Is Twitter’s Lawsuit Against Elon Musk a “Loser”?
In today’s Wall Street Journal, J.B. Heaton and Professor Todd Henderson argue that Twitter’s lawsuit against Elon Musk, seeking to force him to follow through with his offer to buy the company, is unlikely to prevail. They write:
The merger agreement in this case could be read in a way that permits a court to order Mr. Musk to buy Twitter—he and two entities he controls agreed they would “not oppose” such an order—through a remedy known as “specific performance.” Although litigation is always uncertain, it is hard to imagine a court would force the purchase of a $44 billion corporation.
Specific performance is used fleetingly, and for good reason. . . .
Delaware courts have rarely ordered specific performance in merger agreements.
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