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Elon & Twitter

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Not exactly true, there is a very famous acquisition made by HP that turned out to be fraudulent. HP sued, and won, and clawed by billions after the deal was over.



There's a few problems with this analogy:

1) They sued under UK law, not US- which is substantially different.

2) They personally sued the former CEO (again in UK courts under UK law) who was a billionaire who profited heavily from the purchase of the company- with considerable evidence of years of his outright accounting fraud (like selling cheap HW at a loss and reporting it as a profitable software sale)- so there was both a mountain of evidence to use and a mountain of money to go after.


In this case the board will get very little $ from the sale- they own few shares. Nearly all the $ will go to individual and institutional shareholders who had nothing to do with any misrepresentation if there even IS any-- so there's little to no $ to go after in comparison.


And there's been 0 evidence of actual accounting fraud-- or any fraud at all under GAAP standards. (mDAU is a measure twitter made up and then explicitly disclaims as a guess in the description of it).


The nearest we get is Elon basically saying "I think their guess- which they admit in the SEC filings is a guess and might be wrong is wrong"

And it's under US law on top of that not UK.



Unless you get like mustache twirling level stupid stuff come out like the board members emailing each other "MUAHAHAHA! I CAN NOT BELIEVE HE IS PAYING US THIS MUCH WHEN WE KNOW FOR A FACT IT IS 50% BOTS" there's not much cause of action to ask for money back.

Which seems unlikely as it'd be vastly more in the interests of the board to legit not know for certain how many bots they have- and thus their "this # could be wrong" disclaimer in the SEC filings going back like a decade provides all the legal cover they need.
 
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There's a few problems with this analogy:

1) They sued under UK law, not US- which is substantially different.

2) They personally sued the former CEO (again in UK courts under UK law) who was a billionaire who profited heavily from the purchase of the company- with considerable evidence of years of his outright accounting fraud (like selling cheap HW at a loss and reporting it as a profitable software sale)- so there was both a mountain of evidence to use and a mountain of money to go after.


In this case the board will get very little $ from the sale- they own few shares. Nearly all the $ will go to individual and institutional shareholders who had nothing to do with any misrepresentation if there even IS any-- so there's little to no $ to go after in comparison.


And there's been 0 evidence of actual accounting fraud-- or any fraud at all under GAAP standards.

The nearest we get is Elon basically saying "I think their guess- which they admit in the SEC filings is a guess and might be wrong is wrong"

And it's under US law on top of that not UK.



Unless you get like mustache twirling level stupid stuff come out like the board members emailing each other "MUAHAHAHA! I CAN NOT BELIEVE HE IS PAYING US THIS MUCH WHEN WE KNOW FOR A FACT IT IS 50% BOTS" there's not much cause of action to ask for money back.

Which seems unlikely as it'd be vastly more in the interests of the board to legit not know for certain how many bots they have- and thus their "this # could be wrong" disclaimer in the SEC filings going back like a decade provides all the legal cover they need.

Actually, the decision was confirmed by US courts as well. Extradition proceedings for the former CEO are ongoing:


Your point about having assets to go after, after the fact, is valid and probably why this would be a backup-plan for Elon.

TWTR, on the other hand, will fight discovery tooth and nail. And frankly despite the bluster of their board, they are not in a good position. If they lose discovery, and the bots info is found to be egregious, then expect shareholder lawsuits till the end of time. That in and of itself would probably give Elon a free pass to walk away AND be compensated, possibly with that $1B break-up fee (although it more applies to external factors like lack of funding on Elon's part than this specific argument).

Needless to say, this is far from over. Grab your popcorn, there will be fireworks.
 
And just to mention something here, as someone that has bought about a dozen companies over the past 20 years . . . something never smelled right on the Twitter side. As a seller, you WANT to provide the company/person in contract to buy your company EVERY access they ask for. Why? Because there is "pulling the wool over the eyes" in situations like this. If someone buys your company and finds out it was @#$%, you can bet they are going to come after you and make your life miserable after the fact. You WANT to be as transparent as possible.

Twitter AGREED to the purchase, they should have been providing Elon everything he asked for to facilitate that sale. That's how these things work. Even if you have to eventually go through a reduction in the sale price (which, btw, is common).

