So I don’t know exactly what’s in Elon Musk’s countersuits against Twitter — they’re still under seal — but I got an idea today when Twitter retracted its response. It’s spicy! Instead of letting Musk air his grievances first, Twitter went ahead and rolled out a blow-by-blow response, the better to dive into Elon along the way.
I like this:
Counterclaims are a manufactured story for litigation that defies evidence and common sense
Usually legal documents have cryptic, passive-aggressive digs at the other party. Twitter’s lawyers, however, came up short in their response to Musk’s counterclaims. Perhaps this is because they know how many people will read these documents. maybe it’s just because they’re bad interpersonally.
We have selected our favorite passages On paperand we present them here for anyone who may be interested.
So you may recall that Musk’s supposed reason for the Twitter bailout was because of Twitter’s “false and misleading statements.” Those statements relate to spam and bot accounts and were part of what Musk’s lawyers received during the hearing that set an October trial date.
Twitter briefly follows the court on the process, its paperwork 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 his odd numbers come from? Well, they don’t know, because:
Musk doesn’t measure the same thing as Twitter or even use the same data as Twitter.
Twitter continues to suggest that Musk is deliberately distorting these numbers to “make waves”. And then he says, “Who’s the bot now, hot stuff?”
Musk’s “preliminary expert estimates” are nothing more than the result of running incorrect data through a generic online tool. … Confirming the unreliability of Musk’s conclusion, it relies on an online application called “Botometer”—which applies different standards than Twitter’s and which earlier this year identified Musk himself as highly likely to be a bot.
I can’t explain how funny I find this? Musk’s fancy, secret, “proprietary” analysis of Twitter data was one website called Botometer.
This is, for my money, the funniest part of the document. Here are some things Twitter is willing to admit are true:
Twitter admits that Musk is a Twitter user and has founded several companies.
Twitter admits its business is complex.
Twitter admits that Musk is a Twitter user and has over 100 million followers
Twitter admits it detects and removes spam from its platform
However, “Twitter does not have sufficient knowledge or information to form a belief” about whether Musk believes in free speech and open debate, whether he values Twitter as a town hall, or that Twitter was a natural choice to invest in. Twitter admits that “Musk Tweets often.” He does so once with these words and once as follows:
Twitter admits that Musk actively uses Twitter and that many people believe that open discourse is essential to a functioning democracy.
Does Twitter believe that open discourse is necessary for a functioning democracy? I don’t know, but they can’t form beliefs about whether, according to Musk, “eliminating free speech is a cure worse than the disease.”
Twitter admits that it did not provide the information in the April 28, 2022 press release to the Musk parties prior to the signing of the Merger Agreement and before the parties entered into a non-disclosure agreement.
Sorry, this might be the most low-key joke since “Twitter admits,” which is: yes, we didn’t give him the press release until he signed the NDA. Now, this is in response to Musk complaining that he didn’t get his head when Twitter announced that it was miscounting its daily active users for several years. But it seems pretty reasonable to me not to say anything to people with strong Twitter habits and poor impulse control until they sign an NDA.
Or maybe it’s that. Musk’s lawyers wrote that because Musk thought due diligence was “costly and ineffective,” he didn’t do it.
Twitter alleges that Musk’s counterparties refused to perform due diligence before signing the Merger Agreement.
Man, I mean, sometimes it stings when your opponent agrees with you, huh?
Twitter admits that on July 8, 2022, the Defendants asserted that they terminated the Merger Agreement, that Twitter thereafter brought an action seeking specific performance of the Merger Agreement, and that the Defendants filed counterclaims.
Oh yeah, well, Twitter admits that this is the case.
Okay, so remember Musk’s plank dance? Twitter does!
Musk abruptly changed his mind about joining Twitter’s board (after first negotiating an offer to join the board, he accepted it in writing and said he was “looking forward” to the position), 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 was outraged about its withdrawal from the acquisition:
Musk has only now invented this new pretext for avoiding the merger agreement, as these alleged inaccuracies are nowhere mentioned in his July 8 Twitter letter explaining the basis for the alleged termination of the merger agreement, nor in any other communication with Twitter since signing the merger agreement. In any case, Twitter never made the revelations it now claims are false.
According to Musk’s claim, his lawyers write that “Twitter’s primary business is to operate a microblogging social media network where users share 280-character messages called ‘tweets.’ Twitter denies it, hilariously.
[Twitter’s] The main product, Twitter, is a global platform for self-expression and real-time conversation, including in the form of Tweets. Twitter further maintains 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 needs more context, honestly. I’m surprised I don’t see an actual emoji in the filing:
On May 16, 2022, Mr. Musk publicly responded to this Tweet Thread with an emoji.