The banks that agreed to finance Elon Musk’s $44 billion (roughly Rs. 3,37,465 crore) acquisition of Twitter have a financial incentive to help the world’s richest person walk away but would face long legal odds, according to people close to the deal and corporate law experts.
Twitter has sued Musk to force him to complete the transaction, dismissing his claim that the San Francisco-based company misled him about the number of spam accounts on its social media platform as buyer’s remorse in the wake of a plunge in technology stocks.
The Delaware Court of Chancery, where the dispute between the two sides is being litigated, has set a high bar for acquirers being allowed to abandon their deals, and most legal experts have said the arguments in the case favour Twitter.
Yet there is one scenario in which Musk would be allowed to abandon the acquisition by paying Twitter only a $1 billion (roughly Rs. 7,924 crore) break-up fee, according to the terms of their contract. His $13 billion (roughly Rs. 103 crore) bank financing for the deal would have to collapse.
Refusing to fund the deal would weigh on the banks’ reputation in the market for mergers and acquisitions as reliable sources of debt. However, the banks would have at least two reasons to help Musk get out of the acquisition, three sources close to the deal said.
The banks stand to earn lucrative fees from Musk’s business ventures such as electric car maker Tesla and space rocket company Space, provided they continue to curry favour with him.
They also face the prospect of hundreds of millions of dollars in losses if Musk is forced to complete the deal, the sources said. This is because, as with every big acquisition, the banks would have to sell the debt to get it off their books.
They would struggle to attract investors given the downturn in pockets of the debt market since the deal was signed in April, and the fact that Musk would be seen as an unwilling buyer of the company, the sources said. The banks would then face the prospect of selling the debt at a loss.
It is unclear whether the banks that agreed to finance the acquisition — Morgan Stanley, Bank of America, Barclays, Mitsubishi UFJ Financial Group, BNP Paribas, Mizuho Financial Group and Societe Generale — will attempt to get out of the deal.
The banks are waiting for the outcome of the legal dispute between Musk and Twitter before making any decisions, according to the sources. The trial is scheduled to start in October.
Spokespeople for Morgan Stanley, Bank of America, Barclays, Mitsubishi and Mizuho declined to comment, while BNP Paribas and Societe Generale did not immediately respond to requests for comment.
There is a catch to the banks serving as Musk’s escape hatch. He would have to show in court that the banks refused to deliver on their debt commitments despite his best efforts, according to the terms of his deal contact with Twitter.
This would be challenging to prove given Musk’s public statements against the deal as well as private communications between Musk and the banks that Twitter may uncover in its request for information, four corporate lawyers and professors interviewed by Reuters said.
“Musk would have to convince the judge he is not responsible for the bank financing falling through. That is hard to show, it would require a great degree of deftness from him and the banks,” said Columbia Law School professor Eric Talley.
Musk and Twitter representatives did not respond to requests for comment.
Even if the banks can show they are not acting at Musk’s behest, they would find it difficult to get out of the Twitter deal, the legal experts said. They pointed to the case of chemical maker Hunstman, which in 2008 sued the banks that walked away from financing its $6.5 (roughly Rs. 500) sale to Hexion Specialty Chemicals.
Hexion, owned by private equity firm Apollo Global Management, abandoned the deal after Huntsman’s fortunes deteriorated, but a Delaware judge ruled that the transaction should go ahead. The two banks financing the deal, Credit Suisse Group AG and Deutsche Bank AG, then refused to fund it, arguing the combined company would be insolvent.
Huntsman sued the banks and, one week into the trial, they settled. The banks agreed to a $620 million (roughly Rs. 4,912 crore) cash payment and the provision of a $1.1 billion (roughly Rs. 8,716 crore) credit line to Hunstman, which had also secured earlier a $1 billion (roughly Rs. 7,924 crore) settlement payment from Apollo.
The banks balking at funding Musk’s deal would also have to show that Twitter would be insolvent if the acquisition happened, or that terms of their debt commitment were somehow breached, a high bar based on the deal documents that have been made public, the legal experts said.
