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11 Jan 2011


Tyler and Cameron Winklevoss and Divya Narendra argue that at the time of the settlement Facebook misrepresented its stock price, robbing them of millions.

The three accuse Mark Zuckerberg of stealing their idea for what has become the world's biggest social network.

Mr Zuckerberg, who also attended Harvard, has always denied the claims.

But in 2008, after years of legal wrangling, Facebook agreed a multi-million dollar deal to put an end to the "rancorous litigation".

Nearly three years later, the Winklevoss twins and Mr Narendra want the case heard again.

On 11 January, they will ask the Ninth Circuit Court of Appeals in San Francisco to undo the original settlement so they can legally pursue Facebook or more money and once again try to wrest an admission from Mr Zuckerberg that he stole their idea.

"The settlement they reached involved $20m in cash and $45m in stock based on a valuation of $36 a share," said Jerome Falk, senior attorney for the Winklevoss twins and Mr Narendra.

"Facebook failed to disclose that at about the same time its board of directors had approved a valuation of $9 a share which was to be the basis of stock options for key employees. Facebook did not disclose this significant piece of information."

Mr Falk and his legal team will argue that under American Securities Law, issuers of stock are obliged to make full disclosure of all facts.

"This was a highly material fact and the fact they didn't disclose it is a violation of federal security law," Mr Falk told BBC News.
Money and principle

This is about more than dollars and cents the trio and their legal team maintain.

The twins declined a request for an interview by BBC News. But in the past the pair, who both competed in rowing events at the Beijing Olympics, have said "the principle is they [Facebook] didn't fight fair...Mark stole the idea".

Facebook's lawyers have dismissed the claims as a case of "settlers remorse".

But that is wrong said Mr Falk.

"This is about money and matters of principle. They feel they were badly treated. The feel their idea was stolen and that in the settlement they did not get full disclosure as they were entitled to.

"In America you measure things by money, and this is an awful lot of money."

Had the shares portion of the settlement been based on the $9 figure, Mr Falk said his clients would have been awarded four times as many shares as they were given.

He said Facebook signed over 1,253,000 shares at the time, now worth around $140m.

If the men win, they stand to receive a much larger payout but if they lose they will forfeit the $65m which has been in escrow since the settlement was finalised.

If the court unwinds the agreement Facebook will have to decide whether to offer more money or fight it out in court.

A recent deal with Goldman Sachs and trades on private exchanges suggested that Facebook, which is still a private company, is now worth around $50bn.

The publicity circus that will surround the public court case might not be the best thing for Facebook if it decides to move forward with a stock offering sometime in the near future.

"Facebook will undoubtedly try to settle and get this all out of the way," said Caroline McCarthy, who writes about social networking for technology news site CNet.

"Facebook has always maintained this is not a big deal and if it goes to court and fights it, it will make it look like a big deal. Mark's reaction has always been this was a very small blip on the radar of the Facebook trajectory.

"Also Facebook is trying to court investors, and an IPO might be in the offing, so this will not look good if there is high-profile legal action going on," added Ms McCarthy.

The long running bitter dispute between the three men and Mr Zuckerberg attracted a wider audience last year when Hollywood decided to make a movie.

The Social Network charted the rise of Facebook from a Harvard dormitory room to a global behemoth with more than 500m users. It also traced Mr Zuckerberg's transformation from a nerdy student to one of the world's youngest billionaires and the face of Time Magazine.

Central to the movie, which has garnered a slew of award nominations, was the litigation between Winklevoss twins and Mr Narendra.

While initially agreeing to do programming work for their social site called Harvard Connect, he stalled. At the time, social networks were popping up at colleges all over the country, and Mr Zuckerberg was working on his own version called The Facebook.

While Mr Zuckerberg, who eventually dropped out of school, has always been painted as socially awkward, the identical Winklevoss twins were seen as urbane, connected and privileged.

They are elite rowers who competed in the Beijing Olympics and are presently training for the 2012 London Olympics.

It is understood Mr Narendra comes from more humble means and works in the financial industry. He generally keeps a low profile while the twins are known to enjoy the limelight and the glare of publicity.

David Kirkpatrick is the author of a semi-official biography of the social network and Mark Zuckerberg called The Facebook Effect.

"I think these guys are delusional, spoiled brats who believe they are entitled to everything the world could offer them.

"I think Mark mistreated them as a partner during one brief and not important moment in Facebook history but they did not invent anything of significance in the realm of social media. There were tons of people inventing social networks at the time.

"They are just desperate to get credit for something. They are media hounds and the irony is they are obsessed with being famous and Mark is so obsessed with being obscure; yet he is the one that has really accomplished something," added Mr Kirkpatrick.
'Back stabbing'

There will be no court room face off between the three men and Mr Zuckerberg. He will not be in court on Tuesday.

The three judge panel will hear from lawyers from both sides and rule on the merits in a couple of months time.

In a further twist, the Winklevoss twins are themselves being sued by a former partner.

Wayne Chang's lawsuit claims he is entitled to a portion of the original $65m settlement made with Facebook.

The 27-year-old formed a file-sharing network called i2hub while studying at the University of Massachusetts, Amherst, which he later merged with their social network ConnectU in 2004.

ConnectU was bought by Facebook as part of the settlement and Mr Chang said that means he is due a share of the deal.

Mr Chang said he was "back-stabbed" and that he has been treated the way the Winklevoss's claim they have been treated by Facebook.


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