So I’m not sure exactly what’s in Elon Musk’s counterclaims against Twitter – they’re still under seal – but I had an idea today when Twitter dropped its response. It’s spicy! Rather than letting Musk air his complaints first, Twitter went ahead and posted a blow-by-blow response, best to dive into Elon along the way.
I like this :
Counterclaims are a tale made for litigation that is contradicted by evidence and common sense
Usually, legal documents contain obscure and passive-aggressive digs against the other party. Twitter’s attorneys, however, spoke out in their response to Musk’s counterclaims. It may be because they know how many people will read these materials; maybe it’s just because they’re interpersonally mean.
We have chosen our favorite passages in the paperworkand present them here for anyone who might be interested.
You may recall that Musk’s putative reason for bail out on twitter was because of Twitter’s “false and misleading statements”. These statements have to do with spam and bot accounts, and were part of what Musk’s attorneys brought to the hearing that set a trial date in October.
Twitter briefly walks the court through its process, documents, and disclosure statements in previous SEC filings. “Musk does not identify any false or misleading statements of fact in this disclosure,” Twitter notes. So where do these weird numbers come from? Well, they don’t know because:
Musk doesn’t measure the same as Twitter or even use the same data as Twitter.
Twitter goes on to suggest that Musk deliberately misrepresents these numbers to “cause waves.” And then he goes, “Who’s the bot now, hot thing?”
Musk’s “preliminary expert estimates” are nothing more than the result of running faulty data through a generic web tool. … Confirming the unreliability of Musk’s conclusion, he relies on an Internet application called “Botometer” – which applies different standards than Twitter and which earlier this year named Musk himself as most likely a bot.
I can’t explain how funny I find this? Musk’s fanciful, covert and ‘proprietary’ analysis of Twitter data was a website called Botometer.
This is, for my money, the funniest part of the document. Here are some things Twitter is willing to admit to be true:
Twitter admits that Musk is a Twitter user and has founded several companies.
Twitter admits that its business is complex.
Twitter admits Musk is a Twitter user and has over 100 million followers
Twitter admits it detects and removes spam from its platform
But “Twitter otherwise lacks sufficient knowledge or information to form a conviction” about whether Musk believes in free speech and open debate, whether he values Twitter as a town hall, or that Twitter was a natural option for him to invest. Later, Twitter admits that “Musk tweets frequently”. He does it once in these words and once like this:
Twitter admits that Musk actively uses Twitter and that many people believe open speech is essential to a functioning democracy.
Does Twitter think open speech is essential to a functioning democracy? I don’t know, but they can’t form an opinion on whether, for Musk, “the elimination of free speech is a cure worse than the disease.”
Twitter admits that it did not provide the information contained in the April 28, 2022 press release to the Musk parties prior to the signing of the merger agreement and prior to the parties having a nondisclosure agreement in place.
Sorry, that might be the funniest “Twitter admits” to say: yeah, we didn’t give him the press release before he signed the NDA. Now this is in response to Musk complaining that he was not notified when Twitter announced that it miscounted its daily active users for several years. But it makes pretty good sense to me not to say anything to people with strong Twitter habits and poor impulse control until they’ve signed NDAs.
Or maybe it’s this one. Musk’s lawyers wrote that because Musk thought the due diligence was “expensive and ineffective”, he therefore didn’t do it.
Twitter claims the Musk parties refused to undertake any due diligence before signing the merger agreement.
Man, I mean, sometimes it just stings when your opponent agrees with you, huh?
Twitter admits that on July 8, 2022, the defendants purported to terminate the merger agreement, that Twitter subsequently filed a lawsuit seeking specific performance of the merger agreement, and that the defendants filed demands counterclaims.
Oh yes, well, Twitter admits that this case exists.
Musk abruptly changed his mind about joining Twitter’s board (after first negotiating an offer to join the board, accepting it in writing, and tweeting that he was “eager to take the job), informed Mr. Agrawal of the same, and also informed Mr. Agrawal of his intention to make an offer to buy Twitter.
Because Musk did not identify any false or misleading statements made by Twitter, Twitter became snide about his withdrawal from the acquisition:
Musk just invented this new pretext to avoid the merger agreement, because these supposed inaccuracies are nowhere mentioned in his July 8 letter to Twitter explaining the grounds for his alleged termination of the merger agreement, nor in any other communication with Twitter since the signing of the merger. OK. In any event, Twitter never made the revelations it now claims to be false.
In Musk’s claim, his attorneys write that “Twitter’s core business is the operation of a microblogging social media network where users share 280-character messages called ‘tweets’.” Twitter denies this, hilariously.
[Twitter’s] main product, Twitter, is a global platform for real-time self-expression and conversation, including in the form of tweets. Twitter further claims that Tweets have a maximum length of 280 characters.
I wonder what “social network” and “microblogging” mean to Twitter lawyers?
I don’t think this one needs more context, honestly. I’m just surprised that I don’t see a real emoji in the folder:
On May 16, 2022, Mr. Musk publicly replied to this thread with a poo emoji.