proves that
Microsoft gave substantial assistance in breaching the charitable trust.
Here's what the court instructed you.
Microsoft gave substantial assistance to Altman Brockman or the OpenAI Foundation
in breaching the charitable trust created by Musk.
But the evidence does not show that
for two reas-- for two reasons, excuse me. First,
Microsoft wasn't involved in the creation of the for-profit and the transfer of the
assets, and it can't substantially assist what it wasn't involved in.
And second,
partnering with OpenAI and providing it with billions in cash and compute
was in the best interest of OpenAI
as the nonprofit board members themselves confirmed at trialEvery step of the
way, from the launch of the partnership in twenty nineteen to the ten billion dollar
investment in twenty twenty-three, OpenAI's nonprofit board, as well as many
other witnesses who are here, Ms. Moradi, Mr. Sutskever, Brett Taylor, Greg
Brockman, Sam Altman, they all confirmed how essential the partnership was for
OpenAI.
So we already looked at this slide,
and Microsoft wasn't involved in creating the for-profit subsidiary. You heard the
testimony on that. It wasn't involved in the transfer of the assets. It can't
substantially assist what it wasn't involved in.
So what is it that Microsoft did?
What was the purpose and effect of the partnership?
Well,
you've heard about this. Microsoft was providing the resources and the compute
that OpenAI needed,
and without which it likely would not have survived,
and it was allowing Microsoft itself to better compete against other AI platform
companies like Google.
Remember when the judge asked Dr. Sutskever about the importance of compute
and what it allowed OpenAI to do?
He was asked, "If he could quantify what the level of technology was at the time
that you left." And he said, "If you compare twenty eighteen to now, it's like
the difference between an ant and a cat. It's a big difference."
And then she asked him, "And if you received no funding?" He went on to
explain, "If there's no funding, then there's no big computer, it was not going
to work."
That is not substantially assisting a breach.
OpenAI needed billions. Mr. Musk himself knew it needed billions. That's what he
said when he walked out the door in December of twenty eighteen, that it
needed billions.
Mr. Taylor also testified that the partnership was essential.
"I think without Microsoft's investment, I'm not sure OpenAI would exist in its
current form today."
That is not substantially assisting a breach.
Now, Mr. Mullow said that Microsoft did something wrong by pushing OpenAI to
commercialize,
but that's not what the evidence shows.
Ms. Moradi testified about this. She was asked,
"Is it fair to say that it was OpenAI's decision to commercialize?"
"Absolutely." "And that decision to commercialize was made independent of
Microsoft?"
"Yes." "Why did OpenAI make that change?" And she explained, "Because it was core to
achieving the mission."
Contrary to what Mr. Mullow said to you, OpenAI was making its own decisions
for its own reasons,
and Microsoft was not calling the shots. Ms. Moradi was clear about that in her
testimony.
She testified just yesterday on video that the negotiations with Microsoft were at
arm's length, is how she described it,
and that Microsoft did not have any undue control over OpenAI.
And Microsoft never had a voting member on OpenAI's board.
So here is the bottom line. You recall Mr. Nadella explaining the partnership using
this demonstrative. He called them the gets.
There were gets for OpenAI, there were gets for Microsoft,
and that's why he called this a win-win.
He also said this was a classic case of the pie getting larger. You remember that?
Professor Cote said that yesterday as well.
This is another way of saying the same thing. It's what I explained to you a few
weeks ago in my opening statement,
that with investment and compute, OpenAI was able to produce more research and more
models and IP, which led to more investment and compute, which led to more
models, and so it went.
And now OpenAI's technology is,
with Microsoft's partnership, available for free and used by hundreds of millions
of people.
So the answer to Mr. Mullow's claim that Microsoft's investments expanded over
time,
yes, it is this virtuous cycle.
And the answer to why there was more IP over time,
it is this virtuous cycle.
And the answer to why there was more value being created and the pie was getting
bigger,
it is this virtuous cycle.
Now, Microsoft's spending on this partnership is upward of one hundred
billion dollars.
That is what Microsoft has done.
It is not substantially assisting a breach.
So is it any surprise that OpenAI's nonprofit board,
which included Ms. Zillis,
and I think Mr. Mullow described her earlier as having no agenda,
is it any surprise
that she approved the twenty twenty-three agreement
as well as the twenty twenty-one agreement,
and the entire board approved the twenty nineteen agreement?
Now, before I finish on substantial assistance, I just wanna talk briefly
about the two professors you heard from on nonprofit custom and practice.
Uh, you heard from Professor Hemel, uh, yesterday.
He explained that for-profit,
nonprofit collaborationsAnd
nonprofits having for-profit affiliates, it's very common. He also explained that
nonprofits are not limited to forming for-profits that are only small adjuncts,
and that they commonly license their IP.
At the same time, you heard from Professor Schizer,
uh, that in fact he had nothing relevant to say about Microsoft. He didn't have any
opinions about whether Microsoft knew of the conditions. He wasn't asked to opine
on that, and he wasn't offering any opinions about Microsoft's conduct. He
wasn't offering any opinions about for-profit companies, which of course,
Microsoft is.
And Mr. Mullow himself said today that
Microsoft wasn't subject to these same standards that Mr. Schizer was talking
about.
So let me briefly touch on the third element
of aiding and abetting, and that's answering the question whether Microsoft's
conduct was a substantial factor in causing harm to Mr. Musk.
Ask yourself, ask yourself, in the course of this trial,
did you hear anything at all about how Mr. Musk was harmed
by Microsoft's partnership?
Anything from Musk, from his associates, from anyone?
This is yet another reason to find in favor of Microsoft, because Mr. Musk has
failed to show this too.
[sighs]
Let me turn to November of twenty twenty-three.
Mr. Mullow has spent a lot of time talking about November twenty twenty-three today
with the witnesses.
It has nothing to do with whether Microsoft knowingly helped to breach a
charitable trust. It has nothing to do with Mr. Musk or his donations. It has
nothing to do with Microsoft's actual knowledge of specific charitable purposes.
It has nothing to do with whether Microsoft's partnership substantially
assisted a breach. It is a distraction.
But I will set the record straight.
Mr. Mullow
said
that Satya Nadella was controlling,
but that's not what Mira Murati said.
She was asked,
"Why was the board inviting Satya to meet with it?
He was the voice of reason. It was a crazy situation. Did the board authorize that?"
"Yes."
Mr. Mullow said that Microsoft controlled them, and Satya Nadella said that in an
interview. Mr. Mullow likes this quote, "Below them, above them, around them."
Uh, but you heard Mr. Nadella explain it and explain the interview he gave in the
midst of this crisis, and it doesn't mean what Mr. Mullow said.
Satya Nadella wanted and needed to reassure Microsoft's customers by
confirming that Microsoft
had the supercomputers it needed to continue to provide the services,
that it had the applications that its customers were relying on, and it had the
APIs that the developers were writing to.
