Musk and Twitter

[TheDrake]

Twitter is great for finding out that a thing happened in real time. A politician's statement. A goal being scored. A financial shift. A personal scandal. A supreme court decision. A celebrity out on a date. It is terrible for understanding anything about that thing. I also love following the stream of any team that is losing a game.

[Fenring]

I only joined Twitter a few weeks ago, and it was for the exclusive purpose of following the thoughts of a few select individuals. Some of them also blog, one did not, so to follow that one person I had to be on Twitter. Most of the posts from any of these people include links to longer articles, so really the tweets are just a clearinghouse to post more in-depth material. I don't follow anyone whose content is exclusively found in the tweet itself.

[Seriati]

The WSJ opinion is from individuals without expertise in the relevant law, neither of them practice in M&A, nor does Professor M. Todd Henderson teach law that overlaps with M&A (either presently or in the past).

I' wouldn't give their opinions any more weight than any other lawyer talking outside their area of expertise and in this case they are both way outside their areas of expertise.

I didn't ask you to give their opinions weight.  I said they make a convincing case, and notwithstanding your dismissal of their credentials, I'm perfectly capable of evaluating what they said based on the merits.  Reality is that a court has a lot of discretion in how they apply remedies, but it would be unlikely to successfully order this deal competed by specific performance (unless that's what Musk secretly wants). 

I don't think it is particularly complex, as deals and contracts go this one doesn't seem that high on the complexity - just lots of money.

Lol.  Honestly, I'm really laughing about this.  There is no such thing as a "non-complex" acquisition of a multi-billion dollar company.  There are thousands of points to still be negotiated and agreed, and thousands (if not millions) of relationships and contracts that have to be evaluated and assigned.  Is the court going to sit in and order resolution of every single thing that's outstanding?  There is almost certainly thousands of hours of legal work to be done here, and at least 3-5 times as much non-legal work.  For context, the last M&A I saw the details on (a fairly friendly one), had more than 15 attorneys on one side (with 2 different firms), plus in-house attorneys and the "othersides" inhouse and outside counsel.     Of those 15 at least 8 had over 200 hours billed on the deal, and for the 3 primary in-house attorneys it was effective their full time job for more than a month and part time for several other months.

All of that work is guided by the business judgements of the parties.

Is the court going to babysit that and put a thumb on the scale?  How exactly are they going to do it?

Nope, specific performance is for discrete actions that the court can manage, not for an order to work on a transaction of this magnitude.  The correct answer here is breach of contract, and Twitter's recovery will be limited to damages.  Unless they can establish a harm (which is debatable), and that the harm can not be made whole with money but only by the acquisition of the company, they really have no chance of specific performance.  Even if they could establish such a harm, the inclusion of a liquidated damages provision undercuts the argument that only specific performance will cure that harm (that provision is a literal admission of the parties both that the contract can be breached and that money damages can be adequate recompense).

I personally think the WSJ's argument on the non-enforcement of the liquidated damages' clause was too dismissive.  While it's arguable that Twitter can't show material damages, there are enough nebulous things outstanding that could be damage that there will be a hook to defend the liquidated damages.

Musk's statements are strongly indicative that he is looking for a pretextual way to exit the deal and he suddenly developed cold feet after his Tesla stock valuation crashed.

Are they really "strongly indicative"?  I think that's your own view.  Musk's comments also seem to reflect his honest opinion that spam bots comprise a much higher percentage of the accounts in question than Twitter reports.  Or do you somehow disbelieve him on that point?

Maybe phrase it another way, what percentage of Spambots would allow Musk out of the deal?  It can't be that it's immaterial where there is a representation made by Twitter in it's Securities Law filings (which are public) and that representation (along with all others) was incorporated by reference into the agreements.  Honestly, if you can't set that point you're not being rational, and if you can set it, you're admitting that Musk could have a valid objection.

Now it could be that Musk is wrong about the rate of Spambots, but neither you nor I are remotely in a position to make that conclusion.

My point is you missed the point.  Corporate compliance is not designed to be an academic study.  There's virtually no chance that it doesn't have material issues in design and implementation that make the conclusions suspect and that invalidate the degree of certainty.

