Twins suing Facebook for a better deal

Some people go to court hoping to win millions of dollars. Tyler and Cameron Winklevoss have already won tens of millions. But six years into a legal feud with Facebook, they want to give it back — for a chance to get more.

The Winklevosses — identical twins and Harvard graduates — say that they, along with another Harvard student, Divya Narendra, had the original idea for Facebook and that Mark Zuckerberg stole it. They sued Facebook and Zuckerberg in 2004, settling four years later for $20 million in cash and $45 million in Facebook shares.

They have been trying to undo that settlement since, saying they were misled on the value of the deal. But the decision has not been easy. Recently, the brothers considered dropping their effort to unwind the agreement and went as far as drafting a statement to that effect, according to people close to the case. They decided, though, to keep fighting.
Their argument is that Facebook deceived them about the value of the shares, leaving them with far less than they had agreed.

Whatever their value at the time of the deal, Facebook’s shares have soared since, putting the current worth of the settlement, by some estimates, at more than $140 million.

Next month, the twins and Divya plan to ask a federal appeals court in San Francisco to undo the deal so they can pursue their original case against Facebook and Zuckerberg, and win a richer payday. They could, though, lose it all.

Still, they say it’s not about the money, it’s about the principle — and vindication. “The principle is that they didn’t fight fair,” said Tyler Winklevoss. “The principle is that Mark stole the idea.” His brother, Cameron, chimed in, “What we agreed to is not what we got.”

Facebook denies it did anything improper and says the Winklevosses simply suffer from a case of ‘settlers’ remorse’.

To make matters more complicated, the twins are also at war with the lawyers who helped them win the settlement. The brothers fired them, accused them of malpractice and refused to pay them. A judge recently found for the lawyers and ordered the twins to pay the 20 per cent contingency fee, or $13 million. For now, the money and shares remain in an escrow account.

Yet their battle with Zuckerberg is what has had them riled up. When they talked about him, and told their version of the founding of Facebook, they helped finish each other’s sentences, easily reciting every last detail of a tale they have evidently told time and again.

The company declined to make Zuckerberg available for an interview, and Andrew Noyes, a spokesman, said that Facebook would have no comment “beyond what is already in our appellate briefs.” In the past, Zuckerberg has denied he stole the Facebook idea from the Winklevosses, saying they planned a dating site, not a social network.

The twins, who are 29, recently told portions of their story in a ‘60 Minutes’ interview for CBS. They grew up in affluence in Greenwich, were varsity rowers at Harvard and competed in the Summer Olympics in Beijing in 2008. They now live in San Diego, where they are training for the 2012 London Olympics.

They are as physically striking and imposing as they appeared in the film, ‘The Social Network’, where they were portrayed by one actor, Armie Hammer. They are 6 feet 5, and their frames are lean and muscular, shaped by years of rowing.

For the interview, they wore hoodies and jeans, and only the variation in the hoodies — one zippered with a Ron Jon Surf Shop emblem, one a pullover with a Quicksilver logo — helped to tell them apart.

Original claims

In addition to a bigger payday, the twins say they want a court to reconsider their original claims about Facebook’s founding, pointing to instant messages on the subject sent by Zuckerberg to friends. The messages have come to light since the brothers signed the deal. But they say Facebook executives and board members have known about the messages since 2006 and played dirty by concealing them when they negotiated the settlement.

While the Winklevosses could end up losing their settlement, the risks for Facebook are high as well. If the court unwinds the agreement, the company will have to decide whether to offer them a richer settlement or face a trial. Recent trades on a private exchange suggest that Facebook, which is not a public company, now is worth around $50 billion, and the company may not want the negative publicity associated with a trial, especially if it decides to move forward with a stock offering.

The roots of the original dispute date to 2003, when Zuckerberg, then a Harvard sophomore, said he would help the Winklevosses and Divya programme Harvard Connection, later renamed ConnectU. But Zuckerberg delayed work on Harvard Connection and, when pressed for answers, stalled, according to the Winklevosses. In February 2004 he released The Facebook, which eventually became Facebook.

The details of the new dispute, which erupted almost immediately, are less known, in part because the parties reached the settlement after a confidential mediation. But according to court documents, the parties agreed to settle for a sum of $65 million. The Winklevosses then asked whether they could receive part of it in Facebook shares and proposed a price of $35.90 for each share, based on an investment Microsoft made nearly five months earlier that pegged Facebook’s total value at $15 billion. Under that valuation, they received 1.25 million shares, putting the stock portion of the agreement at $45 million.

They refuse to say how much they would ask for in a new negotiation, but they said that based on the lower valuation, they should have received roughly four times the number of shares. At today’s price, that would give the settlement a value of more than $500 million.

In marketplaces that match buyers and sellers of the shares of privately held companies, Facebook’s shares have soared to more than $100 in recent trades, after adjusting for stock splits.

So far, Facebook’s arguments have won the day in multiple court rulings. The brothers are hoping for better luck next month, before the US Court of Appeals for the 9th Circuit. Unless they decide to give up.

Last year, the Winklevoss brothers completed coursework for a master’s degrees in business administration at Oxford. Cameron helped to start Guestofaguest.com, a website that offers information about ‘people, places and parties’ in New York, Los Angeles and the Hamptons.

“We are moving forward and trying to be productive individuals,” Cameron said. When asked if they could have turned ConnectU into a site with hundreds of millions of users, as Zuckerberg did with Facebook, the twins replied in unison, “Absolutely.” They added that Zuckerberg deserved some credit for ‘not screwing up’ and expanding Facebook into a community of 500 million users. But they believe Zuckerberg’s fame and fortune are undeserved.

Tyler Winklevoss said: “Mark is where he is because we approached him to include him in our idea.”