That's what Mr. Nadella meant.
And critically,
who made the final decision about who was on the OpenAI board?
The OpenAI nonprofit board.
That's what Mr. Taylor said.
The outgoing board appointed the new directors.
That's what Ms. McCauley said, who was part of that board. OpenAI had the final
say on any decisions about who would be added to the OpenAI board.
If Microsoft wanted to control OpenAI, November twenty twenty-three would have
been the perfect opportunity to do that. That's not what it did.
It supported OpenAI, and it helped stabilize it.
And Microsoft didn't control it then,
and it doesn't control it now. In fact, you heard Mr. Altman testify just this
week that OpenAI has since accepted billions of dollars in additional
investments, investments far, far larger than what Microsoft invested from
companies like Amazon, NVIDIA, SoftBank, and many others.
So let me turn to the final element,
whether Mr. Musk sued on time within three years as required by law. And I'm, I'm
talking about this last, but as you've heard, this will be the first question you
have to answer because if Mr. Musk didn't sue on time, and, and the evidence shows
he didn't,
then you don't even get to the other questions.
And you've heard this referred to, this is the statute of limitations, and it is
very important in this case.
We have statute of limitations because if people wait too long,
it is unfair. People forget. The evidence is lost. You saw that in Mr. Savitt's
presentation, and you remember that because so many of Mr. Musk's witnesses
testified that they didn't recall or didn't remember.
And it's also unfair because people rely on things as they are. Like Microsoft has
continued to build and spend for more than seven years of this partnership,
now spending over a hundred billion dollars.
That's why we have statutes of limitations, and that's why Mr. Musk
should not be permitted to sit on his hands and only sue years later at the time
of his choosing,
at the time of his choosing after the success of ChatGPT, after he launches a
competing AI company, and as part of a campaign to go after his competitor.
So this is what the judge has instructed you, and it is important to read these
instructions carefully, each piece of them, and there are a lot of pieces to the
statute of limitations instruction.But
a simple way you can think about it is,
did Mr. Musk know or could he have found out? Did Mr. Musk know or could he have
found out?
And if the answer to any of those questions is yes, his claim is too late.
So the first step is whether Musk's claims,
Musk's claimed harm occurred before November 14th, 2021. And that's, that's
easy because he told you that it did. He told the world that he did when he sent
that tweet on September 24th, 2020. He said no, that OpenAI was no longer open,
it was captured by Microsoft. So no longer open, captured by Microsoft, that was his
supposed promise, and he told the world that it had been broken.
Now, he'll tell you he didn't know and could not have known, but let's walk
through the evidence so you can decide for yourself. So here's the tweet.
There's a reason why it's important. It shows that in 2020,
he believed his supposed promise was broken.
And you heard his testimony about it.
You were trying to say what you meant, right?
Yeah.
You thought OpenAI was no longer an open source, right? Yeah.
And you thought OpenAI had been captured by Microsoft.
I said it seemed like it. Yeah, sure.
So Mr.
Mullow and Mr. Musk know how damaging this tweet is to their case, so they've done
everything they could to distance themselves from it.
Remember when he said that when we showed it to you in the opening, we were tricking
you?
I think you should ask yourself, who is tricking who?
Mr. Musk testified and said, "Oh, you should disregard the tweet because Mr.
Altman immediately reassured me that the promises were not broken."
Here's what Mr.
Musk testified.
Sam Altman immediately reached out to reassure me that OpenAI was on its-- was
staying on mission as a nonprofit.
He was reassuring me that OpenAI, the foundation, retains autonomy to release
work, and that they would continue to provide access to everyone, not just
Microsoft. So he was reassuring me that OpenAI, the nonprofit, was staying on
mission.
But that's just not credible.
Let's look at what Mr. Altman actually said.
He said, "We need many billions of dollars."
He said, "Microsoft, Microsoft still seems like the best way for us to get that." He
said, "We gave Microsoft a copy of GPT-3."
Mr. Altman just gave Mr. Musk the facts.
And what didn't Mr. Altman say in his text?
He didn't mention the mission.
He didn't mention the nonprofit.
And how does Mr. Musk conclude this conversation?
He says, "I don't think it's a winning approach to be or at least appear to be
hypocritical. At least change the name."
Does that sound like he was reassured?
Telling them to change the name from open.
And there's more than that.
Remember, Mr. Musk said that when he had that text exchange,
he didn't trust Mr. Altman. He hadn't trusted him for some time.
But despite that,
he said, "Well, the reassurance was enough. That was my due diligence."
But that is not due diligence.
Did Mr. Musk know in twenty twenty? Could he have found out in twenty twenty?
If the answer is yes, his claim is too late.
Look carefully at Mr. Altman's text for yourself. It is exhibit one zero five, and
decide for yourself whether you believe Mr. Musk was truly reassured.
But it is not just that he knew in twenty twenty. In August twenty eighteen, Mr.
Musk received a copy of the term sheet for the for-profit. You've heard a lot about
that. He admitted to receiving it. His team analyzed it. They made
recommendations. He discussed it with Mr. Altman. He was invited to invest. And what
did OpenAI say it was going to do?
It said it was going to do a second raise,
ten-plus billion at a fifteen x expected target redemption.
And what is it that OpenAI actually did?
Microsoft's actual investment, ten-plus billion.
And the TRAs went from twenty to six. And if you average that out, it's more like a
seven TRA.
So OpenAI did exactly what it said it would do, exactly what it said it would do
in twenty eighteen, even better, in fact. And for years, Mr. Musk never said a word
about it, but now comes to court to say that Microsoft helped breach his
charitable trust.
And the only excuse you've
heard this already is that he didn't read the fine print on a four-page document.
One of the most sophisticated business people in the world didn't read the fine
print.
Did he know in twenty eighteen? Could he have found out in twenty eighteen? If the
answer is yes, his claim is too late.
Now,
because he knew in twenty twenty,
and because he knew in twenty eighteen,
and because that means his claim is too late,
Mr. Musk and Mr. Mullow have tried to move the goalposts.
They now say it is not about twenty eighteen and the creation of the
for-profit.
It's not about the transfer of the employees in the IP. It's not about the
twenty nineteen partnership. It's not about the one billion. It's not about the
two billion. Instead, it's about the twenty twenty-three investment. And
thatConveniently is within three years of his bringing this case.
Do you remember when Mr. Mullow told you in the opening that twenty
twenty-three, uh, this was his phrase I think, was a horse of a completely
different color?
I bet you had no idea what he was talking about.
Can you remember how many times in this trial he has talked about and asked about
the twenty twenty-three investment while seemingly ignoring the fact of the twenty
nineteen and twenty twenty-one?
Well, now you know why he's doing this, to try to save an untimely claim.
So Mr. Mullow said this in the opening.
Twenty twenty-three was a ten billion dollar investment by Microsoft. This was a
game changer.