Sure, but material adverse effect in Delaware courts is an absurdly high bar.  I don't think it will be possible for him to clear that bar.

That's a cogent argument and you probably have a point.  Though the most likely remedy is still damages not specific performance.

I get the basic principal there but the devil is in the details.  If it's a daily sample, then it's really a sample size of 100 repeated 90 times.

No it is an aggregated sample.  As I described to Tom they could get the exact same sample all at once.  If they are using 9000 samples for the analysis, then the sample size is 9000.  The fact that they have stratified them over time is immaterial to the analysis.  There isn't a good reason to not do uniform sampling over time, and may well be a benefit.  The other major benefit to doing it daily is that they appear to use labor intensive analysis for each sample, so they can assign one or two analysts and have them work daily; rather than putting 180 analysts on it at the end of each quarter; or do the pull on the last quarters data and have each report be lagged by an additional quarter.

I'm bored with arguing this irrelevancy.  Whether you agree or not, do you understand that Twitter could have in fact presented this to Musk in their meetings as a sample of roughly 100 accounts pulled each day?

It literally doesn't matter if you're 100% correct about how the study is run, a court is not going punish Musk for citing to samples of 100 if that's approximately the size of the daily sample.  They'd have to argue in court that he didn't provide enough context to make it clear that the 9000 samples were run quarterly (which by the way is almost certainly not the way it actually occurs - I guarantee you there is a daily statistic generated, whether just for that day or on some kind of rolling basis, is immaterial) for the 5% reporting threshold.  But then, Musk could point out that they didn't in fact disclose this in their 10Q.   

Here's what they said in the most recent 10Q:

We have performed an internal review of a sample of accounts and estimate that the average of false or spam accounts during the first quarter of 2022 represented fewer than 5% of our mDAU during the quarter. The false or spam accounts for a period represents the average of false or spam accounts in the samples during each monthly analysis period during the quarter. In making this determination, we applied significant judgment, so our estimation of false or spam accounts may not accurately represent the actual number of such accounts, and the actual number of false or spam accounts could be higher than we have estimated.

So just looking at what they said, is it still absolutely certain in your mind that it's a 9000 data point sample run quarterly?  They flat out say that the 5% number is based on the "average ... in the samples during each monthly analysis period during the quarter."  That implies not only that each quarter is actually 3 monthly periods, but also based on the reference to the average in a monthly period that each month is actually an aggregation of some sub-unit being tested.  So quite literally, what Musk said could actually be true and this language would not be inconsistent with that, however, what you think the Twitter board is saying about a quarterly study would actually be inconsistent with the claims they made here.

[Seriati]

My layperson take on this is this.

This is why rational investors perform due diligence. By waiving it, Musk was basically saying "I trust the numbers you've given me."

It's really not clear that this is correct, or rather that its the whole story.  Read the termination notice that LetterRip linked to.  Musk's team is arguing that they included a right to rely on the accuracy of Twitter's public filings for the execution (which is in lieu of conducting diligence before hand, but is premised on those filings being accurate), and that they included information rights in the merger contract to allow them to verify those filings.  Musk claimed - before Twitter brought suit - that Twitter had breached the agreement, if that's true, then this is a breach of contract action and the Board's argument about due diligence is an irrelevant red herring.

Now he's trying to run an audit to prove it was a stolen acquisition. But he has no proof that the bot count isn't exactly what they said it was.

It's also not clear that the latter statement is true.  Again, in Musk's public filing on the termination, they pretty much state that even though Twitter has delayed at every turn and failed to turn over complete data sets, that the initial indications of Musk's data scientists are that Twitter's bot count could be "wildly" erroneous.

[Seriati]

My laymans (and possibly flawed) understanding is that normally you write an offer letter that goes something along the line of "we offer X billion $ for the company subject to due diligence not showing anything unexpected", Musk wrote one that went "I offer Y billion $ for the company and I want it so much/quickly that I'll skip due diligence". The due diligence process does entitle you to poke through the books at a deeper level that the public normally gets to see and would have got him to the current point where he could pull out without having made any unfortunate commitments.

