Habryka's Quick takes

Cross posting from here

Thanks for flagging! New donations won’t be used for this settlement. The funding for the settlements has already been secured, and none of EV’s projects will need to allocate any additional funding. Besides funding that came from FTX, no funds that have previously been donated to a specific project will be used as part of this settlement.

As noted by Jason, the EV US settlement remains subject to court approval, and we won’t be commenting on it further while the settlement process is still underway. With that being said, we didn’t want any misunderstandings to disrupt CEA’s fundraising efforts in the meantime. 

Also, as a minor correction, the motion to approve the settlement was not filed by EV US – it was filed by the FTX debtors (this is standard practice for approval of settlements in bankruptcy cases).

Totally unsurprising to me.  

Why would EV US have settled?

(1) Most likely, EV US concluded that it had zero viable defenses to the clawback claims for 2022 transfers, and got concessions to drop clawbacks on the 2018 & 2019 claims. The estate's EV of litigating the 2018/19 claims may have been negative or minimal anyway, as there may have been viable to strong defenses for those.

(2) Plausibly, EV US thought that the financial expected value of litigation was positive, but that the optics costs were too high.

(3) Conspiratorally, EV US really wanted that release from discovery obligations in paragraph 9 of the stipulation (Doc. 3745-2 at 9). This is very unlikely, given that the stipulation expressly specifies that it does not impair the right to demand discovery from EV UK (which likely "knows" the bulk of what EV US would know).

One possible silver lining for some grantees is the recitation that pursuit of litigation against many smaller re-grantees would have been uneconomical (Doc. 3745 at 9, para. 23). There is also a recitation that recipients of re-grants from EV US may have had some additional defenses (id. at 8, para. 21, probably alluding to 11 USC 550(b)(1)), although without any detail it is hard to say whether the FTX estate's lawyers really believe this or whether it is the standard sort of possibility one mentions when asking a bankruptcy judge to sign off on a settlement.

Can you explain in more straightforward terms what this means?

Ozzie Gooen @ 2023-11-21T01:28 (+8)

Very quickly, what I assume:
1. Pre-FTX-crisis, FTX funded EV for ~$22mil.
2. Post-FTX-bankruptcy, the current FTX bankruptcy lawyers are coming after many groups that FTX gave money to for clawbacks. I assume they threatened EV US with legal action, unless the money was fully returned.
3. The final agreement between the two is for EV US to give back all $22mil to FTX debtors. 

Jason @ 2023-11-21T02:22 (+29)

Very close. There were also some transfers in 2018 & 2019, totalling about $2.7MM. There was $22.54MM transferred in 2022, for a total of $25.24MM (some numbers rounded). The estate is basically giving up on recovering the 2018/2019 transfers in exchange for getting 100% of the 2022 ones back. 

I suspect the defenses on the 2018 transfers in particular were much more viable -- they were more than four years prior to bankruptcy filing, which (relying on memory) is a very important threshold in applicable law. In addition, that Alameda was insolvent may be much murkier in 2018 than in 2022. (The 2019 transfers were tiny, so they were probably an afterthought.) I don't have a firm opinion on whether they were winning, but if you offered me $100 if I correctly guessed whether the estate would win on the 2018 transfers, I'd say "no."

Ozzie Gooen @ 2023-11-21T03:19 (+2)

Thanks for the clarity here! 

ludwigbald @ 2023-11-21T13:49 (+1)

I wonder what EV projects the money was dedicated for. Which project actually ended up with a budget shortfall?

Jason @ 2023-11-21T15:01 (+4)

It's in Doc. 3745 -- this is for the EV US settlement only, the earmarks for the smaller EV US settlement are not included. TL;DR: Mostly CEA and Longview with 2.5MM for Atlas Fellowship, about 750K each for LTFF and GWWC. 

Someone needs to confirm whether ordinary donor funds might be used to cover any charge to LTFF, as that might influence some folks' end of year decisions. Edit: Zach confirmed they will not.

Jonas Vollmer @ 2023-11-21T22:52 (+4)

(FYI, Atlas won't be ending up with a budget shortfall as a result of this.)

Your guess that Zach's post refers to both EV US and EV UK, whereas the charity commission only looked at EV UK is correct - and this explains the difference in amounts