FTX bankruptcy estate is preparing to file lawsuits on retail customers to claw back withdrawals made during the last days of FTX.
In fact, FTX has already filed one recently.
Here's the court filing
FTX Terms Of Services(ToS) is available here
In FTX Tos 8.2.6, it's stated unambiguously that ownership of the assets remains with the customer at all times and not transferred to FTX. It also says the customer controls the asset and he can withdraw at any time.
Does FTX have a strong case in filing a clawback lawsuit on the customers if they are withdrawing their own assets and the assets withdrawn are not even part of the bankruptcy estate? Furthermore, the TOS allows the customer to withdraw at any time. Actions to withdraw were done in good faith allowed by the TOS.
Customers had a contract with the pre-bankruptcy FTX. They do not have any contract with the post-bankrupt FTX. FTX went bankrupt as a result of the founder Sam Bankman Fried committing fraud by misusing customer funds. Customers were victims of the fraud.
Does FTX going bankrupt later somehow cause the contract with the defrauded customers to lose its force of law? If yes, why is this so, given that there is nothing unfair and illegal in the TOS clauses.
Clawbacks will cause customers to lose not only the money that they left on FTX but the money that they withdrew as well. They will become victims twice.
If FTX files a clawback lawsuit against the customers, would using the FTX TOS to assert ownership of the assets be a strong legal defence?
Please answer this question based on U.S jurisdiction and English Law. FTX TOS says legal disputes will be arbitrated in SIAC(Singapore International Arbitration Centre) according to English Law.