They’re not claiming a lack of sue diligence, they’re claiming fraud. Which is different. They’re saying they’re lying about the numbers. Which would be fraud.
(It's true some of the many other things that are claimed to be breaches relate to alleged failure to fulfill obligations to provide information that Musk supposedly wanted to determine if other claims that has been made were fraudulent, but that's different than alleging fraud.)
Secondly, the ceo was firing aka asking for resignations from key people, no? That is not maintaining the business, that seems like sabotage.
It says that after, and modified by, the phrase “appears to have”.
Musk’s lawyers are saying that Twitter actually breached the agreement. They are saying it looks like Twitter may have done other bad things, too, but that's not the same as claiming that Twitter actually did the other things.
> Secondly, the ceo was firing aka asking for resignations from key people, no?
The separately call out people being forced out and people resigning. Absent something not in the letter, the former is a much more reasonable, on its face, complaint.
They are claiming breach of contract, and that it looks to them like lying which, if it did happen, might be fraud, but they can't tell, in part because part of the alleged breaches is Twitter not giving them information that might clarify whether the other claims were true or not.
Accusing someone of lying is in effect an accusation of bad faith. An accusation of bad faith is a serious matter, and if you play too freely with it, then you're engaging in bad faith yourself. [1]
The concept of misrepresentation is in a grey area that may or may not have a component of bad faith (see for example the concept of "fraudulent concealment" in courts of equity,[2] the test for which includes a finding of misrepresentation, and note that "fraud" in equity is, confusingly, not at all the same concept as common law fraud), so it's a much more intelligent accusation to make in court unless you have highly probative evidence. [3]
[1] Clean hands doctrine: https://en.wikipedia.org/wiki/Clean_hands
[2] Equity: https://en.wikipedia.org/wiki/Equity_(law)
[3] IANAL
Their central allegation is that they didn't get the information because of Twitter’s refusal to uphold their obligations.
There is a covenant in the contract about running the business between signing and closing.
The claim is breach of contract.
But they've been sending the SEC these same numbers calculated using the same methodology since 2013, right? If they were materially adverse circumstances, you'd imagine that someone would have caught this in the last 9 years...
Twitter’s CEO has addressed this. Musk responded with a poop emoji: https://twitter.com/paraga/status/1526237578843672576?s=20&t...
You also left out an important piece: 5% of their *monetizable* DAU. Not just DAU.
But you're right, Elon's been convincing the public that Twitter has made claims they never actually made.
So Twitter tagged my device with a cookie specifically meant to keep me from viewing users' content. How's that support their mission statement, "To give everyone the power to create and share ideas and information instantly, without barriers"?
It's not in my interest, or that of their users. The only benefit is to their bottom line, and I'd argue tactics like that do more long term damage than good. Certainly doesn't make me want to sign up or log in.
Go choke on Elon's <shit emoji>, Twitter. /rant
Besides, Musk has been complaining about bots for a long time, and has made it clear he doesn't believe the 5% number way before the acquisition. If the 5% number was a sticking point for him, he could have demanded due diligence. He did not demand that, thereby waiving his rights.
How can you identify a "spam account"? It's not possible to definitively determine the intent of someone opening or using a new account.
So the numbers are arguable either way. Musk is using this fact to try to wriggle out of a disastrous impulse buy.
Neither side said bots, but bots _should_ be a subset of "false or spam" accounts. They basically used "our judgement" and give themselves complete discretion. And 5% is a nice round number plucked from nowhere which sounds awesome! Providing proof of that to a Banker or Backer (or Elon or a future Jury) isn't therefore possible or intended. It's marketing spin in an SEC filing.
Do you mean "they should report all bots as part of their false or spam accounts number", or that you believe logically bots are in fact a subset of the number twitter reports, and so twitter's number is bogus if 50% of all accounts are bots?
If it's the latter, you're missing the point of their mDAU marketing metric. It already has all the obvious bots and non active accounts removed. They're saying, what % of advertising revenue turns out to be from bots.