Tesla's change in bylaws to limit shareholder lawsuits slammed by New York state officials

• New York state officials are pressing Tesla to repeal a company bylaw that limits investors' rights to sue Elon Musk's automaker over breaches of fiduciary duty.
• Earlier this year, Tesla changed its bylaws to require stockholders to own a 3% stake to qualify to file a derivative shareholder suit.
• That followed Tesla's decision to move its state of incorporation from Delaware to Texas.

In May, Tesla changed its corporate bylaws in a way that would require investors to own 3% of the stock, today worth about $30 billion, in order to file a derivative lawsuit against the company for breach of fiduciary duties. Authorities in New York State are now asking Tesla to delete the bylaw entirely.

Overseers of the New York State Common Retirement Fund, which owns about 0.1% of Tesla's shares, submitted a formal proxy proposal and letter to the company on July 11, and shared it with CNBC on Wednesday. They say that Elon Musk'sautomaker engaged in a “bait-and-switch” to convince shareholders to approve an incorporation move from Delaware to Texas in June 2024.

Musk made the move after a judge in Delaware voided the $56 billion pay package that the CEO, also the world's richest person, was granted by Tesla in 2018, the largest compensation plan in public company history. In getting shareholders to approve the change in its state of incorporation, Tesla said that stakeholders' rights “are substantially equivalent” under the laws of Delaware and Texas.

On May 14, almost a year after Tesla's move, Texas changed its law to allow corporations in the state to require 3% ownership before being able to carry forth a shareholder derivative suit.

“The very next day, Tesla's board amended the Company's bylaws to the maximum allowable 3% ownership threshold, effectively insulating the Company's directors and officers from accountability to shareholders,” the New York letter says. The letter was signed by Gianna McCarthy, a director of corporate governance with the retirement fund, on behalf of the fund and New York State Comptroller Thomas DiNapoli.

Only three institutions currently own at least 3% of Tesla's outstanding shares.

Tesla didn't immediately respond to a request for comment.

The New York fund overseers wrote that derivative actions are “the last resort for shareholders to enforce their rights” when company directors or officers violate their fiduciary obligations, and called Tesla's decision on the matter “egregious.”

In an email to CNBC, DiNapoli said Tesla “deceived shareholders” in assuring them that their rights would remain the same in Texas.

“These actions violate basic tenets of good corporate governance and must be reversed,” he wrote.