A founder should speak publicly during litigation only when four tests are met: the statement is necessary, accurate and verified, unconnected to the evidence in dispute, and cleared by legal counsel. Anything failing these tests should wait. Tesla chief executive Elon Musk demonstrated in 2018 and 2019 that unvetted public statements create secondary legal problems regardless of whether the founder ultimately wins or settles.
By Ronn Torossian. Last updated: November 12, 2026. This is communications guidance, not legal advice, so counsel should review any statement. Cases are attributed to named sources. The scripts and tables are hypothetical templates for a fictional company.
What four tests should a founder apply before speaking?
A founder should apply four tests before speaking: confirm the message is necessary, verify every fact today, keep the content separate from disputed case issues, and secure counsel clearance. A founder should stop at the first test that fails.
First, the founder must confirm an employee, customer, or investor needs to hear the information immediately. Second, the founder must verify every factual claim can be proven true today. Third, the statement must completely avoid the facts, witnesses, and motives at issue in the litigation. Fourth, legal counsel must review and approve the exact wording.
The CEO statement guide for lawsuits covers the first public statement. This guide covers what a founder says afterward, in interviews and online, while the case remains open.
How do the four tests work in practice?
Each test is a yes or no question, and one "no" means the founder waits. The table shows the question and an example of a failure for a fictional founder.
| Test | Question to ask | Example of failing it |
|---|---|---|
| 1. Necessary | Does someone need to hear this now? | A post that defends the company when no one has asked |
| 2. Verified | Can I prove every fact today? | A claim about the other side's finances that rests on a rumor |
| 3. Separate from the case | Does it avoid facts, witnesses and motives at issue? | A remark that the plaintiff is acting out of spite |
| 4. Cleared | Has counsel approved these exact words? | A post written from a phone before a call with counsel |
The order matters. A founder who fails the first test never reaches the others, because a message that is not needed is not worth the risk.
What happened when Tesla's CEO posted without review?
Elon Musk posted unreviewed statements about taking Tesla private on August 7, 2018, which prompted a federal securities fraud case that resulted in regulatory penalties. Musk wrote that he had funding secured for a deal at $420 a share, but the SEC alleged that he had not discussed key terms, including price, with any funding source, according to NBC News.
Musk and Tesla each agreed on September 29, 2018 to pay $20 million, and Musk agreed to step down as chairman and not seek re-election for three years, per Reuters and TechCrunch. Tesla also agreed to hire securities counsel to vet his social posts, according to Axios. Neither side admitted or denied the findings, as Reuters reported.
What happened in the defamation case over a tweet?
A founder's personal insult on social media can trigger an expensive defamation lawsuit even if the jury ultimately rules in the founder's favor. In July 2018, Musk posted an insulting tweet about British cave diver Vernon Unsworth, then deleted the post and apologized on July 18, according to Law.com.
Unsworth sued Musk for $190 million, and a federal jury in Los Angeles found Musk not liable on December 6, 2019, after about 45 minutes of deliberation, per Global News. Winning in court did not eliminate the business cost of the dispute.
An expert witness for Unsworth testified that 490 English-language news stories had mentioned the tweet, according to Business Day, and Musk was required to testify and apologize in open court. Careless public statements create collateral costs in legal fees, executive distraction, and negative news coverage that outlasts the formal verdict.
Which speaking situations carry the highest legal risk?
Speaking during litigation is safest during structured internal briefings or investor calls with pre-approved scripts, and carries the highest risk on personal social media accounts. Every speaking format requires distinct controls to prevent public statements from complicating the case.
| Situation | Usually safe? | Rule of thumb |
|---|---|---|
| Employee all-hands | With care | Share what the case changes for staff, not its merits |
| Interview on another topic | With preparation | Agree what is off limits and decline politely |
| Personal social posts | Rarely | Avoid any reference to the case, the parties or witnesses |
| Investor or analyst calls | With counsel | Use a reviewed script and the same words each time |
| Conference talks and podcasts | With preparation | Prepare answers to the case question and stick to them |
How should a founder decline a question about the case?
A founder should decline in one sentence and then move to a topic outside the case. The script below is a hypothetical, and counsel should approve the exact wording in advance.
"I cannot talk about the lawsuit while it is pending, and I do not want to say anything that might affect it. What I can talk about is how our customers are using the product this year." The first sentence declines, the second offers a topic that does not touch the dispute.
Founders should avoid three habits when declining: adding "off the record" comments, hinting at what they would say if they could and repeating the question in their answer, which turns the question into a quote.
What rules should a founder follow on social media?
A founder should follow a short rule list for personal and company accounts. These rules are editorial judgment, and counsel should adapt them to the case.
- Do not mention the case, the parties, the lawyers or the witnesses.
- Do not reply to comments or messages about the case.
- Do not "like" or share posts about the case.
- Pause scheduled posts that could be read as commenting on the dispute.
- Route any urge to respond to counsel first.
The Tesla settlement required an outside check on social posts, according to Axios. A founder who sets up a similar check on their own, such as a rule that counsel sees any post that mentions the company's legal affairs, reduces the chance of a second problem.
What if a founder has already posted something?
A founder who has posted something about the case should tell counsel at once and not delete or edit it first. Ask counsel whether the original post must be preserved and what, if anything, should be said next. Deleting a post does not erase it, as the Unsworth case showed: Musk deleted his July 2018 tweet and apologized, and the matter still went to a jury, according to Law.com and Global News.
This is a question for counsel and not a rule. The point is to bring counsel into the decision before acting.
What can a founder talk about instead?
A founder can talk about core business operations: customer success stories, product roadmap milestones, team updates, and company mission. These operational topics maintain company visibility in the market without touching matters under active litigation.
Founders who consistently publish productive updates demonstrate stability to customers, staff, and partners. The media training guide covers how to decline case questions gracefully, while the litigation PR guide and the crisis communications case study library outline organizational messaging strategies prior to a judicial verdict. The executive communications guide helps founders plan and execute their broader editorial calendars.
Frequently asked questions about speaking during litigation
Should a founder speak publicly during litigation?
A founder should speak publicly during litigation only when the statement is strictly necessary, factually verified, separate from the legal dispute, and explicitly approved by legal counsel.
Can a founder's social media posts be used in court?
A founder's public social media posts can be introduced directly as evidence in legal proceedings by opposing attorneys. The 2018 Tesla and SEC settlement demonstrated that public social posts by an executive can serve as the core basis of a federal securities action, according to NBC News.
What should a founder say when asked about a lawsuit?
A founder should state that the company takes the matter seriously, will present its response directly to the court, and maintains a strict policy against commenting on pending litigation.
Can a founder speak at conferences during a lawsuit?
Often yes, with preparation. Agree with counsel in advance on what is off limits, prepare a one-sentence decline for case questions and stay on the planned topic.
Does winning the case end the damage?
Not always. A federal jury found Musk not liable in the Unsworth case, according to Global News, but 490 news stories had already mentioned the tweet, according to Business Day, and Musk had testified and apologized in court.
Founders must consult legal counsel to approve this standard response sentence in advance and formalize a list of off-limits operational topics.