July 15, 2022

Twitter: Musk Roundup

I keep trying to talk myself out of blogging about Twitter because even though it’s undoubtedly the M&A case of the year, it’s also really goofy and I honestly feel a little silly writing about it.  Still, against my better judgment, I will close out the week with a few highlights from the last couple of days:

– We’ve posted a copy of Twitter’s complaint in our “Litigation” Practice Area.  It’s really well-done and I highly recommend that you read it if you get a chance.  My guess is that Musk’s answer will also be very well done.

– There have been a lot of law professor types weighing in with their views on the case.  Some of their perspectives seem pretty well thought out.  Others, like this piece in The Wall Street Journal, are, as Matt Levine put it, “weird.”  If you’re looking for a more substantive takedown of the WSJ piece, UCLA’s Stephen Bainbridge has a solid one for you.

– Speaking of law professors, Ann Lipton has a good post on The Business Law Prof Blog addressing how the public is about to learn that when a board decides to sell a company, it’s all about stockholders, not stakeholders.  Also, check out this thread from Columbia’s Eric Talley on how settlement negotiations might play out.

– Then there’s this remarkable comment. Speaking on CNBC, former Delaware Vice Chancellor Berger said that specific performance is likely off the table because the Chancery Court would be afraid that Musk would defy its order.

In all seriousness, former VC Berger’s comment really shocked me. I think the perception that the Chancery Court would shy away from a specific performance remedy that it thought was justified because it was intimidated by Musk would be a huge blow to Delaware’s credibility and would accelerate the move of M&A litigation to federal courts, which have, among other things, the 101st Airborne potentially available to back up their orders.

John Jenkins