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New Legal Challenges Could Further Impact Elon Musk’s Twitter Takeover Push

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Elon Musk Mulls Tender Offer for Twitter as an Alternative Path to Take Over the App

So as the fifth week of the Elon Musk Twitter takeover drama comes to a close, let’s just check in on how things are progressing.

Oh, it’s bad. Nothing good to see here.

This week, as Musk maintains that his $44 billion takeover offer remains ‘on hold’ due to questions over the accuracy of Twitter’s claim that 5% of its active users are fake, Twitter itself has faced its own drama, connected to the takeover push.

Having already lost several top executives, either directly or indirectly stemming from the pending change in ownership (as well as former CEO Jack Dorsey exiting the company entirely), Twitter is now facing a battle over its board members, with Silver Lake Partners’ Egon Durban resigning from the board after Twitter shareholders blocked his re-election.

Durban was given a Twitter board seat in 2020, following a push by Elliott Management Group to buy up Twitter shares, and force Jack Dorsey out of his position as CEO. Elliott’s view was that Dorsey was underperforming, and it partnered with Silver Lake to put pressure on the company to either improve its bottom line, or accept a change in management.

That lead to Twitter implementing tough new revenue and growth targets, which it recently admitted that it’s not on track to meet.  

In addition to his work with Twitter and various other public companies, Durban has also been a longtime ally of Elon Musk, and earlier this week, Twitter shareholders voted to stop Durban from being re-appointed, in a move that many viewed as a statement of protest, of sorts, from Twitter investors.

But as with all things Elon and Twitter, it’s not that simple – today Twitter itself has refused to accept Durban’s resignation.

In a statement to the SEC, Twitter explained that Durban’s board re-election was likely rejected by shareholders due to him also serving on the board of six other publicly traded companies. Durban has vowed to take a step back from these other commitments, which Twitter says is enough to keep him on its team.

As per Twitter:

“While the Board does not believe that Mr. Durban’s other public company directorships will become an impediment if such engagements were to continue, Mr. Durban’s commitment to reduce his board service commitment to five public company boards by the Remediation Date appropriately addresses the concerns raised by stockholders with regard to such engagements. Accordingly, the Board has reached the determination that accepting Mr. Durban’s Tendered Resignation at this time is not in the best interests of the Company.”

Why does Twitter want to keep Durban on? It’s hard to say – especially given that Musk has noted that he’ll be looking to eliminate Twitter’s board if/when he becomes the platform’s owner.

The inclusion of representatives from key investors, however, may ensure Twitter maintains a level of stability, in case the deal goes south.

And there could be another key reason to maintain the link between Twitter’s board and Musk.

On another front, Twitter shareholders are also mulling a class-action lawsuit against Elon Musk over his Twitter takeover push, based on the allegation that Musk has ‘violated California corporate laws on several fronts’ with his Twitter acquisition commentary, effectively engaging in market manipulation.

As reported by CNBC:

In one potential violation, they claim that Musk financially benefited by delaying required disclosures about his stake in Twitter and by temporarily concealing his plan in early April to become a board member at the social network. Musk also snapped up shares in Twitter, the complaint says, while he knew insider information about the company based on private conversations with board members and executives, including former CEO Jack Dorsey, a longtime friend of Musk’s, and Silver Lake co-CEO Egon Durban, a Twitter board member whose firm had previously invested in SolarCity before Tesla acquired it.”

Maybe that’s why Twitter wants to keep Durban in-house, due to both his past dealings with Musk, which may help ease the deal through, or to assist shareholders in their class action.

Durban’s current participation likely doesn’t hold any additional legal clout in this respect, but there may be some linkage between these two aspects of the increasingly messy Twitter deal.

And yes, there is still a possibility that the Musk takeover may not happen.

Musk himself has repeatedly and publicly vowed that he will not pay for the company unless it can convince him that its data on fake profiles is accurate – though Twitter maintains that there’s no such thing as the deal being ‘on hold’ and it’s continuing to prepare for the final transaction to be approved.

But there may also be other complications, with the SEC now investigating Musk’s conduct in the lead-up to his Twitter takeover push. Add to that his many public criticisms and disclosures, which border on market manipulation (as per the proposed shareholder action) and there could well be a breakpoint for Musk’s Twitter deal, where authorities simply veto the process entirely due to his conduct.

