Case 3:22-cv-03074-CRB Document 56-2 Filed 12/09/22 Page 1 of 85
`Case 3:22-cv-03074-CRB Document 56-2 Filed 12/09/22 Page 1 of 85
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`EXHIBIT 1
`EXHIBIT 1
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`Case 3:22-cv-03074-CRB Document 56-2 Filed 12/09/22 Page 2 of 85
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`COTCHETT, PITRE & MCCARTHY, LLP
`Joseph W. Cotchett (SBN 36324)
`jcotchett@cpmlegal.com
`Mark C. Molumphy (SBN 168009)
`mmolumphy@cpmlegal.com
`Anne Marie Murphy (SBN 202540)
`ammurphy@cpmlegal.com
`Tyson C. Redenbarger (SBN 294424)
`tredenbarger@cpmlegal.com
`San Francisco Airport Office Center
`840 Malcolm Road, Suite 200
`Burlingame, California 94010
`Telephone: (650) 697-6000
`
`BOTTINI & BOTTINI, INC.
`Francis A. Bottini, Jr. (SBN: 175783)
`fbottini@bottinilaw.com
`Anne B. Beste (SBN 326881)
`abeste@bottinilaw.com
`Albert Y. Chang (SBN 296065)
`achang@bottinilaw.com
`Yury A. Kolesnikov (SBN 271173)
`ykolesnikov@bottinilaw.com
`Nicholas H. Woltering (SBN 337193)
`nwoltering@bottinilaw.com
`7817 Ivanhoe Avenue, Suite 102
`La Jolla, California 92037
`Telephone: (858) 914-2001
`
`Counsel for Plaintiff
`
`
`WILLIAM HERESNIAK, on behalf of
`himself and all others similarly situated,
`
`
`Plaintiff,
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`vs.
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`ELON R. MUSK, X HOLDINGS I, INC., X
`HOLDING II, INC., and TWITTER, INC.,
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`
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No.: 3:22-CV-03074
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`Class Action
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`SECOND AMENDED COMPLAINT
`FOR:
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`(1) AIDING AND ABETTING BREACH
`OF FIDUCIARY DUTY;
`(2) DECLARATORY AND
`INJUNCTIVE RELIEF; AND
`(3) UNJUST ENRICHMENT
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`DEMAND FOR JURY TRIAL
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`
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`Defendants,
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`
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` Second Amended Complaint for Aiding and Abetting Breach of Fiduciary Duty, Declaratory and
`Injunctive Relief, and Unjust Enrichment
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`Case 3:22-cv-03074-CRB Document 56-2 Filed 12/09/22 Page 3 of 85
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`Table of Contents
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`Page
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`I.
`II.
`III.
`IV.
`V.
`VI.
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`INTRODUCTION AND SUMMARY OF THE ACTION ................................................. 1
`JURISDICTION AND VENUE .......................................................................................... 10
`INTRADISTRICT ASSIGNMENT ................................................................................... 11
`THE PARTIES ..................................................................................................................... 11
`CLASS ACTION ALLEGATIONS ................................................................................... 12
`SUBSTANTIVE ALLEGATIONS ..................................................................................... 13
`A. Background of the Musk Buyout of Twitter .................................................................. 13
`B. Musk’s Failures to Timely Disclose His 9+% Stake in Twitter and to Disclose He Had
`Been Invited to Join the Twitter Board are Contrary to the Law ................................... 17
`1. Musk’s Failure to Timely Disclose His 9+% Stake in Twitter ........................... 17
`2. Musk’s Failure to Disclose He Had Been Invited to Join the Twitter Board .... 18
`C. After Unexpectedly Announcing He Would Not Join Its Board, Musk Discloses an
`Intent to Buy Twitter, and Threatens to Go Hostile Through a Tender Offer if Twitter’s
`Board Does Not Acquiesce ............................................................................................ 23
`D. Musk Finances the Proposed Buyout in Part by Pledging Billions of Dollars of His
`Tesla Stock as Collateral for a Loan From Morgan Stanley, But the Proxy Fails to
`Disclose the Full Risks of Such Loans ........................................................................... 28
`E. As Tesla’s Stock Plunges in the 30 Days After Announcement of the Buyout,
`Threatening a Margin Call and a Forced Sale of Musk’s Tesla Stock, Musk Begins to
`Make False Statements and Engage in Market Manipulation of Twitter’s Stock .......... 35
`1. Musk’s May 13, 2022 Tweet ............................................................................... 36
`2. Musk’s May 14, 2022 Tweet ............................................................................... 37
`3. Musk’s May 16, 2022 Statement ......................................................................... 39
`4. Musk’s May 17, 2022 Tweet ............................................................................... 40
`5. Musk’s May 21, 2022 Tweets ............................................................................. 42
`F. Musk and X Holdings I and X Holdings II Are Affiliates of Twitter ............................ 50
`VII. CAUSES OF ACTION ........................................................................................................ 57
`FIRST CAUSE OF ACTION .............................................................................................. 57
`Class Action Claim for Aiding and Abetting Breach of Fiduciary Duty Under Delaware Law
`(Against Defendant Musk and X Holdings I, Inc. and X Holdings II, Inc.)
