"But with stakes ranging from a $1 billion breakup fee on the low end to a $44 billion acquisition on the high end, with lots of room for a settlement in between, there’s plenty of cash sloshing around to cover the lawyers’ fees.... Who will prevail in the end? I agree with the conventional wisdom that Twitter has the upper hand. It seems to me that Musk simply got a case of buyer’s remorse, especially after the stock market (including Tesla’s share price) went south.... [T]he reasons given by Musk for walking away seem pretextual. Yes, specific performance is generally a disfavored remedy in contract law compared to money damages.... [but Delaware] Chancery has not hesitated to order specific performance of billion-dollar M&A deals in the past... [I]f Twitter v. Musk goes to trial, the spectacle will be incredible. I’m not big on scatology, so I tuned out Amber Heard’s testimony about poop on the bed. But Elon Musk testifying about his poop emojis? I’m here for it."
Writes David Lat (at Original Jurisdiction).
When are things melodramatic enough that we feel like watching? If we are lawyers, then maybe contracts worth a big enough amount of money are enough. I will never forget the way a partner — at the "biglaw" firm where I worked before I became a lawprof — overpronounced the "b" in "billions." If it's a "b" and not an "m," you'd better stand in awe. I wanted to work on cases that had interesting issues, and for that, in that place, I got called "an intellectual."
Speaking of "b" and "m," long ago, when I was growing up, the conventional word for the substance that is now called "poop" — when speaking around children and other delicate folk — was "b.m." At least in the region where I lived, the place with the famous Chancery Court, Delaware. People would say, "Oh, no, I stepped in dog b.m." or "This place smells like b.m."
And as long as we are talking about Elon Musk and melodrama and scampering away from high finance to more lowly things, here's this new headline in the NY Post: "Elon Musk’s dad, 76, confirms secret second child — with his stepdaughter" ("Elon has not publicly commented on his father’s latest baby admission. The pair are still estranged, with Elon describing his dad as a 'terrible human being'...").
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Yeah, sure. Twitter has e.m. right where they want him.
I'm leery of anybody prognosticating at this stage. Sure, maybe Musk has cold feet and the bot problem is pretextual. Or maybe he still intends to fork over the cash, but wants Twitter to give its numbers under oath.
If Twitter has been hiding the extent of the bot problem, then they're guilty of fraud--against their advertiser customers and securities fraud against shareholders.
Which is to say, it's too early to handicap the players.
If Gavin Newsome becomes president, we all will be stepping in B.M.s on our sidewalks!!
B amd M are both labials, which turns up in poetry as hidden alliteration, e.g.
"bathed by the mist"
“ The Musk patriarch, 76, welcomed the baby girl with Jana, 35, back in 2019 — but only confirmed the news on Wednesday, bragging to the Sun: “The only thing we are on Earth for is to reproduce.”
Elon is estranged from his father because this guy twice impregnated Elon’s stepsister. Terrible guy is right!
Compare and contrast media coverage and treatment of Elon Musk's father with media coverage and treatment of Woody Allen. Then, speculate and justify/rationalize why the differences, if any.
Arbitration, anyone?
Musk can already settle and pay $1 billion to Twitter investors and walk away. $1 billion is the high end.
’I agree with the conventional wisdom that Twitter has the upper hand.’
The only way that wisdom is correct is if Twitter’s bot numbers match their SEC filings. I see no upside whatsoever in TWTR’s position and they could find themselves on the pointy end of litigation from shareholders, advertisers, Musk, and the government. They could crater the entire platform. And while I understand them acting tough in the instant, they’d do well to remember that a whore owes money to DJT, and Twitter is only a few bad decisions from the rougher side of the trade. I’ll let Laslo explain the details…
"I wanted to work on cases that had interesting issues, and for that, in that place, I got called 'an intellectual'"
One of my favorite movies with Paul Newman is "The Verdict". One of my favorite scenes is when the defendant lawyer, played by James Mason, is having a conversation with his honey pot about winning and losing cases. In short, 'interesting issues' don't pay the bills.
With all the cash sloshing around in Twitter v MUSK, they'll be able to fill an Olympic swimming pool with Laphroaig with all those Billions.
"In short, 'interesting issues' don't pay the bills."
They kind of do, when you are a law professor.
I was for boring too, until I found out that Elon's company would be doing all the boring.
"They kind of do, when you are a law professor."
Billions? With a 'B'?
Interesting work pays the bills and wages. If you want to make real money, you have to grind on the remunerative boring shit. Once in a while the interesting work is lucrative. It's simply a choice on how you wish to spend your time and talents.
Once, in chambers, a judge told Tank and his adversary that "this is a very interesting legal question."
Tank replied, "clients are not interested in interesting legal questions, they just cost the client more money." Maybe that doesn't matter in biglaw, but it matters on main street.
I agree with the conventional wisdom that Twitter has the upper hand. It seems to me that Musk simply got a case of buyer’s remorse
Does David Lat really believe that Musk didn’t have all this planned? Where is this “conventional wisdom” coming from?
