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Twitter sues to force Musk to complete his $44B acquisition

Two sides had been bracing for a legal fight
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Tesla and SpaceX CEO Elon Musk speaks at the SATELLITE Conference and Exhibition in Washington, March 9, 2020. Twitter said Tuesday, July 12, 2022, it has sued Musk to force him to complete the $44 billion acquisition of the social media company. (AP Photo/Susan Walsh, File)

Twitter sued Tesla CEO Elon Musk on Tuesday, trying to force him to complete his $44 billion takeover of the social media company by accusing him of 鈥渙utlandish鈥 and 鈥渂ad faith鈥 actions that have caused the platform irreparable harm and 鈥渨reaked havoc鈥 on its stock price.

Back in April, Musk pledged to pay $54.20 a share for Twitter, which agreed to those terms after reversing its initial opposition to the deal. But the two sides have been since the billionaire said Friday that he was backing away from his agreement to buy the company.

Twitter鈥檚 lawsuit opens with a sharply-worded accusation: 鈥淢usk refuses to honor his obligations to Twitter and its stockholders because the deal he signed no longer serves his personal interests.鈥

鈥淗aving mounted a public spectacle to put Twitter in play, and having proposed and then signed a seller-friendly merger agreement, Musk apparently believes that he 鈥 unlike every other party subject to Delaware contract law 鈥 is free to change his mind, trash the company, disrupt its operations, destroy stockholder value, and walk away,鈥 the suit stated.

Twitter in the Delaware Court of Chancery, which frequently handles business disputes among the many corporations, including Twitter, that are incorporated there.

As part of the April deal, Musk and Twitter had agreed to pay each other a $1 billion breakup fee if either was responsible for the deal falling through. The company could have pushed Musk to pay the hefty fee but is going farther than that, trying to force him to complete the full $44 billion purchase approved by the company鈥檚 board.

鈥淥h the irony lol,鈥 Musk tweeted after Twitter filed the lawsuit, without explanation.

The arguments and evidence laid out by Twitter are compelling and likely to get a receptive ear in the Delaware court, which doesn鈥檛 look kindly on sophisticated buyers with highly-paid legal advisers backing off of deals, said Brian Quinn, a law professor at Boston College.

鈥淭hey make a very strong argument that this is just buyer鈥檚 remorse,鈥 Quinn said. 鈥淵ou have to eat your mistakes in the Delaware Chancery Court. That鈥檚 going to work very favorably for Twitter.鈥

Musk alleged Friday that Twitter has failed to provide enough information about the number of fake accounts on its service. Twitter said last month that it was making available to Musk a 鈥砯ire hose鈥 of raw data on hundreds of millions of daily tweets.

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The company has said for years in regulatory filings that it believes about 5% of the accounts on the platform are fake. Musk is also alleging that Twitter broke the acquisition agreement when it fired two top managers and laid off a third of its talent-acquisition team.

Twitter鈥檚 suit repeatedly emphasizes Musk鈥檚 contemplation of starting a Twitter competitor 鈥 an alternative option he sometimes aired publicly and sometimes privately to Twitter鈥檚 executives and board members. While the company has said it cooperated in providing the data he requested on fake 鈥渟pam bot鈥 accounts, the lawsuit suggests Twitter was concerned that disclosing too much 鈥渉ighly sensitive information鈥 could expose the company to competitive harm if shared.

The biggest surprise for Quinn was how much evidence Twitter has 鈥 for instance, communications with Musk about whether to retain or lay off employees, as well as the billionaire鈥檚 own public tweets 鈥 to reject his arguments for backing out.

鈥淭hey are marshaling many of Musk鈥檚 own tweets to hoist him on his own petard,鈥 he said.

In a joint press release announcing the acquisition deal, Musk pledged to 鈥渦nlock鈥 the social media company鈥檚 potential by loosening restrictions on speech and rooting out fake accounts. Among his most attention-grabbing promises was to let former President Donald Trump back onto the platform. Musk argued that Twitter鈥檚 ban of Trump following the Jan. 6, 2021 insurrection at the U.S. Capitol was 鈥渕orally bad鈥 and 鈥渇oolish in the extreme.鈥

But his confidence didn鈥檛 last long. Tesla鈥檚 stock 鈥 Musk鈥檚 primary source of wealth 鈥 plummeted amid a broader stock market selloff in May, and Musk soon seemed less enthusiastic about owning Twitter.

鈥淔or Musk, the best case is he pays the $1 billion breakup fee but that appears very unlikely,鈥 said Wedbush Securities analyst Daniel Ives. 鈥淭he irony is that Twitter as a fiduciary is clearly looking to enforce a deal that Musk doesn鈥檛 want to get done. It鈥檚 like buying a house you don鈥檛 want.鈥

Twitter鈥檚 suit calls Musk鈥檚 tactics 鈥渁 model of hypocrisy,鈥 noting that he had emphasized plans to take Twitter private in order to rid it of spam accounts. Once the market declined, Twitter said, 鈥淢usk shifted his narrative, suddenly demanding 鈥榲erification鈥 that spam was not a serious problem on Twitter鈥檚 platform, and claiming a burning need to conduct 鈥榙iligence鈥 he had expressly forsworn.鈥

Similarly, the company charges that Musk operated in bad faith, accusing him of requesting company information in order to accuse Twitter of providing 鈥渕isrepresentations鈥 about its business to regulators and investors.

Musk 鈥渉as been acting against this deal since the market started turning, and has breached the merger agreement repeatedly in the process,鈥 the suit charged. 鈥淗e has purported to put the deal on 鈥榟old鈥 pending satisfaction of imaginary conditions, breached his financing efforts obligations in the process, violated his obligations to treat requests for consent reasonably and to provide information about financing status, violated his non-disparagement obligation, misused confidential information, and otherwise failed to employ required efforts to consummate the acquisition.鈥

Matt O鈥檅rien, The Associated Press

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