The Winklevii really are working extra hard to make sure that their names are synonymous with "losers" aren't they? Having already lost in court again and again in their attempts to claim ownership of Facebook, the Winklevoss twins have now lost in their attempt to get out of having to pay their original lawyers $13 million. In case you haven't followed the story (and didn't see The Social Network), the Winklevii came to a settlement agreement with Mark Zuckerberg and Facebook, which has made them fantastically more wealthy than they already were. But they got greedy, and after the settlement was signed, tried to back out of it, claiming that they were misled in the negotiations. The courts have rejected that argument (links above), and so they also sued their lawyers, insisting that it was all their fault. It kind of makes you wonder if they have any idea how badly they're trampling on their own reputation with these lawsuits.

Those poor Winklevii. Many people thought that the Winklevoss twins, Tyler and Cameron, along with partner Divya Narendra, had finally run out of legal options against Facebook when they realized they had no chance to appeal their rather stunning string of absolute losses in court. Instead, they'd just have to take the approximately $200 million worth of cash and stock they got in the original settlement and deal with only being fantastically more wealthy than pretty much everyone for having failed to build a compelling company or product. However, it only took a day for the Winklevii to start the process again and sue Facebook yet again in district court, under a new legal theory. However, it's taken less than a month for the court to dismiss the lawsuit entirely. Not surprisingly, it sounds as though the Winklevii will take this loss in the same spirit as every other loss, by petulantly demanding another shot at it. Guys, seriously, give it up.

Yesterday, we had a story about how the Winklevoss twins had finally realized that they had no chance to get a Supreme Court appeal of their own attempt to back out of a "settlement deal" with Facebook that made them at least $160 million richer (probably more by now). Like most people who read that story, we assumed that the Winklevii and partner Divya Narendra, had simply decided to take their millions and sulk. Instead, it looks like they are simply trying again with a different legal strategy.

Yes, a day after admitting that they wouldn't file a Supreme Court appeal, they instead made a new filing in the district court in Boston, once again attacking the settlement agreement (which they had agreed to), asking the judge to investigate if Facebook "intentionally or inadvertently suppressed evidence."

It is true that some instant messages that Zuckerberg wrote while he was supposed to be working with the Winklevii emerged after the settlement had been agreed to. The Winklevii didn't focus on those in their original attempt to back out of the settlement, instead claiming that Facebook had mislead them about the value of Facebook shares. However, now it appears they're starting again using the instant messages as evidence, and claiming that Facebook withheld the relevant evidence, and saying that they wouldn't have settled if they'd seen that evidence.

The thing is, while the evidence does make Mark Zuckerberg look like a jerk, I'm not sure it actually helps the Winklevii's overall argument. And, frankly, the whole thing remains totally pointless. The Winklevii failed to build a serious competitor, but we're talking about what was effectively the first few months of both companies (Facebook and ConnectU). Nothing about that means that they should get any credit whatsoever for what Facebook became. The fact that they already got $160+ million out of this is more than enough for their own failure to build a successful company. They should drop this effort, and maybe spend some time -- and maybe some of their piles of money -- looking into ways to deflate their massive sense of entitlement for something they had nothing to do with.

When the Winklevoss twins lost at the appeals court for the second time, I had hoped that someone would sit them down and explain to them that there was simply no freaking way the Supreme Court would bother to hear an appeal on their case, in which they complain about how they settled for "only" $160 million for building a company that wasn't Facebook and wasn't very popular. And yet, they still insisted that they would appeal. I'm not sure who did it, but it appears that someone finally sat them down and explained to them how the Supreme Court works, what kinds of cases it takes, and how it would almost certainly react to a petition to hear their case... and it's finally dawned on them that this would be a good time to take the money (which is probably worth even more now thanks to Facebook's continued growth) and say, "thank you." Yes, it's true, the Winklevii have finally realized what the rest of the world realized a while ago: the case is done and there will be no appeal to the Supreme Court. I guess that storyline is now out of the running for the sequel movie to The Social Network. Thankfully, we've still got Paul Ceglia running around, and his story is a lot more entertaining anyway.

