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Musk's $44 billion Twitter buyout challenged in shareholder lawsuit

By Jonathan Stempel - Yesterday 

(Reuters) - Elon Musk and Twitter Inc were sued on Friday by a Florida pension fund seeking to stop Musk from completing his $44 billion takeover of the social media company before 2025.

In a proposed class action filed in Delaware Chancery Court, the Orlando Police Pension Fund said Delaware law forbade a quick merger because Musk had agreements with other big Twitter shareholders, including his financial adviser Morgan Stanley and Twitter founder Jack Dorsey, to support the buyout.

The fund said those agreements made Musk, who owns 9.6% of Twitter, the effective "owner" of more than 15% of the company's shares. It said that required delaying the merger by three years unless two-thirds of shares not "owned" by him granted approval.

Morgan Stanley owns about 8.8% of Twitter shares and Dorsey owns 2.4%.

Musk hopes to complete his $54.20 per share Twitter takeover this year, in one of the world's largest leveraged buyouts.

He also runs electric car company Tesla Inc, leads The Boring Co and SpaceX, and is the world's richest person according to Forbes magazine.

Twitter and its board, including Dorsey and Chief Executive Parag Agrawal, were also named as defendants.

Twitter declined to comment. Lawyers for Musk and the Florida fund did not immediately respond to requests for comment.

The lawsuit also seeks to declare that Twitter directors breached their fiduciary duties, and recoup legal fees and costs. It did not make clear how shareholders believed they might be harmed if the merger closed on schedule.

On Thursday, Musk said he had raised around $7 billion, including from sovereign wealth funds and friends in Silicon Valley, to help fund a takeover.

Musk had no financing lined up when he announced plans to buy Twitter last month.

Some of the new investors appear to share interests with Musk, a self-described free speech absolutist who could change how the San Francisco-based company moderates content.

Florida's state pension fund also invests in Twitter, and Governor Ron DeSantis said this week it could make a $15 million to $20 million profit if Musk completed his buyout.

In afternoon trading, Twitter shares were down 60 cents at $49.76.

The case is Orlando Police Pension Fund v Twitter Inc et al, Delaware Chancery Court, No. 2022-0396.

(Reporting by Jonathan Stempel in New York; Editing by Howard Goller and Mark Potter)

Florida pension fund sues Elon Musk over Twitter deal


SOPA Images via Getty Images

Amrita Khalid
·Contributing Writer
Fri, May 6, 2022,

Elon Musk's $44 billion buyout of Twitter is facing its first legal challenge. A Florida pension fund is suing Musk and Twitter, arguing that the deal can't legally close until 2025 due to the billionaire's stake in the platform. The proposed class-action lawsuit — filed today by the Orlando Police Pension Fund in the Delaware Chancery court— also declares that Twitter’s board of directors breached its fiduciary duties by allowing the deal to go through. In addition to Musk and Twitter, the lawsuit also named former Twitter CEO Jack Dorsey, current Twitter CEO Parag Agrawal and the company’s board as defendants.

In a message to Engadget, Tulane Law School’s Professor Ann M. Lipton says the lawsuit raises "some very novel issues" under Delaware corporate law. Under a law known as Section 203, shareholders who own more than 15 percent of the company can’t enter a merger without two-thirds of the remaining shares granting approval. Without this approval, the merger can’t be finalized for another three years.

The fund’s lawyers state that Musk initially owned roughly 10 percent of Twitter’s shares, which would seemingly not make Section 203 applicable. But, the fund argues, Musk formed a pact with Morgan Stanley (which owns 8.8 percent of shares) and former CEO Jack Dorsey (who has 2.4 percent) to advance the deal. The combined stake of these parties allegedly makes Musk and his allies in the takeover deal an "interested shareholder" under Section 203 — which, if the court agrees with the underlying reasoning presented in the case, means the merger must either be delayed or get approval shareholders representing at least two-thirds of the company's ownership.

“Section 203 is not often litigated, and so the issue of whether Musk's relationship with these parties actually counts for statutory purposes is an unsettled question and it will be interesting to watch how it unfolds,” wrote Lipton.

More details of Musk’s highly complex $44 billion buyout of Twitter have been made public since the social media platform accepted the billionaire’s offer last month. The New York Times reported that Musk promised investors returns of nearly five to ten times their investments if the deal went through. Parts of the deal are being scrutinized, including its reliance on foreign investors and whether Musk bought shares in the company specifically to influence its leadership. But antitrust experts say the merger is unlikely to be blocked by the FTC. The agency will decide in the next month whether to quickly approve the merger or launch a lengthier investigation.

