Twitter wants a Delaware court to order Elon Musk to buy the social media service for $44 billion, as he promised back in April. But what if a judge makes that ruling and Musk balks?
The Tesla billionaire’s reputation for dismissing government pronouncements has some worried that he might flout an unfavorable ruling of the Delaware Court of Chancery, known for its handling of high-profile business disputes.
Musk hopes to win the case that’s headed for an October trial. He’s scheduled to be deposed by Twitter attorneys starting Thursday.
But the consequences of him losing badly — either by an order of “specific performance” that forces him to complete the deal, or by walking away from Twitter but still coughing up a billion dollars or more for breach of contract — has raised concerns about how the Delaware court would enforce its final ruling.
“The problem with specific performance, especially with Elon Musk, is that it’s unclear whether the order of the court would be obeyed,” retired Delaware Supreme Court Justice Carolyn Berger told CNBC in July. “And the courts in Delaware — courts all over — are very concerned about issuing a decision or issuing an order that then is ignored, flouted.”
Berger, who was also a vice chancellor of the Chancery Court in the 1980s and 1990s, stood by those concerns in an interview with The Associated Press but said she doubted the Delaware institution would go so far as to make him complete the deal.
“The court can impose sanctions and the court can kind of coerce Musk into taking over the company,” she said. “But why would the court do that when what really is at stake is money?”
Berger said she expects Twitter to prevail, but said a less tumultuous remedy for the company and its shareholders would make Musk pay monetary damages. “The court doesn’t want to be in a position to step in and essentially run this company,” she said.
Musk and his lawyers didn’t respond to requests for comment.
Other legal observers say such defiance is almost impossible to imagine, even from a famously combative personality such as Musk. He acknowledged he might lose in August in explaining why he suddenly sold nearly $7 billion worth of Tesla shares.
“I take him at his word,” said Ann Lipton, an associate law professor at Tulane University. “He wants to win. Maybe he’s got his own judgment as to what the odds are. But he’s also being sort of practical about this. He’s getting some cash ready so he doesn’t have to dump his Tesla shares if it turns out he is ordered to buy the company.”
A ruling of specific performance could force Musk to pay up his $33.5 billion personal stake in the deal; the price increases to $44 billion with promised financing from backers such as Morgan Stanley.
The Delaware court has powers to enforce its orders, and could appoint a receivership to seize some of Musk’s assets, namely Tesla stock, if he doesn’t comply, according to Tom Lin, a law professor at Temple University.
The court has made such moves before, such as in 2013 when it held Chinese company ZTS Digital Networks in contempt and appointed a receiver with power to seize its assets. But after coercive sanctions didn’t work, the receiver asked the court five years later to issue bench warrants calling for the arrest of two senior executives the next time they visited the U.S.
Speculation that Musk could be threatened with jail time for failing to comply with a ruling is unrealistic, said Berger. “At least, not for the Court of Chancery,” said the former judge. “That’s not the way the court operates.”
But more important, Lin said Musk’s legal advisers will strongly urge him to comply with the rulings of a court that routinely takes cases involving Tesla and other firms incorporated in the state of Delaware.
“If you are an executive at a major American corporation incorporated in Delaware, it’s very hard for you to do business and defy the chancery court’s orders,” Lin said.
Concerns about Musk’s compliance derive from his past behavior dealing with various arms of the government. In a long-running dispute with the U.S. Securities and Exchange Commission, he was accused of defying a securities fraud settlement that required that his tweets be approved by a Tesla attorney before being published. He publicly feuded with California officials over whether Tesla’s electric car factory should remain shut down during the early stages of the COVID-19 pandemic.
He’s also taken a combative approach in Delaware Chancery Court, calling an opposing attorney a “bad human being” while defending Tesla’s 2016 acquisition of SolarCity against a lawsuit that blamed Musk for a deal rife with conflicts of interest and broken promises. He and his lawyers have other Delaware cases still pending, including one involving his compensation package at Tesla.
“I think we’ve got a whole lot of players who, as loose a cannon as Elon Musk is, rely on the goodwill of the Delaware courts on an ongoing basis for their businesses,” Lipton said.
Musk’s argument for winning his latest Delaware case largely rests on his allegation that Twitter misrepresented how it measures the magnitude of “spam bot” accounts that are useless to advertisers. But most legal experts believe he faces an uphill battle in convincing Chancellor Kathaleen St. Jude McCormick, the court’s head judge who is presiding over the case, that something changed since the April merger agreement that justifies terminating the deal.
The trial begins Oct. 17 and whichever side loses can appeal to the Delaware Supreme Court, which is expected to act swiftly. Musk and Twitter could also settle the case before, during or after the trial, lawyers said.
Delaware’s courts are well-respected in the business world and any move to flout them would be “shocking and unexpected,” said Paul Regan, associate professor of Widener University’s Delaware Law School who has practiced in Delaware courts since the 1980s. “If there was some kind of crisis like that, I think the reputational harm would be all on Musk, not the court.”
Matt O’brien, The Associated Press
What the latest Bank of Canada rate hike means for inflation, consumers
By Tara Deschamps
The Bank of Canada hiked its key policy rate by half a percentage point to 4.25 per cent — the highest it’s been since January 2008 — on Wednesday in its final rate decision of a year that has been marked by stubbornly high inflation and rapidly increasing interest rates.
The bank, which has made a steady succession of large hikes over the course of the year, is widely believed to be nearing an end to the increases.
In announcing the rate hike Wednesday, the bank said it will consider whether the rate “needs to rise further to bring supply and demand back into balance and return inflation to target.”
Here’s a look at what the rate means, how analysts are interpreting it and what it could mean for consumers.