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`SECOND CAUSE OF ACTION ......................................................................................... 58
`Individual Claim For Declaratory and Injunctive Relief Under California Law
`(Against Defendant Twitter, Inc., Musk, and X Holdings I, Inc. and X Holdings II, Inc.)
`THIRD CAUSE OF ACTION ............................................................................................ 59
`Class Action Claim For Unjust Enrichment Under Delaware Law
`(Against Defendant Musk)
`VIII. PRAYER FOR RELIEF ...................................................................................................... 60
`IX.
`JURY TRIAL DEMAND .................................................................................................... 60
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`Plaintiff alleges the following (a) upon personal knowledge with respect to the matters
`pertaining to Plaintiff; and (b) upon information and belief with respect to all other matters, based upon,
`among other things, the investigations undertaken by Plaintiff’s counsel. Plaintiff believes that
`substantial additional evidentiary support will exist for the allegations set forth below after a reasonable
`opportunity for discovery.
`I.
`INTRODUCTION AND SUMMARY OF THE ACTION
`1.
`Plaintiff brings this class action on behalf of all stockholders of Twitter, Inc., a San
`Francisco based company, who have been harmed by the actions of Defendant Elon R. Musk. Plaintiff
`asserts claims against Defendant Musk for aiding and abetting breach of fiduciary duty and unjust
`enrichment, and against Defendant Twitter, Inc. for declaratory and injunctive relief.
`2.
`Defendant Twitter, Inc., headquartered in San Francisco, operates a social media
`platform that allows its users to send and receive “tweets.” Defendant Musk is a prolific user of Twitter
`and one of its most-followed members, with 90 million followers, making Musk’s Twitter account the
`eighth most popular account on Twitter.
` On April 25, 2022, Twitter, Inc. announced that it had agreed to sell itself to Elon Musk
`3.
`for $54.20 per share, or approximately $44 billion (the “Buyout” or “Proposed Buyout”). Musk
`negotiated the Twitter Buyout over the weekend of April 23-24, 2022 without carrying out any due
`diligence. The Buyout is only conditioned on approval of Twitter’s shareholders at a meeting to be
`scheduled this summer, regulatory approval, and closing of the Buyout by October 24, 2022. A joint
`press release contained a quote from Musk promising to “make Twitter better” by “defeating the spam
`bots.”
`4.
`Before agreeing to buy Twitter for $44 billion, Musk, one of the world’s richest
`individuals valued at $276 billion according to the Bloomberg Billionaires Index, and a sophisticated
`businessman with a phalanx of lawyers and investment bankers, according to the press, specifically
`agreed to waive detailed due diligence as a condition of the merger agreement. At the time, Musk was
`well aware that Twitter had a certain amount of “fake accounts” and accounts controlled by “bots” and
`had in fact settled a lawsuit based on the fake accounts for millions of dollars. Musk had tweeted about
`that issue at Twitter several times in the past, prior to making his offer to acquire Twitter with full
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`knowledge of the bots. Indeed, on April 13, 2022, when he sent a letter to Twitter’s Board offering to
`buy Twitter, he later tweeted that “If our Twitter bid succeeds, we will defeat the spam bots or die
`trying!”
`5.
`Musk and his team were also well aware of the $809.5 million settlement Twitter
`entered into in September 2021, in a securities fraud class action alleging Twitter overstated its user
`numbers and growth rate -- In re Twitter Inc. Securities Litigation, 16-cv-05314, U.S. District Court,
`Northern District of California (San Francisco). All the documents from that case were publicly
`available to Musk, including a website (www.twittersecuritieslitigation.com) containing, among other
`things, the Court’s order denying Twitter’s motion for summary judgment. See April 17, 2020 Order
`Denying Motion for Summary Judgment, at p. 16 (holding that Twitter’s false statements about its
`Daily Active Users (DAUs) and Monthly Active Users (MAUs) were material because “Twitter has
`publicly stated that its success and financial performance depend, at least in part, on the size and
`engagement of its user base.”).