Could that be Musk’s plan? Various analysts have suggested that Musk is looking for a way out of the acquisition, and while the overall sentiment is that Musk will, eventually, be forced to pay-up, and take ownership of the app, there are still some legal cracks that he could explore that could end the transaction.

Which would be a disaster for Twitter.

While investors are unhappy with Musk right now, especially since his various comments and critiques have tanked the stock, Musk walking away would leave Twitter in a much lesser state, with many product leaders gone, and a declining share price that would be difficult to correct, given the various questions raised by Musk about its processes.

Could Twitter get itself back on track, and back to growth, if Musk were to abandon his takeover push?

In essence, Musk walking away would be a big, public statement that Twitter is not a good investment, and as the media hype dies down, that could see interest in the app decline even further, harming growth for, potentially, years to come.

Maybe that, then, is Musk’s real intent here – to harm the company so much that it has no choice but to accept a lower offer price, which could save Elon himself millions in his takeover bid.

Either way, right now, it’s not looking good, and there are many moving parts that must be keeping current Twitter CEO Parag Agrawal up at night.

It still seems like the Elon era is coming, but when, exactly, is a whole other question.

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Meta Threatens to Ban News Publishers Amid Debate Over New Revenue Share Proposal

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NFTs are Coming to Facebook and Instagram – Whether You Like Them or Not

As Meta continues to lean further into AI-based content recommendations to keep users engaged in its apps, you know what it doesn’t need anywhere near as much as it used to? News content.

Meta has made this much clear, by ending its content deals with publishers, cutting its investment into news initiatives like its dedicated News Tab, Instant Articles and newsletters, and even directly noting that it’s de-prioritizing political news in-stream.

Which is why the latest push in the US to force Meta to pay more to news publishers seems particularly ill-timed.

This week, reports have suggested that the controversial ‘Journalism Competition and Preservation Act (JCPA) has been added to the annual defense authorization bill, which could see it carried into law in the new year.

The JCPA would facilitate an exemption under US antitrust law that would enable US news outlets to collectively bargain with social media platforms in order to negotiate a larger share of ad revenue, in exchange for the use of their content – i.e. it would force Meta to pay for links to news content in its apps.

Which is now, and always has been a controversial policy approach. But with the Australian Treasury Department recently reporting that its similar Media Bargaining Code has been a success, and has re-directed millions into the local media market, other nations are now taking a closer look – with New Zealand now also considering its own Media Bargaining Code along similar lines.

But again, Meta probably doesn’t need news like it used to anymore, and it could cut it off entirely in response. Which is exactly what Meta has threatened to do.

As per Meta:

If Congress passes an ill-considered journalism bill as part of national security legislation, we will be forced to consider removing news from our platform altogether rather than submit to government-mandated negotiations that unfairly disregard any value we provide to news outlets through increased traffic and subscriptions.”

Now, there’s a level of posturing here, and it seems unlikely that Meta would remove news content entirely. But that is what it did in Australia last year, amid negotiations over the media Bargaining bill.

At the same time, Australia’s media ecosphere is far smaller than the US. Would Meta really move to block all US news organizations from sharing content in its apps – and if it did, what would that mean for engagement and interaction in each?

This is the key point of the debate. On one side, media organizations argue that Meta generates a heap of engagement off the back of its reporting, which then constitutes a significant chunk of its revenue, because more users engaging more often means more ads, etc.

But Meta says that news content isn’t as big a deal to it as publishers seem to think – and as Meta notes, it views this as a more reciprocal relationship, where publishers use its apps to maximize reach, which in-turn helps them drive their business.

And again, Meta has been distancing itself from news content more and more over time, and leaning into a more TikTok-like approach of showing users video clips and entertaining posts, based on AI-fueled recommendations for each user.

Given this, could Meta now be in a position to actually cut off news publishers entirely, without impacting its revenue performance?

You can bet that, with Meta announcing major cutbacks, it’s not going to be giving up any revenue easily.

It’s early days, but this could be one to watch, as Meta potentially heads for a stand-off with publishers, in several regions, in the new year.

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