Winklevii Undaunted, Plan to Seek New Hearing
Cameron and Tyler Winklevoss plan to ask for an additional review of the latest judgment against them in their case against Facebook, their lawyer said today.
Winklevoss lawyer Jerome B. Falk, Jr., of Howard Rice in San Francisco, said the case merits further review by the entire Ninth Circuit Court of Appeals, so he plans to file a Petition for Rehearing En Banc in the next 15 days.
I am no legal expert, but here’s what that means: “En Banc” is a hearing where all the judges on a court take part, rather than a three-judge panel, as is standard. It is the only way to overturn a decision–unless they appeal to the Supreme Court. Since the Ninth Circuit has so many many judges–currently 26–it requires only eleven of them for an en banc hearing.
As Kara clairvoyantly put it this morning: “Winklevii: How Can We Miss You If You Won’t Go Away?“
Today the Ninth Circuit Court released an opinion written by Chief Judge Alex Kozinski saying that the Winklevii should take their previous settlement–which now could be worth something like $170 million–and move on with their lives.
The Winklevii had asked the court to throw out an earlier settlement with Facebook in which it agreed to buy their competing social network ConnectU to end an argument over whether Facebook CEO Mark Zuckerberg had stolen their idea for a college-based social network when they were all students at Harvard.
Specifically, the Winklevii had argued that terms of a mediated settlement they made with Facebook were not final and that Facebook had committed securities fraud by not communicating its valuation at the time of the settlement.
Kozinski, in his opinion, said he didn’t buy those arguments, saying the settlement passed muster with California and federal law and legal precedent, and further, that the Winklevii were not allowed to bring up sealed material from the mediated settlement process.
Here’s the full statement from Falk, the Winklevoss lawyer, who declined further comment:
The Ninth Circuit has affirmed the District Court’s enforcement of the settlement over my clients’ objection on the ground that the settlement was obtained in violation of the federal securities laws. I appreciate the Ninth Circuit’s thorough discussion of the issues. However, I respectfully disagree with the Ninth Circuit’s conclusions. In my judgment, the opinion raises extremely significant questions of federal law that merit review by the entire Ninth Circuit Court of Appeals. For that reason, my colleagues and I will file a Petition For Rehearing En Banc within the next fifteen days.
The Winklevii said today in a guest article on Betabeat that, in addition to being mirror twins and not knowing which one is older, they are actually appealing because Facebook paid them $31 million instead of the agreed-upon $65 million.
Please see the disclosure about Facebook in my ethics statement.