Twitter v. Elon Musk Court Filing by Potter Anderson & Corroon LLP, July 12, 2022 is part of
FACTUAL ALLEGATIONS
VIII. Defendants purport to terminate the merger agreement
B. Twitter’s representations in its SEC filings supply no basis for termination
131. Nor can defendants show that Twitter has made any representation or collection of representations the inaccuracy of which is “reasonably likely to result in” a Company Material Adverse Effect. They do not even try. Notwithstanding that defendants have received mountains of information regarding Twitter’s processes, far beyond what they are entitled to under the merger agreement, their termination notice asserts only that “[p]reliminary analysis by Mr. Musk’s advisors” of the vast data set Twitter provided to Musk after signing “causes Mr. Musk to strongly believe” Twitter’s reported estimates have been inaccurate. Ex. 3 at 6. Musk’s claimed “belie[f]” is of course no proof of misrepresentation, much less of a Company Material Adverse Effect — which can be established only by clearing an extraordinarily high bar that is nowhere in sight here.
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