Will a Delaware court force Elon Musk to follow through with a $44 billion takeover of Twitter despite his actions leading up to the litigation?
In its lawsuit against the Tesla mogul, the platform devotes dozens of pages to calling out his public disparagement of the company. Twitter’s lawyers describe his behavior as the “model of hypocrisy” and “bad faith.” They say he sunk Twitter’s value.
Greg Varallo, a partner at law firm Bernstein Litowitz Berger & Grossmann, who regularly argues cases in the Delaware court, observes, “It’s a little weird to have parties that don’t want to get married and say, ‘No you have to get married.'” But even in that case, one of the chancellors questioned whether forcing Tyson to go through with the deal was the appropriate course of action.
Hamermesh notes there are “cases where there have been similar specific performance agreements, and the court has declined to follow them.” He explains that courts disfavor such remedies of coercion because it’s “awkward to make someone do something they don’t want to do,” especially in a deal of this size.article analyzing over 1,000 merger and acquisition contracts, over 80 percent of them included and chose specific performance as their favored remedy.
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