The new leadership team of bankrupt cryptocurrency exchange FTX.com has threatened legal action against political and charitable organizations that fail to return donations they received when the exchange was led by Sam Bankman-Fried, according to a statement released Sunday.
FTX requested the funds be returned by Feb. 28, claiming that they “reserve the right to commence actions before the Bankruptcy Court” if the funds are not returned by that date, with interest accruing from the date any action is commenced.
Recipients of such funds were also warned that making subsequent charitable donations of the equivalent amount being sought for return would not shield them from FTX’s recovery efforts. The move is a harder shift in tone from messages sent on Dec. 19 by FTX that funds should be returned voluntarily, sharing an email address “[email protected]” for the purpose.
Anthony Sabino, a professor at St. John’s University School of Law in New York, told Forkast the U.S. Bankruptcy Code supports FTX’s claims, including a statute that says any payment made by the debtor 90 days before bankruptcy, regardless of intent, must be returned.
“FTX has an excellent chance to recover political donations,” he said in an emailed statement, but added the hurdle will be proving it was FTX’s money, rather than Sam Bankman-Fried’s.
“If it came directly from FTX, that’s an easy win. If it came from an individual, then you have to trace the money and demonstrate it was really FTX money, and the individual donor was just a conduit for moving the money around.”
Braden Perry, a partner at U.S. law firm Kennyhertz Perry, said “unfortunately, it happens often” in trying to get funds such as this returned in bankruptcy cases.
Perry, a former senior trial attorney at the Commodities and Futures Exchange Commission, said in an email there were similar efforts to reclaim donated funds after the collapse of the Robert Allen Stanford and Bernie Madoff Ponzi schemes around 2010.
Typically, there is a “righteous moment” where deemed illegal funds are returned and it’s considered no harm/no foul, he added.
Sabino explained a second statute, “fraudulent conveyance,” could also help FTX recover payments made in the past two years. This statute includes the notion of “constructive fraud,” which considers whether the debtor received any value in return.
“That’s the problem for political donations,” Sabino said. “What measurable value do you receive for donating to a politician? And if you can measure the value, then it starts to sound like a bribe, something no one wants to allege.”
Prior to FTX’s collapse in November last year, the firm and Bankman-Fried were among the largest contributors to the U.S. Democratic party throughout the 2020 Presidential elections, including to the current president, Joe Biden.
In December, the White House refused to confirm whether Biden’s administration would return the more than US$5 million he received from FTX.
Reports indicate Bankman-Fried’s donations throughout the election cycle may have topped US$40 million. Almost US$30 million of that came from his own political action committee (PAC), Protect Our Future, established by the former billionaire to support “altruistic” causes.
An additional US$6 million was donated to the Democrat-aligned House Majority PAC.
Bankman-Fried said in November that he donated equal amounts to the Republican party.
He did not disclose those donations earlier because “reporters freak the f*** out if you donate to Republicans… I didn’t want to have that fight,” he said in an interview with citizen journalist Tiffany Fong.
Several politicians have already signaled they plan to donate the FTX funds they received elsewhere. They include Democratic Senator Kirsten Gillibrand and Republican Senator John Boozeman, two of the leading voices in the U.S. Congress for increased cryptocurrency regulation.
FTX collapsed in November 2022 after a run on its FTT token led to insufficient funds to honor customer withdrawals. U.S. Federal prosecutors later charged Bankman-Fried with a list of financial crimes, including securities fraud, money laundering, and campaign finance violations.
Bankman-Fried is now out of detention on a US$250 million bail bond, one of the largest in U.S. history. He has pleaded not guilty to all charges and his trial is set for October this year.
(Updates to add comment throughout from law professor Anthony Sabino.)