What is the key policy rate and what does it do?
The key policy rate, also known as the target for the overnight rate, is how much interest the Bank of Canada wants commercial banks to charge when lending each other money overnight to settle daily balances.
Knowing how much it costs to lend money, or deposit it with the central bank, helps set the interest rates charged on things like loans and mortgages.
Lowering the rate generally makes borrowing money more affordable, while raising it makes such activities more expensive.
Why is the bank using the rate to target inflation?
Inflation is a measure of how much prices of goods and services are rising or falling. High inflation is a sign of an economy that’s overheating.
Canada’s annual inflation rate reached a peak of 8.1 per cent in June, the highest level in four decades.
It has eased since then, reaching 6.9 per cent in September, but didn’t budge in October. And shoppers have seen higher prices for common expenses like groceries. Grocery prices have been rising at the fastest pace in decades and were 11 per cent higher in October than they were a year ago.
Economists and the central bank want to see a further easing, which is why interest rates have been rising so quickly in the hope of cooling consumer spending patterns.
“Inflation is still too high and short-term inflation expectations remain elevated,” the bank said in its announcement. “The longer that consumers and businesses expect inflation to be above the target, the greater the risk that elevated inflation becomes entrenched.”
What does this mean for my mortgage?
Mortgage rates tend to increase or decrease in tandem with interest rates.
When Canadians buy homes there are two kinds of mortgages they can select — fixed rate or variable. Fixed-rate mortgages allow borrowers to lock in the interest rate they will pay for a set amount of time, while variable-rate mortgages can fluctuate.
Allison Van Rooijen, vice-president of consumer credit at Meridian Credit Unit, estimates the rate hike Wednesday will bump payments on a $450,000 variable-rate mortgage on a 25-year amortization up another $130 or so every month. Since the beginning of 2022, rising rates have amounted to roughly $1,000 more per month since the beginning of 2022.
“Because of the high cost of housing in Canada and years of low borrowing rates, Canadians are carrying record-levels of debt on mortgages and lines of credit, so it’s really important that people go through their expenses and look to scale back discretionary spending where they can,” she said in an email.
She recommends people double down on efforts to pay off debt with higher interest rates as much as possible and if they are running into trouble making payments, discuss whether switching to another format of mortgage is right for them.
Does this mean interest rates will stop rising soon?
Shortly after the announcement, many economists predicted the bank isn’t done with hikes yet, even though the language in the statement signalled the possibility of holding steady at 4.25 per cent.
BMO Capital Markets chief economist Douglas Porter said a further hike of about 25 basis points is likely still to come because he’s concerned about the “stickiness of underlying inflation.”
James Orlando of TD Economics agreed. He expects the bank will deliver its final rate hike for the foreseeable future in January, bringing the measure to 4.5 per cent.
“We don’t think the Bank of Canada is done yet, but it is quickly approaching the end of its hiking cycle,” he wrote in a note to investors.
“As all Canadians know, the rapid rate hikes over 2022 have caused a dramatic adjustment in the real estate market, and we are starting to see this in consumer spending data. We expect this to continue to weigh on the economy over 2023 as the lagged effects of past hikes filter through.”
This report by The Canadian Press was first published Dec. 7, 2022.
Experts raise concerns as Nigeria limits cash withdrawals
By Chinedu Asadu in Abuja
ABUJA, Nigeria (AP) — Experts on Wednesday raised concerns over a new policy announced by the Central Bank of Nigeria that heavily limits withdrawals of money in a push for a cashless economy.
The monetary policy, which applies to ATMs, banks and cash back from purchases, follows the launch of the West African nation’s newly designed currency notes to control the money supply.
The central bank limited weekly over-the-counter cash withdrawals to 100,000 naira ($225) for individuals and 500,000 naira ($1,124) for corporations, with a processing fee required to access more.
When the policy takes effect in Jan. 9, ATMs will no longer dispense Nigeria’s high denominations of 1,000 naira ($2.25) and 500 naira ($1.10) while withdrawals from ATMs and point-of-sale terminals also will be limited to 20,000 naira ($45) daily.
“In compelling circumstances, not exceeding once a month, where cash withdrawals above the prescribed limits are required for legitimate purposes, such cash withdrawals shall not exceed 5,000,000 naira ($11,236) and 10,000,000 naira ($22,471) for individuals and corporations, respectively,” said Haruna Mustafa, the bank’s director of banking supervision.
Policymakers say the withdrawal limits and recent monetary initiatives from the central bank would bring more people into the banking system and curb currency hoarding, illicit flows and inflation.
But analysts worry that with digital payments often unreliable in Nigeria, the initiative could hurt daily transactions that people and businesses make.
“The policy is intended to cause discomfort, to move you from cash to cashless because they (the central bank) have said they want to make it uncomfortable and expensive for you to hold cash,” economic analyst Kalu Aja said.
“That is a positive for the CBN (because) the more discomforting they are able to achieve, the more people can move,” Aja said.
In Nigeria, the majority of people work in the informal sector — mainly activities outside of the legal framework and government regulation such as farming, street and market trade, and public transport. The economy is heavily dependent on this sector, and cash is usually preferred for transactions because many lack bank accounts.
Only 45% of adults in Nigeria have accounts with regulated financial institutions, according to the World Bank. In the absence of bank accounts, point-of-sale terminals have emerged as one of the fastest-growing areas of financial inclusion in the country.
Through the withdrawal limits, the central bank is “directly attacking” such agency banking services and “people will essentially begin to hoard their money,” said Tunde Ajileye, a partner at Lagos–based SBM Intelligence firm.
“It is not going to drive people to start to try doing electronic transactions. On the contrary, it is going to move people away from the financial institutions,” he said.
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