Analysis-Musk's new Twitter funding could draw TikTok-like U.S. scrutiny


Fri, May 6, 2022
By Echo Wang

(Reuters) - Elon Musk's decision to accept some foreign investors as part of his $44 billion buyout of Twitter Inc runs the risk of inviting the kind of regulatory scrutiny over U.S. national security that social media peer TikTok faced, legal experts say.

Musk disclosed on Thursday that Saudi Arabia's Prince Alwaleed bin Talal, Qatar's sovereign wealth fund and Binance, the world's biggest cryptocurrency exchange founded by Chinese native Changpeng Zhao, were part of a group of investors that will help him fund the acquisition of Twitter.

This could give the Committee on Foreign Investment in the United States (CFIUS) an opening to scrutinize the deal for potential national security risks, six regulatory lawyers not involved in the transaction and interviewed by Reuters said. CFIUS is a panel of government agencies and departments that reviews mergers and acquisitions for potential threats to U.S. security.

"To the extent that Musk's proposed acquisition of Twitter includes foreign investment, it very well could fall under CFIUS jurisdiction," said Chris Griner, chair of law firm Stroock & Stroock & Lavan LLP's national security practice.

A spokesperson for the U.S. Treasury Department, which chairs CFIUS, declined to comment on whether the national security panel planned to scrutinize Musk's Twitter deal.

Spokespeople for Musk, bin Talal, Qatar and Binance did not immediately respond to requests for comment.

Former President Donald Trump's administration turned to CFIUS in 2020 in a bid to force TikTok's Chinese parent ByteDance to divest the short video app. His successor Joe Biden abandoned that effort after ByteDance agreed to changes on how the data of U.S. users are stored and protected.

The regulatory lawyers interviewed by Reuters said the risk of CFIUS blocking Musk's deal is small because he will control Twitter under the proposed takeover and the foreign investors are acquiring relatively small stakes.

They added that their assessment would change were Musk to give the foreign investors influence over the company, through a seat on its board or other means.

The risk is not negligible, however, given that the business of handling personal data by social media companies such as Twitter is typically viewed as critical infrastructure by CFIUS, the lawyers said.

"One of the items that's considered sensitive personal data, is non-public electronic communications. So that would be email, messaging or chat communications between users. Twitter allows you to do that," law firm Vinson & Elkins LLP partner Richard Sofield said.

One area of potential scrutiny for CFIUS, the lawyers said, could be Musk's business dealings with foreign governments hostile to free speech or keen to overtake the United States technologically. Tesla Inc, the electric car maker he leads, relies heavily on China, for example, to manufacture and sell its vehicles.

China blocked Twitter in 2009 but many Chinese officials have been active on the social media platform. Some of them have complained that the company's efforts to restrict misinformation have targeted them unfairly.

"One of the considerations would be whether or not there will be an opportunity for China to leverage its business activity in order to achieve a desired outcome," Sofield added.

BROADCOM PRECEDENT

There is precedent for CFIUS shooting down a deal based on the risk that an acquirer's business ties could compromise them, the lawyers said. Trump blocked chip maker Broadcom Inc's $117 billion acquisition of U.S peer Qualcomm Inc 2018 after CFIUS raised concerns about the deal.

Broadcom was a publicly listed company with U.S. shareholders that was headquartered in Singapore, but the White House fretted that Broadcom's relationship with "third-party foreign entities" would set the U.S. back in its technology race with China.

Nevena Simidjiyska, a regulatory lawyer at law firm Fox Rothschild LLP, said it was possible CFIUS would look into whether Musk or other U.S. investors in the Twitter deal can be influenced by foreign entities in a similar way.

"CFIUS may determine that even U.S. investors in Twitter fall under CFIUS review if they are controlled by foreign parties," Simidjiyska said.

Musk's Twitter deal does not face the most common type of regulatory risk seen in mergers and acquisitions — pushback from antitrust regulators. The world's richest man has no media holdings, and regulatory experts have said they do not expect the deal to face significant antitrust scrutiny.

(Reporting by Echo Wang in New York; Additional reporting by Alexandra Alper in Washington, D.C.; Editing by Greg Roumeliotis and Lincoln Feast)