Well, that didn't take long at all. We noted that the tone deaf Winklevoss twins would probably appeal their latest legal "loss," which "only" entitles them to the $160 million or so from their original settlement with Facebook and Mark Zuckerberg. Even while I said I expected them to appeal since they'd already gone this far, there was still a little voice in the back of my head saying they couldn't possibly think that the Supreme Court could see a Constitutional issue to consider in their case. And yet... hours later, the Winklevii lawyer has announced plans to appeal to the Supreme Court. And I will announce plans to not laugh out loud when the Supreme Court turns them down.

Well, this is hardly a surprise. A month ago, Judge Kozinski told the Winklevoss twins (the "Winklevii") that they couldn't back out of their settlement agreement with Facebook and Mark Zuckerberg, which was worth "only" $160 million, saying, "At some point, litigation must come to an end. That point has now been reached." However, the Winklevii apparently couldn't just take their money and cry all the way to the bank, but asked the court for an en banc hearing (basically a rehearing of the appeal with all of the judges, rather than just a panel of three). As I stated at the time, I thought it would be a surprise if the court accepted this... and that was an easy call. The court has rejected the request without comment, meaning the only thing left to do is to appeal to the Supreme Court (well, or just take their $160 million...). Given how the Winklevii have acted up until now, it wouldn't surprise me at all to see them try to take this to the Supreme Court, though I can't fathom a situation under which the Supreme Court would care. This case was over a long time ago. It's just the Winklevii who haven't realized it yet.

As was widely expected, the Winklevi have decided not to listen to Judge Alex Kozinski on the 9th Circuit appeals court, who told them that the "time is now" to end their ongoing lawsuit against Facebook, and that they should just be happy with the approximately $160 million they ended up with for totally failing to compete in the market place with Zuckerberg. Frankly, even if Zuckerberg really had "copied" their idea, $160 million seems like more than ample compensation. It wasn't the Winklevoss's idea that made Facebook successful (not by a long shot). It was the specific ways in which Zuckerberg and his team executed (combined with an element of luck). In fact, with a reward so ridiculously high for failing, all this sort of lawsuit does is encourage more silly lawsuits from other competitors who failed in the marketplace.

However, despite the court and plenty of commentators telling the Winklevi to cry all the way to the bank with their money, the twins and partner Divya Narendra, have in fact filed for an en banc hearing, asking the full slate of 9th Circuit judges to rehear the case, rather than just the standard three judge panel who heard the original. To be honest, I'd be surprised if the court agreed to the rehearing, but you never know. Typically, they'll do a rehearing where there really are serious questions of law, and significant conflict in how the judges view things with the case at hand. I just don't see the specifics of this dispute rising to that level. If that fails, the only choice left will be to appeal to the Supreme Court, who we can also hope will recognize more important issues at hand and pass on hearing the case.

Jack Shafer at Slate does a nice job tying together the common thread in two recent stories: the Winklevoss twins losing in their attempt to back out of a previous settlement with Facebook and arguing that they are owed much more than the $170 million they've received despite their lack of work on Facebook itself... and Jonathan Tasini's almost universally mocked lawsuit against the Huffington Post for not paying him for articles he agreed to write for free (yes, you read that right). In both cases, these are situations where those who didn't actually build successful businesses totally overvalue some potentially tiny contribution they might have made, see that someone else did succeed and did make a ton of money... and they go back on a previous deal to demand more money they don't deserve:

What's Winklevossian about Tasini's suit is his timing. Just as the twins were happy with their settlement until they realized that the money pot had grown, Tasini helped himself to the HuffPo platform, no questions asked, until he saw a Brinks truck arrive with the AOL cash.

