Double Take: Winklevii Really Do Ask to Appeal Again

Lawyers representing Cameron and Tyler Winklevoss in their never-ending fight with Facebook, today filed a petition for the Ninth Circuit Court of Appeals to hear their case. Again.

The court shouldn’t have upheld a previous court’s ruling upholding the brothers’ existing settlement over the creation of Facebook, law firm Howard Rice said in an emailed statement announcing it had formally asked for the case to be heard again en banc, which means by more members of the same court.

The Winklevii are still arguing two points: That the settlement was “founded on fraud,” because Facebook misrepresented its value to give them less money, and that they can use evidence from their mediation to prove it (the court said that, since the mediation was supposed to be confidential, it should stay that way).

Howard Rice’s Jerome B. Falk, Jr., who represented the Winklevoss twins in their latest appeal, said last week he would file such a petition. The Winklevosses, as usual, were ridiculed by many for their refusal to take the money they’ve already won ($65 million in cash and stock at the time, which is now worth something like $170 million) and move on. The law firm elaborated today.

“This appeal is not about whether our clients would be better off keeping the settlement proceeds (which admittedly are substantial) rather than proceeding with their lawsuit against Facebook. That is up to them to decide; it is not a question for the courts. The legal issues presented by our Petition are whether Facebook is immune from judicial scrutiny of its conduct in the mediation—in particular, its failure to disclose material facts about the stock it proposed to issue in order to settle the litigation.”

Ninth Circuit Court Chief Judge Alex Kozinski wrote in a unanimous decision against the Winklevii last week, “At some point, litigation must come to an end. That point has now been reached.”

Meanwhile, the Winklevii left the lawyering to their lawyers and spent the weekend at Coachella, according to their Twitter feeds. Or as Tyler put it, “#Coachella-ella-ella-eh-eh-eh.”

Please see the disclosure about Facebook in my ethics statement.