May 18, 2011— -- You've got to admire the tenacity. Not one, not two, but now three court rulings have ordered Cameron and Tyler Winklevoss, the twin Harvard graduates who claim Facebook founder Mark Zuckerberg stole their idea, to stick with the $65 million they were awarded in a 2008 legal settlement with the social networking company.
Still, the so-called "Winklevi" just won't give up.
After a federal appeals court said Monday that it would not reconsider the twins' latest settlement challenge, the brothers announced their intention to take the case to the Supreme Court.
But that tenacity may now be flying in the face of legal reality. Though the twins' lawyers have set the Supreme Court in their sites, legal experts say the chances of the court actually hearing the case are slim to none.
"I don't think that they're going to get 'friended' by many justices on the Supreme Court," said Joseph Grundfest, a professor at Stanford Law School, spoofing Facebook's social networking lingo. "My prediction is that their certiorari petition will not get many 'like' buttons."
Claiming Facebook defrauded them in the settlement agreement by misleading them about the company's worth, the Winklevosses have attempted to appeal the decision for the past three years. The latest federal appeals decision affirms its own April ruling as well as the previous ruling of a California district court.
In a statement, the Winklevoss' law firm Howard Rice said, "Settlements should be based on honest dealing, and courts have wisely refused to enforce a settlement obtained by fraudulent means. The Court's decision shut the courthouse door to a solid claim that Facebook obtained this settlement by committing securities fraud. Our Petition to the Supreme Court will ask the high court to decide whether that door should be reopened."
The law firm declined to comment any further for this story.
Doubtful That Supreme Court Will 'Like' Winklevoss' Petition, Legal Expert Says
Less than 5 percent of all cases seeking the Supreme Court's attention actually receive it, said Stanford's Grundfest, adding that the strongest indicator that that court will hear a case is that there is a split among the previous decisions on a meaningful legal question.
"That's the strongest predictor and that factor isn't present in this case," Grundfest said.
Tom Goldstein, a Washington-based Supreme Court litigator and publisher of the SCOTUSblog, placed the odds of the Supreme Court hearing the Winklevoss' suit at "zero."
The Supreme Court resolves conflicts between circuit courts, he said, but this case is more about the facts than broader legal questions.
"I don't think there's any realistic chance that the court will hear this," he said.
Still he said that fighting a case all the way to the Supreme Court is a very American tradition.
Despite the narrow chances of actually getting an audience with the country's highest court, Goldstein said that for the Winklevoss twins, it's possible that "it's vindication."
Dr. Mark Levy, a forensic psychiatrist in California, said some people who repeatedly file lawsuits end up looking for a psychological, not legal, remedy.
He said so-called "serial litigants" can't accept a settlement because they "want to have their victimization witnessed on the stage of litigation."
"They're in the wrong grocery story. They want something else that isn't available through our legal system," he said. "It's a theatrical desire."
Winklevoss Twins Are Used to Taking the Long Haul for Victory, Psychiatrist Says
While "serial litigants" tend to pursue legal action against different parties, as opposed to multiple legal actions against just one, Levy said it's possible that some parts of the profile could apply to the Winklevoss brothers.
"People like this will appeal as far as they can," he said, adding that for the Winklevosses, "they seem to have a great sense of entitlement, and even a royal sense of entitlement, and that the normal rules do not apply to them."
Like true Olympians -- the twins rowed for the United States in the 2008 Olympic Games -- who know how to focus their attention and push hard for their goal, Levy said, but it's possible that the level of single-minded discipline required for competitive sport has morphed into a life-consuming focus on Facebook.
"These are people who are used to winning, and they're willing to take the long haul to win and they've got the focus to do that," he said.