But we just looked at this. The term sheet in twenty eighteen that Mr. Musk received
said they needed ten-plus billion. Mr. Musk, when he walked out the door, said
they needed billions.
That's what Mr. Musk said at the time.
And the multiple of six x is even lower than the multiple in twenty nineteen.
But somehow we now hear that twenty twenty-three is the breach, but twenty
nineteen was just fine.
Mr. Mullow also said this in his opening. Twenty twenty-three, it was no longer open
source.
But that's just wrong because Mr. Musk tweeted that it was no longer open in
twenty twenty.
And he also said, "Oh, well, all of the intellectual property had moved over to
the for-profit in twenty twenty-three."
But again, that was in the twenty eighteen term sheet.
And lastly, you heard from Professor Schizer that the twenty twenty-three had
these twenty percent increase in caps,
but that is just a distraction because
as you've heard,
no profits were ever paid under the caps, nothing.
There is a three-year statute of limitations on the claim against
Microsoft. That means Mike-- that Mr. Musk had to sue within three years, but he
didn't do that. What it means is if he knew in twenty eighteen,
and he did because he received the term sheet, his team reviewed it, he had the
opportunity to invest,
he would have had to sue by twenty twenty-one. And if he knew in twenty
nineteen,
and we know he did because he testified he knew about the partnership,
he would have had to sue by twenty twenty-two. And if he knew in twenty
twenty, and we most certainly know he knew because he tweeted that OpenAI was no
longer open, and it was captured by Microsoft, and he meant what he said,
he had to sue in twenty twenty-three.
But when did he sue?
He sued in twenty twenty-four
only after the success of ChatGPT and after launching xAI. He sued Microsoft as
part of his campaign to stop OpenAI, a competitor that was succeeding, a
competitor he walked away from after giving it a zero percent chance of
success.
And waiting as long as he has is not only transparent, you know why he sued when he
did, it is also very unfair to Microsoft, which has invested resources and employee
and time and now upward of one hundred billion dollars.
So you will get a chance to deliberate. We will finish today, all of us.
And the first question you're going to be asked on the verdict form is whether Mr.
Musk's claims were filed on time. And I'll remind you, you only get to the claim
against Microsoft
if you first find that the claim against OpenAI was filed, was filed on time.
But if you get to this question, if you reach this question on whether the aiding
and abetting claim is barred by the statute of limitations or not,
we just ask you to remember one thing, the tweet.
Just remember the tweet,
and we would ask you to check yes.
And if
you reach the merits, if you find his claim is timely despite all the evidence,
you recall you can only reach the claim against Microsoft for aiding and abetting
if you first find there was a charitable trust and that OpenAI breached it. If you
don't find that, then you don't even reach the claim against Microsoft. But if you
reach question six,
please remember the following. Mr. Musk has to prove that Microsoft had actual
knowledge of the specific charitable purpose for his donation to OpenAI.
And remember the evidence. Microsoft was not involved in the key events at the
center of this case.
No witness told Microsoft about any conditions because they don't exist.
Microsoft's due diligence never revealed any conditions because they don't exist.
And OpenAI's nonprofit board approved the partnership, and the agreements
represented and warranted that they would not violate third-party rights, Musk's
rights, donors' rights, because they don't exist.
And second, Mr. Musk has to prove that Microsoft substantially assisted a breach.
But Microsoft can't substantially assist what it wasn't involved in,
and the partnership has been a win-win, creating huge benefits for OpenAI, for
Microsoft, and the nonprofit OpenAI FoundationAnd finally, Mr. Musk must prove
that Microsoft was a substantial factor in causing harm to Mr. Musk, but ask
yourself whether there was any evidence at all of harm to him.
If you reach this question,
we ask that you check no.
Mr. Musk has not come close to meeting his burden.
I thank you for your time.
I ask that you enter a verdict in favor of Microsoft.
We all appreciate it. Thank you.
Okay. So now, um, plaintiff gets their rebuttal, but I do think it's--
just so that you're fresh, we should just take, like, a ten-minute break,
and then we'll come back. You'll get the rebuttal,
my last set of instructions, which are just a couple pages.
Uh,
and then I'll, like, I'll send you back for deliberations. I n-- I suspect at this
point there won't be much that happens today, but that's, that's the rest of the
day, okay?
So let's just stand. It's--
We'll go get you at three o'clock. It's two fifty-two. Just a short little break,
okay?
Please rise for the jury.
All right. The record will reflect that the jury has left. Let me just put this on
the record very quickly, given the objections.
Um, the issue that was raised during the examination to which, um, plaintiffs
objected,
when I dealt with that issue in the summary judgment, I dealt on the issue of
standing.
That was the topic. In terms of unjust enrichment,
there were, uh,
issues that were raised in that summary judgment motion.
One, that Musk chose to sue in tort.
Two, that his quasi-contract claim could not succeed.
Three, that he failed to show that he expected to be compensated for his
services.
And four, that the claim was untimely.
That's all I dealt with. That's all that was presented to me.
The objection was properly sustained.
I have a, I have a separate issue.
Five times during Mr. Savitt's argument, he used the term restitution.
I
said we are not asking you for money because the verdict form doesn't ask for
money.
-He brings up restitution- -Is the claim. I have explained this to you
multiple times. You may wanna morph what the law is,
um, but I instructed the jury on the claim of restitution under a theory of unjust
enrichment. That's the way I understand it.
That's the way the law is written,
and you can take it to the court of appeal. But there was nothing
inappropriate.
The objection is, um, noted for the record for appellate purposes.
Thank you.
This
is
relevant in determining
whether the
attorneys'
fee award
will be
based
on the next
level
of
hearing
instead
of
the appeal
after
that order. Do
you think
it's, uh, do you intend to make sure that can escalate to the appellate?
-Yeah, we should have a back-up plan. -Okay.
We should put with you.
I think you're right
The
platform?
That's it. I'm trying to remember. Ten minutes. Um, you should be back in two.
Yeah, I thought that.
It's 3 PM.
For the,
-the reports? -Yes, it
would be.
Okay.
I'm gonna use, uh, I'm
gonna
-use this one. -All
right. All right.
I need a job. [laughs]
Okay.
[in audible conversations]
-Board are back in session. -Okay.
Awards,
um, or awards.
-Is that fact? -I just wanted to make sure you could do
-it. -Okay, good.
All right, we're back on the record. You may be seated. The record will reflect the
jury is back.
Uh, go ahead.
When you are ready, Mr. Mullen.
-You may proceed. -How much time do I have?
That they only have so much more, uh, time to
-give you, so- -Threw a lot at me. I mean, there was a,
you know, there was a lot to clean up here. Very easy to stand up there and
throw things at the wall, but, uh, they don't always stick, and that's what I'd
like to just kinda take you through. Um, it, it seemed like we were at different
trials, uh, in hearing my colleagues,
um, speak earlier today.
