Win for Zuckerberg, consolation for twins

The Winklevoss brothers say they should have received more.

Tyler and Cameron Winklevoss, the Olympic rowers and identical twins who claimed that they, not Mark Zuckerberg, had the original idea for Facebook, have lost the latest chapter in their six-year legal feud. But it’s a loss that comes with a pretty nice consolation prize. And it may not be the end of the case.

A three-judge panel of a federal appeals court here ruled that the brothers, whose fight over Facebook’s origins was the narrative arc of the Hollywood hit The Social Network, cannot back out of a settlement they signed with the company in 2008. That settlement is now worth about $200 million, according to estimates by experts.

The twins had asked the court to undo the settlement so they could pursue their original case against Mr. Zuckerberg and Facebook, and presumably try to win a richer payday. They argued that Facebook had deceived them about the original value of the settlement, and the court roundly rejected their claims. Yet the sharply worded decision, written by Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, apparently, has not persuaded the twins to give up. They said through their lawyers that they planned to ask that their case be heard by the entire appeals court.

Judge Kozinski wrote: “The Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace. With the help of a team of lawyers and a financial adviser, they made a deal that appears quite favorable in light of recent market activity.”

Judge Kozinski added: “For whatever reason, they now want to back out. Like the district court, we see no basis for allowing them to do so. At some point, litigation must come to an end. That point has now been reached.”

The settlement, which included $20 million in cash and more than 1.2 million Facebook shares, was initially valued at $65 million. But shortly afterward, the Winklevosses, and their partner, Divya Narendra, argued that Facebook had deceived them about the value of the shares, leaving them with much less than they had agreed. While they believed the shares to be worth $35.90 each, Facebook had conducted an internal valuation that priced the shares at $8.88, they claimed.

Whatever their value at the time, the shares have recently traded as high as $150, after adjusting for splits. That values the stock portion of the settlement at more than $180 million.

By refusing to nullify the settlement, “the appeals court kept the Winklevosses from potentially throwing away many tens of millions of dollars each,” said Eric Goldman, a professor at Santa Clara University Law School and the director of its High Tech Law Institute. But the twins are not giving up.

“In my judgement, the opinion raises significant questions of federal law that merit review by the entire Ninth Circuit Court of Appeals,” Jerome B. Falk Jr., the lead appellate lawyer for the twins, said.

©2011 The New York Times News Service