When Facebook Bought ConnectU From the Winklevii (Or, Parsing Legal Filings for Fun)
Earlier this week there was some confusion about outlets reporting that Tyler and Cameron Winklevoss had filed another lawsuit against Facebook CEO Mark Zuckerberg for stealing the social networking idea they had asked him to develop for them back when they were all students at Harvard. While the Daily Mail story on the matter has been taken offline, Radar posted a PDF court filing of a Facebook brief to the U.S. District Court in California, where the Winklevii had appealed their argument that the $65 million settlement they had extracted from Facebook was nonbinding and constituted securities fraud, given information Facebook had not shared with the brothers about its valuation.
The brief was actually filed back in June, and I found a better, watermark-free copy of it here on the Web site of the Winklevoss lawyers. Last night I took the time to read it in full, and it was surprisingly not boring.
Perhaps the most revelatory thing in the Facebook filing is that Facebook’s lawyers seem to be having fun with the case. Their writing is laden with imagery and over-the-top exasperation with the Winklevii’s allegedly poorly formed legal arguments. Here’s the dramatic intro to the brief:
This appeal arises from the settlement of rancorous litigation on two coasts. On one side were Appellees Facebook, Inc. and its founder and CEO Mark Zuckerberg. On the other side were the Appellants, who founded a failing competitor of Facebook’s called ConnectU. The CU Founders claimed that they had the idea for Facebook first, and Facebook stole their idea. Facebook denied those claims and, for its part, accused ConnectU and its Founders of unlawfully infiltrating its systems, stealing millions of email addresses, and then spamming them. During a global mediation, the parties signed a “Term Sheet and Settlement Agreement.” In the interest of achieving litigation peace, Facebook agreed to purchase ConnectU for [redacted] dollars and [redacted] shares of Facebook stock, one of the hottest startups in the world. Surrounded by a bevy of lawyers, the CU Founders signed the deal. Then they suffered a bout of settlers’ remorse. They ask this Court to relieve them of the deal they struck to plunge back into scorched-earth litigation.
Besides the writing, the other thing that’s interesting is the information about the terms of the relationship between Facebook and ConnectU. While the story has been simplified into a Hollywood-style betrayal as portrayed in “The Social Network,” the outcome of Zuckerberg and the Winklevii’s legal mediation is much less widely reported.
As part of its settlement with the Winklevoss twins, Facebook agreed to acquire their social network ConnectU (which they eventually did find someone to build), and has been “operating” it since Dec. 2008, the filing says (the site itself is offline).
Facebook contends that this earlier agreement to buy ConnectU was final, while the Winklevii are calling it a draft (their co-founder Divya Narendra has publicly said he’s moved past the Zuckerberg vendetta, though he’s mentioned in the filings as well).
The settlement came after closed-door professional mediation in February 2008. Facebook says it’s outraged that the Winklevii and their lawyers are bringing conversations from mediation back into the appeal, because all involved were sworn to confidentiality.
(You can also read the ConnectU appeal brief for the case to which Facebook was responding. However the bits from the mediation that were supposed to be confidential have been blacked out.)
But after the settlement, ConnectU came back to the table asking for its share to be revalued. It had originally negotiated using a publicly reported valuation from when Microsoft invested in Facebook, rather than an internal valuation from around the same time that would have priced the shares much lower ($8.88 versus $35.90). A revaluation of the shares to a smaller amount would give the twins a larger stake in the company.
And also, the Winklevii wanted the transaction to be labeled a merger instead of an acquisition so they could avoid paying some taxes on it.
Facebook replied in the June brief, again in remarkably florid fashion:
“First, the CU Founders try to leave this Court with the impression that the only valuation figure they knew was the $15 billion figure from the Microsoft press release, and that they, therefore, had reason to enshrine it as gospel. They also portray the one 409A valuation on which they rely here as some seismic event in the life of the company, as if an unexpected bolt of lightning from on high emblazoned $8.88 onto a couple of tablets. Both the impressions are false.”
Facebook, by the way, to add insult to injury, says the internal valuation of its shares at the time of the Microsoft investment was actually even lower than the Winklevoss lawyers are arguing: Six days before the Microsoft transaction, Facebook had filed a document valuing employee stock options at just $6.61.
The attorney who signed the Facebook brief is Monte Cooper of Orrick, an intellectual property specialist. I hope he also writes novels in his spare time.
Please see the disclosure about Facebook in my ethics statement.