{"id":40511,"date":"2026-04-23T23:59:23","date_gmt":"2026-04-23T23:59:23","guid":{"rendered":"https:\/\/www.europesays.com\/people\/40511\/"},"modified":"2026-04-23T23:59:23","modified_gmt":"2026-04-23T23:59:23","slug":"musk-v-altman-trial-date-looms-as-judge-hands-wins-and-setbacks-to-both-sides","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/people\/40511\/","title":{"rendered":"Musk v. Altman: Trial date looms as judge hands wins and setbacks to both sides"},"content":{"rendered":"

Part 3<\/p>\n

OPENAI\u2019S BEST HOPE to get rid of Elon Musk\u2019s lawsuit was to convince Judge Yvonne Gonzalez Rogers that trial was not necessary.<\/p>\n

In federal litigation, there are three distinct phases of a lawsuit. In the first phase, the court determines if the plaintiff\u2019s complaint lays out a plausible collection of facts, which, if proven, would entitle the plaintiff to relief under applicable law. If the plaintiff can\u2019t do that, the case is dismissed.<\/p>\n

If the plaintiff makes it over that obstacle, the case moves to the next phase \u2014 where the parties exchange documents and take depositions of each other. Discovery is expensive and can drag on for years. At the close of discovery, the parties are entitled to ask the court to issue \u201csummary judgment\u201d in their favor.<\/p>\n

ABOUT THE SERIES<\/p>\n

In Parts One<\/a> and Two<\/a> of this analysis we followed the lawsuit through a \u201crecapitalization\u201d of OpenAI in October 2025 that seemed to give Sam Altman much of what he wanted. All he needed to do was get rid of Elon Musk\u2019s lawsuit. In Part Three, we follow the case as the court prepares the suit for trial.<\/p>\n

This story is part of an ongoing series. Background on the series and our use of AI-generated cartooning can be found\u00a0\u27a0 <\/a>here<\/a>.<\/p>\n

Summary judgment is the legal term for a court order that disposes of a lawsuit after the parties have completed discovery but without holding a trial. The idea is that if no key facts are in dispute after discovery is complete, the court can rule whether the law allows or forecloses relief on the basis of those undisputed facts.<\/p>\n

If a party survives summary judgment, it means that the case must go to the third phase where the court holds a trial to determine which of the disputed facts are true. In other words, the \u201ctrier of fact\u201d \u2014 either a jury or the judge, depending on the plaintiff\u2019s choice at the start of the case \u2014 decides who is telling the truth and who isn\u2019t.<\/p>\n

In the world of high dollar federal litigation, every plaintiff wants to get to the trial phase. The discovery phase is expensive and sucks up months and years of lawyer time. Trial will be expensive too, but trial is where a plaintiff can score big, particularly with a jury. As all veteran trial lawyers know, once a case goes to the jury \u2014 a jury made up of live people with emotions and empathy and their own sense of justice \u2014 anything can happen.<\/p>\n

Judgment will not be summary<\/p>\n

On June 5, 2025, OpenAI and Microsoft filed motions for summary judgment against Musk. Their lawyers laid out erudite legal arguments even as they continued to poison the waters by focusing on all of Musk\u2019s many conflicts, eccentricities and vulnerabilities. They appeared to assume that if they could convince Gonzalez Rogers that Musk had an ulterior motive (e.g., to hamstring Open AI to advantage x.AI), she would get rid of the case.<\/p>\n

They miscalculated.<\/p>\n

Gonzalez Rogers found several things in her review of the record that made her think that Musk\u2019s claim had factual support. She noted that in 2017 Musk, Sam Altman, another co-founder Greg Brockman and others discussed ways to obtain capital for the development of AI beyond what they could get from donations. Altman and Brockman wanted to create a for-profit affiliate that could raise the money by offering equity. Musk proposed somehow attaching it to Tesla as a \u201ccash cow,\u201d though Altman was not keen on that solution.<\/p>\n

\"\"Musk has a cow as his patience with OpenAI reaches its \u201cfinal straw.\u201d (AI illustration by Joe Dworetzky\/Bay City News via ChatGPT)<\/p>\n

Gonzalez Rogers highlighted that Musk insisted OpenAI remain philanthropic and on Sept. 20, 2017, sent an email that said, \u201cGuys, I\u2019ve had enough. This is the final straw. Either go do something on your own or continue with OpenAI as a nonprofit. I will no longer fund OpenAI until you have made a firm commitment to stay or I\u2019m just being a fool who is essentially providing free funding for you to create a startup. Discussions are over.\u201d<\/p>\n