Elsewhere, Shafer notes that "we're becoming a nation of Winklevosses who file legal motion after legal motion every time a pot of money is spotted." Becoming? I'd argue that's been happening for quite some time. Over the years we've covered how nearly every super successful book or movie has someone jump out of the woodwork to claim that the idea was "copied."

Unpacking this deeper, I'd argue there are two key issues here. First, is that many people significantly overvalue an idea or a bit of content, assuming that it's worth much more than the structure or process around it. And, second, we've built a legal system in which all too often it pays for losers to litigate against those who succeed. There's a sense of entitlement that people feel towards anyone who succeeds, and people simply fail to recognize that they would never react the same way in the other direction. As I've pointed out before, if the writers, like Tasini, who are complaining or suing had received (for example) a job assignment due to their work on the Huffington Post, would they have given Arianna a cut of their earnings?

Unfortunately, our legal system often makes this kind of situation rewarding for the people who sue. It's often cheaper to settle such cases rather than let them go on, and that can be quite damaging to those who succeed. The basis of free market competition and innovation is that you reward the successes, not the failures. But all too often, our legal system is allowing the latter to happen.

Incredible. After being told to shut up and take their $160 million from Facebook, the Winklevoss twins are apparently still planning to appeal the ruling from the 9th Circuit. They're filing for an en banc hearing (basically asking all of the judges on the court to rehear the case, rather than the typical panel of three). On issues where there is some disagreement among the judges you'll see en banc hearings. Frankly, I'd be pretty surprised if the 9th Circuit is willing to rehear this case. And, at that point, their only resort will be to appeal to the Supreme Court, who I really doubt would find this a pressing matter of Constitutional importance. What's amazing to me is how much these guys seem to be hurting their own reputations here. Seriously, take the $160 million or so and move on.

Could it finally be over? The Winklevoss twins, Cameron and Tyler, along with Divya Narendra, famously sued Mark Zuckerberg, claiming he "stole" the idea of Facebook from them. They eventually sued him and then settled, getting (at the time) $65 million in cash and Facebook stock. You may have heard about it, considering there was a big Hollywood movie based loosely on all of this. Of course, the whole concept was preposterous. There were tons of other social networks at the time, and you can't "steal" an idea. But, in the grand scheme of things, paying off those guys was easier than continuing to fight it. Yet, after the settlement was done, the twins tried to back out of the settlement, claiming their share should have been much higher. Despite a court shutting them down, the twins kept fighting. Hopefully, that's now over. Judge Alex Kozinski is is trying to put an end to the whole thing, saying that the original settlement stands.

The full ruling from Kozinski is, in typical Kozinski fashion, an entertaining read. He points out that the point of the original settlement was so that everyone could "get on with their lives." Kozinski is particularly harsh on the Winklevosses for trying to back out of the agreement over a claim of valuation issues when they clearly knew what they were getting into:

The Winklevosses are sophisticated parties who were locked in a contentious struggle over ownership rights in one of the world’s fastest-growing companies. They engaged in discovery, which gave them access to a good deal of information about their opponents. They brought half-a-dozen lawyers to the mediation. Howard Winklevoss--father of Cameron and Tyler, former accounting professor at Wharton School of Business and an expert in valuation--also participated.

Kozinski also knocks the Winklevi for being marketplace losers resorting to the courts to sue those who beat them in the market:

The Winklevosses are not the first parties bested by a competitor who then seek to gain through litigation what they were unable to achieve in the marketplace. And the courts might have obliged, had the Winklevosses not settled their dispute and signed a release of all claims against Facebook. With the help of a team of lawyers and a financial advisor, they made a deal that appears quite favorable in light of recent market activity.

As Kozinski notes, while they've been arguing about all of this, Facebook has continued to appreciate in value, and their "settlement" is now worth much more than they even thought they would get originally. He concludes it simply:

For whatever reason, they now want to back out. Like the district court, we see no basis for allowing them to do so. At some point, litigation must come to an end. That point has now been reached.

And so, they "lose." Of course, it's hard to see how getting $160 million for totally failing in the marketplace can be considered "losing."