Elon Musk files response and counterclaims to Twitter lawsuit over $44 billion deal

Elon Musk formally responded to $Twitter(TWTR)$ Inc.'s lawsuit seeking to force him to go through with his $44 billion takeover of the social-media platform and included counterclaims against the company. The filing Friday was made confidentially and isn't viewable by the public.

It isn't unusual for counterclaims against a public company to be filed confidentially, pending review for possible redactions of sensitive information. The response and claims may be available as soon as next week.

One of counterclaims by Mr. Musk is expected to center on the allegation that Twitter changed its number of monetizable daily active users shortly after agreeing to the deal, and then didn't provide thorough responses to requests by Mr. Musk's team for data on the spam number, according to people familiar with the matter.

Mr. Musk's response Friday includes a reference to the Warren Buffett quote: "Only when the tide goes out do you discover who's been swimming naked," the people said, a suggestion by Mr. Musk that Twitter has been obfuscating about spam and fake accounts because it knew the market downturn could reveal its weaknesses.

Mr. Musk's response Friday was filed hours after the judge overseeing the lawsuit against Mr. Musk set the week of Oct. 17 for a 5-day trial.

While Mr. Musk's answer and counterclaims to Twitter's lawsuit aren't immediately accessible, the billionaire chief executive officer of Tesla Inc. has been vocal about his reasons for wanting to walk away from the deal and indicated in previous regulatory and court filings how he may try to make his case for terminating the merger agreement.

Mr. Musk said in a regulatory filing earlier this month that he wanted out of the deal primarily because Twitter hadn't provided the necessary data and information he needs to assess the prevalence of fake or spam accounts.

Twitter rejected that assertion and argued that Mr. Musk hasn't adhered to the deal terms, including violating a nondisclosure agreement and then bragging about it on Twitter. The social-media company sued Mr. Musk on July 12 in Delaware Chancery Court, seeking to enforce the terms of the transaction.

In the regulatory filing to end the deal, Mr. Musk's lawyer cited concerns over Twitter's estimates about how many of its daily users are fake or spam accounts, an issue the billionaire had raised as a concern about the deal almost three weeks after he signed it. The company has said for years that it estimates fewer than 5% of its monetizable daily active users are spam and fake accounts, a figure Mr. Musk has disputed.

In a July 18 court filing opposing a request by Twitter for an expedited trial, the billionaire for the first time laid out publicly a clear timeline around his concerns over data about fake and spam accounts, and included new claims about Twitter's level of cooperation on the issue.

He said his team first became concerned about the company's user numbers after it disclosed in its April earnings report that it had overstated its user base for nearly three years through the end of 2021 because of an error in how it accounted for people linked to multiple accounts. The revision reduced the number of its monetizable daily active users by 0.9% for the fourth quarter of last year. The company last week said it averaged 237.8 million of such users in the most recent quarter.

According to that filing, Mr. Musk met with Twitter executives in May to discuss how the company measures spam and fake accounts and expressed dismay at the company's process and pointed to the absence of automated tools to help with the calculation.

Twitter said in its suit against Mr. Musk that his attempt to abandon the transaction reflects souring market conditions that resulted in his personal wealth declining by more than $100 billion from its November 2021 peak. "Rather than bear the cost of the market downturn, as the merger agreement requires, Musk wants to shift it to Twitter's stockholders," the company said.

On July 19, Chancellor Kathaleen St. Jude McCormick, the chief judge of the Delaware Chancery Court, granted Twitter's request to fast-track its lawsuit over Mr. Musk's objections.

In a regulatory filing this week, Twitter said it would ask shareholders to vote on the merger at a meeting on Sept. 13. The company reiterated its commitment to completing the takeover at the agreed-upon price and said its board of directors has unanimously recommended that shareholders vote in favor of it. That process is running parallel to the legal case in Delaware that will determine whether the merger agreement can be enforced.