Performative Strategy

Only a handful of judges have ever ordered a reluctant buyer to close a corporate merger — including the judge handling the Twitter v Musk lawsuit. with @HyunjooJin https://t.co/1gdD0dSsNe

— Tom Hals (@tomhals) July 15, 2022

If memory serves, specific performance on a contract is an equitable remedy. There were two kinds if remedies in common law. Damages, reparations if you will, are from the common law. Premises liability (slip ‘n’ fall)? Money is your compensation. Breach of contract? Money, again. But what if money is inadequate to the damage? What if the only proper recompense is performance of the contract?

Sometimes that’s what it takes. But it’s also an extraordinary remedy. It’s not the first remedy for breaking a contract. Circumstances matter. Change the facts, change the outcome. Specific performance is an equitable remedy. It is justice when damages are not. But that means it steps in when other remedies have been assessed first.

Now when you have a breach of contract claim, you have to ask for all the damages you can prove. If it’s true the other party is in breach and you are not, you can seek an equitable remedy. You must come to equity with clean hands. At common law you can be in breach, but the defendant’s breach is greater and came first. For that you can still get damages, but equity will not help you. The roots of equity are in the ecclesiastical courts of medieval England. The remedies of equity apply when common law remedies are not just enough. But you must come to equity with clean hands. You cannot be at fault and seek the extraordinary remedies of equity.

In a contract case, if you have performed on the contract but there is a breach, you should seek specific performance. You may not get it, but you are asserting you have no fault. You are also asserting you wanted that contract performed. If the court decides specific performance is too extreme, more remedy than the facts allow, you still stand on the losses because of the breach of the contract, which means actual damages and even, hey!, a $1 billion penalty clause. Which the court can enforce, as part of the contract.

So you file suit for your client seeking specific performance. Will you get it? Not if you don’t ask. And if you don’t (it would be a big lift to require it in a case like this, just because of the amount of money involved, and the complexity of the sale), you’re in a much better position for actual damages. Because your case is built on your full performance under the contract, allowing you to seek completion of the contract, or at least the performance of the penalty clause; and then damages.

It’s all about strategy, really. And speaking of strategy:

Tesla chief Elon Musk asked a Delaware court Friday to reject a bid by Twitter to put their $44 billion merger lawsuit on trial in September, instead asking to push it back until next year. 

In a court document cited by US media, Musk's lawyers accuse Twitter's board of directors of wanting to expedite the case.

Well, of course they do. Delay is not in Twitter's interests.

The social network says the number of fake accounts is less than five percent, a figure challenged by Musk, who says he believes the percentage is much higher. 

His lawyers say proving that will require analyzing mountains of data.

Yeah, that’s the interesting part, though when lawyers say “prove,” they have in mind the rules of evidence, not just facts and figures. But “analyzing mountains of data”? There is the matter of proving evidence up for trial, but analyzing it? Didn’t Elmo do that already? If he didn’t, if they have to do that now, it’s pretty close to a summary judgment on the breach of contract question.

At least that would be part of my argument against the motion to delay.