Altman responded, \u201cI remain enthusiastic about the nonprofit structure!\u201d<\/p>\n

Brockman said he would \u201clike to continue with the nonprofit structure.\u201d<\/p>\n

Brockman\u2019s diary-ish personal files were the subject of discovery. One revealed that in the same month as Musk\u2019s ultimatum he mused, \u201cThis is the only chance we have to get out from Elon. Is he the \u2018glorious leader\u2019 that I would pick? We truly have a chance to make this happen. Financially, what will take me to $1 billion? \u2026 Accepting Elon\u2019s terms nukes two things: our ability to choose (though maybe we could overrule him) and the economics.\u201d<\/p>\n

Sometime after the commitment was made to Musk, Brockman wrote, \u201cAnother realization from [this meeting] is that it\u2019d be wrong to steal the nonprofit from him to convert to a b-corp (a for-profit business) without him. That\u2019d be pretty morally bankrupt, and he\u2019s really not an idiot.\u201d<\/p>\n

The judge also referred to another Brockman writing that appeared to acknowledge that if OpenAI told Musk they were on board with the nonprofit structure but three months later created a for-profit corporation \u201cthen it was a lie.\u201d<\/p>\n

On Jan. 15, 2026, Gonzalez Rogers largely denied OpenAI\u2019s motion<\/a>, clearing the way for the case to proceed to trial. She found that there were disputed facts on many of the key issues including whether there was a charitable trust, whether defendants had breached their fiduciary duties, and whether Musk reasonably relied on misstatements by Altman and Brockman.<\/p>\n

Microsoft won a part of its summary judgment motion, but the claim that it had aided and abetted OpenAI\u2019s breach of fiduciary duty survived.<\/p>\n

It wasn\u2019t a pretty path, but despite the setbacks since he first filed his case in San Francisco state court in February 2024, Musk appeared to have gotten clearance to tell a jury that Altman had betrayed the charitable mission of OpenAI and, together with Microsoft, defiled his noble quest to insure that super machine intelligence would benefit all of humanity.<\/p>\n

And that wasn\u2019t all.<\/p>\n

Big testimony<\/p>\n

At a further hearing in March, the judge made two rulings<\/a> that had important implications for what the jury would hear when testimony got under way.<\/p>\n

First, she decided to allow most of the testimony expected from Musk\u2019s witness Dr. Stuart Russell, a professor at the University of California, Berkeley. Russell has a reputation as one of the leading authorities on the development of artificial intelligence and the pursuit of AGI. Russell has a deep concern about the safety of AGI.<\/p>\n

\"\"\u201cI\u2019m fluent in many languages \u2014 maybe even yours.\u201d (AI illustration by Joe Dworetzky\/Bay City News via ChatGPT)<\/p>\n

According to his expert report, Russell will tell the jury that AI is a powerful and transformational technology, but without safeguards and a better understanding of how it works, the technology presents a substantial risk of misuse. He will also testify that AI companies (and their governments) \u201chave very strong incentives to pursue artificial general intelligence, despite the safety risks.\u201d<\/p>\n

The judge said Russell satisfied the requirements to testify as an expert on those subjects and she would let the jury hear what he had to say. (She would not let him testify that those risks could be catastrophic for humankind, because she felt that Russell had not quantified that risk and it was unduly prejudicial.)<\/p>\n

An even more consequential decision related to testimony by Dr. C. Paul Wazzan, the damage expert for Musk. In a 59-page report, Wazzan calculated the money that Musk would be entitled to recover from OpenAI if it were found to be liable for breach of charitable trust and from Microsoft if it was found to have aided and abetted OpenAI.<\/p>\n

The expert said that if the charitable trust was breached, Musk would be entitled not just to the return of his contributions (the technical term was \u201cdisgorgement\u201d of his contributions), but also the value that those contributions created. In other words, Musk would be entitled to recover the value of OpenAI that he had contributed and also the value attributable to those contributions.<\/p>\n

To do that Wazzan quantified Musk\u2019s charitable contributions and other non-financial support to OpenAI in its early days as a startup and then calculated the percentage of the value of the enterprise that those contributions represented at that time (50 to 75%).<\/p>\n

\"\"The wizard works his wonders. (AI illustration by Joe Dworetzky\/Bay City News via ChatGPT)<\/p>\n