So, um, I'm just gonna take these things, uh, one by one
and, uh, and, uh, um,
have the greatest confidence in you to have heard the evidence and paid attention
to it, and I think you'll follow. So first was this issue that was raised about
Mr. MuskLacking a specific purpose in forming charitable trust. This is a
complete
re, you know, revision, a complete rethinking of what this was.
Mr. Musk
was
a,
he, he was a founder. He wasn't just someone who was donating money. He
conceived of this idea. So when we talk about having a specific purpose, this is a
first of its kind organization. Of course, it's a specific purpose. He
created it,
um, personally, carefully crafted the mission along with, uh, the other
founders. He insisted that his financial support was conditioned upon that. I
showed you testimony, uh, about that.
And as a founder, um, his contributions,
uh, to the mission were
more unique, more special.
Um, the defendants claim there's no documents to this, but you've seen all
sorts of emails. Uh, can we just put up quickly Plaintiff's Exhibit three?
And, um,
this is an email
in which, um...
Well, let me just pull it up so everyone sees where he's from. It's a Sam Altman,
Elon Musk email.
And, you know,
it says plainly, "Mission would be to create the first general AI and use it for
individual empowerment, i.e., distrib- distrib-- " excuse me, "distributed."
Yes.
Yes, without, without stuttering.
Okay. [laughs] So, "The mission would be to create the first general AI and use it
for individual empowerment,
uh, the distributed version of the future that seems safest. Technology would be
owned by the foundation, used for the good of the world." Plaintiff's Exhibit seven.
Mr. Musk
clearly conditions, uh, if we could put up seven, please, clearly conditions his
donations,
um,
on--
In response to the question, "Can you donate thirty million dollars over the
next five years?"
And he says, um, "Let's discuss governance," right? Uh, "This is critical.
I don't want to fund something that goes in what turns out to be the wrong
direction." Could not be clear this was focused on something specific, and, uh,
these ideas that this is some kind of a general contribution to a general charity
are just simply wrong. This idea of the money being gone, okay? This was taken
care of yesterday, although I don't know
whether everyone in the courtroom appreciated what happened. They called,
um, this, uh,
expert witness who testified about the, um,
about the money and the segregation of the accounts. Remember him late in the day.
And, um,
this is a very, very narrow defense that they're raising. Judge Gonzalez Rogers
will instruct you that, um, if a-- uh,
the, the instruction you're gonna get is, is gonna say, "If a trust is created and
subsequently the whole of the trust property ceases to exist, the trust is
terminated because the trustee or defendant no longer holds anything in the
trust."
Um, so the defendants have to show that the whole of the trust property is gone
and that whatever Elon donated, not a single penny of it, not a single penny of
it, uh, remains. Now,
um, they can't show that, and the reason that we know that is Mr.
Dudney,
who was the witness I was just referring to, the forensic, uh, accountant, he
testified, and these were the questions that, that he was asked and the answers he
gave. "Mr. Dudney, you testified that OpenAI commingled," mixed together,
"Mr. Musk's donations with other donations, correct?" Answer: "That's
correct."
Question: "And because OpenAI commingled its donations in a single account, you
can't actually determine with specificity and certainty when Elon's contributions
were spent versus the contributions from other donors, correct?"
Answer: "You can't specifically tie specific dollars." So,
[coughs] excuse me. He used this, uh, so-called FIFO method,
first dollars in, first dollars out. The money is still mixed together.
And, um, even if
OpenAI did spend all of Elon's money, it used that money to purchase other
valuable, um, assets.
So, uh, and Mr. Dudley admitted that. He said there was a question, "OpenAI spent
those funds on salaries for engineers and employees." Answer: "Yes." Question: "And
it also spent those funds
on the compute that it used to develop its AI software, right?" Answer: "Correct."
So,
so much for that
claim.
Um,
this one's
one of my favorites 'cause it's kinda two, two for one here, so maybe it'll help us
get out of here quicker.
Um,
all this talk about the term sheet, all right? The term sheet. First of all,
um,
to hear these folks say, "Oh, it's a four-page term sheet. He can't read the
fine print." I mean,
what a crazy argument. The, the, the truth is, you heard two witnesses testify.
One of them was Sam Altman, so believe it or not, and then Sam Teller, who was, uh,
the fellow that was a senior advisor to Mr. Musk, who testified on video.
They both testified that Mr. Musk wasn't interested in private, um, for-profit
investments if he couldn't control the investment. They both testified to that.
So the fact that Altman would be saying now, "Aha, Musk didn't read this term
sheet,"
I, I mean, look, Elon Musk has one or two things going on in his life, right? So to
sit and comb through a term sheet, even if it's four pages, if it's one page, and he
has no interest in investing in it, I mean, that's just a, a very, very silly
argument to make. The fact that he would look at that box because-They say, look at
the box, and because it's highlighted in purple, that does make sense. But in any
event, um, I want to review with you, uh, some testimony that Mr.
Altman gave. Um,
he was asked
about,
um--
Here. Okay.
Uh, in the term sheet that you say that you reviewed with him,
that didn't state who would invest the ten billion dollars
in the round,
in the round two raise.
Answer:
In the twenty eighteen version of it,
that was before we had really entered into serious conversations with Microsoft.
So at that time,
there wasn't... You know, we talked about needing that amount of capital, but it
wasn't until twenty nineteen
that it became clear that Microsoft was seriously willing to go,
uh, to do it at the level we, we would need. And then there's ano-another
question. And
the term sheet
didn't explain any of the IP rights
that OpenAI would give away
to a ten billion dollar investor, did it? Answer: I don't think at the time of the
twenty eighteen term sheet, we had contemplated the IP structure.
Question:
And the twenty eighteen term sheet did not mention a twenty percent annual increase
in the target redemption amounts. Is that right? Answer: No,
that didn't come up until much later as we understood more how the shape of the AI
rollout was going to go, and that it was not going to be this one-time thing we had
imagined, but we would need to continue to exist for a long time. Question:
The twenty percent increase, annual increase in the target redemption amounts
didn't come about until twenty twenty-three, right? Answer: Correct.
And
the term sheet doesn't mention that one day the profit caps will be removed
together, does it? Answer: No. That came about
out of our much later, further, deeper understanding of how AI was going to be
developed and what companies would need to do over a very long period of time. So
when Mr. Cohen gets up and says, "Mr. Mohl said in his opening statement that twenty
twenty-three was a horse of a different color,"
um,
he was absolutely right. That is what I said because that is what it was. The
terms in twenty twenty-three are quite different. You have the larger investment.
You have this twenty percent kicker, which Nadella said in four years could end
up doubling.
We have the, that kicker and the, um,
the increased TRAs decreasing the amount of the residual that's there. And then we
have the very broad IP rights in twenty twenty-three that are granted. Now, this
is another two-for-one for you because those IP rights,
um, if we could put up, um-- Do we have the email from Mr., um, Nadella?
Uh, two fifty-nine. Exhibit two fifty-nine, please.