`6.
`Musk believed he was obtaining Twitter at a sale price, since Twitter’s stock price had
`decreased significantly in the months before he made his offer, declining from $71.69 on July 23, 2021
`to just $32.42 on March 7, 2022. After Musk agreed to buy Twitter for $54.20, the stock market
`experienced a decline. The market decline, however, did not affect Twitter’s stock price. After the
`announcement of the Buyout, stock consistently traded close to the Buyout price, and around $50 per
`share. The small delta between its trading price and the $54.20 buyout price was typical of the trading
`prices of companies who have agreed to be acquired, characterized by a small discount for the time
`value of money and a relatively small risk that the deal will not go through.
`7.
`Musk had a unique and multi-billion-dollar problem. Musk pledged his Tesla stock as
`collateral for a $12.5 billion loan to finance the buyout of Twitter, however, Tesla’s shares declined by
`over 37% after the announcement of the Buyout, as reflected below:
`///
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`8.
`Because Tesla’s stock was worth much less than when Musk agreed to buy Twitter,
`Musk was at risk of a margin call or a requirement to put up more cash. Musk quickly acted to attempt
`to mitigate these personal risks to himself by engaging in unlawful conduct that moved the price of
`Twitter’s stock down. Musk proceeded to make statements, send tweets, and engage in conduct
`designed to create doubt about the deal and drive Twitter’s stock down substantially in order to create
`leverage that Musk hoped to use to either back out of the purchase or re-negotiate the buyout price by as
`much as 25% which, if accomplished, would result in an $11 billion reduction in the Buyout
`consideration. As detailed herein, Musk’s conduct was illegal and contrary to the contractual terms he
`agreed to in the deal.
`9.
`Musk’s manipulation worked – Twitter lost $8 billion in valuation after the Buyout was
`announced. As subsequently disclosed, Musk first started purchasing Twitter shares on January 31,
`2022. Musk thereafter exceeded the 5% threshold, requiring him to file a Form 13G with the SEC.
`Musk did not timely file the Form 13G; failing to do so benefitted Musk because he was able to
`continue to buy Twitter shares at depressed prices. When Musk belatedly filed the Form 13G, Twitter’s
`shares increased substantially, rising 27% after he filed the 13G.
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`10. Musk benefitted himself by approximately $156 million by failing to timely file a Form
`13G.1 By delaying his disclosure of his stake in Twitter, Musk engaged in market manipulation and
`bought Twitter stock at an artificially low price, in violation of the law.
`11. Musk’s disregard demonstrates how one can flaunt the law and the tax code to build their
`wealth at the expense of other Americans. Musk’s insider trading profits may come with a slap on the
`wrist in the form of a fine from the SEC but will probably be limited to hundreds of thousands of
`dollars, according to legal and security experts.2
`12. When Musk eventually filed his Form 13G on April 4, 2022, it was materially
`misleading. He did not disclose his intent to join the Twitter Board and he failed to disclose that he was
`contemplating buying Twitter. Both disclosures would have caused Twitter’s stock to increase more
`than it did when his filing was made. Musk was later forced to file an amended Form 13G to comply
`with the law. As Tesla shares cratered by almost 30% in April and May 2022, Musk began to make
`disparaging comments about Twitter in an effort to drive its stock price down further.
`On May 13, 2022, at 5:44 a.m. (i.e., before the stock market opened), Musk issued a
`13.
`tweet which stated that the buyout was “temporarily on hold:”
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`14. Musk’s tweet (and public statement) was misleading and constituted an effort to
`manipulate the market for Twitter shares as he knew all about the fake accounts. The statement was
`false because the buyout was not, in fact, “temporarily on hold.” There is nothing in the buyout contract
`that allows Musk to put the deal “temporarily on hold.” Moreover, Musk’s statement was misleading
`because it stated or implied that Musk’s obligation to consummate the buyout was conditioned on his
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`1 See Reed Albergotti, “Elon Musk Delayed Filing a Form and Made $156 Million,” The Washington
`Post, April 6, 2022.
`2 Id.
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`satisfaction with due diligence to determine whether “spam/fake accounts do indeed represent less than
`5% of users.” This was false because Musk had specifically waived detailed due diligence as a
`condition precedent to his obligations under the buyout contract. Thus, Musk had and has no right to
`cancel the buyout based on any results from due diligence concerning the number of spam/fake
`accounts at Twitter. Musk then continued issuing false and disparaging tweets about Twitter in an
`effort to drive its stock price down further.
