I strongly suspect Will is trying to avoid being sued.
Even from a purely selfish point of view, explicitly apologising and saying âsorry I made a mistake in not trusting the people who told me Sam behaved badly at Alamedaâ, since it would actually help restore his reputation a bit.
EDIT: Actually the bit about Beckstead here is wrong, Iâd misremembered the exact nature of the suit. See Jasonâs comment below. But Nick Beckstead has already been sued (unsuccessfully) on the grounds that he in some sense endorsed SBF whilst he âshould have knownâ that he was a fraud. And this was on grounds far weaker than âpeople who worked Sam told him he was unethical and lies to clients.â Being sued is not nice, even if you eventually win. Every time FTX has come up on the forum, EAs with legal experience have said âpeople and orgs probably canât say much without risking legal exposureâ. Seems plausible to me that is right.
Unfortunately this means weâll likely never have a full accounting of who did what when.
If this is the case that MacAskill cannot be forthcoming for valid reasons (opening himself up to legal vulnerability), as a community it would still make sense for us to err on the side of caution and have other leaders for this community as Chris argues for.
So I think there are three plausible paths forward as far as how to read Willâs silence:
One could draw an adverse inference, assuming that the information he has would be bad. One argument in favor of this would be that his prior assertion that he couldnât talk because of concerns about interfering with the EVF internal investigation comes across as less than forthcoming if he was never really planning on talking after that was done.
One could simply decide on the evidence that is knownâwhich basically means taking the Time article at face value, because it has not been effectively contested and is quoted to named sources.
One could assume that information exists that would exonerate Will, or mitigate things, that he nevertheless isnât in a position to share for legal reasons.
Iâm not anyoneâs lawyer, and Will should definitely listen to his lawyers rather than semi-pseudonymous Forum commenters! But as a community member, I am somewhat more inclined to a mix between 1 or 2 for him than I would be for most other actors. The reason is that a potential plaintiffâs attorney already has a good bit of information in the public domain with which to construct a complaint that would make it past a motion to dismiss and into discovery. The Time article exists, and its contents can be pled in a complaint and will be assumed true for purposes of a motion to dismiss. Willâs connection to FTXFF is well known.
For someone without that publicly-available information, silence helps them avoid alerting plaintiffsâ attorneys that they are a potential target, and probably makes it much harder for them to assemble enough information for a complaint that they can sign off on that will meet the standards for surviving a motion to dismiss. [Citations to US federal-law sources, because thatâs my background.] Competent attorneys do not need Willâs help to figure out that he might be a target, and Iâm not convinced they need his help to marshal information for a complaint either. So the tactical disadvantage to speaking out might be limited to potentially making things a little easier for the other side in discovery?[1]
[EDIT to clarify: None of this is to doubt that ~anyone remotely involved in FTX/âSBF stuff was given legal advice that âtalking isnât going to help your personal legal situation, and may hurt.â Almost any lawyer would have given that advice; their client is the person, not EA! However, my guesses about the marginal additional legal risk that a person would incur by speaking out are relevant to the credence that I am willing to place on each of the three inferences above. This is particularly true as we are now ~18 months from the FTX explosion.]
I am not opining onâand indeed, have no opinion onâwhether anyone has a viable case against Will, and if so whether anything that happened prior to the formation of FTXFF would be relevant to that case. I am merely applying the framework I have used for other leaders, which recognizes that getting sued is disruptive, stressful, and expensive, and thus gives significant weight to a desire not to be sued or a desire to get any case that is filed dismissed prior to discovery.
Can you link to a discussion of the suit in question? I donât think that would be an accurate characterization of the suit I am aware of (complaint analyzed here). That suit is about roughly about aiding SBF in making specific transfers in breach of his fiduciary duty to Alameda. I wouldnât say it is about âendors[ing]â in the ordinary meaning of the word, or that it relied on allegations that Nick should have known about the criminal frauds going on at FTX.
That being said, I do agree more generally that âpeople who had a role at FTXFFâ tend to be at the top of my mental lists of people who should worry most about the possibility of individual suits and people who have probably been advised by counsel to keep their mouths shut.
I strongly suspect Will is trying to avoid being sued.
