I’ll be honest here. If I had been given $65 million in a settlement, then discovered I was owed more, I’d probably try to get that extra moolah too. If that was actually the direct chronological order of events and the litigation had ended with their appeal, I’d probably say to the Winklevoss twins: “Well, worth a try boys. I hope you get by on your paltry $65m somehow.” But the full facts are what makes most people see the Winklevii as giant d-bags, and have the world blinking in disbelief as their attempts to appeal the courts once again. Let me repeat that. They’re appealing again.We all know the basic facts of the ConnectU vs. Facebook saga. In September 2004, months after Facebook was launched, ConnectU founders Tyler Winklevoss, Cameron Winklevoss and Divya Narendra filed suit against Facebook and its founders, claiming the latter pilfered its idea, business plan and programming code from ConnectU. This, they said, occurred when Facebook czar Mark Zuckerberg was hired as a programmer to help bring ConnectU to fruition.
If you just did a little finger math, you’re not mistaken; it’s been nearly seven years. So what’s happened in that time? Well, Facebook counter sued in 2005. The ConnectU case was dismissed. Then refiled in 2007. Then momentarily dismissed – then reinstated by the court, while Facebook’s counter suit was dismissed on a technicality. At this point, the parties were ordered to sit down in the confines of a mediation. Facebook appeared to consider the fact ConnectU may have a chance at victory, and after just a day, the $65m settlement was reached, in which ConnectU would transfer its ownership to Facebook.
Now here’s where things get pre-school-ish. Later on that year (2008), a forensic search of Facebook hard drives turned up correspondences from Zuckerberg allegedly boasting about duping ConnectU. The Winklevii (it’s sort of funny that Narendra is generally accepted to fall under the Winklevoss umbrella) instantly tried to withdraw from the settlement. The court would have none of it and ordered ConnectU to adhere to the settlement.
Silly us, we thought that was the end of it. But then, the twins discovered that an internal expert evaluation gave Facebook’s shares a higher value than that used to come to the settlement amount. Bingo! The Winklevoss’ appealed, alleging securities fraud. After another couple years of legal wrangling, the appeal court upheld the settlement last week. The judge ended his opinion thusly: “At some point, litigation must come to an end. That point has now been reached.”
Can’t get more final than that, right? Don’t be silly. ‘End’ is just a word, baby. On Monday, the Winklevii filed a petition with the Ninth Circuit Court of Appeals to hear their case. Again. The same court. At this point, even those who’ve steadfastly played devil’s advocate seem dumbfounded. Their legal ground? The appeals court should not have upheld the previous court’s decision to uphold the settlement. Evidence from the mediation, they say, proves this. Problem is, all parties agreed that anything uncovered in the mediation would be confidential and non-actionable in court proceedings.
As Chief Judge Alex Kozinski noted in his ruling, “the courts might have obliged” the twins if they had stayed the course in the suit, but in agreeing to the settlement (which is now worth nearly a whopping $100m more than the original $65m), a decision was made. Also, their claim that the litigation is not about money, but rather ‘the principle’, reeks of insincerity as they are now battling on the strength of technicalities as opposed to the initial basis of the case.
So the request has been sent in, and the world halfheartedly waits to see if the circus will continue. I personally don’t care one way or the other, but there’s one thing I request – either way, when a judge hands down a decision, they make very clear reference to who the clowns are.