“If the banks try to get out of the deal, they will walk into the same fight that Musk has taken on, where Twitter has the better legal arguments,” said Eleazer Klein, co-chair of law firm Schulte Roth & Zabel LLP’s mergers, acquisitions and securities group.
© Thomson Reuters 2022
Best Buy Trims Jobs After It Cuts Sales and Profit Forecast Citing Surging Inflation
Best Buy, the nation’s largest consumer electronics chain, is trimming jobs in an effort to adjust to new changes in consumer behaviour as the virus wanes.
Best Buy declined to say how many jobs it was cutting, but The Wall Street Journal, which was first to report the news, estimated it involved hundreds of jobs at the store level.
“We’re always evaluating and evolving our teams to make sure we’re serving our customers,” Best Buy said in a statement emailed to The Associated Press. ‘With an ever-changing macroeconomic environment, including customers shopping more digitally than ever, we have made adjustments to our teams that include eliminating a small number of roles.”
The job cuts come after Best Buy reduced its annual sales and profit forecast late last month, citing surging inflation that has dampened consumer spending on gadgets. The Minneapolis-based company echoed Walmart, which a few days before cut its profit outlook. The nation’s largest retailer said that higher prices on basic necessities are forcing shoppers to cut back on discretionary items .
Walmart also announced earlier this month that it was cutting jobs at its corporate headquarters as part of a restructuring effort.
Still, the latest snapshot on the overall US job market remains strong even as inflation continues to rage and affect all types of businesses. Last week, the government reported that unemployment dropped another notch, from 3.6 percent to 3.5 percent, matching the more than 50-year low reached just before the pandemic took hold. The economy has now gained back all 22 million jobs lost in March and April 2020 when COVID-19 hit the US.
Best Buy said last month it now expects this year’s sales at stores opened at least a year to be down 11 percent, much steeper than the 3 percent to 6 percent drop it originally forecast in May.
For Best Buy’s fiscal second quarter, it expects comparable sales to be down 13 percent. Still, revenue for the quarter should be roughly 7.5 percent higher than the second quarter of 2020, it said.
Best Buy is slated to report its quarterly results on August 30.
US Regulator to Investigate Deaths of Amazon Workers in New Jersey: Details
Federal work-safety investigators are looking into the death of an Amazon worker and an injury that potentially led to the death of another employee, adding to a probe already underway following a third fatality during the company’s annual Prime Day shopping event in mid-July.All three Amazon workers died within the past month and were employed at company facilities in New Jersey.
The new Occupational Health and Safety Administration (OSHA) investigations are putting fresh scrutiny on Amazon’s injury rates and workplace-safety procedures, which have long been criticized by labor and safety advocates as inadequate.
Department of Labor spokesperson Denisha Braxton confirmed Thursday that the most-recent fatality took place last week at an Amazon facility in Monroe Township, about 20 miles (35 kilometers) northeast of Trenton. The second probe is looking into a July 24 accident at an Amazon facility in Robbinsville. The worker involved in that accident died three days later, according to Braxton.
In a statement, Robbinsville Police Chief Michael Polaski said police responded to the warehouse, called PNE5, on July 24 after receiving a report that a worker fell from a three-foot (one-meter) ladder and struck his head.
Polaski said the worker was conscious and alert when police arrived. But police were told CPR was conducted on the person by other workers prior to their arrival, he said. The person was transported to a hospital and OSHA was notified of the incident on the same day, he added.
Police in Monroe Township didn’t immediately reply for a request for comment on the incident there.
The two most recent deaths were first reported by the USA Today Network.
OSHA officials declined to provide additional information about any of the deaths, citing the open investigations. The agency has up to six month to complete each probe.
Sam Stephenson, a spokesperson for Seattle-based Amazon, said in a statement the company was “deeply saddened by the passing of our colleagues and offer our condolences to their family and friends.”
“Our investigations are ongoing and we’re cooperating with OSHA, which is conducting its own reviews of the events, as it often does in these situations,” Stephenson said.
Last month, OSHA launched another investigation into a worker fatality at an Amazon warehouse in the New Jersey town of Carteret during the company’s Prime Day shopping event, which turned out to be the biggest in the company’s history. Federal officials haven’t released additional details about the death, but news reports have identified the worker as 42-year-old Rafael Reynaldo Mota Frias.