EVERYONE who says Elon "waived discovery" has never bought a company. The ENTIRE process of buying company, up until the day you take ownership (and sometimes after - I've done 3 clawbacks and ALWAYS have provisions in my contracts for this after the close), is nothing but "discovery".
 
Actually, the decision was confirmed by US courts as well.

Actually, no it was not.

Your link has 0 mention of any US court ruling at all on the $ judgement- it just mentions losing in the UK means he's more likely to be extradited.

Which also ties into- You're conflating the civil case in the UK (which got HP money) and the criminal case in the US (which will not)

To my knowledge there is no civil case pending in the US- because US law is different- hence why they sued under more favorable-to-hp UK law.

So continues to not really be relevant here (on top of the $ there's nobody with money to sue- and no evidence there's anything remotely similar to the massive accounting fraud to sue ABOUT)




TWTR, on the other hand, will fight discovery tooth and nail.

It remains to be seen if the judge (in the case not yet even filed) would grant broad discovery.

If the board establishes that mDAU being wrong is not an MAE, given it's a measurement they made up, not covered under GAAP rules, and specifically is disclaimed as might be substantially wrong in SEC filing--- then Musk doesn't get to say 'I demand all discovery to prove mDAU is wrong!"

Because even if it were- that's not material to the terms of the contract- and not a basis for walking away from it- so there's no reason to allow discovery about it in a case only impacted by MAE.


See also: expedition, fishing.




Needless to say, this is far from over. Grab your popcorn, there will be fireworks.

On that we agree.
 
Actually, no it was not.

Your link has 0 mention of any US court ruling at all on the $ judgement- it just mentions losing in the UK means he's more likely to be extradited.

Which also ties into- You're conflating the civil case in the UK (which got HP money) and the criminal case in the US (which will not)

To my knowledge there is no civil case pending in the US- because US law is different- hence why they sued under more favorable-to-hp UK law.

So continues to not really be relevant here (on top of the $ there's nobody with money to sue- and no evidence there's anything remotely similar to the massive accounting fraud to sue ABOUT)

US courts don't ask for extradition unless they "agree" that the ruling is "just". US courts have a LONG history of refusing extradition if they feel that the "merits of the case are in question or error".

It's a fine distinction, but by requesting extradition, they are openly stating that the case has been reviewed and they agree with the finding.
 
US courts don't ask for extradition unless they "agree" that the ruling is "just".


Uh..no.

US courts don't ask for extradition AT ALL.

Prosecutors do.

There's a multi step process....NONE of which involve a judge.


Step 1. Prosecutor (NOT JUDGE) forwards extradition request to OIA.

Step 2. OIA (office of international affairs at DOJ- NOT A JUDGE) determines if the request is valid (basically, do we have an extradition treaty with the other place? Is the crime alleged a crime in both places? Is statue of limitations an issue? kinda stuff.

Step 3: OIA forwards to Dept. of State, because that's the official channel to ask another country for something. No judges involved here either.

Step 4: Assuming they have no reason not to (like they're in tense negotiations with the other country and don't want to cause problems)- State forwards the request to the other country. NO JUDGE INVOLVED.


Now the FOREIGN government decides what to do. THAT might involve a FOREIGN judge making a decision- depending on the nation.

But your claim that any US court ruled on anything here is outright false and demostrates a complete lack of understanding of the entire process.

(and if you think otherwise- please NAME the US judge or court mentioned in YOUR source that you CLAIM agreed with the UK ruling.... spoiler- there isn't one)



The reason losing the UK civil case makes his extradition more likely is the UK MAKES THAT DECISION so a court ruling against him IN THE UK tells THE UK he likely did the things the US wants to extradite him for.



You really ought to stop trying to discuss law would be my suggestion here....

When you're in a hole- stop digging.
 
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If the board establishes that mDAU being wrong is not an MAE, given it's a measurement they made up, not covered under GAAP rules, and specifically is disclaimed as might be substantially wrong in SEC filing--- then Musk doesn't get to say 'I demand all discovery to prove mDAU is wrong!"

Because even if it were- that's not material to the terms of the contract- and not a basis for walking away from it- so there's no reason to allow discovery about it in a case only impacted by MAE.
Apparently Delaware courts have only once held that a party was entitled to terminate a merger agreement based on a material adverse effect.