I think in this case, it's more like Musk understood that the Board was actively hostile to his acquisition of the Company and that they would never have provided him with the due diligence in advance of the agreement.  So instead, he signed a deal saying that he would close on the transaction - if Twitter's public statements were accurate - and that provided him with certain rights to Twitter's information to verify those statements.  His lawyers repeatedly cited the relevant provisions in their letters demanding the information from Twitter.

So instead of saying, I want to see the merchandise before we sign the deal.  Signing the deal saying that payment of the purchase price is subject to your claims about the merchandise being demonstrated. 

Granted, I'm stating that in the light most favorable to Musk, and that may not be the way it actually is drafted or plays out in court.  Certainly Twitter's Board disputes that its a condition of closing the deal, but they may not be correct in how they are interpreting it. 

But there's no reason to believe that either form of that agreement is less effect or to disparage the rights provided in the second form (contract, then verify to close) over the first (verify then contract).  In fact, generally speaking, there is almost always a continuing due diligence component after the signing of an agreement and prior to the closing (though sometimes it just impacts the price ultimately paid).

[Tom]

I'm actually too cynical for this conversation, because my own thought process goes "there is no way that a Delaware court is going to let someone back out of a prominent contract of this sort and risk that entire state's economy by appearing to not rule in favor of a corporation."

[LetterRip]

The WSJ opinion is from individuals without expertise in the relevant law, neither of them practice in M&A, nor does Professor M. Todd Henderson teach law that overlaps with M&A (either presently or in the past).

I' wouldn't give their opinions any more weight than any other lawyer talking outside their area of expertise and in this case they are both way outside their areas of expertise.

I didn't ask you to give their opinions weight.  I said they make a convincing case, and notwithstanding your dismissal of their credentials, I'm perfectly capable of evaluating what they said based on the merits.

Sorry wasn't implying that you weren't capable of evaluating it on its merits - was just pointing out why those who can't evaluate the arguement on the merits should be cautious.

I find there more recent response to Bainbridges critique somewhat persuasive, especially the '3rd party beneficiary' section, essentially the benefit to 3rd parties is specifically disavowed, with capped damages at 1 billion.  Twitter Inc. isn't harmed by the termination, only the share holders.  So Twitter Inc. would benefit from the 1 billion, but not from specific performance.

In substance under the merger agreement, Twitter, Inc. is acting as a commission-free broker of a deal where current Twitter, Inc. shareholders agree to have their shares cancelled in return for a payment and Musk’s parent holding company agrees to make that payment in return for  ownership of Twitter’s (one) new share. But rather than make a contract among shareholders and Musk and his holding companies, as a broker would do, Twitter, Inc. made itself the counter party to Musk and his entities. But as a commission-free broker, Twitter, Inc. loses nothing when the deal collapses. In fact, having negotiated a termination fee of $1 billion, Twitter, Inc. is actually better off with breach and that remedy than with either its limited (to $1 billion) damages remedy or specific performance. And shareholders, being nonparties disavowed as third-party beneficiaries, have no separate cause of action. Only by ignoring the legal distinction between Twitter, Inc., the corporation, and Twitter, Inc.’s pre-merger shareholders could specific performance make sense.

https://www.professorbainbridge.com/professorbainbridgecom/2022/07/jb-heaton-and-todd-henderson-respond-they-think-twitters-lawsuit-is-a-loser.html

[LetterRip]

Seriati,

I think you make a great case, and while I could definitely argue some points - I'm all argued out (way too much time arguing elsewhere )

That said  I will respond a little

The spambots - I have no idea what the courts would find persuasive - that seems a huge unknown to me and seems a complete crap shoot for the CMAE threshold.

As to damages as remedy - I would think the part of the contract that disavows damages would be adequate remedy might lead a court to not do so.

[Seriati]

By the way LetterRip, excellent find on the Ars Technica link.  The fact that McCormick has ordered specific performance in a merger before is definitely relevant to the probability she'd do so again. 

I note though, in the article, it points out how this is uncommon ("one of the few judges..") and that the order also resolved all factual questions in favor of the seller.  I suspect that Musk's efforts on the side of getting access to the information and basis for terminating the deal are far less easily shown to be pre-textual than was the case in the prior deal.  I don't think anyone following this, honestly believes that Musk wasn't concerned with SpamBots.  And while a reasonable case can be made that Musk knew (or should have known) that Spambots were more prevalent than Twitter claimed, that doesn't resolve that getting the actual number would be material to the lending, nor that such a finding would cause Twitter to have breached it's representations on the point.