After some adjustment, he then applied the modified percentage to the value of OpenAI \u2014 no longer a startup but now a multi-billion dollar enterprise \u2014 to calculate the amount of wrongful gains that Musk\u2019s contributions created for OpenAI and Microsoft.<\/p>\n

He gave a range with the upper end being $134 billion, divided between the gains of OpenAI (up to $109 billion) and Microsoft (up to $25 billion).<\/p>\n

To put those amounts in context, the largest civil jury verdict in U.S. history is generally considered to be the $145 billion award in a Florida tobacco trial, but it was overturned on appeal. Moreover, the tobacco award was largely punitive damages \u2014 not damages suffered by the plaintiff but additional amounts to punish the wrongdoers. Wazzan\u2019s calculation did not include punitive damages.<\/p>\n

OpenAI argued that there was no science to support Wazzan\u2019s approach and he did not follow an accepted methodology to reach his number.<\/p>\n

The judge said that Wazzan had the academic credentials and experience to testify on the issue of valuation. She found that he had adequate support for his analysis. She found the defendants\u2019 complaint about the lack of an accepted methodology \u201cunpersuasive in light of the unique factors at play in valuing Silicon Valley startups and the relatively novel factual circumstances underlying Musk\u2019s claims.\u201d<\/p>\n

She said, \u201cthe issue before the Court is not whether the Court agrees with Dr. Wazzan but whether in the context of the dispute, the methodology is unreliable or based on insufficient facts and data.\u201d She concluded that he met that test.<\/p>\n

With those rulings, it looked like Musk was within weeks of getting his claims in front of a federal jury with as much as $134 billion in the balance.<\/p>\n

The pot is stirred again<\/p>\n

But before Musk\u2019s team could get comfortable, on March 31, Gonzalez Rogers dropped two more rulings that changed the playing field again.<\/p>\n

In the first, she addressed the issue of punitive damages.<\/p>\n

Musk planned to ask for \u201cpunitives,\u201d as lawyers say, in addition to the disgorgement of the wrongful gains that Wazzan\u2019s testimony quantified. Punitive damages are amounts assessed against a defendant \u2014 on top of whatever damages are awarded to compensate the plaintiff for its injury \u2014 to punish it for egregious conduct.<\/p>\n

The possibility of hitting the defendant with a hefty punitive damage award is often a significant leverage point for a plaintiff, though with $134 billion already on the board, its weight may have been diminished here. But it didn\u2019t matter, because Gonzalez Rogers found that Musk was not legally entitled to ask for them. The reason?<\/p>\n

Musk\u2019s claim against OpenAI could go as high as $134 billion, shy of the largest civil jury verdict in U.S. history \u2014 the $145 billion award in a Florida tobacco trial that was later overturned.<\/p>\n<\/p>\n

Turns out that Musk\u2019s choice of remedy \u2014 disgorgement of ill-gotten gains \u2014 was technically under the court\u2019s \u201cequity\u201d jurisdiction, and punitive damages cannot be awarded in equity, so the judge barred Musk from making any claim for punitives.<\/p>\n

Moreover, under equity jurisdiction the decision on the amount of disgorgement was allocated to the judge, not the jury. That meant that it would be Gonzalez Rogers \u2014 not the jury \u2014 who would be deciding the amount of recovery.<\/p>\n

That was not a good thing for Musk because even though Gonzalez Rogers cleared Wazzan\u2019s testimony for presentation to the trier of fact, she had commented that she had not been particularly impressed by his opinion.<\/p>\n

That wasn\u2019t all.<\/p>\n

The statute of limitations<\/p>\n

Gonzalez also made a key ruling on the statute of limitations that favored OpenAI.<\/p>\n

Statutes of limitations are rules that bar old and stale claims. They serve the purpose of encouraging lawsuits to be brought when witnesses are available and memories fresh but do so with the blunderbuss weapon of barring claims brought after the limitations period has run. The claims that Musk asserts have limitation periods of two, three or four years, depending on which claim. The longest period \u2014 four years \u2014 applies to the breach of charitable trust claim.<\/p>\n

Musk brought the lawsuit on Aug. 5, 2024, which meant that claims that occurred before Aug. 5, 2020, were potentially barred by the statute of limitations.<\/p>\n

\"\"A statue of limitations. (AI illustration by Joe Dworetzky\/Bay City News via ChatGPT)<\/p>\n