You'll see that as a precursor--
So this is an email dated April twenty-eighth of twenty twenty-two. You
might remember I spent a fair amount of time with the, with Mr. Nadella asking him
about this.
And, um, can we scroll down? Okay.
So
this is where--
Remember I asked him, "In return, we want full IP rights and also need to embed our
folks across every layer
of the stack so we can be self-sufficient if,
if need came. Self-sufficient if need came." So,
I mean, this shows you that prior to the twenty twenty-three deal, Microsoft did
not have the IP rights that they got in the twenty twenty-three deal.
And, um,
it, you could,
you could accept Mr. Altman's testimony or not. You heard what I had to say earlier.
But, uh, on cross-examination, um, he himself acknowledged that the deals were
different. Another interesting thing that, uh, that, that occurs in connection with,
uh,
with the term sheet, um, Mr. Altman testified that he never told, uh, Elon
about the twenty twenty-three investment for the ten billion dollars. Why didn't he
tell Elon, he said? Because, um,
the deal, he said,
before it closed-- Because he didn't tell him about it before it closed because we
were aware he was working to start a competitor, and so it would have been,
uh, inappropriate.
Now, um, Mr. Altman,
Mr. Altman, um,
told you that he knew that Elon was starting a competitor before the Microsoft
deal, right? That's what
he, he said. Um, the Microsoft deal closed on January twenty-third of twenty
twenty-three.
But, um, you know that Siobhan Zillis
testified, um, that
Sam Altman first discovered Elon was starting the AI company.
Um, she testified that-- I think we have a slide for this actually.
She test- she testified that around
February twenty-first of twenty twenty-three, Altman called her to ask if
she knew anything about Elon working on a competitive effort. That was one month
after the Microsoft deal closed. So, um, and you heard Ms. Zillis testify that four
days later, Altman confirmed that Elon was starting an AI company, and it was
time for Siobhan to step down from the board. So, um-All of his business with the
term sheet and when the deal was going to close and such
is, uh, is frankly, you assign the name to it. Is it nonsense? Is it smoke and
mirrors? Is it subterfuge? But I can tell you one thing it's not, and that's the
truth.
Um, so a few other things that are there that, that they've raised. Um,
oh, Mr., um,
Mr. Savitt
said that
when you think something's wrong,
you stop it, you take action,
and, um, Mr. Musk, you know, didn't do that.
He waited too long.
Well, the evidence
that was very clearly adduced, uh, during the course of the trial,
both from Mr. Musk and from Mr. Altman, was that in-- on October 22nd of
2022, it's the exact date, I can give it to you,
Elon gets this news article, industry article,
that says that this Microsoft deal is gonna happen.
And this is when he texts Sam Altman and says to him,
you know, this is the, this is the article. It describes the deal. It's not
closed yet. This is October. It's a January deal, as I mentioned, January
2023. But he texts him, and this is where he says to him, "Hey, what is going on?
This is a bait and switch."
And, um,
and we talked about this a little bit this morning, and maybe it did or didn't
register, or it certainly didn't register with my, my friends, uh, on the other side
of the room. He says, "It's a bait and switch." He's angry. He's upset
because what's going on here? This is, you know, I provided this funding. This was
supposed to be a nonprofit.
This is not an email or a text from somebody who knew what was going on.
This is a text from someone who's saying, "I just discovered this. I just found out
about it."
And what else does this text chain reveal?
It reveals that,
um...
What is Altman's response? Altman's response isn't, "Hey, Elon, you knew about
this. Hey, Elon, this is the same deal that was in, um, our, uh, in, in the term
sheet that you reviewed years ago. Hey, Elon, you have no right to be complaining
about this." None of that, none of that is in Altman's text. Instead, he says, "I
agree this feels bad.
I agree this feels bad. We offered you equity when we established the cap profit,
which you didn't want at the time,
but we are still happy." And I-- which I-- this morning I mentioned that Elon
considered this a bribe. You can characterize it however you want to
characterize it. But what is clear is that this is just what Mr. Savitt said should
have happened. You think something is wrong, you stop it, you take action. He
filed the lawsuit w-
um, I guess it was within a year certainly of that, so it's well within the statute
of limitations. So it's not a question of, um, us trying to resurrect
a late-brought claim. In fact, it's just the opposite. It's a claim for conduct
that is outrageous,
and we brought it in a timely fashion. They're mischaracterizing it as something
that we had knowledge of at an earlier date. And they raised this latches point,
too. The latches
point, I think Mr. Savitt referred to it something along the lines of some kind of
an old-fashioned defense or something like that. It's-- it, it, it, it doesn't
apply. It's effectively like the statute of limitations, but it applies in what are
called equitable claims, which is not-- it's not even worth going into. It's just
there is no delay in bringing the claim.
And again, the twenty twenty-three deal was different.
Um,
you had,
uh, the ten billion dollar investment rather than one or two billion dollars.
You had, um, the constraints that were earlier there. The profit caps are gone.
The IP rights are bigger. Under the terms of the twenty twenty-three deal, OpenAI
would need to earn roughly two hundred and seventy-five billion dollars in profit
for the nonprofit to receive any excess profits, those residuals that we talked
about. And again, that twenty percent kicker that comes along, in addition to
any increase for inflation, uh, two years into the deal. So,
um,
it is a horse of a different color, and that's when, uh-- th- that is why we base
the claim on it. It's a timely claim. Mr. Savitt said that,
um, he was talking fast, so you may not have caught it, but he mentioned my name,
so I caught it. And he said that, um, that I've said at some point today that the,
uh, breach occurred in twenty twenty.
Um,
I, I don't think I said that. If I did say it, I didn't mean to say it throughout
this trial. We just heard Mr. Cohen quote me as saying in the opening statement that
I said it was in twenty twenty-three. It was in twenty twenty-three. We've sued in
twenty twenty-three. And there's, of course, the other conduct that occurs in
twenty twenty-three that we mentioned. Um,
the argument on unclean hands, another,
uh,
old-fashioned defense as, as, as Mr., uh, Savitt called latches.
Um, the basic argument here is that, um, Mr. Musk engaged in conduct that
was somehow,
um, unconscionable, all right? But there's a few requirements to this claim. First,
it's gotta be unconscionable. Second, that the conduct is directly related to the
claims that we're bringing, okay? It can't just be some other, um, an- another
claim. And third, that M- Mr. Musk's conduct resulted in such prejudice to the
defendants that it would be unfair to hold them liable for Mr. Musk's claims. So
what's the conduct that they, that they base this on? It's first, the, uh, they
complain about Mr. Musk hi- hiring, uh, Andrej Karpathy away from OpenAI to work
at Tesla.Now, the conduct wasn't un-unconscionable. We heard from Elon, who
told you that Karpathy was going to leave OpenAI. Um, question: Did you consider
that there was anything wrong to hire him? No. He said he was going to be leaving
OpenAI anyway, so I thought, "Well, you should join Tesla." Ilya Sutskever's
testimony was consistent with that. He told you he wasn't even that bothered when
Karpathy left. And, you know, the defendants could have called Karpathy as a
witness if they wanted to. They could have issued a subpoena, and if he wasn't
here close enough to the court, they could have taken his deposition, just like we
did with the witnesses that couldn't be here. They didn't do it, and there's a
reason they didn't do it, because this claim is, uh, and th-this whole idea of,
um,
of unclean hands is, is just bogus.
