The 127-page document states that Mr Musk “invents representations Twitter never made and then tries to wield, selectively, the extensive confidential data Twitter provided him to conjure a breach of those purported representations”.
It goes on to assert that Mr Musk “simultaneously and incoherently asserts that Twitter breached the merger agreement by stonewalling his information requests” relating to the number of bots on the platform.
Mr Musk had previously claimed the company was attempting to “resist and thwart” him; in response, Twitter handed over tweets and activity on the platform that is usually accessed through the developer platform.
Twitter estimates that approximately five per cent of the accounts on its platform are fake or spam.
“Mr Musk does not identify any false or misleading statement of fact in this disclosure. Instead, he asserts that his own analysis, using a publicly available website, indicates that false or spam accounts constitute at least 10 per cent of Twitter’s monetizable daily active users”, Twitter writes.
“But that claim is untenable on its face, because Musk is not measuring the same thing as Twitter or even using the same data as Twitter. Musk can produce a higher estimate only by running a data set neither limited to nor inclusive of mDAU [monetizable daily active users] through a generic web tool that designated his own Twitter account a likely ‘bot.’ The result is a distortion that Musk is hoping will nonetheless make waves.”
Mr Musk, before making his offer to purchase Twitter, waived his right to due diligence in order to expediate the buyout, which Twitter characterizes as a “take-it-or- leave-it offer” – the latest in what was a series of confusing changes regarding Mr Musk’s position in the company, from shareholder to board member to potential chief executive.
In his filing, Mr Musk claimed that Twitter had changed its business significantly since he made the offer to buy it – pointing to the firing of a number of high-level employees in recent weeks.
Twitter fired 30 per cent of its recruitment team in a move that shocked employees in July, and had previously fired Kayvon Beykpour and Bruce Falck, the company’s former head of Consumer Product and head of Revenue, respectively, were fired in May.
Twitter claims that these are “ordinary-course actions” and “offer no more valid basis to escape the deal”.
Elon Musk’s response will be published today, but was delayed so Twitter’s lawyers have time to review and potentially redact Mr Musk’s sealed filing - saying it refers “extensively” to internal Twitter information and data given to Mr Musk.