Elon Musk flips bird at Twitter, files countersuit in legal battle


Elon Musk filed a countersuit against Twitter on Friday, escalating his legal battle with the social media company over his abandoned $44 billion agreement to take over the site.

The 164-page suit was filed under seal just before the judge-imposed 5 p.m. deadline, so its contents were not immediately visible to the public. Under court rules, a partially redacted version may be available next week. 

The Post first reported Musk’s plans for the counter-suit, which was filed in Delaware’s Court of Chancery.

“I have reviewed the counterclaims and declare that the matter contained therein insofar as it concerns my acts and deeds is true, and insofar as it relates to the acts and deeds of any other person, I believe it to be true,” said an accompanying filing signed by Musk.

Twitter shares ticked down 0.3% on the news.

Twitter spokesman Brian Poliakoff declined to comment on the countersuit.

J.B. Heaton, an investment researcher and former corporate attorney, told The Post that Musk’s countersuit was likely filed under seal because it includes information that Twitter shared with Musk under a non-disclosure agreement or other restrictions. 

It’s almost certainly because they are including facts that they have gained under an expectation of confidentiality from Twitter,” Heaton said. 

Elon Musk Twitter
Twitter wants to force Elon Musk to go through with his deal to buy the site for $44 billion.

Delaware Court of Chancery Judge Kathaleen McCormick will likely make the two sides agree on a partially redacted version that could be released to the public within a week, according to Heaton.  

The Wall Street Journal reported that Musk’s countersuit includes a reference to a famous Warren Buffett quote: “Only when the tide goes out do you discover who’s been swimming naked.” 

The quote is an apparent nod to Musk’s accusation that Twitter has hidden a fake account problem, according to the Journal.  

Elon Musk Twitter
Elon Musk says he has concerns about fake accounts on Twitter.
Bloomberg via Getty Images

The news comes as Musk and Twitter prepare for an upcoming trial in the social media site’s suit against the mogul for backing out of his $44 billion takeover deal. 

Twitter wants to force Musk to go through with his original agreement to purchase the site at $54.20 per share, while Musk wants to walk away from the deal due to alleged concerns about fake accounts

In a hearing last week, McCormick granted Twitter’s request for an expedited trial and on Friday, she finalized plans for a five-day trial starting on Oct. 17.

Musk’s lawyers had wanted the trial to start no earlier than February 2023, arguing that his team needs more time to investigate fake accounts on the site.  

“The longer the merger transaction remains in limbo, the larger the cloud of uncertainty cast over the company,” McCormick said when granting Twitter’s expedited trial request. 

Twitter is seeking to force Musk to go through with his agreement to buy the company for $54.20 per share, but the company’s shares were trading at $41.50 in after-market trading on Friday, indicating that investors are skeptical the company will prevail.

Many legal analysts have said that Twitter has a strong case against the world’s richest man, but Delaware courts may not be inclined to force Musk to take over a site he doesn’t want. Instead, the company may agree to a lower takeover price or reach a settlement with Musk. 

Musk first said he was walking away from the deal on July 8, accusing Twitter of breaching the merger agreement by misleading him about the number of fake accounts on the site. 

Twitter sued days later, calling the fake account claims a distraction and saying Musk was bound by the merger contract to close the deal at the agreed-upon price.

With Post wires