Um, there's no relationship to the hiring in our claim,
and
it has nothing to do with whether there was a breach of the charitable trust. Um,
they, they then argue that they complain about a letter that Elon had co-signed
calling for a pause in the advance of AI development,
uh, in March of twenty twenty-three before he launched the, um, the, uh, xAI
venture.
That,
again, i-is consistent with his sincere belief in the dangers of AI.
Um, his testimony was, question: When you signed that letter in March twenty
twenty-three, you didn't disclose that you had just incorporated your own AI
company?
And, um, and he answers, "No."
There was, like, an open letter signed by five hundred people saying that, "Hey,
perhaps we should go,
uh, slower with AI in the interest of public safety." So that's not there. And
then the third thing they raise is this idea that xAI and other investors
submitted a bid to purchase OpenAI,
and, um, if you,
if you were confused by that testimony, um,
you were in what I would consider good company because I was too. I thought that
I, I wasn't sure what they were trying to do with that. Uh,
the bid was rejected,
and there, there's no claim. So, so this whole unclean hands, uh, thing is just
nonsense. It's their burden, not ours, to disprove it. It's their burden to prove
it. And, you know, I have to say, it's really kind of bothering me because
we're here on a very, very serious charge, very serious allegation that
these people stole a charity, enriched themselves. And to hear them talk, "Oh,
you know,
everything is great, and, you know, we've done all of these things," where did this
start?
You don't get to, you don't get to start a charity
and get people's money and go along and then all of a sudden decide, "Hey, you
know what? I don't like this. I want to turn it into a for-profit, and maybe I'll
give the charity some money." That's not the way this works.
There was a, a breach of the charitable trust here. And to make arguments like
things like Karpathy and make things like him writing the letter,
or frankly, the cross-examination that you saw of, of Professor Schizer, where they
were asking him about, um,
to compare two different computers, and they were asking him to, um, how many
AI cases were before the Supreme Court of the United States when he clerked there in
the early nineteen nineties. I mean, it's, it's a big, um, take this shiny
thing and wave it over there so that you're not focused on the central issues.
And by the way,
uh, Mr. Cohn mentioned those questions that I gave you at the end. And when I did
give you-- at the end of my opening statement. When I did give you those
questions, I was very clear that, that, that the judge would instruct you on the
law, and I said, "Those are questions that you may look at during the course of the
trial that may help you as you consider the evidence." There was no attempt to say
that that was the law. In fact, I was quite clear that that was not the case.
Um,
we have the question about Mr. Musk's, um, tweet
in, um, which is exhibit, uh,
two ninety-one.
It's a twenty twenty tweet,
and they claim that this somehow shows that he was aware and, and that he should
have brought the claim back then. I think we're, we're done with that, but I just
want to put this issue to rest.
Uh, so this is the tweet that they're referring to. They said this somehow
indicates that Mr. Musk's aware that Microsoft has these extraordinary rights,
which it clearly couldn't have happened. But, but what happens next?
Within a week, he gets a text from Mr. Altman, which is, um,
uh, exhibit one oh five.
And in it,
um, I won't go through all the detail of it, but he basically attempts to assure
him that there's no problem here, and he is not completely, uh, fulsome and candid
in his description of what the situation is.
So, um, this tweet is, is all,
uh, nonsense as well.
So, I mean, and then the last thing I want to raise is this stuff about this,
this
current
nonprofit foundation and how they're touting this as the greatest thing ever.
Um,
the testimony was clear,
and this seems to get ig-ignored, that
as of the fall, they had no employees. They were doing no work. They raised no
money.
And yes, they did get an interest in the for-profit,
but
that was something that they could have somehow financed. I mean, I asked Mr.
Altman that, and he conceded as much. So it's, it, it, you know, the fact that it
happened, that they hire a couple of employees and announce that they're now
doing things, making grants, not things that are consistent with the mission, by
the way, which is to develop safe AI on a, um, on an open source basis with no
person profiting. You know, the things they're doing are grant-making type
things. The fact that they're doing that is, a-a-and they do it, they start doing
it six weeks before this trial, I mean, you can draw your own conclusions about,
you know, the sincerity of that and what they're really trying to do.
So,
um-I don't know that I've covered everything. I've tried to. Maybe there's
one or two more things.
Uh, oh, yeah.
There were so many,
so many arrows that, uh, on the experts, uh, they, they talked about-- They had
Professor Hemel and, um,
and the,
and the Wachtell guy, Professor Coates, who used to work at Wachtell, and Wachtell
uses all the time on their cases.
Um,
they both testified to things that,
uh, were critical of Professor Schizer, but they didn't do their own independent
analysis. And frankly, especially Professor Hemel,
um, he agreed with professors, Professor Schizer, uh, again. And a lot of this is
again, is trying to confuse something that we are in agreement with. There can be a
for-profit. It just has to be subservient to the nonprofit. And, um,
I don't think their testimony really did anything, anything that disputed that or
really did anything to, uh, contradict anything that was said by Professor
Schizer. The question that Coates had raised about the, uh, pie chart,
Professor Schizer was very straightforward, talked about how this is
an example of how this would work. So, um...
Ah, Mr. Savitt told you that the, um, firing of Sam Altman wasn't about safety.
All right?
And, uh, when you, um,
when you see the testimony of Helen Toner,
uh, which, you know, she testified by video,
she said that, um...
Where is it? Okay.
"The decision is not about product safety or secur-security."
Do you see that? Answer, yes. Question, is that an accurate statement? Answer, this
was a complicated issue to communicate about, but I believe the phrasing is more
accurate. Um, and she goes on, but she said, um, "And its board--
And the reason that trust, accountability, and oversight mattered for OpenAI and for
its board were because of potentially severe risks and safety issues that its
technologies could pose now or in the future, as well as the board obligation
to ensuring that AI benefits to humanity, not just harm them." So,
uh, we don't have to go through any more of that. That statement that it wasn't
about, the firing wasn't about safety issues. It was safety, but, but it was
candor, and it was candor about safety, right? I mean, that's what they were
saying.
So none of that holds any water.
What else?
Oh,
on Microsoft.
So
Microsoft,
this is interesting, you know. Did you hear a single witness or even a single,
uh, you know, w-witness at a trial, they certainly didn't cite any testimony,
um,
about this virtuous circle thing?
We didn't hear Mr. Nadella talk about Microsoft having a virtuous circle. None
of the Microsoft witnesses talk about that. I mean, I, I don't know where, where
that comes from. Um, there are several things that happened here. Microsoft
clearly knew,
um, that Elon was publicly concerned about AI safety. That's something that Mr.