Is there anyone with experience practicing M&A law in Delaware who thinks that Elon has a good case? Serious question because the arguments in his favor that I've seen do not seem to be coming from experts (and it seems to me if there's any field where you should trust the experts, it's law).
 
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Maybe Elon Musk just hates social media?

Oh, Silicon Valley hates Facebook. Even Marc Benioff called for FB regulation in an interview.

BTW, I was just reading up on Brett Taylor. Impressive resume. Started Google maps, CTO of Facebook, started Quip which Salesforce bought and is now co-CEO of Salesforce. I guess around 45 years.
 
Is there anyone with experience practicing M&A law in Delaware who thinks that Elon has a good case? Serious question because the arguments in his favor that I've seen do not seem to be coming from experts (and it seems to me if there's any field where you should trust the experts, it's law).
Depends on who appointed those judges. Afterall this is political now. Conservative judge would reduce the price by 90% and beg Elon to buy ;)
 
So
If Elon needs to prove the mDAU is wrong then he just needs to get enough data to support that conclusion.
At which point either the judge sides with him
OR
Twitter says "his analysis is flawed"
Judge says "why"
Twitter says "all the data he doesn't have"
Judge says "you mean the data you were supposed to give him per the agreement that you have just admitted you are in violation of?"
Twitter: "...."
Elon: "Hey judge"
Judge: "It's your honor, and I'm already on your side"
Elon: "Sorry, I just wanted to point out that 5 million of their added mDAUs for the last month are bots I made"
Judge: "You have proof of this?"
Elon: "Yeah, watch this <click>."
Twitter: "What happened to our user count?"
Elon: "Oh, did I say 5? I meant 50, silly orders of magnitude."
My wife: "get off the phone and let's make dinner"
 
If Elon needs to prove the mDAU is wrong
Just to familiarize everyone with what Twitter says in their 10-K. They made up a metric, monetizable daily active users, designed to exclude bots and spam accounts. Then they audit a random sample of those accounts to try to determine how well their algorithm is working. They claim that less than 5% of that number is false or spam accounts but they also say they could be wrong! This seems to be getting misreported as Twitter claiming that only 5% of all accounts are false or spam accounts but Twitter doesn't even report how many accounts there are or how many of those are bots.
Presumably Elon would need to prove that the mDAU number is not only fraudulent (not just wrong) but also that it has a material adverse effect on the value of Twitter.

"We rely on assumptions and estimates to calculate certain of our key metrics, and real or perceived inaccuracies in such metrics may harm our reputation and negatively affect our business.
We calculate our mDAU using internal company data that has not been independently verified. While these numbers are based on what we believe to be reasonable calculations for the applicable period of measurement, there are inherent challenges in measuring mDAU and mDAU engagement. For example, there are a number of false or spam accounts in existence on our platform. We estimate that the average of false or spam accounts during the fourth quarter of 2021 continued to represent fewer than 5% of our mDAU during the quarter. However, this estimate is based on an internal review of a sample of accounts and we apply significant judgment in making this determination. As such, our estimation of false or spam accounts may not accurately represent the actual number of such accounts, and the actual number of false or spam accounts could be higher than we have currently estimated. We are continually seeking to improve our ability to estimate the total number of spam accounts and eliminate them from the calculation of our mDAU, but we otherwise treat multiple accounts held by a single person or organization as multiple accounts for purposes of calculating our mDAU because we permit people and organizations to have more than one account. Additionally, some accounts used by organizations are used by many people within the organization. As such, the calculations of our mDAU may not accurately reflect the actual number of people or organizations using our platform. We regularly review and may adjust our processes for calculating our internal metrics to improve their accuracy. Our measures of mDAU growth and engagement may differ from estimates published by third parties or from similarly-titled metrics of our competitors due to differences in methodology. If advertisers, content or platform partners or investors do not perceive our metrics to be accurate representations of our total accounts or mDAU engagement, or if we discover material inaccuracies in our metrics, our reputation may be harmed and content partners, advertisers and platform partners may be less willing to allocate their budgets or resources to our products and services, which could negatively affect our business and operating results. Further, as our business develops, we may revise or cease reporting metrics if we determine that such metrics are no longer accurate or appropriate measures of our performance. If investors, analysts or customers do not believe our reported measures, such as mDAU, are sufficient or accurately reflect our business, we may receive negative publicity and our operating results may be adversely impacted."
 
