FTX co-founder Sam Bankman-Fried is laying the groundwork for a protection that argues he relied upon the recommendation of a distinguished Silicon Valley regulation agency in taking most of the actions for which he’s now dealing with fraud prices.
Bankman-Fried’s protection attorneys on Tuesday requested the decide overseeing his felony case to pressure prosecutors handy over paperwork given to the federal government by former FTX regulation agency Fenwick & West. If the federal government doesn’t agree, Bankman-Fried needs permission to subpoena the Mountain View, California-based agency.
That recommendation included using encrypted messaging apps, the supply of multimillion-dollar loans to FTX executives and the cryptocurrency alternate’s compliance with US banking laws, the protection mentioned. These are all key components of the fees towards Bankman-Fried, who’s accused of orchestrating and concealing a yearslong fraud through which he used billions of {dollars} in FTX buyer funds for dangerous investments, private bills and political donations.
The authorized recommendation Fenwick & West offered to FTX and Bankman-Fried between 2017 and 2022 is “materials to getting ready a protection,” his attorneys mentioned of their Tuesday submitting.
Bankman-Fried has pleaded not responsible to his 13-count indictment and is because of stand trial in October.
A so-called advice-of-counsel protection can be utilized to rebut solutions a felony defendant meant to interrupt the regulation, New York College regulation Professor Stephen Gillers mentioned.
“In different phrases, the defendant’s argument is ‘my attorneys advised me it was authorized, and I believed it was authorized,’” mentioned Gillers. That might minimize towards the federal government’s competition that the defendant knowingly acted illegally — a mandatory factor of many felony prices, together with these towards Bankman-Fried.
Such a protection would place additional scrutiny on the connection between FTX and Fenwick & West. The agency began representing Alameda Analysis, the alternate’s hedge fund affiliate and, in keeping with prosecutors, the conduit for a lot of Bankman-Fried’s fraud, in 2017 and have become the principle exterior counsel to FTX after its 2019 founding.
Fenwick & West didn’t instantly reply to a request for remark.
Former workers interviewed by federal prosecutors throughout the investigation have additionally referred to Fenwick & West authorized memos that they declare guided their choices, in keeping with two folks with information of the case. Legislation enforcement has additionally despatched subpoenas to the regulation agency, and it has been accused by buyers in a category motion lawsuit of aiding Bankman-Fried’s fraud.
Dan Friedberg, FTX’s former chief regulatory officer, joined the alternate in 2020 after beforehand representing it as an outdoor lawyer with Fenwick & West. Because the cryptocurrency alternate started to crumble in early November, Friedberg approached federal prosecutors providing his help, in keeping with an individual conversant in alternate. FTX’s former basic counsel Can Solar was additionally poached from the agency.
Some materials Bankman-Fried’s attorneys are asking for pertains to a cost that he lied to Silvergate Financial institution to open an account in 2020 to obtain buyer deposits for FTX’s worldwide alternate. The financial institution mentioned on the time that he couldn’t open such an account if FTX wasn’t licensed as a cash providers enterprise within the US.
Fenwick & West offered authorized recommendation to FTX about such registration. The alternate’s US platform was registered as a cash providers enterprise in 2020, however the regulation agency suggested Friedberg in February 2020 that FTX’s worldwide division didn’t have to register within the US because it didn’t settle for US clients, in keeping with a authorized memo filed in court docket.
To get round Silvergate’s situations, prosecutors allege, Bankman-Fried included a brand new firm, North Dimension, and advised the financial institution he needed to open a buying and selling account linked to Alameda. Alameda workers, allegedly at Bankman-Fried’s behest, filed an utility to the financial institution with this false data. Prices associated to a conspiracy to commit financial institution fraud have been added to Bankman-Fried’s indictment earlier this yr.
Bankman-Fried mentioned in Tuesday’s submitting that Fenwick & West offered “real-time recommendation” on the opening of the North Dimension account.