Even from a purely selfish point of view, explicitly apologising and saying âsorry I made a mistake in not trusting the people who told me Sam behaved badly at Alamedaâ, since it would actually help restore his reputation a bit.
EDIT: Actually the bit about Beckstead here is wrong, Iâd misremembered the exact nature of the suit. See Jasonâs comment below. But Nick Beckstead has already been sued (unsuccessfully) on the grounds that he in some sense endorsed SBF whilst he âshould have knownâ that he was a fraud. And this was on grounds far weaker than âpeople who worked Sam told him he was unethical and lies to clients.â Being sued is not nice, even if you eventually win. Every time FTX has come up on the forum, EAs with legal experience have said âpeople and orgs probably canât say much without risking legal exposureâ. Seems plausible to me that is right.
Unfortunately this means weâll likely never have a full accounting of who did what when.
If this is the case that MacAskill cannot be forthcoming for valid reasons (opening himself up to legal vulnerability), as a community it would still make sense for us to err on the side of caution and have other leaders for this community as Chris argues for.
So I think there are three plausible paths forward as far as how to read Willâs silence:
One could draw an adverse inference, assuming that the information he has would be bad. One argument in favor of this would be that his prior assertion that he couldnât talk because of concerns about interfering with the EVF internal investigation comes across as less than forthcoming if he was never really planning on talking after that was done.
One could simply decide on the evidence that is knownâwhich basically means taking the Time article at face value, because it has not been effectively contested and is quoted to named sources.
One could assume that information exists that would exonerate Will, or mitigate things, that he nevertheless isnât in a position to share for legal reasons.
Iâm not anyoneâs lawyer, and Will should definitely listen to his lawyers rather than semi-pseudonymous Forum commenters! But as a community member, I am somewhat more inclined to a mix between 1 or 2 for him than I would be for most other actors. The reason is that a potential plaintiffâs attorney already has a good bit of information in the public domain with which to construct a complaint that would make it past a motion to dismiss and into discovery. The Time article exists, and its contents can be pled in a complaint and will be assumed true for purposes of a motion to dismiss. Willâs connection to FTXFF is well known.
For someone without that publicly-available information, silence helps them avoid alerting plaintiffsâ attorneys that they are a potential target, and probably makes it much harder for them to assemble enough information for a complaint that they can sign off on that will meet the standards for surviving a motion to dismiss. [Citations to US federal-law sources, because thatâs my background.] Competent attorneys do not need Willâs help to figure out that he might be a target, and Iâm not convinced they need his help to marshal information for a complaint either. So the tactical disadvantage to speaking out might be limited to potentially making things a little easier for the other side in discovery?[1]
[EDIT to clarify: None of this is to doubt that ~anyone remotely involved in FTX/âSBF stuff was given legal advice that âtalking isnât going to help your personal legal situation, and may hurt.â Almost any lawyer would have given that advice; their client is the person, not EA! However, my guesses about the marginal additional legal risk that a person would incur by speaking out are relevant to the credence that I am willing to place on each of the three inferences above. This is particularly true as we are now ~18 months from the FTX explosion.]
I am not opining onâand indeed, have no opinion onâwhether anyone has a viable case against Will, and if so whether anything that happened prior to the formation of FTXFF would be relevant to that case. I am merely applying the framework I have used for other leaders, which recognizes that getting sued is disruptive, stressful, and expensive, and thus gives significant weight to a desire not to be sued or a desire to get any case that is filed dismissed prior to discovery.
Can you link to a discussion of the suit in question? I donât think that would be an accurate characterization of the suit I am aware of (complaint analyzed here). That suit is about roughly about aiding SBF in making specific transfers in breach of his fiduciary duty to Alameda. I wouldnât say it is about âendors[ing]â in the ordinary meaning of the word, or that it relied on allegations that Nick should have known about the criminal frauds going on at FTX.
That being said, I do agree more generally that âpeople who had a role at FTXFFâ tend to be at the top of my mental lists of people who should worry most about the possibility of individual suits and people who have probably been advised by counsel to keep their mouths shut.
OK, I misremembered the exact nature of the suit. Sorry.
Unendorsed as I trust Jason on this far more than my own judgment, since heâs an actual lawyer.