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The best burns Twitter’s lawyers deployed to deny Elon Musk’s claims

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So I don’t know entirely what’s in Elon Musk’s counterclaims against Twitter — they are still under seal — but I did get an inkling today, when Twitter dropped its response. It’s spicy! Rather than let Musk get his complaints out first, Twitter went ahead and released a blow-by-blow response, the better with which to dunk on Elon along the way.

I do love this:

The Counterclaims are a made-for-litigation tale that is contradicted by the evidence and common sense

Usually legal documents have arcane, passive-aggressive digs at the other party in them. Twitter’s lawyers, however, came out swinging in their reply to Musk’s counterclaims. Maybe that’s because they know how many people will read these documents; maybe it’s just because they’re interpersonally mean.

We picked our favorite passages in the paperwork, and are showcasing them here for anyone who might be interested.

So you may recall that Musk’s putative reason for bailing on Twitter was because of Twitter’s “false and misleading statements.” Those statements have to do with spam and bot accounts, and were part of what Musk’s lawyers brought to bear during the hearing that established an October trial date.

Twitter briefly walks the court through its process, its paperwork, and its disclosure statements in previous SEC filings. “Musk does not identify any false or misleading statement of fact in this disclosure,” Twitter notes. So where are his weird numbers coming from? Well, they don’t know, because:

Musk is not measuring the same thing as Twitter or even using the same data as Twitter.

Twitter goes on to suggest Musk is deliberately distorting these numbers to “make waves.” And then it says, “Who’s the bot now, hot stuff?”

Musk’s “preliminary expert estimates” are nothing more than the output of running the wrong data through a generic web tool. … Confirming the unreliability of Musk’s conclusion, he relies on an internet application called the “Botometer”— which applies different standards than Twitter does and which earlier this year designated Musk himself as highly likely to be a bot.

I cannot explain quite how funny I find this? Musk’s fancy, secret, “proprietary” analysis of Twitter data was a website called Botometer.

This is, for my money, the funniest part of the document. Here are some things Twitter is willing to admit are true:

Twitter admits that Musk is a Twitter user and has founded several companies.

Twitter admits that its business is complex.

Twitter admits that Musk is a Twitter user and has over 100 million followers

Twitter admits that it detects and removes spam from its platform

But “Twitter otherwise lacks knowledge or information sufficient to form a belief” as to whether Musk believes in free speech and open debate, whether he appreciates Twitter as a town hall, or that Twitter was a natural option for him to invest in. Later, Twitter admits that “Musk Tweets frequently.” It does so once in those words and once like this:

Twitter admits that Musk actively uses Twitter and that many people believe that open discourse is essential to a functioning democracy.

Does Twitter believe open discourse is essential to a functioning democracy? Dunno, but they can’t form beliefs on whether, to Musk, “eliminating free speech is a cure worse than the disease.”

Twitter admits that it did not provide the information in the April 28, 2022 press release to the Musk Parties before the Merger Agreement was signed and before the parties had a non-disclosure agreement in place.

Sorry, this might be the low-key funniest of “Twitter admits,” which is: yeah, we didn’t give him the press release till he signed the NDA. Now, this is in response to Musk complaining that he didn’t get a heads’ up when Twitter announced it miscounted its daily active users for several years. But it does seem pretty sensible to me not to tell anything to people with strong Twitter habits and poor impulse control until they’ve signed NDAs.

Or maybe it’s this one. Musk’s lawyers wrote that because Musk thought due diligence was “costly and inefficent,” so he didn’t do it.

Twitter avers that the Musk Parties declined to undertake any due diligence prior to signing the Merger Agreement.

Man, I mean, sometimes it just stings when your opponent agrees with you, huh?

Twitter admits that on July 8, 2022 Defendants purported to terminate the Merger Agreement, that Twitter subsequently filed litigation seeking specific performance of the Merger Agreement, and that Defendants have filed counterclaims.

Oh yes, good, Twitter admits this case exists.

Okay, so remember the will-he-or-won’t-he dance about Musk joining the board? Twitter does!

Musk abruptly changed his mind about joining Twitter’s board (after first negotiating an offer to join the board, accepting it in writing, and Tweeting that he was “looking forward” to taking the position), notified Mr. Agrawal of the same, and also notified Mr. Agrawal of his intent to make an offer to buy Twitter.