Nadella testified to himself, that they knew that he founded and funded OpenAI
because of his concerns about AI safety,
um, and about one company being cornered. Remember that testimony from Mr. Nadella?
He said he was concerned with one company sort of monopolizing that,
um, concentration risk.
OpenAI was a nonprofit subject to all the nonprofit obligations. Again, Mr. Nadella
testified that. OpenAI was dedicated to advancing digital intelligence in a way
that is most likely to benefit humanity as a whole. These are from Microsoft
documents.
And OpenAI's basic tenet was sharing its research, uh, and that's directly from an
email of Microsoft. So, um, what matters is that Microsoft knew that Elon donated
to OpenAI, that he founded OpenAI, that it had a very specific purpose, and it knows
that nonprofits have a duty to use those donations for their intended purpose to
further the mission, and that's absolutely clear.
Um,
so I want to do one more thing,
uh, with you here. I want to show you the verdict form you're going to have, okay?
Um,
and this is, this is again, directly from the judge's, uh, instructions that you're
gonna get. We, we, we get them, the other side gets them, and we just printed them
here. So I just want to show you.
So
there's a microphone behind you. Perhaps use that one. I don't s--
-Otherwise, people can't hear. -Right.
-Mr. Coinko is turning it on. -Yes, Your Honor.
Okay. Um, so this is what you're gonna get. We, the jury, in the above entitled
case, unanimously find, your verdict's got to be unanimous, on the claim for breach
of charitable trust. Is the claim barred by the statute of limitations, right?
And for all the reasons that we talked about, including those just now, it's not
barred by the statute of limitations. So your answer to that
is going to be no. On the claim for aiding and abetting a breach of a charitable
trust,
uh, is the claim barred by statute of limitations? Again, because of the timing,
the answer to that will be no.On the claim of restitution based on unjust
enrichment, is the claim barred by the statute of limitations? Again, no.
That'll be the first thing that you're gonna fill.
Then...
Oops.
Much clearer than you might think, even though there's a series of questions,
because then, uh, only answer question four if you answered no to question one,
which you will have done, and said differently if you answered yes to
question one, skip the question. So on the first claim for breach of charitable
trust, did Musk prove the claim against any of these defendants? And the answer,
for the reasons of all the evidence that we-- that you've seen and the evidence
that we talked about today and earlier, um, against Sam Altman, yes. Greg
Brockman, yes. OpenAI Foundation, yes.
Answer question five if you answered no to question three.
Um, on the second claim for restitution based upon unjust enrichment, did Musk
prove the claim by a preponderance of the evidence against any of these defendants?
Answer, Sam Altman, yes. Greg Brockman, yes. OpenAI Found- Foundation, yes. OpenAI
Group, ABC, yes.
If your answer to question...
Only answer question six if you answered no. You've answered yes, so you won't have
to worry about that.
So if you answered no for every defendant in questions four, five, and six, which
you haven't, on the affirmative defense, um, of latches, did the defendants
prove by a preponderance of the evidence that Musk delayed bringing his lawsuit for
an unreasonable length of time? But for the same reasons that it's within the
statute of limitations, the answer will be, uh, uh, yeah, defense of latches.
Did the defendants prove, because this is the defendant's burden of proof, not, not
mine,
um,
that Musk delayed bringing this lawsuit? The answer is no, he did not.
And on the affirmative defense of unclean hands, those were those five project
claims that I've mentioned, um, on the affirmative defense of unclean hands, did
the defendants prove by a preponderance of the evidence that Musk engaged in conduct
that was unconscionable, directly related to his claims? The answer is no. And then
whoever
is, uh, among you who decides that you're gonna be the, the, the chairman, or you
all elect the chairman, will sign it. So, uh, these forms sometimes for jurors,
you know, there's a little discomfort because it's just an unusual thing that we
do. You, uh, judge-- the judge took a great deal of, um, pain and effort to make
sure that these were clear instructions that would give you a clear path, but I
felt that I wanted to just
start and see
what it would be to, to decide to write it.
So
I just wanna talk about one more thing,
and that is, um,
this case and what it means. And
it, it was really gratifying,
really gratifying to go through jury selection
and
have each of you,
you know, say, "Hey, I'm gonna,
I'm gonna judge this case on the law and facts.
I may have negative feelings about Elon Musk. I may have positive feelings on,
uh, Elon Musk, but that's not what this is about. This is the system of justice.
This is a system where we decide what the law
affords
the people that are in this courtroom as litigants." All right? Everybody here has
rights,
even really rich guys like Elon Musk.
And his claim is a claim that comes from a very deep place inside him over
his, um, passion for this issue.
The evidence establishes that we're right.
We are. And
I'd ask you to think about the consequences if
we're not found that we're right. For some reason, somebody says that, "Well, geez,
-that's not right." -So thank-
That means that someone can take a, a charity-
-Mr. Mull. -Yes.
-Just be careful. -Okay.
And
w-
that
this case as, as
the facts here are the facts here, but there's a lot of high-profile people
involved.
You will make the decision on the law and on the evidence.
It's all you're gonna do.
But I'd, I'd invite you to think what it is that, um,
that we're doing here with, with, with something that is this great. Not many
people in life
get the opportunity to do what
we're asking you to do,
and that is to
right a wrong.
I mean, a lot of us go through our lives,
we are wronged in some fashion or another, or we certainly think we are, or we see
people wronged,
and we feel like there's nothing that can be, can be done about it.
We are here asking you for justice.
That's all we're asking for.
And, um,
very, very capable lawyers, very well-funded parties on the other side.
Obviously, Mr.
Musk, um, is, is who he is.
But at the end of the day, what we're about here is to decide
an issue before a court of law,
and
we trust that-The decision you make will be a fair one that is consistent with the
law, that will administer justice.
We thank you very much for the time that you've
spent listening to this case and for the time that you're gonna spend deliberating
on this case,
and we have a high degree of confidence in placing our trust in you. So thank you
very much.
We, uh, wish you good luck in your deliberations
and, um, I guess we'll see you again at some point in the not too distant future.
-[laughs] -All right. Thank you.
-Yeah. -Okay.
Members of the jury.
-Oh- -Before-
Your Honor, there's ... Mr. Cry had one issue.
Yeah. I, I'm sorry, Your Honor. I ... One, one housekeeping matter. The plaintiff
would, uh, move under Rule 50(a) against the affirmative defenses for sufficiency
of the evidence,
Rule 50(a).
Uh-
-D- -Thank you.
All right. Members of the jury, before you begin your deliberations,
you should elect one member of the jury as your presiding juror.
The presiding juror will preside over your deliberations and serve as the
spokesperson for you here in the court. We can take that down, Edmund.
Oh, this one.
You should, um, and this is there in your book, it's the end,
you shall diligently strive to reach agreement with all the other jurors if you
can do so,
and your verdict must be unanimous.
