Elon Musk is asking a Delaware judge to let him amend his counterclaims against Twitter Inc., after saying earlier that new whistle-blower revelations add to his argument to walk away from his $44 billion purchase of the company. Lawyers for Musk and Twitter traded barbed letters Tuesday over how a whistle-blower’s accusations of “egregious deficiencies” at the company will affect the scuttled deal and Twitter’s lawsuit seeking to force the billionaire to follow through on his agreement to pay $54.20 a share.
While the billionaire’s request was filed in court Tuesday under seal, one attachment detailed a report to Congress from former Twitter security chief Pieter Zatko. In his whistle-blower complaint last week, Zatko said he raised concerns over the number of robot and spam accounts, but company officials ignored him. In a separate securities filing, lawyers for Musk said the allegations by Zatko meant that Twitter had breached the terms of the merger agreement. Shortly after, Twitter’s lawyers responded, saying Musk’s case for termination of the deal is “invalid and wrongful.” Zatko is scheduled to testify before Congress on Sept. 13.
Musk has been attempting for months to try and extract himself from the takeover of Twitter, initially claiming the company’s user figures are inflated by millions of robot accounts. Twitter sued Musk in Delaware over the failed deal. Zatko’s claims, which emerged last week, have given Musk’s side new ammunition in his fight to walk away. A trial is set for Oct. 17, though Musk’s lawyers on Tuesday asked to move it to November. They’ve complained Twitter is sitting on key evidence in hopes of weakening the billionaire’s case. In response, Twitter’s attorneys on Tuesday accused the Musk team in an unsealed letter of trying to “derail the trial schedule” with its requests.
Delaware Judge Kathaleen St. J. McCormick is likely to allow Musk to amend his counterclaims, because it’s rare for such requests to be denied and the allegations by Zatko raise “really important” issues, said Robert Miller, a law professor at the University of Iowa. Twitter argued in court filings it hasn’t breached any of its obligations to Musk and maintains Zatko’s complaint is “riddled with inconsistencies and inaccuracies and lacks important context.” The company has maintained spam and bots make up fewer than 5% of the social-media network’s accounts. Musk claims as much as a third of Twitter’s more than 230 million users may fall into the bot category.
As the legal fight escalates, two prominent shareholder advisory firms, Institutional Shareholder Services Inc. and Glass Lewis & Co., are urging Twitter’s investors to support Musk’s takeover. ISS said that while the situation is “unique,” investors should focus on the details of the proposal itself instead of the noise around it, while Glass Lewis said the offer price would allow shareholders a relatively attractive exit price, and a premium for the company’s unaffiliated shareholders.
In an Aug. 23 letter unsealed Tuesday, Twitter’s lawyer claimed it is Musk who has been loathe to turn over documents and names of key witnesses involved in the deal. They said the billionaire’s team has tried “to divert attention from their own dilatory conduct by contending documents Twitter has already produced” about the number of bots are fraudulent. “This court should not reward” Musk’s efforts to delay the case, according to the letter. The case is Twitter v. Musk, 22-0613, Delaware Chancery Court (Wilmington).