of the constituent corporations, not just monetary amounts. Mr Pyle said that in over 30 years of representing clients in mergers and acquisitions, he had never before seen it argued that only monetary obligations of a constituent corporation passed to the surviving corporation in a statutory merger, or that certain types of liabilities can be extinguished by means of a merger.
102 On the topic of the differences between the Nevada and Delaware statutes, it was put to Mr Pyle in cross-examination that there were some material differences between NRS § 92A.250(1)(e) and s 261 of the Delaware General Corporation Law concerning the effect of merger upon pending actions. It was put to Mr Pyle that the Delaware provision extended specifically to civil, criminal or administrative actions or proceedings, whereas the Nevada provision did not so specify. Mr Pyle stated that he had not analysed those provisions because the case was not concerned with a proceeding by a merged corporation. He later agreed to a proposition that the Nevada provision on his analysis operated with the effect that after a merger the surviving corporation can be prosecuted and punished for a criminal offence that had been committed by a corporation that had ceased to exist. When pressed on this evidence, Mr Pyle accepted that he did not consider himself to be an expert specifically in Nevada corporate law.
Analysis of the main issues — was X Corp required to comply with the notice given to Twitter Inc on 22 February 2023?
103 I will address the main issues, before addressing the issues that arise in the alternative.
Framing the analysis required
A choice-of-law analysis is required
104 The first question is to consider what sort of choice-of-law analysis is required, if any.
105 X Corp submitted that no complicated choice-of-law analysis is required. Senior counsel for X Corp submitted that on a "simple reading" of ss 56–7 of the Online Safety Act, the word "person" in s 57 has to be read as referring inexorably back to the s 56 notice, to which s 57 refers. Senior counsel continued that this analysis can be further focused by reference to the provider of the service, who is the only permitted recipient of the reporting notice. Senior counsel for X Corp supported this submission by identifying that the obligation to comply with a reporting notice requires work to be done. I understood senior counsel for X Corp to submit that this implies that the obligation under s 57 is designed to apply to the person to whom the notice was given, since that is the person who is in a position to perform the required work.
