Twitter's IPO road show didn't get off the greatest start, but an updated S-1 filing Monday rose the company's stock price, which is good news for investors. But the company also disclosed a pending legal fight that might turn some people away.
Twitter raised its stock price range to between $23 and $25 per share when it finally hits the New York Stock Exchange this week, giving the social media messaging platform a total $17 billion valuation. The new price is up significantly from the original $17 to $20 per share Twitter had listed. That was the morning's good news.
But the bad news was disclosing the potential of a looming, consuming legal fight with IBM over three alleged patent violations. Twitter believes it will be able to defend itself in court, or find a suitable settlement with IBM, but cautions investors that you can never be too sure about these things and legal fights always cost piles and piles of money. It's not the kind of thing you want new investors thinking about before our IPO.
Here's Twitter's cautionary warning, and soothing assurance in its own words:
Companies in the Internet, technology and media industries own large numbers of patents, copyrights, trademarks and trade secrets, and frequently enter into litigation based on allegations of infringement, misappropriation or other violations of intellectual property or other rights. Many companies in these industries, including many of our competitors, have substantially larger patent and intellectual property portfolios than we do, which could make us a target for litigation as we may not be able to assert counterclaims against parties that sue us for patent, or other intellectual property infringement. In addition, various “non-practicing entities” that own patents and other intellectual property rights often attempt to aggressively assert claims in order to extract value from technology companies. From time to time we receive claims from third parties which allege that we have infringed upon their intellectual property rights. In this regard, we recently received a letter from International Business Machines Corporation, or IBM, alleging that we infringe on at least three U.S. patents held by IBM, and inviting us to negotiate a business resolution of the allegations. The three patents specifically identified by IBM in the letter were U.S. Patent No. 6,957,224: Efficient retrieval of uniform resource locators, U.S. Patent No. 7,072,849: Method for presenting advertising in an interactive service and U.S. Patent No. 7,099,862: Programmatic discovery of common contacts. Based upon our preliminary review of these patents, we believe we have meritorious defenses to IBM’s allegations, although there can be no assurance that we will be successful in defending against these allegations or reaching a business resolution that is satisfactory to us. Further, from time to time we may introduce new products and services, including in areas where we currently do not have an offering, which could increase our exposure to patent and other intellectual property claims from competitors and non-practicing entities. In addition, although our standard terms and conditions for our Promoted Products and public APIs do not provide advertisers and platform partners with indemnification for intellectual property claims against them, some of our agreements with advertisers, platform partners and data partners require us to indemnify them for certain intellectual property claims against them, which could require us to incur considerable costs in defending such claims, and may require us to pay significant damages in the event of an adverse ruling. Such advertisers, platform partners and data partners may also discontinue use of our products, services and technologies as a result of injunctions or otherwise, which could result in loss of revenue and adversely impact our business.
So the new valuation is great news, but the legal disclosure is a big step back on Twitter's already rocky IPO road show. The biggest tech public offering since Facebook certainly hasn't been met with the same rockstar like reaction from fans or the press. When Mark Zuckerberg showed off Facebook to investors, mobs of people screamed and press crammed into every nook and cranny of every possible room. Meanwhile, on Twitter's road show: "But here on the 36th floor of the Midtown Manhattan Mandarin Oriental hotel in the lush Time Warner Center just off Central Park West, I am the only reporter in sight," Arash Massoudi reported in the Financial Times last week. The dining rooms have been empty. Which is tragic, because reporters are missing out on a decent free lunch -- better than the one Facebook offered, at least.