There's also a general concept that prohibits specific performance where the party requesting it has "unclean hands."  If Twitter did make an erroneous claim to the SEC and particularly if that can be demonstrated to have been willful or a result of willful blindness its very hard to see how they would have the clean hands necessary to get that remedy.  Take a look at the article, its hard to imagine that the seller in that case had done anything wrong.

[LetterRip]

Seriati,

I suspect that Musk's efforts on the side of getting access to the information and basis for terminating the deal are far less easily shown to be pre-textual than was the case in the prior deal. I don't think anyone following this honestly believes that Musk wasn't concerned with SpamBots.

I think the biggest point against Musk is that his first query about the mDAU calculation wasn't until Tesla's share price had dropped significantly.  On the other hand, the mDAU query was 4 days (read this somewhere but not sure where) after Twitter's SEC filing restating the prior 12 quarter's mDAU due to double counting (a really basic statistical error).  The restatement was .8% per quarter.  But such a basic statistical error suggests that they were not employing individuals with strong statistical and machine learning skills.

[Tom]

I don't think anyone following this honestly believes that Musk wasn't concerned with SpamBots.

For what it's worth, I don't think Musk has been sincerely concerned about spambots ever, but considers them the complaint that can get the most traction.

[LetterRip]

Another interesting argument,

the Specific Performance clause states,

Section 9.9 Specific Performance.

(a) The parties hereto agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties hereto do not perform the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate this Agreement) in accordance with its specified terms or otherwise breach such provisions. Accordingly, the parties hereto acknowledge and agree that the parties hereto shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity. Any party seeking an injunction or injunctions or any other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to show proof of actual damages or provide any bond or other security in connection with any such order or injunction.

(b) Notwithstanding anything herein to the contrary, including the availability of the Parent Termination Fee or other monetary damages, remedy or award, it is hereby acknowledged and agreed that the Company shall be entitled to specific performance or other equitable remedy to enforce Parent and Acquisition Sub’s obligations to cause the Equity Investor to fund the Equity Financing, or to enforce the Equity Investor’s obligation to fund the Equity Financing directly, and to consummate the Closing if and for so long as, (i) all of the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions that are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied if the Closing were to occur at such time) have been satisfied or waived and Parent has failed to consummate the Closing on the date required pursuant to the terms of Section 2.2, (ii) the Debt Financing (or, as applicable, the Alternative Financing) has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, and (iii) the Company has confirmed that, if specific performance or other equity remedy is granted and the Equity Financing and Debt Financing are funded, then the Closing will occur. For the avoidance of doubt, (A) while the Company may concurrently seek (x) specific performance or other equitable relief, subject to the terms of this Section 9.9, and (y) payment of the Parent Termination Fee or other monetary damages, remedy or award if, as and when required pursuant to this Agreement), under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance to cause the Equity Financing to be funded, on the one hand, and payment of the Parent Termination Fee or other monetary damages, remedy or award, on the other hand; provided, however, that in no event shall the Company be permitted or entitled to receive aggregate monetary damages in excess of the Parent Termination Fee (except in all cases that Parent shall also be obligated with respect to its expense reimbursement and indemnification obligations contained in Section 6.11 and its applicable obligations under Section 8.3(d)(iii) and Section 8.6(b)).

(c) To the extent any party hereto brings an action, suit or proceeding to specifically enforce the performance of the terms and provisions of this Agreement (other than an action to enforce specifically any provision that expressly survives the termination of this Agreement), the Termination Date shall automatically be extended to (i) the twentieth (20th) Business Day following the resolution of such action, suit or proceeding or (ii) such other time period established by the court presiding over such action, suit or proceeding.

