Here’s why Elon Musk lost his suit against OpenAI

On Monday, the jury in Musk v. Altman dealt Elon Musk a major blow—reaching a unanimous advisory verdict that he had sued OpenAI too late and, as a result, his claims are barred by the applicable statutes of limitations. US District Judge Yvonne Gonzalez Rogers immediately accepted it. 

Musk announced on X that he will be appealing the decision. “The judge & jury never actually ruled on the merits of the case, just on a calendar technicality,” he wrote.

OpenAI was cofounded by Musk and a group of researchers in 2015 as a nonprofit with a mission to develop AI for the benefit of humanity, unconstrained by a need to generate financial returns. Musk donated $38 million to the company during its early days, allegedly on the basis that OpenAI CEO Sam Altman and president Greg Brockman had promised to keep the company a nonprofit committed to the mission.   

Musk brought two claims against OpenAI. First, he argued that Altman and Brockman breached the charitable trust he created through his donations by breaking their promise to keep the company a nonprofit and creating a for-profit subsidiary that ballooned over the years. Second, he argued that Altman and Brockman unjustly enriched themselves at Musk’s expense. He sued OpenAI in 2024. 

Musk asked the court to unwind a 2025 restructuring that converted OpenAI’s for-profit subsidiary into a public benefit corporation and to remove Altman and Brockman from their roles.

OpenAI argued that the time for Musk to sue the company had run out before he brought the case. The statute of limitations on the breach of charitable trust claim is three years, while the statute of limitations on the unjust enrichment claim is two years. This means that Musk should have discovered, or had reason to discover, Altman and Brockman’s alleged breach of charitable trust no earlier than 2021 and their alleged unjust enrichment no earlier than 2022. 

While Musk argued he discovered that Altman and Brockman had broken their promise only in 2022, OpenAI claimed that Musk had reason to think this well before 2021. 

Musk told the jury that he has gone through “three phases” in his beliefs about OpenAI: In phase one, he was “enthusiastically supportive” of the company. In phase two, “I started to lose confidence that they were telling me the truth,” he said. In phase three, “I’m sure they’re looting the nonprofit.” 

Here’s a deeper dive into a timeline of the events as testified in the trial. You can read my dispatches from all three weeks of the trial here and here and here. 

2017: Musk proposed creating a for-profit subsidiary

In 2017, two years after OpenAI was founded, Musk and the other cofounders tried to create a for-profit subsidiary to raise enough capital to build artificial general intelligence—powerful AI that can compete with humans on most cognitive tasks. They fought a bitter power battle over who would get to control the entity. Musk also proposed merging OpenAI with his electric-car company, Tesla. 

During the trial, OpenAI’s lawyers pressed Musk on these discussions, suggesting that Musk knew in 2017 about Altman and Brockman’s plans to pivot the company—even participating in such plans—and had reason to sue then.

“I was not opposed to there being a small for-profit that provides funding to the nonprofit,” Musk told the jury, “as long as the tail didn’t wag the dog.” 

2019: OpenAI creates a for-profit subsidiary with capped profits

In 2019, OpenAI created a for-profit subsidiary, under which employees and investors would receive a capped return on their investment. At the same time, the company secured a $1 billion investment from Microsoft. OpenAI argued that Musk again had reason to sue the company then. 

But Musk testified that he didn’t think the move was violating the nonprofit’s mission. “If you’ve got a capped-profit situation, it hasn’t violated the nonprofit’s goal,” Musk told the jury earlier in the trial. “There was no basis for me to file a lawsuit at that time.”

2020: Microsoft snags an exclusive license 

In 2020, when Microsoft secured an exclusive license to OpenAI’s GPT-3 model, Musk posted on X: “This does seem like the opposite of open. OpenAI is essentially captured by Microsoft.” OpenAI once again argued that Musk had reason to sue then. 

But Musk testified that after reading the post, Altman reassured him that “OpenAI was staying on the mission as a nonprofit.” Musk said although he was skeptical, he still had no reason to sue the company at that point.

2022: Microsoft prepares to invest $10 billion in OpenAI

It was only in 2022, Musk testified, that he discovered OpenAI had abandoned its nonprofit mission. At that time, Microsoft was preparing to invest $10 billion in OpenAI—a deal that closed in 2023. 

“I was disturbed to see OpenAI with a $20B valuation,” Musk texted Altman after reading the news. “This is a bait and switch.”

Musk told the jury this was the moment that made him realize “the for-profit is the tail wagging the dog.” He thought Microsoft would give $10 billion only if it expected “a very big financial return.” He argued that this was the point he realized “OpenAI had become, for all intents and purposes, a for-profit company with a $20 billion valuation.” 

“The 2023 deal was different,” Steven Molo, one of Musk’s lawyers, hammered home during his closing argument.

The jury sides with OpenAI

It was up to the jury to decide whether the evidence supported Musk’s claim that he first realized in 2023 that OpenAI was no longer a nonprofit committed to its mission. In the verdict announced today, they found Musk did in fact have reason to think that he was being misled by Altman and Brockman before 2021. They did not address whether he was in fact misled. 

Courts often decide cases on procedural grounds like statutes of limitations when they can, because it can be the cleaner way to resolve a case than to grapple with its merits.

Musk has said he will appeal the decision to the Ninth Circuit Court of Appeals, a federal appellate court that reviews decisions from district courts in California and other states.