“That is not the law,” the judge wrote, noting that such a theory would allow a charitable donor like Musk to sue at basically any time, without limitations. “Accordingly, the Court will not instruct the jury on continuous accrual.”
In his latest filing, Musk tries to recover from the order, arguing that he’s changing the remedies so late in the game in order to ensure that the trial “remains focused” on “critical remedies.”
“The remedies Musk intends to seek are strictly tied to his purpose in bringing this lawsuit: to prevent the subordination of a public charity—one he co-founded and for which he was the primary supporter during its formative years—to private, for-profit interests,” the filing said.
Musk continues to accuse Altman, Greg Brockman, and other defendants of making false promises when soliciting “donations, labor, and public goodwill under solemn promises that OpenAI would operate as a nonprofit for the benefit of humanity.”
Their true goal, Musk has alleged, was to convert those assets “into a wealth machine for themselves, Microsoft, and Silicon Valley insiders.” (Musk is not alone in drawing such conclusions; his lawsuit was cited in a recent New Yorker investigation into Altman’s trustworthiness.)
To forever unplug Altman’s alleged “wealth machine,” Musk is suing to return profits to the charity, unseat Altman from the board and the company, and “unwind OpenAI’s for-profit conversion and restructuring,” so that OpenAI permanently stays a nonprofit charity.
Musk suit remains “baseless,” OpenAI says
Whether the jury’s ruling will be impacted by Musk’s efforts to update the remedies being sought will soon be tested, as the trial is expected to start this month.
His filing said that OpenAI’s alleged “breach of charitable trust, fraud, and unjust enrichment” is “at the heart of this case,” but for the extreme remedies he seeks, his argument seems somewhat weak and untested.
To justify the remedies, Musk points to California law, which, he said, “is clear that courts have broad equitable authority to remedy exactly this kind of misconduct.” But his lawyer placed emphasis on the part of the statute that says that “a plaintiff with standing may bring an action to ‘enjoin, correct, obtain damages for or to otherwise remedy a breach of a charitable trust.” Most likely it will be up to a jury to interpret the vague statute and determine if returning ill-gotten gains in the amounts calculated by Musk’s expert is an appropriate remedy.