and the filing by Twitter states,

In Section 9.9(b), the parties expressly “acknowledged and agreed that the Company shall be entitled to specific performance or other equitable remedy to enforce Parent and Acquisition Sub’s obligations to cause the Equity Investor to fund the Equity Financing, or to enforce the Equity Investor’s obligation to fund the Equity Financing directly, and to consummate the Closing” if three conditions are met: (i) all of the conditions set forth in Section 7.1 and Section 7.2 have or will be satisfied at the closing; (ii) the debt financing has been funded or will be
funded at the closing if the equity financing is funded; and (iii) the company has confirmed that the closing will occur.
154. All of the conditions set forth in Sections 7.1 and 7.2 have been satisfied or waived, or are expected to be satisfied or waived at the closing, and the closing will occur if the debt and equity financing are funded, which funding is solely within the control of defendants.
155. Twitter has suffered and will continue to suffer irreparable harm as a result of defendants’ breaches.

In 154 it seems they admit that ii and iii haven't yet been met, so they might not actually have a case for specific performance yet.

The above argument was raised Brandon Ross on Quora.

[LetterRip]

Musk's counterclaim, and also Musk's teams response to Twitter's filing

https://s3.documentcloud.org/documents/22127591/musk-public-version-of-counterclaims-answer-w-cos.pdf

Here is Twitter's response to Musk's counterclaim,

https://s22.q4cdn.com/826641620/files/doc_news/2022/08/Twitters-Reply-to-Verified-Counterclaims.pdf

Musk's core arguments are that only 2/3rd of mDAU are served ads, 70% of all mDAU are served almost no ads, 7% are served almost all of the adds, then the remainder are served a moderate number of ads.  In addition it is alleged that Twitter counts spam accounts as part of mDAU until they are eliminated and don't retroactively adjust historical mDAU to remove them.  Twitter also have double counted users.  In addition Musk claims that to prevent Musk from discovering the degree that Twitter has mislead about mDAU they stonewalled and delayed and gave false or incomplete data; were informed that this constituted a breach of contract, and failed to remedy this breach in the 30 day period resulting in termination.

Earlier I would have given Musk a 1 in 10 chance of prevailing, now maybe I'd give him a 2 or 3 in 10 chance if he can prove his allegations.

[LetterRip]

In the countersuit, there are allegations made by Musk's team that were not included in the termination notice.  Would Musk be required to have them in the termination notice to be able to pursue them in the countersuit?  Is of major importance that they were not included?

[LetterRip]

Major bombshell,

Mudge (a security expert with exemplary credentials and integrity) - who was hired to deal with Twitter cybersecurity issues, and whom was fired in January 2022, has just had parts of his whistleblower complaint made public (the second half is heavily redacted, link below).  I think it dramatically increases the odds of Musk prevailing.  It accuses executives of knowingly and deliberately misleading the FTC, the Twitter Board, and public on security matters (access controls; backups; commit controls) ; and on spam bot problems and user accounts; and claims that Twitter's infrastructure is extremely vulnerable to a collapse of weeks or months and came perilously close to such a collapse.  It especially focuses on the current CEO's role in these deceptions, but also claims the complicity (in some aspects) of one board member with a large number of twitter shares.

https://www.documentcloud.org/documents/22186683-twitter-whistleblower-disclosure

[NobleHunter]

Did Musk know any of this? If he didn't, does it matter? It seems like he was trying to kill the deal on the basis of the spam issues, which the summary of the complaint seems to support, but can he now cite the rest of it as a reason to why he shouldn't be forced to follow through?

I want the worst outcome for Musk but I have to concede that lying about the risk of their core service evaporating for months seems like it should qualify as an adverse event.

[LetterRip]

Did Musk know any of this? If he didn't, does it matter? It seems like he was trying to kill the deal on the basis of the spam issues, which the summary of the complaint seems to support, but can he now cite the rest of it as a reason to why he shouldn't be forced to follow through?

I want the worst outcome for Musk but I have to concede that lying about the risk of their core service evaporating for months seems like it should qualify as an adverse event.

These likely qualify as Material Adverse Effects. Twitter avered in the Merger agreement that the SEC documents were correct and contained no omissions that would qualify as MAEs. It is unclear if this will be part of the current trial, or if a separate case would have to be filed.  If the allegations are true - I'd think they'd constitute clear evidence of fraud and of fraudulent intent.

Musk likely didn't know much of this - since his filings to date don't address most of the issues raised. I'm unclear if he can make filings on these in the current case, or must do a separate case - I'd be shocked if they can't be raised at all.

