LOL at the way they make a Williams Act violation sound like a malum in se revealing that Elon hasn't a care for anything Sacred or Holy ("It tracks the disdain he has shown for the company that one would have expected Musk, as its would-be steward, to protect.") Probably the perfect tone; they are full of themselves.

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842368)

nb there's a link to the pdf here https://www.wlrk.com/docs/76660099_Final-Verified-Complaint.pdf

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842372)

Musk will say there was a duty of disclosure since they spoke on the subject in their update and they thus had a duty to ensure the statement they made was not materially misleading.

This is not to say that revelation of the true facts would necessarily be a company-wide MAE, but the categorical argument seems weak.

[Is the intent to get Elon to specifically perform without discovery on the true status of bots on the platform? If so, seems like a weaker negotiating hand for Twitter than has been let on.]

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842394)

They review about 100 accounts/day??????????? That's their system????????

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842421)

"Nor can the firehose data even be used to accurately estimate the prevalence of spam or false accounts. As Agrawal had explained in his May 16 Tweets, that estimate depends in part on private data not available in the firehose. Conversely, the firehose includes Tweets that Twitter’s systems and processes catch and do not count within mDAU for that day."

--

The complaint is oddly drafted in that the theory that Musk can't terminate since he's in material breach gets little airtime and is not signposted much; maybe a late addition.

* * *

Overall the complaint seems risky in that it is long on Musk being a dick but fairly cavalier about whether Twitter has been lying to the public and regulators for years about its bot %.

The argument that Musk assumed the risks of a certain bot % doesn't really address this, since (i) that doesn't excuse Twitter of any independent disclosure duties it may have had; and (ii) Musk knowing about bots in general doesn't mean he has to consummate a transaction at any bot level (say, if every account on Twitter were a bot _but_ Musk).

In short, the complaint seems blustery -- a 'speaking' complaint. Seems the parties are still in a negotiating posture, like RSF and benzo making hate-poasts before they bang.

Looking forward to the response. This should be a circus.

***

PS: In addition to the "9000 per quarter" language, the only other description of Twitter's process is as follows:

65. "In addition to deploying automated and manual processes that suspend on average more than a million suspicious accounts each day, the company undertakes a rigorous, daily process using human reviewers to estimate spam or false accounts remaining on its platform after automated filtering and manual review."

And the only mention of Twitter's all-important May 2, 2022, 10-Q filing (regarding public statements about its bot methodology) is a reference to the Reuters article:

"The Reuters story Musk linked to in his Tweet was a report on Twitter’s 10-Q filing made on May 2, 2022, and contained the same heavily qualified 5% estimate Twitter had been disclosing in its SEC filings for the past three years. Musk had no basis for asserting that the deal was 'on hold' based on this longstanding disclosure."

--> Seems Twitter is trying to hide the ball. The 10-Q filing was about the first quarter mDAU, so it can't possibly be a long-standing rep (and if long-standing they'd not need a 10-Q). (Also, iirc it didn't have the same heavily-qualified language -- rather, with the deal pending, the CEO went out and decided to make an affirmative statement, which Twitter deemed material such that it put out a 10-Q, about its mDAU for THAT QUARTER.)

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842462)

But note under Omnicare (and the law of misreps generally) the statement Musk will seek to place at issue will be not the actual statement but the material omission (either about Twitter's real process, or about the real facts of the bots).

It's true that Musk went around saying Twitter is full of bots, but materiality is objective -- it's not an individual reliance inquiry.

Making the right legal argument thus puts Twitter in a hard business place: is Twitter really going to argue in court that as an objective matter (not just in Elon's mind) everybody knew Twitter was stuffed with bots and its methodology was bs?

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842532)

Either way, will be entertaining viewing.

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842544)

Re: MAE, iirc some of the reps don't require company-wide MAE, and Musk can at least make his arguments about MAE. If the numbers are severely misstated, it seems to me a factual matter. I don't see how Twitter gets by without opening itself up to discovery, and there is every indication it's bot-ridden.

It's all well and good to say, "well everybody knows Twitter is awash in bots," but Twitter has made material representations, both to the investing public and, I'm sure, to their commercial partners about monetizable account numbers. So I do not think this is as simple for Twitter as conventional wisdom (e.g., Matt Levine) seems to. There is play in the joints here.

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842875)

Nothing Musk has asserted is really worth serious debate. As Wachtell says, all the bases for termination are nuts pretexts.

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842905)

Twitter is suing Elon Musk for Musk's failure to consummate a planned acquisition deal in which Musk was set to acquire Twitter for shares in Tesla. Write a Seinfeld episode TV script where Kramer has been brought on to advise Elon Musk.

Kramer: Look, I don’t want to overstep my bounds here, but you’ve gotta face facts. This whole Twitter thing is a debacle.

Elon: I know, I know. But what can I do? I can’t just let Twitter go.

Kramer: Oh, sure you can. In fact, it might be the best thing for you.

Elon: But all my Tesla stock…

Kramer: Elvis didn’t need a Twitter account and he’s doing just fine.

Elon: But Tesla is my life!

Kramer: Well, maybe it’s time for a change. Just think about it, okay? Now if you’ll excuse me, I have to go see Jerry about something.

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44842516)

I'd also like TT to rate Anitha Reddy, the RBG clerk cum Wachtell litigation partner who is juniormost on the Twitter team.

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44844885)

a guy at my firm has a beach house in DE and looked into becoming a member of the DE bar a few years back, but it looked like a huge pain in the ass and he said forget it.

(http://www.autoadmit.com/thread.php?thread_id=5152293&forum_id=2#44849064)