Obviously this is very breaking news, but depending on the ultimate facts, I would be nervous about the risk of a clawback action if I were an organization that had received funding from an FTX-aligned source in the past few years. It’s been a while since I took bankruptcy law, but the trustee can have pretty significant clawback powers when the debtor was actually insolvent at the time of transfer and the transfer was not for value. Of course, we do not know at this juncture whether the insolvency is of recent origin or existed for a while before this week.
I would also consider deferring any sizable donations to an organization I thought might be at risk for a crippling clawback, stick those monies in a DAF or similar entity for the time being, and ask the DAF to slowly regrant to the at-risk organization over time depending on the circumstances until it became clear there was no clawback risk. If a charitable organization is subject to a large clawback, it might be more efficient to move the charity’s operations to a new charity (paying FMV for any assets, of course). In that case, it would be better to have not given money to the exposed charity as that money would end up in the hands of FTX’s creditors. For instance, a number of charities had to pay clawbacks in the Madoff scandal despite not having committed any wrongdoing—despite the name, there does not have to be any evil intent to have been involved in a fraudulent conveyance.
None of this is intended to be in the least bit authoritative—it is merely a suggestion to stop and assess risk before taking certain significant actions in the short run.
What happens if the money was donated to a charity that is subject to clawbacks, but the charity then spent the money? Do they try to claw it back from the suppliers or employees or whoever? Can it trigger a cascade of bankruptcies?
Employers, suppliers, etc. should be safe. Although the underlying law is complex, at a high level a clawback is possible when (as Wikipedia describes “constructive fraud”) the transfer “took place for less than reasonably equivalent value at a time when the debtor was in a distressed financial condition.” If I sell my labor (or widgets) to Charity X and receive a fair market wage or price in return, then the transfer took place for reasonably equivalent value and all creditors can generally pound sand.
It can get more complex, though. Let’s say I am a supplier of products to a charity and let them pay me 90 days after delivery, or maybe they are late in making payments. I’m now a creditor, and if the charity is insolvent, then paying back my loan could lead to a clawback because it’s seen as the charity favoring me over other creditors. That’s why vendors often demand cash on delivery to supply financially distressed companies. It’s possible for payments to employees to become problematic—if you’re insolvent and hand out certain bonuses, you can expect some extra scrutiny as to whether the business received reasonably equivalent value in exchange.
To underscore the complexity this stuff can reach, Irving Picard and his firm have spent something like $1 billion in legal fees and over a decade going after money for net losers in the Madoff scheme using similar theories.
Obviously this is very breaking news, but depending on the ultimate facts, I would be nervous about the risk of a clawback action if I were an organization that had received funding from an FTX-aligned source in the past few years. It’s been a while since I took bankruptcy law, but the trustee can have pretty significant clawback powers when the debtor was actually insolvent at the time of transfer and the transfer was not for value. Of course, we do not know at this juncture whether the insolvency is of recent origin or existed for a while before this week.
I would also consider deferring any sizable donations to an organization I thought might be at risk for a crippling clawback, stick those monies in a DAF or similar entity for the time being, and ask the DAF to slowly regrant to the at-risk organization over time depending on the circumstances until it became clear there was no clawback risk. If a charitable organization is subject to a large clawback, it might be more efficient to move the charity’s operations to a new charity (paying FMV for any assets, of course). In that case, it would be better to have not given money to the exposed charity as that money would end up in the hands of FTX’s creditors. For instance, a number of charities had to pay clawbacks in the Madoff scandal despite not having committed any wrongdoing—despite the name, there does not have to be any evil intent to have been involved in a fraudulent conveyance.
None of this is intended to be in the least bit authoritative—it is merely a suggestion to stop and assess risk before taking certain significant actions in the short run.
What happens if the money was donated to a charity that is subject to clawbacks, but the charity then spent the money? Do they try to claw it back from the suppliers or employees or whoever? Can it trigger a cascade of bankruptcies?
Employers, suppliers, etc. should be safe. Although the underlying law is complex, at a high level a clawback is possible when (as Wikipedia describes “constructive fraud”) the transfer “took place for less than reasonably equivalent value at a time when the debtor was in a distressed financial condition.” If I sell my labor (or widgets) to Charity X and receive a fair market wage or price in return, then the transfer took place for reasonably equivalent value and all creditors can generally pound sand.
It can get more complex, though. Let’s say I am a supplier of products to a charity and let them pay me 90 days after delivery, or maybe they are late in making payments. I’m now a creditor, and if the charity is insolvent, then paying back my loan could lead to a clawback because it’s seen as the charity favoring me over other creditors. That’s why vendors often demand cash on delivery to supply financially distressed companies. It’s possible for payments to employees to become problematic—if you’re insolvent and hand out certain bonuses, you can expect some extra scrutiny as to whether the business received reasonably equivalent value in exchange.
To underscore the complexity this stuff can reach, Irving Picard and his firm have spent something like $1 billion in legal fees and over a decade going after money for net losers in the Madoff scheme using similar theories.
Jesus. I hope it doesn’t come to that in this case.