A spokesperson for Amazon said the company’s internal investigation into the Carteret death shows it “was not a work-related incident, and instead was related to a personal medical condition.”
“OSHA is currently investigating the incident, and, based upon the evidence currently available to us, we fully expect that it will reach the same conclusion,” the spokesperson said.
News of the deaths comes amid broader scrutiny into the company’s operations. In late July, OSHA officials inspected Amazon facilities in New York, Illinois and Florida after receiving referrals alleging health and safety violations from the US Attorney’s Office for the Southern District of New York. The civil division of the U.S. attorney’s office is also investigating safety hazards at Amazon warehouses and “fraudulent conduct designed to hide injuries from OSHA and others,” according to a spokesperson for the office.
US FTC Considering New Rules to Rein in Tech Firms' Collection of Personal Data, Protect Privacy
Whether it’s the fitness tracker on your wrist, the “smart” home appliances in your house or the latest kids’ fad going viral in online videos, they all produce a trove of personal data for big tech companies.
How that data is being used and protected has led to growing public concern and officials’ outrage. And now federal regulators are looking at drafting rules to crack down on what they call harmful commercial surveillance and lax data security.
The Federal Trade Commission announced the initiative Thursday, seeking public comment on the effects of companies’ data collection and the potential benefit of new rules to protect consumers’ privacy.
The FTC defines commercial surveillance as “the business of collecting, analyzing and profiting from information about people.”
In Congress, bipartisan condemnation of the data power of Meta — the parent of Facebook and Instagram — Google and other tech giants that have earned riches by aggregating consumer information used by online advertisers, has brought national data privacy legislation to its closest point ever to passage.
Around the country, parents’ concern has deepened over the impact of social media on children. Frances Haugen, a former Facebook data scientist, stunned Congress and the public last fall when she exposed internal company research showing apparent serious harm to some teens from Instagram. Those revelations were followed by senators grilling executives from YouTube, TikTok and Snapchat about what they’re doing to ensure young users’ safety in the wake of suicides and other harms to teens attributed by their parents to their usage of the platforms.
As concerns rise, social media platforms from Snapchat to TikTok to Instagram are adding new features they say will make their services safer and more age appropriate. But the changes rarely address the algorithms pushing endless content that can drag anyone, not just teens, into harmful rabbit holes.
The Democratic members of the FTC said Thursday it’s imperative for Congress to pass a new law, but that the agency was taking action in the meantime by issuing the notice of proposed rules.
“Mass surveillance has heightened the risks and stakes of data breaches, deception, manipulation and other abuses,” the FTC said.
Agency officials noted that the FTC has brought hundreds of enforcement actions against companies over the last two decades for violations of privacy and data security. They included cases involving the sharing of health-related data with third parties, the collection and sharing of sensitive TV viewing data for targeted advertising, and failure to put in adequate security measures to protect sensitive data such as Social Security numbers.
However, the officials said, the FTC’s ability to deter illegal conduct is limited because it generally lacks authority to seek financial penalties for initial violations of law. That could change if the comprehensive privacy legislation were to clear Congress.
“Firms now collect personal data on individuals at a massive scale and in a stunning array of contexts,” FTC Chair Lina Khan said in an online news conference. “Our goal today is to begin building a robust public record to inform whether the FTC should issue rules to address commercial surveillance and data security practices, and what those rules should potentially look like.”
“We are very, very eager to hear from the public,” Khan said.
Topics of interest could include how companies use algorithms and automated systems to analyze the information they collect, and the potential effects of various data practices.
Khan, who was an outspoken critic of Big Tech as a law professor, was appointed by President Joe Biden last year to head the FTC — an independent agency that polices competition and consumer protection as well as digital privacy.
The rulemaking proposal was adopted in a 3-2 vote by the five FTC commissioners. Khan and the other two Democrats voted to issue it, while the two Republicans opposed it.
On Tuesday, Snapchat introduced new parental controls in what it calls the “Family Center” — a tool that lets parents see who their teens are messaging, though not the content of the messages themselves. Both parents and their children have to opt into the service.
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