Is Elon Musk backing out of buying Twitter?

Matt Rourke, Associated Press

Elon Musk appears to be laying the groundwork to renege on his April offer to buy social media giant Twitter for $44 billion, claiming in a Monday letter to the U.S. Securities and Exchange Commission that the company has failed to provide critical data ahead of completing the sale.

Musk’s contract with Twitter stipulates a $1 billion penalty if he backs out of the deal, but he can scuttle the offer and sidestep the fine if he’s able to prove a “material adverse effect” caused by the company. It defines that as a change that negatively affects Twitter’s business or financial conditions.

At issue is Twitter’s estimate that about 5% of its 229 million users could track back to fake or spam accounts. Musk has questioned the accuracy of that figure and, according to his lawyers, Twitter has refused to provide sufficient data to support their numbers or allow Musk to do his own evaluation.

Musk’s “Dear John” letter: On Monday, Musk’s lawyers filed a letter with the SEC that was sent to Twitter on June 1 claiming the company has only provided information about methodologies when it comes to estimating the number of fake Twitter accounts. They also characterized Twitter’s own data analysis as lazy.

“Mr. Musk has made it clear that he does not believe the company’s lax testing methodologies are adequate so he must conduct his own analysis,” the letter reads. “The data he has requested is necessary to do so.”

The letter goes on to say that the perceived failure of Twitter to provide broader data on fake and spam accounts represents a “clear material breach” of the purchase agreement and allows Musk to walk away from the deal without being on the hook for the $1 billion penalty.

“Mr. Musk believes the company is actively resisting and thwarting his information rights (and the company’s corresponding obligations) under the merger agreement,” the letter reads. “This is a clear material breach of Twitter’s obligations under the merger agreement and Mr. Musk reserves all rights resulting therefrom, including his right not to consummate the transaction and his right to terminate the merger agreement.”

Are Musk’s claims legit? Twitter CEO Parag Agrawal on May 16 tweeted that the company had shared information with Musk about how it estimates spam figures, according to the Wall Street Journal. Musk responded with a poop emoji.

In his letter Monday, Musk’s lawyers confirmed he had received a response from Twitter on June 1, but said it didn’t satisfy Musk’s requests.

Musk offered to buy Twitter for $44 billion in April, and the company agreed to the deal the same month. In May, the Tesla Inc. chief executive said the deal was “temporarily on hold” because of his concerns over the company’s accounting of the number of fake accounts on its platform, per the Journal.

Musk’s latest maneuver shows how he is “looking for a way out of the deal or something that will get leverage for a renegotiation of the price,” Brian Quinn, a law professor at Boston College, told The Associated Press. But Quinn said it’s unlikely to hold up in court since he already waived his ability to ask for more due diligence.

“I doubt he would be allowed to walk away,” Quinn said. “At some point, the board of Twitter will tire of this and file a suit” asking a judge to force Musk to stick to the deal.

And, in the meantime: Thanks to the recent rout in technology shares, both Twitter and Tesla, which is the main source of Musk’s wealth, are worth much less today than they were when Musk entered his initial bid of $54.20 per share, Axios reports. That means Musk is overpaying for the company, with money he is going to have difficulty finding.

Contributing: Associated Press