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Dare we dub this "The Final Chapter" of this expedited novella?
The Delaware Supreme Court takes on Specific Performance, in the shadow of one specific performance playing out in real time.
These are weird days, with strange markings on the calendar left over from attempts to blot out any aspects of life that were not trial-related. These were to be the days of 24/7 Twitter v. Musk, and now they are just normal days with normal work—the kind of days where everything that you have set aside in the absolute crushing intensity of focus for the past several months comes knocking back on your proverbial door, to remind you that it does—in fact—still need to be handled.
I know that recitation of today’s reality may almost be read as wistful, but I personally am not sorry that the stay was granted, nor that this deal will likely close all by its lil’ growed-up self, on or before October 28th, 2022.
That said, the crash course of the past three months has taught me enough to know that nothing is done until it’s in fact and actually done, especially where Elon Musk is concerned. Perhaps that’s a result of some innate personality trait on his part: his nimble entrepreneurial abilities always being ready for the next nearest pivot (the hero-genius story), or alternatively, some deep and abiding commitment to stochastic movements that share in common only their teleological endpoint of irony (the oopsy-I-became-an-amoral-villain story). Then again, maybe his actions don’t arise from a central thematic identity, but are simply the result of some adscititious personality trait or transitory whim that will defy attempts at moral adjudication. Most likely, as for most of us, the truth is somewhere in the middle and full of nuance. Heedless of mortal attempts to reduce the phenomenon of Elon Musk to language, the fact remains: he will leave you guessing until the time for guessing is done.
The time for guessing here ends on Friday, October 28th at 5:00pm Eastern. It is by this time that the Honorable Chancellor Kathaleen St. Jude McCormick has requested the grace of your presence in her inbox with an update on a little thing called closing In re: The Clusterf*ck of The Century. By this time, the closing will have occurred (or not) and we will either all be onto The Next Thing, or we will be teleported back to a world in which the vast majority of our energy is dedicated to a single matter. Ok, to be fair, that last part probably doesn’t apply to you, it probably really only applies to me, the litigation teams, and other people whose lives and livelihoods center around goings-on at the Delaware Court of Chancery, or Elon Musk, or Twitter, or all three.
In the meanwhile, the world marches on. More billionaires buy other social media platforms, entering into agreements in principle via Delaware corporations to do so. Time keeps passing. Dust to dust, ashes to ashes, and all of that jazz. Also:
Ahem. One of the august institutions marching on is the Delaware Supreme Court, who will hear argument in the appeal of Level 4 Yoga, LLC v. CorePower Yoga, LLC, et al., C.A. No. 2020-0249, compl. (Del. Ch. Apr. 2, 2020) on Wednesday, October 19th at 10:00am Eastern. Unlike proceedings in the Court of Chancery, which are sometimes made public by means of old-school dial-in conference lines, the Delaware Supreme Court has—for the past many years—offered a new-fangled thing called live-streaming video for all of its oral arguments not held under seal. Tomorrow’s argument is no exception, and you can tune in from anywhere in the world to watch at this link.
Unlike the discovery hearings that made for great tweet-storming, oral arguments do not lend themselves to live-tweeting mainly due to the complexity of the arguments being made, and the requisite short-hand used in oral argument to waive hands at highly complicated and nuanced issues raised on appeal. Subscribers to the Long Form can refer to Monday’s edition for all the details on the underlying arguments here, which mostly focus on COVID-19 and case-specific issues relating to “ordinary course” operating requirements in the purchase agreement at issue in the case, but also touch on the grant of specific performance. If you want to dig into the briefs directly, simply click on the “Upcoming Arguments” tab on this page and you can download them for your own perusal.
In the meanwhile, our attention turns to other upcoming trials of interest, including the Tesla compensation case (aka Tornetta v. Musk), to which you can anticipate the next Substack post being dedicated, absent some wild developments in the Twitter matter that demand preemption of our regularishly-scheduled programming.
In other news, yes, the SolarCity appeal has been pushed to January 2023, due to the timing of the Tornetta trial, which was moved from October to November, due to the scheduling of the Twitter trial. So, yeah.
In other, other news that can’t truly qualify as news by any rational standard, merch pics are rolling in on the regular, and they bring me an unexpected, ridiculous, and somewhat embarassing degree of joy.
This is your Chance, signing off for now, but not for long.