Whistle-blower Spam Claims Pose Challenge for Twitter

What does Jack know?

Twitter’s former security chief sent a whistle-blower complaint to the S.E.C and other agencies contending that the company’s spam- and hacker-fighting efforts were reckless and inadequate, according to explosive reports from CNN and The Washington Post this morning. The complaint could strengthen Elon Musk’s hand in his efforts to walk away from his $44 billion deal to buy Twitter.

The reports come a day after Musk’s legal team served the Twitter co-founder Jack Dorsey with a subpoena ahead of an October trial to determine whether Musk is obligated to pursue the purchase. This subpoena is notable because Dorsey was, at least at one point, Musk’s friend, and may have had a role in getting Musk to bid for Twitter in the first place.

Dorsey’s role in all of this. After Musk briefly accepted a Twitter board seat in April, Dorsey relayed to him his big vision. He saw Twitter being better off as a private company. The next day, Musk told Twitter that he wanted to buy the company rather than join the board, according to the deal proxy. (Musk, in his countersuit against Twitter, said he changed his mind about the board seat because he “realized that Twitter’s current management was not up to the task of fixing Twitter.”) Dorsey, who originally welcomed Musk’s acquisition, has stayed quiet since the deal soured.

Musk wants more information from Dorsey about spam counts and compensation. In Musk’s countersuit, his team contends that Twitter may have been motivated to manipulate mDAU numbers — or active users as compared to spam — because Twitter began to include those figures as a metric for its cash executive compensation plan in 2021. That metric, Musk says, “is much easier to manipulate than revenue or income.” In subpoenaing Dorsey, Musk wants all the documentation in how Twitter thought about pay in context to its bot numbers. (Dorsey himself was paid $1.40 in executive compensation last year.)

Legal experts say Musk’s argument appears contradictory. In his countersuit, he says he offered to buy Twitter, on no due diligence, because that’s what his bankers told him it was worth based on its mDAU numbers. But he also seems to be arguing that those figures were never to be trusted.

Now there may be a new opening. The allegations detailed in The Post and CNN do not exactly align with Musk’s current legal argument, which focuses largely on deal terms and Twitter’s public disclosures. But they could offer Musk new legal arguments, and raise potential national security issues. Twitter struck a 2011 settlement with the F.T.C. over safeguarding user information. If it were found to have violated that agreement, could Musk have finally obtained that “material adverse change” argument he has been pursuing?

A Twitter representative told DealBook the whistle-blower allegations were “riddled with inconsistencies and inaccuracies,” and that security and privacy “have long been company-wide priorities.”

HERE’S WHAT’S HAPPENING

Is the summer stock rally over? The S&P 500 suffered its worst one-day beating since mid-June yesterday, hurt by further rate jitters. Shares in Zoom, which issued a profit warning, and Ford, which announced 3,000 layoffs, were among the day’s biggest losers.

Goldman Sachs will face trial over gender bias claims. A federal judge threw out Goldman’s bid to dismiss a 12-year-old class action case involving 1,800 female plaintiffs who said they’d been systematically underpaid while employed at the company’s investment bank division, dating back to 2002. Opening remarks are set for next June.

Saudi Arabia warns it may push for an oil production cut. The kingdom’s energy minister said that the OPEC+ cartel of oil producers, which it effectively leads, may seek to restrict supply amid a monthslong drop in prices. The price of crude jumped after his remarks.

Superyacht attracts big bidders. The Axioma, which is 240 feet long with six bedrooms, a gym and a 3-D theater, had been owned by the billionaire and Putin ally Dmitrievich Pumpyansky. Seized after the Russian invasion of Ukraine, the vessel is believed to be the first such superyacht to go to auction, and could see bids top $75 million.

AMC goes APE

AMC Entertainment aimed to cash in on its buzzy popularity yesterday with a special dividend that’s being closely watched by meme-stock traders and market watchers. Shareholders of AMC, a movie theater chain hit hard by Covid closures, got one share of preferred stock for every common AMC share they own.

The company billed the arrangement as a new way to raise money. Corporate governance experts and finance pros are keen to see if it catches on more broadly.

The back story: AMC raised billions during the pandemic by selling new shares. But earlier this year, shareholders rejected management’s request to issue yet more common stock, worried about further diluting their holdings. AMC then drew upon pre-existing shareholder approval to issue preferred stock.

The deal was neither blockbuster nor flop. AMC’s common stock tumbled nearly 42 percent yesterday, to just under $10.50. But add the new preferred shares — which trade under the symbol APE, a reference to meme-stock bulls, and which closed yesterday at $6 each — and the combined value of AMC equity was $16.50, down 8 percent from Friday’s close.

Unlike common stock, AMC can issue more APE units without shareholder approval. The APE units have the same voting rights as common stock, but are trading at a discount. The thinking goes that the price gap creates an incentive among shareholders to convert to higher-priced common stock. In doing so, AMC’s share count would balloon, essentially raising the company’s market cap and giving the theater chain more financial firepower.