I think Musk got bored with the whole Twitter thing. Lets hope he doesnt have to buy it.

Twitter or similar companies ("town square, free speach) should not be a one man show. What if it wasnt Musk who was buying twitter, but some other of his opinion companions...? Would be even worse...
Also, he has made the lives of Twitter’s executives and employees pretty miserable long enough now, and I think he sees it.

Get back to engineering Musk!
 
Just to familiarize everyone with what Twitter says in their 10-K. They made up a metric, monetizable daily active users, designed to exclude bots and spam accounts. Then they audit a random sample of those accounts to try to determine how well their algorithm is working. They claim that less than 5% of that number is false or spam accounts but they also say they could be wrong! This seems to be getting misreported as Twitter claiming that only 5% of all accounts are false or spam accounts but Twitter doesn't even report how many accounts there are or how many of those are bots.
Presumably Elon would need to prove that the mDAU number is not only fraudulent (not just wrong) but also that it has a material adverse effect on the value of Twitter.

"We rely on assumptions and estimates to calculate certain of our key metrics, and real or perceived inaccuracies in such metrics may harm our reputation and negatively affect our business.
We calculate our mDAU using internal company data that has not been independently verified. While these numbers are based on what we believe to be reasonable calculations for the applicable period of measurement, there are inherent challenges in measuring mDAU and mDAU engagement. For example, there are a number of false or spam accounts in existence on our platform. We estimate that the average of false or spam accounts during the fourth quarter of 2021 continued to represent fewer than 5% of our mDAU during the quarter. However, this estimate is based on an internal review of a sample of accounts and we apply significant judgment in making this determination. As such, our estimation of false or spam accounts may not accurately represent the actual number of such accounts, and the actual number of false or spam accounts could be higher than we have currently estimated. We are continually seeking to improve our ability to estimate the total number of spam accounts and eliminate them from the calculation of our mDAU, but we otherwise treat multiple accounts held by a single person or organization as multiple accounts for purposes of calculating our mDAU because we permit people and organizations to have more than one account. Additionally, some accounts used by organizations are used by many people within the organization. As such, the calculations of our mDAU may not accurately reflect the actual number of people or organizations using our platform. We regularly review and may adjust our processes for calculating our internal metrics to improve their accuracy. Our measures of mDAU growth and engagement may differ from estimates published by third parties or from similarly-titled metrics of our competitors due to differences in methodology. If advertisers, content or platform partners or investors do not perceive our metrics to be accurate representations of our total accounts or mDAU engagement, or if we discover material inaccuracies in our metrics, our reputation may be harmed and content partners, advertisers and platform partners may be less willing to allocate their budgets or resources to our products and services, which could negatively affect our business and operating results. Further, as our business develops, we may revise or cease reporting metrics if we determine that such metrics are no longer accurate or appropriate measures of our performance. If investors, analysts or customers do not believe our reported measures, such as mDAU, are sufficient or accurately reflect our business, we may receive negative publicity and our operating results may be adversely impacted."
TLDR: they said it was just a guess.

Musk is screwed.
 
TLDR: they said it was just a guess.

Musk is screwed.
I don't know whether he's screwed or not. That will be battled out by the lawyers.

But I do assert that these social media companies are rife with spambots, fake accounts and inactive accounts. There's money to be made by 3rd parties in certifying online user bases. Nielsen did it for TV audiences. Online advertisers are owed credible independent estimates for the audience. Until then Facebook, reddit, Twitter, TikTok, Instagram and even LinkedIn among others will continue to reported bloated user numbers.
 
We rely on assumptions and estimates to calculate certain of our key metrics, and real or perceived inaccuracies in such metrics may harm our reputation and negatively affect our business.
LOL.

translation : here is an important metric we publish. If it’s not accurate it will be bad. But it could be wrong because we can’t calculate it accurately.

I bet whoever wrote that didn’t expect a $44B deal would fall through proving that statement.
 
LOL.

translation : here is an important metric we publish. If it’s not accurate it will be bad. But it could be wrong because we can’t calculate it accurately.

I bet whoever wrote that didn’t expect a $44B deal would fall through proving that statement.
He waived due diligence. He can keep whining about the bots, but that’s irrelevant.
 
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