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The trial of Sam Bankman-Fried begins tomorrow.
As a person that has worked in crypto quant trading[1], I have the tiniest slice of sympathy for him. He still seems like an unsympathetic freak overall, and has done some stuff that seems pretty unethical, and some of his actions are definitely criminal. He has given EA a bad name as well.
There are certainly a lot of process crimes he's guilty of. The fact that the US has pulled his international operations into US jurisdiction means he's in for a universe of pain and if they can't fight that he's going to jail for infinity years. I consider this legal theory a bit dubious but the US has taken the position that it can prosecute crimes that happen in the rest of the world if they even marginally involve US citizens[2]. Is everyone in the world really supposed to follow US laws? That strikes me as a bad precedent; on the other hand, I also do appreciate it sometimes that the US is an international law enforcer of last resort.
That's not really where my sympathy lies though. He knows he was playing a dangerous game. Pretty much everyone who works in quant finance occupies enough legal gray area to worry that they could all be shut down at any time and end up in court. This is even worse in the crypto era, as the position taken by the SEC and friends is shameful, giving very little guidance on new forms of financial technology and telling firms years later by indictment that they were frowning on their behavior all this time.
Many tradfi firms prostrate themselves before the SEC in the hopes of maintaining a good relationship. Even still, reputable firms who were attempting to operate outside of US jurisdiction have been caught with their pants down in the crypto era e.g. Trading Firm A, B and C in the recent Binance indictment: https://www.bloomberg.com/opinion/articles/2023-03-27/the-cftc-comes-for-binance (paywall bypass: https://archive.ph/aMi5Q )
It's still not clear to me that SBF and FTX spent user funds as a matter of course, or if it effectively became spending user funds because so much of their other assets imploded. Though, again, that's not necessarily a crime if you operate outside of US jurisdiction, which is what their international arm believed it was doing. But, that's also sort of secondary.
The primary question I keep coming back to, and I come to this every time there's a large corporate fraud scandal, is: what is fraud, actually? Because it seems indistinguishable from "I thought our business was legit and every indication I had was that it was legit and then it failed and it failed really hard and lots of people lost money".
FTX was a successful business. It was a high quality crypto exchange among many exchanges where the standard at the time was "complete clown show". They were probably the last people I would have bet on imploding and disappearing user funds. The failure is shocking. It's so shocking it's hard to believe.
One thing that's common to these frauds is that people always seem to have a moment of reckoning where they know they're fucked and they can either pack up and go home and face the consequences, or they double down and hope it'll all work out. Indeed, there are some legendary stories from doubling down: FedEx for example where the CEO literally doubled down with their last remaining $5000 in Las Vegas to turn it into a much needed $27,000 to keep the business alive. In this timeline FedEx is legitimate, but if it hadn't worked out he could've possibly gone to jail.
As far as I can tell Uber was based on complete fraud. Its business plan from day one appeared to be: completely ignore taxi laws the world over and just push out a product that was so much better than calling taxis that before jurisdictions knew what was happening they would have tons of passionate users that would be furious if Uber was taken away. This seems to be a resounding success. But it was very much organized crime? If Uber had failed their founder would have definitely gone to jail. In fact he was involved in so much other generally shady stuff that he was forced out. Yet he definitely moved the needle.
Anyway, this isn't meant to be an impassioned defense of SBF, more like my continuing fascination and horror at this alien thing we call modern business. Poor fool tried to play the game of changing the world and got burned. And in this case the burning is fantastic public spectacle.
EDIT: Matt Levine's newsletter today is about SBF's trial, which hit my inbox right after I submitted this comment. Amazing, as usual. https://www.bloomberg.com/opinion/articles/2023-10-02/sbf-s-defense-will-be-tough
EDIT2: As replies have pointed out, I am probably technically wrong for calling what Uber did fraud. Sorry to distract. I should've made my case that Uber was more like a plan to openly disregard and defy taxi regulations across many jurisdictions with the excuse that this isn't a taxi it's a "carpooling app" tee hee. I think this is an insane business plan and it depended on them delivering an amazingly useful app. And if they hadn't succeeded (by delivering an amazingly useful app) they would've all been busted for something rising to the level of organized crime.
Probably not fraud, since the investors have given the CEO broad discretion to spend and risk company funds in order to generate a return, with the expectation that they may lose it all. (As opposed to FTX customers who had not delegated any such discretion to FTX) Nor was the CEO was the making the gamble for any personal gain. (As opposed to FTX lending funds to SBF's other firm, Alameda).
I don't see the fraud here.
It is an interesting case -- what is going on is that Uber is facilitating the rampant commission of misdemeanor/summary violations of municipal codes. This reminds me of how Google maps will send notifications if there is a speed trap coming up. I'm not actually sure who would be responsible for trying to indict Uber, and what actual statute they would cite as Uber having violated.
I am quite sure that if you take investor’s money, claiming that you’ll use it for building a shipping business, but then lose it all in Vegas, that counts as a breach of fiduciary duty.
As a matter of company law, the objectives of the company in the articles were almost certainly "make money" and the choice of how to do it was protected by the business judgement rule. If FedEx had been a public company at the time, then it might have been securities fraud. But the rules are much laxer for private companies.
Securities law applies to private companies as well, if you take investments and issue equity. That you make a distinction between public and private companies here suggests to me that you don’t have much idea what you are talking about.
Lots of securities laws only apply to public companies - in the US this includes Reg FD and most of SarbOx. The general pattern is that public companies are required to disclose a lot more information than private ones, with making a false disclosure punishable as securities fraud. A private company that doesn't make a formal disclosure can't commit securities fraud by making a false one.
If I was trying to prosecute a company for gambling shareholders' money in Vegas, I would argue that they had made corporate disclosures which implicitly said they were not gambling shareholders' money in Vegas, and were therefore fraudulent. That is much easier to do with public company disclosures than private company ones (which are basically just the accounts).
I definitely wouldn't argue that it was a breach of fiduciary duty - under the circumstances in the Fedex story that argument would be a loser in both England and Delaware that would definitely lose in court because of the business judgement rule.
I assume, though, that the gambling was done under his own name? If he lost the money in gambling, he might have a tough time proving to a jury that he intended to give the winnings back to the company. He would have to prove that he really was gambling on behalf of the company, rather than embezzling the money to himself and gambling it on behalf of himself, that might be tough to do.
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This is a much more reasonable comment.
Yes, but this is precisely why I phrased my comment as such:
I simply don’t see how you can argue that spending all funds on gambling in Vegas is just a business decision, anymore than you could argue that spending all investor funds on buying yourself a villa and a Lambo is just a business decision.
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