Each of you must decide the case for yourself,
but
you should do so only after you have considered all the evidence, discussed it
fully with the other jurors, and listened to their views.
It is important that you attempt to reach a unanimous verdict, but, of course, only
if each of you can do so
after having made your own conscientious decision.
Do not be willing, unwilling to change your opinion if the discussion persuades
you that you should.
But do not come to a decision simply because other jurors think it is right,
or change an honest belief about the weight and effect of the evidence simply
to reach a verdict.
Because your decision and verdict must only be based on the evidence received in
this case and on these instructions,
I remind you that you must not be exposed to any other information about the case or
the issues involved
in it,
except for discussing the case now with your fellow jurors during your
deliberations.
It's been a while since I've read this to you, but I'm gonna go ahead and read it
again.
Do not communicate with anyone in any way and do not let anyone else communicate
with you in any way about the merits of this case or anything to do with it.
This includes discussing the case in person, in writing, by phone, tablet,
computer, or any other means,
via email, text messaging, or any internet chat room, blog, website, or application,
including but not limited to Facebook, YouTube, X, formerly known as Twitter,
Instagram, LinkedIn, Snapchat, TikTok, or any form of social media.
This applies to communicating with your family members, your employer, the press,
the media,
um, the people involved in this trial. If you're asked or approached in any way
about your jury service or anything about this case, you must respond that you have
been ordered not to discuss this matter and report any contact to the court.
Do not read, watch, or listen to any news or media accounts or commentary about the
case
or anything to do with it. Do not do any research,
such as consulting dictionaries, searching the Internet, or using any other
reference materials. Do not make any investigation or in any way try to learn
anything about the case on your own.
Also, do not research,
um, do any research about the case, the law, or the people involved, including the
parties, the witnesses, or the lawyers,
until you've been excused as jurors.
If you happen to read or hear anything touching on the case in the media, just
turn away and let me know as soon as possible.
These rules are here to protect each party's right to have this case decided
solely on the evidence that was presented here in court.
Witnesses here in court take an oath to tell the truth, and the accuracy of their
testimony is tested through the trial process.
If you do any research or investigation outside of the courtroom or gain
information through improper communications,
then your verdict may be influenced by inaccurate, incomplete, or misleading
information that has not been tested by the trial process.
Each of the parties is entitled to a fair trial by an impartial jury,
and if you decide the case based on information not presented in this, uh,
court,
you will have denied the parties a fair trial.
Remember, you've taken an oath to follow these rules, and it's important that you
do so.
Any juror who violates these restrictions jeopardizes the fairness of these
proceedings.
If you're exposed again, just let me know.
If it becomes necessary during your deliberations to communicate with me,
you may send a note through the courtroom deputy, and Mr. Cuenco will provide you
forms.
A note to me can be signed by any of you,
not just the foreperson.
It does not have to, as a note, does not have to be the presiding juror.
No member of the jury should ever attempt to communicate with me except by signed
writing, and I will not communicate with any member of the jury
on anything concerning this case except in signed writing or here in open court.
If you send out a question, please understand I must consult with the lawyers
before answering it,
so it may take some time. Please continue your deliberations while waiting for the
answer to any question.Remember, you are not to tell anyone, including the court,
how the jury stands,
whether in terms of a vote count or otherwise, until after you have reached a
unanimous verdict or you have been discharged.
As I noted, a verdict form has been prep-prepared for you.
I've instructed you on the law that you're to use in answering the questions, and
you should follow my instructions
and the form carefully.
You must, uh, consider each question separately,
and after you answer a question, the form tells you what to do next.
You must be unanimous on each answer of the questions.
Okay.
I would ask that, uh, before you leave today, you confer and let us know what
your schedule is. That will help the parties for next week.
I've told them you will not be here tomorrow, so I expect you to be back on
Monday. But if you could do that before you leave and let Mr. Quenco know, again,
on a note, write it in a note,
and then deliver it back to him.
Before I let you go, are there any questions? And we will be providing lunch
every day, so you don't have to worry about that. Okay.
Any questions?
No.
All right. Then, uh, you may leave the courtroom, and we'll stand in recess, uh,
-until Monday morning. -Please rise for the jury.
Thank
you, ladies and gentlemen.
Um, okay, there's just, uh,
there are just a couple of technical things. One, the, the transcript at
fourteen colon fifty-three,
uh, which was at the recess, uh,
I used the word, uh, sustained. It should have been overruled.
Um, next,
there is an outstanding gavel at docket number three ninety-five.
This has to do with some,
uh, meet and confer that was supposed to happen over sealed document that I bel- I
think it's a Microsoft issue.
Um, would you all please,
uh, let me know what to do with that by tomorrow?
Will do.
Okay. It's, it should-- I'm hoping it's some small thing.
Okay.
Um,
as soon as we, uh, know what the jury,
uh, their schedule is gonna be, we will let you all know. Anything that you all
need at this point,
-um, from the plaintiffs? No. -Nothing.
Okay.
And, uh, from the defense? Anything-
Should we just supply your staff with a phone number or for deliberations or what
-is, what's appropriate to the court? -Yeah. So, um,
a-as I think I've indicated, um, I'd like someone from every side to be here within,
you know, preferably five, no more than ten minutes to the courtroom while the
jury's deliberating.
Um,
why don't you, um,
leave Mr. Quenco whichever number is, uh, you need, or if we're communicating with
you by email, that's fine too. But I would just talk to him
later. I do have a, a criminal matter that I need to deal with at four o'clock, so
he's not gonna have a ton of time. You can also just send him an email.
-That's- -Thank you very much, Judge.
Okay. Anything else, Mr. Savitt, Ms. Eddy?
N-no, thank you, Your Honor. We'll await court's instructions respecting Monday
-count. -Yeah. And, um, so we'll start our part at
nine o'clock. I think we don't have to be here at eight.
-Thank you. -Mr. Cry told me he would really like that.
Okay.
Um,
then we'll stand in recess. Thank you very much.
-Oh. -[clears throat] Hmm.
[background chattering]
May I have representatives from the parties for as far as jury meals are
concerned?
This is for Monday.
Mike wasn't [background noise]
They did submit their preferences,
and not everyone, not everyone submitted for Monday evening, whatever order they
had.
Okay. Oh, I see.
But the boards, the boards worked out for you.
You know what? March will
be
great.
[background noise]
Oh, those are just eight copies of what I
got. Perfect.
That's my phone number.
Um, yes, but what are changes for Monday?
Those who are not there, it means they get the same lunch for Monday.
Those are just seven.
[background noise] And they included their
preferences for drink. [background noise]
Council.
You're most welcome. You're
welcome. [background noise]
I'm opening it. [background noise] Oh, they're-- I would say that they're
all of them, I'm sure. Thank you, Council Member Gordon. [background noise]
I'm, I may need representative, uh, council from each side because I'm
expecting a jury.