- Musk made several claims against Twitter, including about the soundness of its user metrics.
- He said Twitter is attempting to “distract” from its many “misrepresentations.”
- Twitter pushed back, saying the billioionaire’s story is “implausible and contrary to fact.”
Elon Musk’s confidentially filed 164-page countersuit against Twitter is full of accusations around the validity of the social media company’s business claims, according to a copy obtained by Insider.
The countersuit is another escalation of the ongoing legal fight over Musk’s attempt to back out of his $44 billion agreement to buy Twitter. The billionaire and the platform are already scheduled to face off in an October trial in Delaware court over whether he is legally able to walk away from the deal to acquire the platform.
In his counterclaims, Musk argues at length that he is entitled to drop the deal entirely. He claims he was led to believe through Twitter’s public assurances to investors that its business, built around user metrics, was sound. They are far from it, he claims. For months, Musk has argued publicly that Twitter had more “bots” or spam accounts than it admitted. After pushing for more and more information about the issue, he at the start of July decided to call off the deal.
Now, he is accusing the company of intentionally “miscounting” the number of spam accounts it hosts in order to juice its user metrics “as part of its scheme to mislead investors about the company’s prospects.” He also claims that Twitter’s reliance on the metric mDAU, or monetizable daily active Twitter users, as a basis of revenue is misleading in and of itself. Meanwhile, Twitter actually has 65 million fewer daily users than it claims, according to Musk. And those that see ads, and should be considered “monetizeable,” are as low as 16 million users.
Twitter’s lawsuit to enforce the merger agreement is “filled with personal attacks against Musk and gaudy rhetoric more directed at a media audience than this court” and “is nothing more than an attempt to distract from these misrepresentations,” Musk’s counterclaims said.
“That has been Twitter’s strategy all along: to distract from and obfuscate the truth about its disclosures—first from its investors and then from the Musk Parties when they began to discern the truth,” the claims continue.
Twitter pushed back on Musk’s accusations. It filed a reply with the court after hours calling the billionaire’s claims “a story” concocted “in an effort to escape a merger agreement that Musk no longer found attractive once the stock market—and along with it, his massive personal wealth—declined in value.”
“The counterclaims are a made-for-litigation tale that is contradicted by the evidence and common sense,” Twitter added.
Musk’s counterclaims were initially not available to the public because they allegedly contained private company information that needed to be redacted, according to arguments from Twitter’s lawyers. After days of back and forth between lawyers on each side, the judge overseeing the case in Delaware Chancery Court said the suit needed to be made public by Friday.
Musk faces an uphill battle in his efforts to back out of the deal due to the ironclad contract he signed earlier this year, multiple experts previously told Insider.
But his countersuit is an attempt to create a path out of the deal. While Twitter has pointed out repeatedly that Musk waived his right to information before signing the merger agreement, Musk says he was going the traditional route of “trust but verify,” meaning he trusted Twitter’s public disclosures and went about validating them after, and negotiated the right to do so.
“The Musk parties… fully expected that Twitter would hide nothing from its would-be owner, including about the magnitude of its false or spam account problem,” the complaint says. “Instead, the opposite happened. Twitter played a months-long game of hide-and-seek to attempt to run out the clock before the Musk Parties could discern the truth about these representations, which they needed to close. The more Twitter evaded even simple inquiries, the more the Musk Parties grew to suspect that Twitter had misled them.”
It did so intentionally, he claimed. The platform’s process of user authentication is weak, according to the counterclaims. The company does not send email, text, or other push notifications to users to verify them, and its CEO Parag Agrawal allegedly could not explain to Musk how it selected which accounts to run by human moderators.
Twitter has handed over to Musk massive amounts of information on accounts and users. Although Musk’s claims refer to it as “limited,” his analysis so far allegedly shows “shocking results.” In early July, for instance, a review carried out by Musk’s experts showed “one-third of visible accounts may have been false or spam accounts.” To him, this means a “conservative floor” for spam accounts on the platform is 10%, not the 5% Twitter publicly claims.
This, combined with the allegation that Twitter’s mDAU’s are much lower than it has said, means Musk has every right to terminate his deal to acquire the company, he said. Musk asked the court to rescind the merger agreement and for undisclosed compensatory damages.
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