Deal Redux

Judge Alex Kozinski (9th Circ.)

The Winklevoss twins are not to be deterred by a unanimous Ninth Circuit opinion that it is time for them to accept the $65 million settlement  with Mark Zuckerberg of Facebook fame over who really had the idea for Facebook.

The brothers have now asked the entire 26-judge court to vote on whether to allow 11 judges to reconsider the April 14 decision. Federal appeal courts sit in panels of three to hear cases. In the Ninth Circuit, 11 judges will reconsider a panel ruling if a majority of the court’s 26 judges think that is a good idea.

The court may vote to reconsider if it is an important legal question or if there are conflicts in interpretation with other circuit courts.

You may recall the Facebook v. ConnectU lawsuit, (more clearly Zuckerberg v. Winklevoss), is a contest over whether Facebook and Zuckerberg tricked the Winklevoss twins into accepting a lousy deal to settle a claim by the brothers that they invented Facebook and Zuckerberg just took the idea.

They settled for $65 million, including shares of Facebook. The Ninth Circuit panel included three very influential judges on the court, Chief Judge Alex Kozinski, former chief judge Clifford Wallace and Judge Raymond Fisher. Two were Republican appointees and one, Fisher, was appointed by President Clinton. All three agreed on the outcome April 14: The Winklevoss are smart guys. They made the deal. Now they have to live with it.

The chances of a favorable vote for 11 judges to reconsider are pretty slim. Failing there, the Winklevoss brothers’ last option is the U.S. Supreme Court. With $65 million to play with, they will probably end up going there too. For a two-minute clip of how the argument went in the Ninth Circuit, check out our “Caught on Tape” segment.

Case: #08-16745 (9th Circuit)

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