Musk doesn’t seem to be worried about any of it. Obviously, Mr. Lat is a left-wing fan of Twitter’s abusive power through censorship and narrative control.
Twitter first resists the acquisition. Now they sue Musk to buy. My guess is this is what Musk wanted from the start. He called out the fake 5% bot number a while ago. He think’s Twitter is run by childish clowns.
He could end up owning Twitter for a much lower price. Or, he successfully exposes their fraudulent subscriber numbers, and confronts their totalitarian censorship head on.
Looks more like Twitter has played right into Elon Musk’s hands. You gotta love that Musk is baiting them with poop emojis and memes right on their own platform.
In my childhood household on Long Island at the same time, it was also b.m., short for bowel movement, which sounded sort of scientific.
'...I wanted to work on cases that had interesting issues, and for that, in that place, I got called "an intellectual."'
Aren't you?
Twitter shall replace definition of Ambulance Chasing
Trump should 'join' as ?amicus mon ami? for Musk!
Anything less than $44 billion is automatically a win for Musk. TWTR has dropped 30% from the original agreement, and there is no sign of a floor at the moment. It is currently $3 above its July low, which is lower than February's value. The only thing that has propped up TWTR value is the potential buy. If Elon can get the purchase price down to $40 a share (10% higher than current value, and $14 less than the existing offer), he would save $12 billion off the previous deal. He's betting $1 billion and legal fees for over $10 billion in savings. This isn't a hard decision on Musk's part, and it doesn't take conspiracy theories to figure out why he would do it.
does Delaware have good reputation for fair dealing?
will there be Jury Trial or 'mere' chancellor will determine?
The Court of Chancery ====>>>> is that play on rolling the Dice / stacking deck of card etc?
I was immediately suspicious when my brothers told me they’d all chipped in on the BMW they planned to give me for my birthday.
Ha, my mother used to refer to it as a "BM" too. I was surprisingly old before I realized that it wasn't a word - "Beeyem" - and what the initials meant.
Jarndyce v. Jarndyce was a famous chancery Court case. In Britain, not Delaware, though.
It dragged on forever. In the end, when it was decided, it was found that lawyers fees on both sides had eaten up every penny of the money at stake.
John LGBTQBNY Henry
"“In every big transaction,” said Leech, “there is a magic moment during which a man has surrendered a treasure, and during which the man who is due to receive it has not yet done so. An alert lawyer will make that moment his own, possessing the treasure for a magic microsecond, taking a little of it, passing it on. If the man who is to receive the treasure is unused to wealth, has an inferiority complex and shapeless feelings of guilt, as most people do, the lawyer can often take as much as half the bundle, and still receive the recipient’s blubbering thanks.”
God Bless You, Mr. Rosewater
The only actual real problem for Musk is that he has become public enemy #1 of the Left. This makes his legal problems deeper because the judges he is going to face are all but certain to be Leftists, too, and they will be out to get him.
The vast majority of cases settle, but Musk has actually been involved in a number of high profile cases in the last few years that went to trial. The cave submarine libel case, the Tesla factory race discrimination case, and the Tesla energy company acquisition shareholder class action. An indicator of how he's a risk taker.
So Twitter started out by adopting a poison pill to keep Musk from buying the company, and now they are suing to force him to buy the company? Was there some material adverse change?
"Elon Musk’s dad, 76, confirms secret second child — with his stepdaughter" ("Elon has not publicly commented on his father’s latest baby admission. The pair are still estranged, with Elon describing his dad as a 'terrible human being'...").
Those Crazy Musks! This fall on ABC...!
So the spectrum of behavior exhibited from drug-addled trailer trash to multibillionaire entrepreneurs loops all the way around in a circle, ending up with little to distinguish one from the other except bank account contents?
Poison pill often adopted to buy breathing room for the board, rather than to eliminate chance of acquisition. The Board and management appear to have used it wisely here to negotiate a seller-friendly merger agreement.
"T]he reasons given by Musk for walking away seem pretextual."
Actually, they seem numerical. Which is to say, subject to verification.
Musk seems to have realized that the board of Twitter is a collection of light-weights that Dorsey dug up somewhere, to rubber-stamp his decisions. They were happy to take a fat paycheck for doing nothing much. They now realize that they are going to get sued, then resued, then sued again, no matter what they do. So they are grimly doing whatever their extremely expensive attorneys tell them to do, in hopes that at least they won't go to prison, even if they are ruined. I would feel sorry for them, if they weren't woke Leftist grifters.
Heh, what actually happened in Jarndyce and Jarndyce is even funnier: The case wasn't decided, it just evaporated when all the money had gone to paying legal fees, on both sides. The case lasted generations:
"Jarndyce and Jarndyce drones on. This scarecrow of a suit has, over the course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out."
BTW, the case is fictional, the quote above is from Bleak House (Dickens, 1853) (via Wikipedia).
