When the government called Peter Easton, an accounting professor at the University of Notre Dame, to the witness stand on Wednesday, his testimony was unsurprising: Sam Bankman-Fried, the former CEO of the now-bankrupt crypto exchange FTX, took customer funds for years.
To buttress his conclusions, the accounting professor pointed to examples of when Bankman-Fried, now on trial for fraud, deployed customers’ cash and crypto: venture investments, political donations, and a $2.2 billion buyback of equity in FTX from Changpeng Zhao, CEO of rival crypto exchange Binance. And $1.2 billion of that $2.2 billion—denominated in the cryptocurrencies BUSD, BNB, and FTT—specifically came from customers, Easton said.
Representatives for Binance did not immediately respond to a request for comment from Fortune about Easton’s testimony and whether Zhao will be asked to return the funds. A spokesperson for the FTX estate declined to comment.
The Binance CEO has previously brushed off concerns over receiving that money from Bankman-Fried. “I think we’ll leave that to the lawyers. I think our legal team is perfectly capable of handling it,” he said in response to whether he was prepared to send that money back to the FTX estate.
But now that a witness for the government has explicitly said that over half of the more than $2 billion Zhao got from Bankman-Fried came directly from customers, how, if at all, have Binance’s legal obligations changed?
‘Implications later’
Mark Pfeiffer, a bankruptcy lawyer at Buchanan Ingersoll & Rooney, told Fortune that both U.S. bankruptcy law as well as state civil law provides the FTX estate multiple ways to “claw back” funds from Binance.
Federal law allows the FTX estate to get back money either previously sent out in an effort to defraud its creditors or if a deal occurred while FTX was insolvent and lawyers can prove it was a bad business decision. The deal has to have occurred within two years of an entity declaring bankruptcy, which happens to be the case with Bankman-Fried’s share buyback. “If you’re purchasing your stock at the time you’re insolvent, that’s always going to be a problem,” said Edward Morrison, a professor at Columbia Law School who specializes in bankruptcy law.
And civil law across most U.S. states is even simpler. “If I borrow your car and sell it to a third party, you, as the owner of that car, can sue the third party to claw it back,” Pfeiffer said.
Morrison, the Columbia professor, added that even if the FTX estate could persuade a judge to compel Binance to return at least the $1.2 billion, actually getting that money back is another issue. (He also added that bankruptcy law with respect to financial markets can get complicated, so Binance may have obscure legal defenses.)
Assets for the world’s largest crypto exchange don’t primarily reside within the U.S., and where the majority of Binance’s capital resides is an open question. “It’s true that the bankruptcy court may have limited power to enforce the judgment abroad,” Morrison said. “On the other hand, Binance presumably may need access to U.S. markets and U.S. courts in the future. And so bad behavior now can have implications later.”