`15. Musk’s false and misleading tweets had the desired effect, as they caused Twitters’ stock
`to decline in the days following the tweets, in stark contrast to the Nasdaq index, which increased, as
`reflected in the following chart:
`16.
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`On May 17, 2022, Musk doubled down on his “Friday the 13th” tweet, issuing another
`16.
`tweet stating that the deal “cannot go forward” while claiming almost 20% of accounts were fake.
`///
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`17. Musk’s wrongful conduct not only caused Twitter’s stock to crater by approximately
`25%, but also substantially harmed Twitter’s employees. As reported by the Wall Street Journal on May
`21, 2022:
`In one 24-hour period this month, Twitter Inc.’s chief executive fired two widely liked
`senior executives and announced a hiring freeze, while billionaire Elon Musk
`suddenly said he was putting “on hold” an acquisition plan that could lead to a
`wholesale revamp of the social-media company.
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`It is a tricky time to work at Twitter. Far beyond the usual uncertainty at an acquisition
`target, Mr. Musk’s $44 billion takeover deal has left employees bewildered about what
`their jobs are and will be, as well as how to keep operating a platform with around
`229 million daily users while its would-be owner uses it to publicly assail the company
`for everything from its free-speech policies to its business model.
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`Internal conversations and Slack channels are awash in distress and anger over the
`criticism, while company leaders who themselves have no way to know the outcome
`have responded with repeated staff meetings to try to soothe the angst and encourage
`people to press forward, according to current and former staffers and internal
`communications viewed by The Wall Street Journal.
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`“I expect the ‘chaos tax’ and ups and downs to continue,” Jay Sullivan, Twitter’s new
`head of product, wrote on May 13 in an internal message to thousands of employees
`that was viewed by the Journal.
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`Whatever the fate of the deal, many current and former employees say the company
`has been irrevocably shaped by the five weeks since Mr. Musk publicly disclosed his
`unsolicited bid to buy Twitter, one of the world’s most influential social-media
`platforms. Some employees have left. Many more say they are looking for new jobs.
`Others are hunkering down to await an uncertain fate under Mr. Musk, who recently
`tweeted an image of cartoon excrement at the current CEO.
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`On May 12, Mr. Agrawal told employees the company was pausing hiring and looking
`to cut costs, and that two senior executives—Bruce Falck, general manager of revenue,
`and Kayvon Beykpour, general manager of consumer—were leaving. Mr. Beykpour
`tweeted he was on paternity leave when he got the news.
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`The next day, Mr. Musk tweeted that the deal was “on hold” until he could get more
`clarification from the company about how pervasive bots were on the platform. That
`rattled already wobbly investor confidence that the deal will happen at the price Mr.
`Musk agreed to—if at all. Twitter shares are down more than 25% since late April. 3
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`18. Musk’s false statements and market manipulation have created “chaos” at Twitter’s
`headquarters in San Francisco:
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`19. Musk has also bullied current Twitter employees and stated that he would stop censoring
`hate speech:
`Among those most concerned are staff responsible for moderating content and
`developing tools that minimize abuse and hate speech on the platform, current and
`former employees say. Mr. Musk has repeatedly said Twitter’s limits on expression are
`too great and that he wants to allow almost all speech on the platform that isn’t
`illegal. Mr. Musk’s complaints echo those of others, including some conservative
`lawmakers who have criticized efforts at content moderation, saying they are subjective
`
`3 See Deepa Seetharaman & Sarah Needleman, “Twitter Employees Face ‘Chaos Tax’,” THE WALL
`STREET JOURNAL, May 21, 2022.
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`and can lead to bias.
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`Some current employees say they view Mr. Musk’s behavior on the platform,
`particularly his targeting of Ms. Gadde, [referenced infra] as an example of the type
`of online bullying they have been tasked with minimizing.4
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`20. Musk has been accused of using Twitter to foster “dogpiling,” in which he encouraged
`his users to harass someone else, such as the case of Vernon Unsworth, a British diver who had spent
`days assisting the rescue of a group of Thai boys trapped in a flooded cave. After Musk offered a
`minuscule submarine to the rescue divers, Unsworth told the media that Musk’s idea was just a useless
`public relations stunt. Musk then took to Twitter, where (in tweets that he later deleted) he baselessly
`accused Unsworth of being a “pedo guy,” or pedophile. The tweets prompted hundreds of Musk fans to
`pile on to the diver with abusive, humiliating attacks.5
`21. Musk’s manipulation of Twitter stock has also encouraged other market participants to
`short Twitter’s stock. After Musk began disparaging Twitter and his own buyout, Hindenburg shorted
`Twitter. On May 17, 2022, Hindenburg closed its short position for a large profit.6
`22.