However, calculating the period is not so cut and dried. Generally, the limitations period does not start running until the plaintiff knew (or should have known) that the claim existed. The idea is that if the plaintiff doesn\u2019t know that they have a claim, it isn\u2019t fair to count that time against them.<\/p>\n

The statute of limitation issue had serious potential to affect Musk\u2019s case, because many of the key events took place outside of even the four-year limitations period.<\/p>\n

Some important events occurred before Aug. 5, 2020.<\/p>\n

Musk resigned from the nonprofit OpenAI Inc. board on Feb. 21, 2018<\/p>\n

The for-profit subsidiary, OpenAI, L.P., was formed on Sept. 19, 2018<\/p>\n

The nonprofit transferred substantially all of its intellectual property to the for-profit subsidiary in late 2018 and early 2019.<\/p>\n

Early investors invested $133 million (target redemption amount $13.3 Billion) on March 1, 2019.<\/p>\n

Altman became the CEO of OpenAI, L.P. on April 1, 2019.<\/p>\n

Microsoft invested $1 billion (target redemption $20 Billion) on July 2, 2019, and at the same time entered its technology-sharing agreement.<\/p>\n

OpenAI Inc. amended its charter on April 23, 2020, to drop the idea that its technology would be \u201copen source\u201d though the \u201cfor humanity\u201d idea remained.<\/p>\n

Those events were before the cutoff for the four-year limitation, and there are more significant events that occurred before the two- and three-year cutoffs. Altman\u2019s team will argue that those events \u2014 or some of them \u2014 both evidence a breach of the charitable trust and that Musk knew or should have known about the issue at the time. If the jury agrees, the claim \u2014 along with others with even shorter deadlines \u2014 could be dismissed for being filed too late.<\/p>\n

To avoid the risk that some or all of the claims would be completely barred, Musk asked Gonzalez Rogers to tell the jury that his claims didn\u2019t just arise at a single time but continued to arise with each additional act that was improper. So, for example, if the claim for breach of charitable trust first arose back in late 2018 when the nonprofit\u2019s intellectual property was transferred to the for-profit sub, and therefore arguably barred by limitations, another claim would arise when the next act that breached the trust occurred.<\/p>\n

This was Musk\u2019s version of the song from Annie: there would always be a new claim tomorrow.<\/p>\n

But Gonzalez Rogers did not agree. She said she wouldn\u2019t give the jury that instruction.<\/p>\n

The upshot?<\/p>\n

While how this will play out at trial remains to be seen, it seems reasonable to expect that OpenAI will bore down on the key questions of what Musk knew and when he knew it.<\/p>\n

It is always hard to prove a negative, and given his notorious intelligence, resources and passion for the project, it may be hard for Musk to prove that he was kept in the dark while key events occurred. And even if he shows that he did not know, there will still be the question of whether he should have known.<\/p>\n

The ruling gave OpenAI a lot to work with.<\/p>\n

In Part Four we will discuss one more last-minute rejiggering of the plans seemingly locked in place a month ago.<\/p>\n","protected":false},"excerpt":{"rendered":"Part 3 OPENAI\u2019S BEST HOPE to get rid of Elon Musk\u2019s lawsuit was to convince Judge Yvonne Gonzalez…\n","protected":false},"author":2,"featured_media":18703,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[150],"tags":[1840,594,3172,552,611,8041,1664,202,1777,6771,8945,13359,14138,1850,862,14139,10762,613,581,1003,996,2577,584,6079,4023,25477],"class_list":{"0":"post-40511","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-sam-altman","8":"tag-agi","9":"tag-ai","10":"tag-artificial-general-intelligence","11":"tag-artificial-intelligence","12":"tag-chatgpt","13":"tag-corporate-governance","14":"tag-courts","15":"tag-elon-musk","16":"tag-featured","17":"tag-featured-news","18":"tag-federal-court","19":"tag-greg-brockman","20":"tag-gregory-brockman","21":"tag-lawsuit","22":"tag-microsoft","23":"tag-nonprofit-organizations","24":"tag-oakland","25":"tag-openai","26":"tag-sam-altman","27":"tag-san-francisco","28":"tag-silicon-valley","29":"tag-tech-companies","30":"tag-technology","31":"tag-u-s-district-court","32":"tag-xai","33":"tag-yvonne-gonzalez-rogers"},"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@people\/116456742119185909","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts\/40511","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/comments?post=40511"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/posts\/40511\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/media\/18703"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/media?parent=40511"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/categories?post=40511"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/people\/wp-json\/wp\/v2\/tags?post=40511"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}