BTW, Musk's actions vis-a-vis Twitter are part of a long game, and he has multiple objectives to satisfy. This outcome - breaking up the deal and dealing with the subsequent lawsuit - is just one branch on the decision tree he (and his advisors) figured out before he started. remember too: he didn't start with a buyout - he started by buying a stake. That right there forced Twitter to respond and their response started the path along the branches of the tree.
Twitter has been forced to make responses along the way by Musk's actions: He can't control what their response is but he can force them to make a response at each step. And are they making good responses? Remember, Twitter fired two executives, their general manager of consumer Twitter and their revenue and product lead. That was just after Musk's buyout offer. Coincidence? I think not. They're in deep doo-doo. (Or, as Althouse would perhaps prefer, in deep B.M.s.)
Yesterday, I read the Twitter complaint that was signed by a partner of the 200 yr old firm of Potter Anderson & Corroon. It's very well-written. While it is sharply worded at times, it avoids the over-the-top emotional language that too often appears in court filings. I'm sure that Twitter is paying premium fees to this firm, but based on the quality of the writing, they're getting good value for the money.
- Krumhorn
All thats going to happen now is a bunch of corporate lawyers will be able to afford third homes thanks to this case. Way to go Twitter.
The Twitterpire Strikes Back
Per Depp/Heard trial parlance, the preferred term for b.m. / poop is a "grumpy".
That really needs to gain wider acceptance and use.
So good it bears repeating:
"Interesting work pays the bills and wages. If you want to make real money, you have to grind on the remunerative boring shit. Once in a while the interesting work is lucrative. It's simply a choice on how you wish to spend your time and talents." - Howard, at 7:52
It seems politically correct to predict the Musk has made a fatal mistake and will get his comeuppance. Yet it's hard to see how. Twitter execs are on record as saying one needs some inside information to understand how Twitter determines bots vs. people users. Musk says they failed to live up to the contract and provide the information that Twitter execs admit they have. If Musk is right and there are far fewer real users and far more bots, then he has Twitter in a vice. If they don't sue Musk, it looks like an admission that Musk is right. If they do sue Musk, then Musk should be able to get discovery of the needed information which will prove Musk's point. Only if Musk is wrong does he face some legal downside. But remember, Musk is friendly with Jack Dorsey and Dorsey has quit his seat on the Board. Does anyone not think that Dorsey has confirmed Musk's suspicions to him privately?
I agree with the conventional wisdom that Twitter has the upper hand. It seems to me that Musk simply got a case of buyer’s remorse
Lat is a leftist bore
Musk said Twitter was lying about its bot numbers. Twitter refused to provide him with the data they used to generate those numbers
Then Twitter offered to give Musk a "feed" of their ongoing content, like they do for multiple commercial customers.
Except the feed they gave Musk was crippled.
It could be that Twitter is not lying about the bots. But if they are, then they're going to have to settle before Musk gets discovery.
Because otherwise some of them are going to jail.
IOW, Twitter only "has the upper hand" if that social media company's execs never lie to advertisers or the public.
And if you believe that, I've got a bridge to sell you
David v
Jarndyce is fiction, as you point out. There was a similar real case, though, jennens v jennens. Filed in 1798 it finally ran out of money in 1915,117 years later.
"bleak house" gets a bad rap in my opinion. I find it a really great novel. There are also 2 excellent mini-series. Both available on prime.
One even stars the fabulous Mrs peel as Lady Dedlock. No other reason to watch it is needed, imho
John LGBTQBNY Henry
I think you're wrong about specific performance in this case, and I think discovery will be interesting because instead of answering Musk's question on the 5% bot number, they just buried him in data. Kinda of like burying a key document in hundreds of boxes of useless documents.
If the 6% number is wrong, there's a lot of heads rolling not to mention money spent on shareholder lawsuits and SEC enforcement actions. Criminal fraud charges against top execs would be likely.
I'd look for a renegotiation in the $33/sh range after news leaks and the stock drops to $24/sh.
They're in deep doo-doo. (Or, as Althouse would perhaps prefer, in deep B.M.s.)
=========
so if Twitter lawyers are trying to clean-up the mess : why not call call them palawiahs
@John Henry - Thank you! I had no idea there was a real case behind Jarndyce and Jarndyce! Amazing! (Now, can you tell me, is there a real government department behind the Circumlocution Office? Ha ha, just kidding, we know that was modeled from the actual workings of government just like Yes, Minister!, and, like Yes, Minister!, is even more true now than when it was written ...)
Also I second your opinion on the mini-series with Diana Riggs (Bleak House, Masterpiece Theatre, 1985). The whole thing was excellent. (The other one with Gillian Anderson is pretty good too.)
My wife, who has read the entire Dickens ouvere through several times, believes Bleak House is his best.
"I got called 'an intellectual.'"
Yeah, I've been in a similar position a number of times in my young life. I think the most common mistake I see people make is thinking their goals are universal goals. And the most common goal I see people mistake for "The" goal is making as much money as possible. Not that I'll ever disdain people making money, but there are so many other interesting things in the world.
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