In the course of normal business litigation that is heading for trial, the time between filing and the first court appearance isn’t generally all that exciting: procedural motions, scheduling conflicts, and several delays — basically a ton of eye-glazing, a legalistic back-and-forth that would never be included on an episode of Law & Order.
Before the opening arguments in front of the court, the attorneys for the parties will often be negotiating a settlement in the background. What makes this litigation such a spectacle is how much it defies your expectations of what a lawsuit should be like, particularly when the defendant’s financial future is at stake and his chances of winning are becoming less.
To discuss a number of discovery motions, the Delaware Chancery Court, which is hearing the case, convened an omnibus hearing on Tuesday that lasted nearly three and a half hours. This is precisely the type of thing you’d anticipate to be tedious and difficult.
The Tesla CEO’s own study regarding the number of spambots on the network — the main reason he wanted to back out of the $44 billion purchase in the first place — had contradicted him by the time Twitter was seeking the court for a formal reprimand of him for deleting evidence.
Although the hearing was obviously a catastrophe for Team Musk, Chancellor Kathaleen McCormick has not yet issued any significant orders as a result of it. It was rife with careless mistakes and inane arguments that seemed to be intended just to take up the judge’s time.
We may never hear the whole truth
Elon Musk makes use of Signal, a texting tool with encryption and message-destruction capabilities. He has discussed it on Twitter, and it has come to light that he utilized it to discuss the arrangement.
The issue here is that Twitter knows this not because Musk presented proof, but rather because other individuals have spoken about messaging him during depositions or have somehow managed to keep those communications, like in the instance of Marc Andreessen, one of the deal’s top investors.
There is nothing wrong with utilizing Signal unless you are required to keep your discussions private because, for example, you expect significant and expensive litigation, which is precisely what Musk should have anticipated starting at least on May 13, a few weeks after the acquisition was completed.
The extent to which Musk uses Signal, or any other program that may arbitrarily delete conversations, is now a hotly debated topic. Twitter says that he used Signal to negotiate the arrangement with his personal financier, Jared Birchall, maybe after they had begun to discuss walking away from the agreement. (It seems that a legal associate who was sleep-deprived noted that certain screen captures of what had been created showed that communications were set to be erased.) The reaction from Team Musk hasn’t exactly been stellar either. There was a crucial passage from the hearing:
The crux of the matter, according to the criteria they use in court, is that there is literally no proof that we have destroyed any evidence. Those are some things.
They point to something that has been destroyed, CHANCELLOR MCCORMICK.
MUSK: Okay, it makes sense.
I don’t like that.
By the conclusion of the session, Twitter was asking McCormick to penalize Musk for deleting evidence, a whole different level of an argument than when they had begun by arguing over a few hundred papers and seeking to narrow the scope of what might go to trial.
The party that deleted electronic communications was ordered to pay the fees of the opposing parties’ attorneys in a prior instance of evidence destruction before the Delaware courts. Given the enormous legal teams established by both parties to handle the lengthy, hurried nature of this trial, if that were to be awarded to Musk, that would be a huge sum of money. The wealthiest guy in the world would not become bankrupt because of it; instead, he would suffer an inconvenience and further damage to his ego.
Musk’s data case is weaker than previously known
In a notice filed with the Securities and Exchange Commission on July 8, Musk’s attorneys said that the number of spambots detected in Twitter’s primary statistic was “wildly larger” than what it represented to the public, laying the groundwork for this court battle.
The argument was not just out there at the time, but it was also tenable. The statistic, monetizable daily active users (MDA), was invented by the hedge fund Elliott Management after it gained control of the board in an effort to increase the company’s profitability. Musk has access to a ton of private Twitter data as well. You could sort of seeing how it might make sense to rescind an acquisition agreement in court, albeit it was still a difficult case to present. Maybe.
The debate has now broken down in a number of different ways. Twitter confirmed in August that Musk used a publicly accessible website called Botometer to arrive at the “wildly higher” estimate, despite the fact that Botometer lacks access to the company’s mDAU algorithm. Twitter went on to say on Tuesday that Team Musk had in fact recruited data scientists to attempt to determine if the bots’ number was being controlled, but that they had not only failed to do so but also had not even produced all the research’s supporting documentation.
In order to make his bots’ point, it seems that Musk employed at least five businesses to analyze this data. Is it odd that he hasn’t cited any of the research from these firms in his own defense? It is, indeed. Three of those businesses, according to Twitter, were only uncovered in later evidence batches and were never even addressed.
With regard to the two that were known, it was possible to estimate the proportion of bots in Twitter’s mDAU measure to be as high as 11% with a low degree of certainty. The other remarked that it essentially matched Twitter’s predictions. That is also unpleasant.
The banker for Musk did not want to get involved in any of this
Grimes-named persons often cause Elon Musk’s relationships to go apart. In the context of this lawsuit, we’re referring to Michael Grimes, the prominent Morgan Stanley banker responsible for bringing Facebook and Google to the stock market. The bank, or at least they did when the cost of making this transaction was much lower, had committed approximately $7 billion in finance for the deal, so they have an interest in it going through.
Things changed when Musk tweeted on May 13 that the agreement was “on pause” and that he was contemplating pulling out due to his concerns about a third world war. According to Morgan Stanley’s legal representative, the bank “retained counsel because, following Mr. Musk’s tweet pretending to halt the sale, Morgan Stanley believed that there would certainly be litigation and didn’t want to have anything to do with it. Therefore, Mr. Grimes said that they removed themselves from the situation because, in their professional opinion, it “would not be proper for us to be in the midst of it.”
Look. Banks are in the business of identifying risk and profiting from it. Musk is so alluring to the financial world because he personifies high risk, and big gain. Therefore, it makes logical that you find a means to complete a transaction when he requests one, and that you disappear when he begins to behave in a manner that may jeopardize the agreement and subject the bank to legal action. Still, I feel awful!
Everyone is totally tired
When he tweeted that the acquisition was “on hold,” Elon Musk started this whole legal drama 138 days ago. 78 days have passed since Twitter’s lawsuit was filed. Numerous comments have been made by attorneys on both sides of the case about the enormous effort and long hours that have been needed to handle a case this big and difficult quickly.
You might reasonably guess that the lawyers present are worn out, aren’t sleeping all that well, aren’t eating as well as they should, and are sick of one another. The majority of the session was spent discussing the appropriateness of including texts, data, emails, and other communications in the case.
Each party accused the other of not being completely honest about the evidence they had presented to the court. I wasn’t the only one who realized that there was a genuine sense of hostility in the air. It’s one thing for attorneys to not get along, but it feels horrible when the judge in the case seems to be losing tolerance.
It was clear from McCormick’s voice that he was impatient. Remember that she has generally been opposing Team Musk in this case by rejecting motions and limiting requests for information that she has referred to as “absurdly broad.” There is no way I could adequately communicate the irritation in her voice when she described their terms for how Twitter may utilize phone data as “inappropriate.” There are 19 days left.
With Inputs from Intelligencer