UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-cv-23753-KMM

EDWIN GARRISON, et al., on behalf of 

themselves and all others similarly situated, 

Plaintiffs, 

v. 

SAM BANKMAN-FRIED, et al., 

Defendants.

________________________________________/

DEFENDANT SAM BANKMAN-FRIED’S UNOPPOSED MOTION TO STAY,

OR, ALTERNATIVELY, MOTION TO COMPEL ARBITRATION OR TO DISMISS

AMENDED COMPLAINT

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-iTABLE OF CONTENTS

Page

CONFLICT OF POSITION WITH CO-DEFENDANTS .............................................................. 1

PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT ....................................... 1

NATURE AND STATE OF PROCEEDINGS............................................................................... 2

I. STATEMENT OF FACTS ................................................................................................. 2

A. FTX US Terms of Service ...................................................................................... 2

B. FTX Trading Terms of Service............................................................................... 5

II. ARGUMENT...................................................................................................................... 6

A. The Claims Against Mr. Bankman-Fried Should Be Stayed During the

Pendency of Parallel Criminal Proceedings............................................................ 6

B. Plaintiffs’ Claims Against Mr. Bankman-Fried Should Be Compelled to 

Arbitration or Dismissed Because They Must Be Brought Individually, 

Through Arbitration................................................................................................ 9

1. The Federal Arbitration Act governs the FTX arbitration 

agreements and mandates their enforcement. ........................................... 11

2. Dismissal, as opposed to a stay pending resolution at arbitration, is 

warranted................................................................................................... 12

3. The applicable ToS include choice-of-law and choice-of-forum 

provisions requiring these disputes to be heard elsewhere. ...................... 14

4. Plaintiffs consented to FTX’s terms of service, which included 

arbitration agreements and class action waivers....................................... 15

5. The class action waivers are enforceable.................................................. 16

6. The FTX arbitration agreements are valid and enforceable...................... 17

7. Applying Florida and Eleventh Circuit law would not result in a 

different outcome for either ToS............................................................... 20

III. CONCLUSION................................................................................................................. 20

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)........................................ 21

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Defendant Sam Bankman-Fried files this Unopposed Motion to Stay, or, alternatively, 

Motion to Compel Arbitration or to Dismiss the Amended Complaint filed on December 16, 2022

(ECF No. 16). Plaintiffs do not oppose Mr. Bankman-Fried’s request for a stay, and the “Celebrity 

Defendants” take no position on the request.

CONFLICT OF POSITION WITH CO-DEFENDANTS

Due to a clear conflict with other Defendants, Mr. Bankman-Fried files this Motion 

independently. Mr. Bankman-Fried is not similarly situated to the other FTX Insider Defendants. 

Defendants Singh, Ellison, and Wang have pleaded guilty in the FTX-related criminal proceedings

in New York. Defendant Trabucco has not been criminally charged. And, according to press 

reports, Defendant Friedberg is apparently cooperating with the government. Consequently, Mr. 

Bankman-Fried’s Fifth Amendment rights are directly implicated by this civil proceeding in ways 

that the other FTX Insider Defendants’ rights are not. Mr. Bankman-Fried is also not similarly 

situated to the “Celebrity Defendants,” who have been sued for different alleged conduct. 

PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT

This case should be stayed as to Mr. Bankman-Fried until the conclusion of the criminal 

action against him in the Southern District of New York (Case No. 22-cr-00673). As indicated 

above, Plaintiffs do not oppose a stay and the “Celebrity Defendants” take no position on a stay. 

Further, as explained below, there is significant and evident overlap between the active criminal 

action in New York and this civil action in Florida, especially with respect to the allegations and

claims against Mr. Bankman-Fried. Mr. Bankman-Fried’s Fifth Amendment rights would be 

severely and impermissibly jeopardized if he is forced to defend against the claims in this case. 

If there is no stay as to Mr. Bankman-Fried, the claims against him should be compelled to 

arbitration or dismissed with prejudice under Rules 12(b)(1) and 12(b)(3). Plaintiffs are subject to

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FTX US and FTX Trading, Ltd.’s Terms of Service, which contain enforceable arbitration clauses 

and class action waivers, compelling arbitration or dismissal of Plaintiffs’ claims. 

NATURE AND STATE OF PROCEEDINGS 

On November 15, 2022, Plaintiffs filed the initial class action Complaint in the matter.

ECF No. 1. On December 16, 2022, Plaintiffs filed the Amended Complaint. ECF No. 16 (Am. 

Compl.). The core allegations arise out of alleged use of the FTX US and/or FTX Trading

cryptocurrency exchanges to purchase FTX yield-bearing accounts (“YBAs”). See Am. Compl. 

at 9–12, ¶ 22. Plaintiffs allege they signed-up for “the FTX app” and subsequently lost assets held 

in YBAs on FTX US and/or FTX Trading in 2022. Am. Compl. at 3–4, ¶¶ 5, 6. 

The Amended Complaint is silent as to when Plaintiffs registered with FTX US and/or 

FTX Trading, and also silent as to which Plaintiffs registered with which FTX-related service. The

Amended Complaint is similarly silent as to what assets each Plaintiff held on which platform, and 

during what time frame. Nonetheless, Plaintiffs allege that due to various actions of Defendants, 

Plaintiffs and the class have been “robbed” of their assets. See Am. Compl. at 4, ¶ 6. 

