Okay, I’m not a lawyer so I understand about half of what just happened. But I’m sure that, given the context, Elon Musk’s lawyers might just be doing big things.
Jared “James Brickhouse” Birchall, Musk’s financier and all-rounder, took over from Musk today. Much of his testimony was vague and appeared to be read into the record, which is an unpleasant but normal part of the trial. But in a lot at the end of his boring testimony something interesting happened. I believe we all got a surprise, something that rarely happens in courts.
The lawyer doing his own testing was passed the note by another team member, and asked Birchall what was in the note: was he familiar with xAI’s bid for OpenAI assets?
“Sam Altman has been on both sides of the table.”
“As I recall, a lawyer we worked with had asked the California attorney general to ensure that in his fiduciary duty, a fair value was given to the assets of the OpenAI non-profit organization,” said Birchall. In his understanding, there was a conversation “between Sam Altman and him on both sides of the table, for-profit and non-profit, trying to lower the value of the non-profit assets. And we made that bid in an effort to properly account for the value that the foundation had, and create a market bid that would need to be considered by the attorney general.”
Here’s a story: in February 2025, a consortium led by Musk made a $97.4 billion bid for the non-profit organization that manages OpenAI. The request was sent by Marc Toberoff, one of Musk’s lawyers in the current case. The request comes as OpenAI is restructuring itself so that its for-profit arm can be spun off to go public. In Birchall’s testimony, that request was made because Musk, Birchall, and others, thought Altman might undermine the nonprofit as the company restructured. (I’m not sure why that would be a problem for Musk and xAI, frankly, but whatever.)
The defense counsel refused, and Birchall’s motion was struck out for lack of foundation. So we made this piece to set the stage, concluding with Birchall, and, “Sam Altman has been on both sides of the table.”
When questioned, Bradley Wilson of Wachtell Lipton – OpenAI’s lawyers – again raised the bar. Wilson asked how much of this Birchall learned from sources other than lawyers. Birchall said it would be difficult for him to solve that. After more exchanges, Wilson moved to strike all of Birchall’s testimony about the xAI bid on grounds that could not be discussed before the jury.
“You must be very convincing. You’re not so convincing today.”
The judges quickly left while the lawyers were getting it out, and that’s when it got weird. Judge Yvonne Gonzalez Rogers began asking Birchall questions, and it was clearly making Birchall nervous. Birchall said he did not recall discussing the xAI bid with Musk or Shivon Zilis or any other principal in Musk’s organization. It certainly sounds like Musk’s lawyers didn’t give OpenAI proper discovery on this topic in the filing, so they were doing a quick and dirty filing. and the judge right there. At one point, Gonzalez Rogers told the plaintiff’s counsel to stop coaching the witness.
Birchall said he had spoken to other members of the organization about the bid, but was not involved in discussions with Musk about when he would send the bid letter. He said he had heard some things from Toberoff, but he did not know that Toberoff represented other buyers. He didn’t know if xAI knew Toberoff was representing other bidders, either.
Birchall didn’t know if other investors had firsthand knowledge about OpenAI, he said. No one had documentation from within OpenAI as far as he knew. Gonzalez Rogers remained unconvinced. “I still have a problem with how you can talk to these people to get $97.5 billion but I don’t even remember in general,” he said. Birchall said he had common sense — he called each person involved to see if they were interested in joining Musk in the bid.
“Why would they do that?” Gonzales Rogers asked. Birchall said these are people Musk et al have a long relationship with. “You must be convinced,” he said. “You’re not very convincing today.”
Birchall said there were no numbers other than the maximum number floating around when he called potential investors, and said that after speaking with him, they were referred to lawyers. He doesn’t remember who picked the 97.4 billion number, and said he got it from the legal team, telling Gonzalez Rogers he didn’t get it from Musk. Gonzalez Rogers questioned whether that analysis was created by anyone other than Toberoff. Birchall said he could not remember.
“Did the lawyer tell you that this is part of the case?” Gonzalez Rogers asked.
No, said Birchall. It was purely a business deal.
Apparently, Steven Molo, who was defending Musk at the time of his filing, has repeatedly denied questions about the deal, citing communications. Business deals, obviously, have no rights. But all acquisitions in xAI’s bid for OpenAI were blocked before the trial began. Unfortunately, by asking Birchall about the xAI deal at the end of the direct test, Musk’s team may have opened the door for more digging into it. You may be asking yourself, “open the door to what” and your guess is as good as mine. More availability? Maybe something about anti-competitive behavior from Musk? It doesn’t sound like it’s going to be good for Musk, I can tell you that much.
Gonzalez Rogers then asked who passed the note, and all the lawyers just sat there like guilty children. Finally, the guy in charge said he passed it, but he didn’t write it; the younger lawyer did. Who wrote it? More silence. Finally Toberoff – who was no small lawyer – stood up and took responsibility. What was he doing? “I thought it was appropriate.”
“It sounds like you wanted to open the door,” Gonzalez Rogers said. We adjourned when he said he would consider what to do with this evidence. He will probably rule it tomorrow.
Repair, April 30: It’s Shivon Zilis, not Sharon Zilis.