That could be important, given AMC’s $10 billion in debt and long-term liabilities.

Why this matters: If AMC can make this financing work, other companies that are short of cash companies may copy it. “They invented a clever way of potentially raising new money,” Douglas Chia, the head of Soundboard Governance, a corporate governance consultancy, told DealBook. “It’s all legal and by the book.”

Record ‘dark money’ donation bolsters conservatives’ midterm hopes

A low-profile Republican financier donated $1.6 billion to a new group run by Leonard Leo, the well-connected lawyer and activist who helped to reshape the American judicial system by getting conservatives appointed to the Supreme Court. The donation is the single largest ever given to a political advocacy group. The donor: Barre Seid, a 90-year-old executive who made his fortune as the chairman and C.E.O. of the electrical device manufacturer Tripp Lite.

What’s unusual about the transaction is that instead of giving cash, Seid donated stock. The recipient, Marble Freedom Trust, got 100 percent of the shares of Tripp Lite following the company’s sale to Eaton, an Irish conglomerate, for $1.65 billion. That’s according to tax records provided to The Times, corporate filings and a person with knowledge of the matter, report The Times’s Kenneth Vogel and Shane Goldmacher. Marble Freedom Trust received every last dime from the sale. (Eaton does not refer to Marble in statements about the sale.)

The donation seems legal, but appears designed so that Seid could avoid paying taxes. Marble Freedom Trust, which was formed in 2020, is registered under the tax code 501(c)4, a designation given to tax-exempt organizations focused on special welfare. Those who donate assets to such entities would avoid capital gains taxes on sale of those assets.

The unconventional deal again shows the lengths donors are pursuing to inject “dark money” into American politics. Marble Freedom Trust does not have to publicly disclose basic information like its name, address or directors. (Tripp Lite is a private company.)

The cash infusion is a huge financial boost for conservatives ahead of the midterms — and beyond. In a statement, Leo cited some of the left’s biggest donors, saying: “It’s high time for the conservative movement to be among the ranks of George Soros, Hansjörg Wyss, Arabella Advisors and other left-wing philanthropists, going toe-to-toe in the fight to defend our constitution and its ideals.”

Read the entire Times story here.

“The last 20 years of the great moderation — that’s fully behind us now.”

— Tiffany Wilding, North American economist at Pimco, on the end of an era of low inflation.

Sinema carries on

Senator Kyrsten Sinema, Democrat of Arizona, has been promoting the benefits of the Inflation Reduction Act to her constituents — skipping the fact that she was the law’s biggest obstacle.

Earlier this month Sinema withheld her support for the act’s passage until her colleagues agreed to cut a provision that would have partially closed the “carried interest loophole,” a tax exemption that favors private equity professionals. With her condition met, she then pledged to work on “closing the most egregious loopholes that some abuse to avoid paying taxes.” So what is the plan for a tax overhaul now?

What’s happening now: Senator Mark Warner, Democrat of Virginia, and Sinema have held talks about gaps in the tax code. Both have said that they will work on a new bill to address abuses; neither has provided details. “While he would have preferred to reform carried interest as part of reconciliation, he is committed to working with Senator Sinema to introduce new legislation to achieve that goal,” Warner’s representative wrote in an email.

There are doubts that Sinema’s tax bill will materialize. A Democratic staff member close to the carried interest haggling in August, who was not authorized to discuss the negotiations, said that Sinema had rejected so many compromises that no one is holding their breath for a new bill.

But some on Capitol Hill are confident that the carried interest loophole will be closed. TheSenate Finance Committee chairman, Ron Wyden of Oregon, last year introduced a bill to outright eliminate the loophole. He believes voters “overwhelmingly” support this change. “I thought we could at least close down some of those egregious loopholes this time around, but we’ll keep pushing,” Wyden told DealBook.

THE SPEED READ

Deals

• This year may be the worst for I.P.O.s in two decades. (WSJ)

• That said, the grocery delivery service Instacart appears determined to buck the trend, and go public this year. (WSJ)

• The SPAC that is taking Donald Trump’s media company public warned that hits to the former president’s popularity could hurt the prospective deal. (CNBC)

Policy

• A judge rejected Ben & Jerry’s effort to stop its parent company, Unilever, from resuming the sale of its ice cream in West Bank settlements. (Reuters)

• Dr. Anthony Fauci will retire from government service in December, sooner than previously announced. (NYT)

• A potential sleeping giant in the Inflation Reduction Act involves federal loans to clean energy projects. (NYT)

Best of the rest

• MoviePass, the movie-ticket subscription service that halted operations three years ago, is back. (Insider)

• The average lowest wage that Americans would accept for a new job has risen to nearly $73,000. (Bloomberg)

• Inside the wedding of Sheryl Sandberg, Meta’s outgoing president, to the marketing executive Tom Bernthal. (Page Six)

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