Because Musk didn’t identify any false or misleading statements Twitter made, Twitter has gotten snitty about his withdrawal from the acquisition:

Musk just now invented this new pretext for avoiding the merger agreement, as these supposed inaccuracies are nowhere mentioned in his July 8 letter to Twitter explaining the bases for his purported termination of the merger agreement, nor in any other communication with Twitter since signing the merger agreement. In any event, Twitter never made the disclosures he now asserts are false.

In Musk’s claim, his lawyers write that “Twitter’s primary business is operating a microblogging social media network where users share 280 character messages called ‘tweets.’” Twitter denies this, hilariously.

[Twitter’s] primary product, Twitter, is a global platform for real-time self-expression and conversation, including in the form of Tweets. Twitter further avers that Tweets have a maximum length of 280 characters.

I wonder what “social network” and “microblogging” mean to Twitter’s lawyers?

I don’t think this one needs more context, honestly. I’m just surprised not to see an actual emoji in the filing:

On May 16, 2022, Mr. Musk publicly replied to that Tweet Thread with a poop emoji.

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Tuesday’s top tech news: Elon squares off against Apple

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Oh Elon. It was pretty obvious something was up when Twitter’s new CEO tweeted out of the blue that “Apple has mostly stopped advertising on Twitter,” and asked whether “they hate free speech in America?” Following a question from my colleague Jake Kastrenakes, Musk confirmed that the iPhone maker was threatening Twitter’s presence in the App Store and/or making moderation demands. Welcome to hell, Elon.

Away from the chaos at Twitter there was more bad news in the crypto sector with the news that finance firm BlockFi has filed for bankruptcy amidst the continued FTX fallout, while crypto exchange Kraken has agreed to pay hundreds of millions of dollars in fines over possible Iran sanction violations. Thank god we’ve got another trailer for The Super Mario Bros. Movie to look forward to later today.

For now, here’s a silly tweet:

Stay tuned, as we continue to update this list with the most important news of today: Tuesday, November 29th, 2022.



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‘No Cooperation’: How Sam Bankman-Fried Tried to Cling to FTX

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“Sam this is an excellent pick and I wholeheartedly hope you sign this tonight,” Mr. Dexter wrote in an email on the evening of Nov. 10. “The faster John is in place, the faster the company can resolve issues that require urgent progress.”

A flurry of emails followed. In a message at 3:38 a.m. on Nov. 11, Mr. Miller asked for an update on Mr. Bankman-Fried’s decision. “I am chatting with Sam,” responded Ken Ziman, a lawyer at the firm Paul Weiss who was representing Mr. Bankman-Fried.

Ten minutes later, Mr. Ziman confirmed that Mr. Bankman-Fried had signed the document, authorizing Mr. Ray to take over FTX. The company filed for bankruptcy a few hours later.

The filing was hardly the end of the chaos. The court submission listed more than 130 corporate entities tied to FTX, including its U.S. arm and Alameda, the hedge fund. But the filing was inaccurate: Some of the entities were not owned by the exchange. They belonged to AZA Finance, a separate company that had recently become partners with FTX to promote crypto in Africa.

FTX later acknowledged the error. But in a Nov. 11 Slack message to Mr. Miller and other officials, Elizabeth Rossiello, the chief executive of AZA Finance, called the mistakes in the bankruptcy filing “a storm of wild irresponsibility.”

“This is hurting 9 years of work we have done to create this platform!!” she wrote.

Mr. Miller responded defensively. “We had no cooperation of the founders in preparing this week,” he said. “It was unfortunate.”

Mr. Bankman-Fried was also frustrated. Despite giving up control of FTX, he continued contacting possible investors about new funding for the exchange. In a letter to former colleagues last week, he said he regretted filing for bankruptcy, claiming that “potential interest in billions of dollars of funding came in roughly eight minutes after I signed the Chapter 11 docs.”

He presented no evidence for that claim, and in any case, FTX was no longer his company to run. On the morning of Nov. 11, Mr. Miller moved quickly to make that clear, requesting the deletion of information about the firm’s old leadership from its website.



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The best Cyber Monday deals available now

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Below, we’ve rounded up the best Cyber Monday deals you can currently get, whether you’re in the market for a 4K OLED, a gaming laptop, or another piece of big-ticket tech that would normally require you to shell out your entire paycheck. We’ve included a number of budget-friendly items, too, just in case you’re looking for chargers, a cheap(er) pair of earbuds, or other essential gadgets to round out your arsenal.

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