Sam Bankman-Fried's Defense Team Makes Last-Ditch Bid to Get 'English Law' Detail in Jury Instructions

The term may have implications for the fraud charges Bankman-Fried faces.

AccessTimeIconOct 31, 2023 at 5:07 a.m. UTC
Updated Oct 31, 2023 at 3:02 p.m. UTC
10 Years of Decentralizing the Future
May 29-31, 2024 - Austin, TexasThe biggest and most established global hub for everything crypto, blockchain and Web3.Register Now

Sam Bankman-Fried’s attorneys are trying again to have the jury overseeing his trial consider the role of English law in governing FTX’s terms of service, hoping it may lead to a “not guilty” verdict on some of the fraud charges the exchange founder faces.

“For misappropriation to have occurred, under the Government’s theory, there must have existed a trust, fiduciary relationship, or a similar relationship between FTX and its customers,” a filing including a proposed jury instruction said.

The proposed jury instruction would tell the 12 individuals deciding Bankman-Fried’s fate that "FTX’s relationship with its customers was governed by the Terms of Service," which in turn are "governed by ... English law.” An additional set of filings provides example cases from the U.K.

"Under English law, the Terms of Service do not create a trust relationship or similar fiduciary relationship between FTX and its customers. Nor, under English law, do any representations made after a customer agreed to the Terms of Service create a trust relationship or similar fiduciary relationship," the filing suggested Judge Lewis Kaplan said. "The mere fact that a person subjectively expected, understood or believed that a trust, fiduciary relationship, or similar relationship existed does not create such a relationship."

Defense attorney Mark Cohen had former FTX General Counsel read a part of the terms of service in court earlier this month, which said, "The terms and any dispute shall be governed by, and construed in accordance with, English law."

The Department of Justice hadn’t responded to the newest filing as of 10:30 p.m. EDT. Still, a previous filing opposing one of Bankman-Fried’s proposed expert witnesses made it clear that prosecutors believe focusing strictly on the wording of the Terms of Service and their application under English law misconstrues their charge.

“It is legally incorrect to imply to the jury that its focus should be solely on the terms of service ... rather than on the full range of the defendant’s misrepresentations and misleading conduct,” the DOJ’s Aug. 28 filing said.

Bankman-Fried’s past statements and "the common understanding of cryptocurrency customers” are relevant in addition to the terms, that filing said. During the FTX founder’s trial, prosecutors have asked FTX customers and Bankman-Fried to discuss the exchange’s marketing and what that may have meant for customers more broadly.

Judge Kaplan has told the parties that he intends to hold a jury charge conference – which will let the parties argue over their various competing jury instruction proposals – after they both rest, which may occur as soon as Wednesday. Bankman-Fried took the stand last week, and is currently going through a cross-examination, which the DOJ expects to wrap up Tuesday morning.

Edited by Parikshit Mishra.


Please note that our privacy policy, terms of use, cookies, and do not sell my personal information has been updated.

The leader in news and information on cryptocurrency, digital assets and the future of money, CoinDesk is an award-winning media outlet that strives for the highest journalistic standards and abides by a strict set of editorial policies. In November 2023, CoinDesk was acquired by Bullish group, owner of Bullish, a regulated, institutional digital assets exchange. Bullish group is majority owned by; both groups have interests in a variety of blockchain and digital asset businesses and significant holdings of digital assets, including bitcoin. CoinDesk operates as an independent subsidiary, and an editorial committee, chaired by a former editor-in-chief of The Wall Street Journal, is being formed to support journalistic integrity.

Nikhilesh De

Nikhilesh De is CoinDesk's managing editor for global policy and regulation. He owns marginal amounts of bitcoin and ether.

Learn more about Consensus 2024, CoinDesk's longest-running and most influential event that brings together all sides of crypto, blockchain and Web3. Head to to register and buy your pass now.