`In the ensuing months, Musk sent three separate letters to Twitter officially terminating
`the Merger. Those letters were dated July 8, August 29, and September 9, 2022. See Exhibits A, B, C,
`attached.
`23.
`Twitter sued Musk in Delaware Chancery Court after receiving the July 8, 2022
`termination letter, but Musk’s emphatic and repeated cancellation of the Merger led the market to
`continue to discount Twitter’s stock.
`24.
`Twitter’s lawsuit against Musk, which sought specific performance, was expedited and
`set for trial beginning on October 17, 2022. Musk made several attempts to obtain a continuance of the
`trial date, but each was rejected by the court.
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`4 Id.
`5 See Billy Perrigo, “Twitter Employees Have Spent Years Trying to Make the Platform Safer. Elon
`Musk Could Undermine All That,” TIME, Apr. 26, 2022.
`6 See Joshua Fineman, “Hindenburg Research Closes Twitter Short Position,” SEEKING ALPHA, May 17,
`2022.
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`25.
`On September 13, 2022, Twitter shareholders voted to approve the Merger, satisfying the
`last remaining condition for the closing of the Merger. Musk therefore was contractually obligated to
`close the Merger within two business days pursuant to Section 2.2 of the Merger Agreement. The
`Merger thus should have closed on September 15, 2022.
`26.
`However, Musk wrongfully refused to do so. Instead, Musk continued his conduct of
`making false statements about the Merger and attempting to delay the closing of the Merger. As
`indicated below, Musk’s wrongful conduct apparently included deleting important evidence and/or
`failing to preserve and produce evidence in the Delaware litigation.
`27.
`On October 4, 2022, less than two weeks before the trial was set to commence, Musk
`shocked the markets by announcing that he intended to go through with the Merger at the original price
`of $54.20. Twitter’s stock immediately jumped by over 15% before trading in the stock was halted by
`the stock exchange. When trading resumed later in the day, the stock increased another 7%, eventually
`closing up over 22% in one day.
`28.
`However, the stock still traded below the Merger price because substantial uncertainty
`still existed as to whether Musk would obtain the necessary financing and actually close the Merger.
`29.
`The trial date in Delaware remained scheduled for October 17, 2022. Musk tried to get
`the Delaware trial date continued, but was apparently attempting to impose a new condition not
`contained in the Merger Agreement – the imposition of a financing contingency.
`30.
`Twitter apparently rejected Musk’s attempts to impose a new term not contained in the
`original Merger Agreement. Talks appeared to stall. On October 5, 2022, the Delaware court ruled that
`the October 17, 2022 trial date remained in place because the court had not received an agreement from
`the parties to vacate the trial date.7
`31.
`In an order dated October 5, 2022, the Delaware court also ordered Musk and his legal
`team to produce additional discovery in the case and criticized them for not properly turning over
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`7 “The parties have not filed a stipulation to stay this action, nor has any party moved for a stay,” Judge
`Kathaleen St. J. McCormick said in an October 5, 2022 letter. “I, therefore, continue to press on toward
`our trial set to begin on October 17, 2022.”
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`Injunctive Relief, and Unjust Enrichment
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`communications that could be evidence in Twitter’s lawsuit. The court said that that the absence of text
`messages from two periods in May and June suggested that Musk used “other information channels not
`captured by text records” such as iMessage or Signal.
`32. While Musk said he never used Signal to communicate about the transaction after an
`exchange with venture capitalist Marc Andreessen in April 2022, Signal messages with top aide Jared
`Birchall seem to suggest that Musk continued to use the service after that and used its auto-delete
`function, the judge said in the letter.
`33.
`“I am forced to conclude that it is likely that Defendants’ custodians permitted the
`automatic deletion of responsive Signal communications between them and possibly others, and that
`those communications are irretrievably lost,” the judge said. “At this stage, it is unclear to me whether
`deletions occurred when defendants were under a duty to preserve documents. If defendants deleted
`documents after they were under a duty to preserve, some remedy is appropriate, but the appropriate
`remedy is unclear to me at this stage.”
`34.
