So I don’t know entirely what’s in Elon Musk’s counterclaims against Twitter — they are still under seal — but I did get an inkling today, when Twitter dropped its response. It’s spicy! Rather than let Musk get his complaints out first, Twitter went ahead and released a blow-by-blow response, the better with which to dunk on Elon along the way.
I do love this:
The Counterclaims are a made-for-litigation tale that is contradicted by the evidence and common sense
Usually legal documents have arcane, passive-aggressive digs at the other party in them. Twitter’s lawyers, however, came out swinging in their reply to Musk’s counterclaims. Maybe that’s because they know how many people will read these documents; maybe it’s just because they’re interpersonally mean.
We picked our favorite passages in the paperwork, and are showcasing them here for anyone who might be interested.
So you may recall that Musk’s putative reason for bailing on Twitter was because of Twitter’s “false and misleading statements.” Those statements have to do with spam and bot accounts, and were part of what Musk’s lawyers brought to bear during the hearing that established an October trial date.
Twitter briefly walks the court through its process, its paperwork, and its disclosure statements in previous SEC filings. “Musk does not identify any false or misleading statement of fact in this disclosure,” Twitter notes. So where are his weird numbers coming from? Well, they don’t know, because:
Musk is not measuring the same thing as Twitter or even using the same data as Twitter.
Twitter goes on to suggest Musk is deliberately distorting these numbers to “make waves.” And then it says, “Who’s the bot now, hot stuff?”
Musk’s “preliminary expert estimates” are nothing more than the output of running the wrong data through a generic web tool. … Confirming the unreliability of Musk’s conclusion, he relies on an internet application called the “Botometer”— which applies different standards than Twitter does and which earlier this year designated Musk himself as highly likely to be a bot.
I cannot explain quite how funny I find this? Musk’s fancy, secret, “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 are true:
Twitter admits that Musk is a Twitter user and has founded several companies.
Twitter admits that its business is complex.
Twitter admits that Musk is a Twitter user and has over 100 million followers
Twitter admits that it detects and removes spam from its platform
But “Twitter otherwise lacks knowledge or information sufficient to form a belief” as to whether Musk believes in free speech and open debate, whether he appreciates Twitter as a town hall, or that Twitter was a natural option for him to invest in. Later, Twitter admits that “Musk Tweets frequently.” It does so once in those words and once like this:
Twitter admits that Musk actively uses Twitter and that many people believe that open discourse is essential to a functioning democracy.
Does Twitter believe open discourse is essential to a functioning democracy? Dunno, but they can’t form beliefs on whether, 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 before the Merger Agreement was signed and before the parties had a non-disclosure agreement in place.
Sorry, this might be the low-key funniest of “Twitter admits,” which is: yeah, we didn’t give him the press release till he signed the NDA. Now, this is in response to Musk complaining that he didn’t get a heads’ up when Twitter announced it miscounted its daily active users for several years. But it does seem pretty sensible to me not to tell 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 due diligence was “costly and inefficent,” so he didn’t do it.
Twitter avers that the Musk Parties declined to undertake any due diligence prior to 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 Defendants purported to terminate the Merger Agreement, that Twitter subsequently filed litigation seeking specific performance of the Merger Agreement, and that Defendants have filed counterclaims.
Oh yes, good, Twitter admits 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 “looking forward” to taking the position), notified Mr. Agrawal of the same, and also notified Mr. Agrawal of his intent to make an offer to buy Twitter.
Because Musk didn’t identify any false or misleading statements Twitter made, Twitter has gotten snitty about his withdrawal from the acquisition:
Musk just now invented this new pretext for avoiding the merger agreement, as these supposed inaccuracies are nowhere mentioned in his July 8 letter to Twitter explaining the bases for his purported termination of the merger agreement, nor in any other communication with Twitter since signing the merger agreement. In any event, Twitter never made the disclosures he now asserts are false.
In Musk’s claim, his lawyers write that “Twitter’s primary business is operating a microblogging social media network where users share 280 character messages called ‘tweets.’” Twitter denies this, hilariously.
[Twitter’s] primary product, Twitter, is a global platform for real-time self-expression and conversation, including in the form of Tweets. Twitter further avers that Tweets have a maximum length of 280 characters.
I wonder what “social network” and “microblogging” mean to Twitter’s lawyers?
I don’t think this one needs more context, honestly. I’m just surprised not to see an actual emoji in the filing:
On May 16, 2022, Mr. Musk publicly replied to that Tweet Thread with a poop emoji.