In this case it's a bit easier to prove in court because there is documented evidence of Solar City's auditor signaling the need to use "going concern" language

In this case it's a bit easier to prove in court because there is documented evidence of Solar City's auditor signaling the need to use "going concern" language, and top executives at Solar City discussing the dire financial straits that any further revenue declines would put the company in. Top executives who reported, ultimately, to Elon Musk, who also had access to all the same financials they were looking at. They're also unable to plead ignorance because Tesla's CFO at the time, Jason Wheeler, made a very frank presentation to the Tesla Board laying out all the reasons Solar City was a ticking financial timebomb, and this is also coming out in the lawsuit.