`Facing spoliation sanctions, Musk eventually dropped his attempt to impose a financing
`contingency on the deal and closed the Merger on the original price. However, the closing of the
`Merger had been substantially delayed due to Musk’s wrongful conduct, thus depriving Plaintiff and the
`Class of interest on the Merger proceeds that they should have received earlier. Twitter shareholders
`did not receive the Merger consideration until October 31, 2022. Musk’s wrongful conduct thus
`delayed the closing of the Merger by approximately one and a half months.
`II.
`JURISDICTION AND VENUE
`35.
`This Court has jurisdiction as the Defendants are located in and/or conduct business in
`California, including, but not limited to, the conduct here at issue, and because they have sufficient
`minimum contacts with California to render the exercise of jurisdiction by the California courts
`permissible under traditional notions of fair play and substantial justice.
`36.
`This Court has subject matter jurisdiction over this matter under 28 U.S.C. §1332, as
`this is a class action where at least one of the members of the Class is a citizen of a state different from
`at least one of the defendants, and the matter in controversy exceeds the sum or value of $5,000,000.
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`37.
`Venue is proper in this judicial district under 28 U.S.C. §1391, because: (1) one or more
`defendants reside in this District; and (2) a substantial part of the events or omissions giving
`rise to the claims occurred in this District. Twitter is headquartered in San Francisco, California at 1355
`Market Street, Suite 900. Musk’s wrongful conduct took place in substantial part and have an effect in
`San Francisco, California, including his use of Twitter tweets to make false statements and engage in
`market manipulation of Twitter stock.
`III.
`INTRADISTRICT ASSIGNMENT
`38.
`A substantial part of the events or omissions which give rise to the claims in this action
`occurred in the county of San Francisco, and as such, this action is properly assigned to the San
`Francisco division of this Court.
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`IV.
`THE PARTIES
`39.
`Plaintiff William Heresniak is a current shareholder of Twitter, Inc. and has owned
`Twitter stock at all relevant times. Plaintiff is a resident and citizen of Virginia.
`40.
`Defendant Twitter, Inc. is a Delaware corporation headquartered in San Francisco,
`California. Twitter is a citizen of California and Delaware.
`41.
`Defendant Elon R. Musk is an individual who currently owns approximately 9.6% of
`Twitter’s stock and has entered into voting agreements with other shareholders giving him far greater
`voting control. On April 25, 2022, Musk announced a definitive agreement to buy Twitter for $54.20
`per share in cash. Musk is an affiliate of Twitter for purpose of the Buyout. Upon information and
`belief, Musk is a citizen and resident of Texas.
`42.
`Defendants X HOLDINGS I, INC. and X HOLDING II, INC. are Delaware corporations
`formed by Defendant Musk to effectuate the purchase of Twitter. The Merger Agreement refers to X
`Holdings I as “Parent” and X Holdings II as “Acquisition Sub” and states that X Holdings II is a direct
`wholly-owned subsidiary of X Holdings I. As a material inducement and condition to Twitter entering
`into the Merger Agreement, Elon Musk guaranteed Parent’s and Acquisition Sub’s obligations under
`the Merger Agreement. Pursuant to the Merger Agreement, Musk was responsible for paying the
`Merger Consideration directly to Plaintiff and other Twitter shareholders via the X Holdings entities.
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`V.
`CLASS ACTION ALLEGATIONS
`43.
`Plaintiff brings this action as a class action, pursuant to F.R.C.P. 23, on behalf of all
`stockholders of Twitter, Inc. who have been harmed by Defendants’ unlawful conduct in connection
`with Musk’s buyout of Twitter. Excluded from the Class are Defendants herein and any person, firm,
`trust, corporation, or other entity related to, or affiliated with, any of the Defendants and their
`successors in interest (the “Class”).
`44.
`This action is properly maintainable as a class action because:
`(a)
`The Class is so numerous that joinder of all members is impracticable. There are
`millions of shares of the Company’s common stock outstanding owned by hundreds, if not thousands,
`of stockholders;
`(b)
`There are questions of law and fact which are common to the Class including,
`inter alia, the following: (i) whether Musk aided and abetted breaches of fiduciary duty committed by
`Dorsey and Durban; (ii) whether Musk engaged in conduct designed to unjustly delay the closing of the
`Merger; (iii) whether Defendants have been unjustly enriched; and (iv) the nature and extent of damage
`sustained by Class members.
`(c)
`Plaintiff is committed to prosecuting this action and has retained competent
`counsel experien