[LetterRip]

Another aspect that was only tangentially addressed is that it was clear to senior executives that Dorsey was having issues prior to stepping down suggesting he was incapable of managing Twitter - suggesting that medical or mental issues of the previous CEO were not being disclosed to investors and board members.

[TheDrake]

I'm interested to see what he can prove. I mean, he didn't blow the whistle then get fired. He got fired and then blew the whistle. He does have a reputation for a certain brand of integrity, as much as a hacker can muster, though he does appear to be a white hat. Many of his complaints do also appear to be corroborated. Most of his complaint was about lax security on user data, not bots and spam.

[Fenring]

Musk likely didn't know much of this - since his filings to date don't address most of the issues raised. I'm unclear if he can make filings on these in the current case, or must do a separate case - I'd be shocked if they can't be raised at all.

Since it appears to be Twitter suing Musk, rather than the other way around, wouldn't the likeliest outcome be that they'd just drop the case rather than expose themselves to discovery and records being subpoenaed? A second case wouldn't be required if they just let Musk walk away quietly in order to quiet the blowback on this.

[NobleHunter]

https://www.cbc.ca/news/business/musk-whistleblower-complaint-exit-twitter-deal-1.6566404

Musk is going to at least try to use the whistleblower to justify canceling the deal.

[LetterRip]

Musk filed an additional termination notice,

https://www.sec.gov/Archives/edgar/data/0001418091/000110465922095765/tm2224790d1_ex99-q.htm

He is also seeking to amend his counterclaim, but the documents have yet to be disclosed and no ruling issued.

[TheDrake]

Musk is going to buy Twitter after all? I didn't see that coming. How to show you're crazy without saying so.

[msquared]

So is this basically Musk admitting he will loose the case if it goes to trial?

[LetterRip]

So is this basically Musk admitting he will loose the case if it goes to trial?

Or he is afraid something embarrassing will come out.  Or he has a reason he wants Twitter faster than might occur if it goes to trial.  Or this is a delaying tactic. Or ....

[TheDeamon]

So is this basically Musk admitting he will loose the case if it goes to trial?

Or he is afraid something embarrassing will come out.  Or he has a reason he wants Twitter faster than might occur if it goes to trial.  Or this is a delaying tactic. Or ....

Or another Billionaire (or more) has decided to get involved in the purchase with comparable goals for Twitter. Which means Musk won't be fronting as much of the financial burden.

Once the sale goes through, the current board can't say squat about what he does 5 minutes later, unless they locked something into the contract that prohibits it.

[TheDeamon]

Alternate option is a lot of Musk's activities seem to hinge on his financial status at the time. So it could be one of his companies is about to do something that he expects to increase his valuation sufficiently that he doesn't need to sweat it out any longer.

[TheDrake]

Maybe he was about to be banned.

The Tesla Inc (TSLA.O) chief executive suggested that Crimea, which Moscow seized in 2014, be formally recognized as Russia, that water supply to Crimea be assured and that Ukraine remain neutral. He asked Twitter users to vote 'yes' or 'no' on the plan.

[TheDeamon]

Maybe he was about to be banned.

The Tesla Inc (TSLA.O) chief executive suggested that Crimea, which Moscow seized in 2014, be formally recognized as Russia, that water supply to Crimea be assured and that Ukraine remain neutral. He asked Twitter users to vote 'yes' or 'no' on the plan.

1. It was a poll.
2. As he pointed out, it still currently remains a highly probable outcome. Ukraine has a long road to haul before they can even reach Crimea, and Russia is likely to use nukes before it gets to that point.

Speaking objective truths, and posting unpopular polls shouldn't be bannable offenses to most Americans.

I hope Ukraine does get Crimea back, I think they have a chance of doing so. But I think they're going to be reigned in before then by NATO due to the nuclear threat.

[Ouija Nightmare]

So is this basically Musk admitting he will loose the case if it goes to trial?

Or he is afraid something embarrassing will come out.  Or he has a reason he wants Twitter faster than might occur if it goes to trial.  Or this is a delaying tactic. Or ....

Or he simply had a mood swing and wants Twitter today.