US vs Twitter; X Corp motion for relief
This motion asks the Court to rein in an investigation that has spiraled out of control and become tainted by bias, and to terminate a misfit consent order that no longer can serve any proper equitable purpose. As detailed below, the FTC has engaged in conduct so irregular and improper that Ernst & Young (“EY”)—the independent assessor designated under a consent order between Twitter and the FTC to evaluate the company’s privacy, data protection, and information security program—“felt as if the FTC was trying to influence the outcome of the engagement before it had started.” Recent sworn testimony details how the FTC, through a series of interactions with EY immediately after Elon Musk acquired Twitter, attempted to co-opt EY’s independent assessment in order to generate evidence of “deficiencies in Twitter’s privacy and information security program.” These efforts included dictating to EY “very specific types of procedures that they expected” EY to perform and “[conveying] expectations … about what th[e] results should be before [EY] had even begun any procedures.” The FTC was so “adamant” with EY, conveying that “this is absolutely what you will do and this is going to occur, and you’ll produce a report at the end of the day” that would be negative about Twitter, that senior EY leaders feared that, if EY resigned as the independent assessor, “[t]he FTC [would] take[] exception to [EY’s] withdrawal and create[] ‘other’ challenges for EY over time.”
A private litigant who engaged in such conduct might well be facing charges of witness tampering. As the Plaintiff in this civil enforcement action, the FTC should not receive preferential treatment. There simply is no way to square the striking record of bias recounted above—along with other evidence described in this motion—with any semblance of the impartiality, due process, or equitable conduct that the law requires from administrative agencies like the FTC when they act pursuant to court-authorized and -supervised consent orders. This Court should intervene to stop the FTC’s ongoing improper conduct.