It has been reported that Elon Musk will “terminate” his agreement to purchase Twitter. However, “terminating” a $44 billion business merger agreement is not as easy as shouting “Hasta la vista, sweetheart” before lighting up a cigarette with a handgun and waving goodbye. Twitter, on the other hand, is on the verge of engaging in legal conflict and, somewhat weirdly, is attempting to force Musk to complete the purchase of the firm regardless of whether or not he wants to.
But if one of the parties wants out of this transaction, can the courts really force the other party to finish it? And is that really the result that Twitter is hoping for?
At least for the time being, this appears to be what Twitter is indicating it wants, so take that into consideration. It appears that Salesforce CEO Bret Taylor is tweeting on behalf of Twitter’s board of directors, of which he is a member. In his tweets, Taylor claims that his fellow board members are dead set on “closing the transaction on the price and terms agreed upon with Mr. Musk,” and that Twitter “plans to pursue legal action to enforce the merger agreement.” Taylor is a member of Twitter’s board of directors.
“We are sure that we will triumph in the Delaware Court of Chancery,” continued Taylor, referring to a state court in Delaware where disagreements such as bankruptcies are resolved by an official with the title “chancellor” rather than “judge.” The reason why Twitter is referred to as “Delaware” is that the company is actually incorporated in the state of Delaware, not in California, where its headquarters are located.
To review, the shareholders of Twitter are bringing Musk before a court in Delaware in the hope that a chancellor will compel him to purchase Twitter from them for the astoundingly generous sum of $44 billion. This court is relatively unknown to the general public and is located in Delaware. As at the time this article was written, the market capitalization of Twitter was closer to $28 billion, thus it is somewhat understandable why Musk might not want this.
However, according to Ronald Gilson, who teaches law and business at Columbia University, this is by no means the only probable consequence that could occur. According to what Gilson shared with Mashable, “one option is for Musk to pay Twitter an amount that matches the loss that Twitter sustained as a result of Musk not completing the purchase.” He made the observation that the conflict was, in the end, about money.
The legal proceedings may, it seems, come down not to a trial but to a squabble about Musk’s actions having deprived Twitter’s shareholders of a yet-to-be-determined sum of money, along with exactly what that sum is, and whether or not he is legally required to cough it up. In other words, the legal proceedings may, it seems, come down to a squabble about Musk’s actions having deprived Twitter’s shareholders of a yet-to-be- “There are a lot of questions embedded in how the dueling experts will calculate that amount,” said Gilson, adding that the Chancery Court has a lot of ways to get the two sides to negotiate to avoid having a trial.
It would be a rather unremarkable outcome if the two sides were able to reach a deal in order to avoid going to trial. But, as Gilson went on to explain, “my understanding is that the acquisition agreement was written to severely limit Musk’s ability to do exactly what he is doing right now.”
In point of fact, the actual text of the agreement contains language about a legal principle known as “specific performance,” which is an alternative to the practice of doling out damages in the event of a dispute. Under the appropriate conditions, this principle would mandate that the transaction be finished. A legal columnist for Bloomberg named Matt Levine wrote on Saturday: “I like Twitter’s odds in court — its odds of getting the specific performance and making Musk close the deal — but I don’t think anything is a certainty at this point.” Levine is referring to Twitter’s chances of forcing Musk to close the deal and getting a specific performance.
Musk stated in May that the entirety of his acquisition of Twitter was “on hold” due to his belief that Twitter had misled him and by extension the entire world, about the number of bots that were active on their platform. Many critics viewed this as nothing more than an obvious attempt to buy more time, but in reality, it’s a rather serious claim that has the potential to be seen as fraud. In June, Twitter provided Musk with an abundance of data in an effort to allay his concerns on spambots.
If we take Musk at his word, the deluge of data that Twitter provided did not in any way assuage his concerns. In point of fact, it would appear that he is more convinced than ever before that they are intentionally marketing a service that is flooded with spambots. In the letter that Musk’s lawyers sent to Twitter in an attempt to get out of the deal, they claim that Musk has been making a good faith effort to work out an accurate count of “monetizable active daily users” or “mDAUs,” as opposed to spambots and that he is dissatisfied with what he found. However, Twitter has not responded to their letter.
According to the letter, while this study is still underway, all indicators imply that several of Twitter’s public disclosures regarding its monthly active user count (mDAU) are either incorrect or materially deceptive. Now, the assertion that the letter was written by spambots appears to be a major pillar of the legal argument that Musk’s lawyers are going to make before the Delaware court that was discussed earlier.
If that doesn’t work, and the two parties don’t find a way to come to an agreement, it appears like Musk truly may end up becoming the new owner of a bird-themed social media website that he no longer wants.
And according to Gilson, “Musk could very well be playing a weak hand.”