Update: Molly has now posted her Thoughts on legal concerns surrounding the FTX situation. So please defer to that. The key section related to this post is:
Essentially, if you received money from an FTX entity in the debtor group anytime on or after approximately August 11, 2022, the bankruptcy process will probably ask you, at some point, to pay all or part of that money back. It’s almost impossible to say right now whether any specific grant or contract will be subject to clawback – there just isn’t enough information on the court docket – and if your transaction is captured, you will eventually receive formal notice from the bankruptcy court and will have an opportunity to raise a defense, negotiate a settlement, or litigate. You can read a legal explainer about preference claims here.
[Edit: if you can reasonably avoid it]
Disclaimer: This is not legal advice, and I do not know anything about the law. However, I have not seen this topic be discussed in any prominent place on the EA forum, so want to raise it.
I have seen various mentions around the EA forum and Twitter around the concern of clawbacks. Wikipedia notes that:
"The term clawback or claw back refers to any money or benefits that have been given out, but are required to be returned (clawed back) due to special circumstances or events, such as the monies having been received as the result of a financial crime, or where there is a clawback provision in the executive compensation contract"
"Clawback lawsuits in US courts, especially from innocent individuals and entities who profited from financial crimes of others, have increased in the years since 2000."
In an EA Forum comment, Molly notes that:
[Open Philanthropy] expects to put out an explainer about clawbacks tomorrow. It'll be written by our outside counsel and probably won't contain much in the way of specifics, but I think generally FTX grantees should avoid spending additional $$ on legal advice about this just yet.
Update that I don't think I'm going to be able to meet the timeline I set myself and have a product I think is worth sharing. Given that this is a holiday weekend it might be hard to find good advisors who are willing to work on this before Monday, but I'm going to try.
It seems to me that the responsible things is not to spend any FTX Future Fund money if it can be at all avoided – until we have legal clarity. Above and beyond potential moral obligations it seems really bad if people continue to spend grant money that they may end up being legally obliged to return.
I see that there has been discussion on EA Forum and Twitter about possible legal distinctions (Chapter 7 versus Chapter 11 bankruptcy; the 90-day window; if only FFF is affected or it includes grantees; what entity people received grants together etc.). However, until we have a clearer picture of what's going on, I think it would be prudent not to make irreversible decisions right now.
See here for discussion. Fwiw, I agree with the sentiment "don't injure yourself by returning FTXFF money for services you already provided" – but I also don't want to see people injured if they go on to spend FTXFF money and still end up being legally obliged to return it.
Hi! I'm Open Phil's managing counsel, and put out a post on this subject (with links to resources) here: https://forum.effectivealtruism.org/posts/o8B9kCkwteSqZg9zc/thoughts-on-legal-concerns-surrounding-the-ftx-situation
Thanks so much for you work! I have updated my post with a link to it :)