Count I is brought under the Florida Securities and Investor Protection Act. Count II is a 

FDUTPA claim. Count III is for civil conspiracy. And Count IV is for a declaratory judgment. 

As against the “FTX Insiders,” including Mr. Bankman-Fried, there are claims for breach of 

fiduciary duty (Count IV), negligence (Count V), and conversion (Count VI).

I. STATEMENT OF FACTS

A. FTX US Terms of Service

In order to use FTX US’s services, including creating and using an FTX US account, 

Plaintiffs would have been required to consent to the FTX US User Agreement (the “FTX US User 

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Agreement”), contained within FTX US’s terms of service (“FTX US ToS”).

1 See Jeremy D. 

Mishkin Declaration, Ex. A (FTX US User Agreement). Although Plaintiffs have not specified 

the dates they registered for FTX US accounts or held assets via FTX US, the “Terms of Service”

were displayed prominently as of May 2022 at the bottom of FTX US’s website, under the header 

“Legal.”2 Clicking on the ToS header, available on every page of the website, redirected users to 

a User Agreement to which all FTX US users were required to agree in order to use FTX US 

services. See FTX US User Agreement at 1, ¶ 1.

The FTX US User Agreement contains a class action waiver and an agreement to 

individually arbitrate all disputes arising out of the ToS or use of FTX US services. Id. at 1, 12. 

Section 30 of the User Agreement, labeled “Dispute Resolution,” mandates that disputes “will be 

1 This Court may consider the FTX.US and FTX Trading ToS for the purposes of a motion to 

dismiss under Rule 12 because Plaintiffs incorporated them by reference in the Amended 

Complaint. Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002). 

2 On November 11, 2022 and November 14, 2022, FTX Trading Ltd. and 101 affiliated debtors, 

including FTX US, each filed a voluntary petition for relief under Chapter 11 in the United States 

Bankruptcy Court for the District of Delaware. FTX US’s website was subsequently taken down 

as part of the restructuring and any attempt to access that domain name redirects the user to 

restructuring.ra.kroll.com. See FTX.us. However, the submitted copy of the ToS is obtained from 

a download of FTX.us as of May 16, 2022, captured by Wayback Machine. “Courts have taken 

judicial notice of the contents of web pages available through the Wayback Machine as facts that 

can be accurately and readily determined from sources whose accuracy cannot reasonably be 

questioned.” Brown v. Google LLC, 525 F. Supp. 3d 1049, 1061 (N.D. Cal. 2021) (taking judicial 

notice of websites as of dates captured by Wayback Machine) (citing Erickson v. Nebraska Mach. 

Co., 2015 WL 4089849, at *1 n. 1 (N.D. Cal. July 6, 2015) (taking judicial notice of website from 

Wayback Machine)). 

Moreover, a January 6, 2023 internet search on “how to register an FTX US account tos”

reflects that prior to the bankruptcy, www.help.ftx.us, required users to “Agree with Our Terms 

and Service” as part of “Step 1” in creating an account. See Mishkin Decl. Ex. B (“Jan. 6, 2023 

Internet Search”). Moreover, the continued use of FTX US’s services after any amendment or 

updates to the ToS constituted acceptance of the revised ToS, including the dispute resolution 

provision, unless the user rejected any changes to the dispute resolution provision within 30 days 

of the date the change became effective or the user was notified of the change. See User Agreement 

at 1, ¶ 2; 13, ¶ 30(g).

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resolved solely by binding, individual arbitration and not in a class, representative or consolidated 

action or proceeding.” Id. at 12. Section 30 also sets forth, inter alia, the manner in which 

arbitration is to be conducted, the extremely limited exceptions to mandatory arbitration, and a 

class action waiver:

(a) Mandatory Arbitration of Disputes. We agree that any dispute, claim or 

controversy arising out of or relating to these Terms or the breach, termination, 

enforcement, interpretation or validity thereof or the use of the Services 

(collectively, “Disputes”) will be resolved solely by binding, individual arbitration 

and not in a class, representative or consolidated action or proceeding. You and 

FTX.US agree that the U.S. Federal Arbitration Act governs the interpretation and 

enforcement of these Terms, and that you and FTX.US are each waiving the right 

to a jury or to participate in a class action. This arbitration provision shall survive 

termination of these Terms. 

...

(f) Class Action Waiver. YOU AND FTX.US AGREE THAT EACH 

MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOURS OR ITS 

INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS 

MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE 

PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the 

arbitrator may not consolidate another person’s claims with your claims, and may 

not otherwise preside over any form of a representative or class proceeding. If this 

specific provision is found to be unenforceable, then the entirety of this Dispute 

Resolution section shall be null and void. 

Id. at 12-13 (original emphasis included). Even if an FTX US user did not read more than the first 

page of the User Agreement, a portion of that page, also in bolded, capital letters, reads:

IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU 

AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED 

EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND 

FTX.US THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER 

THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 30

“DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING 

ARBITRATION.

Id. at 1. Also, directly under this clause, the User Agreement reads, “1. Agreement to 

Terms/Privacy Policy. By using our Services, you agree to be bound by these Terms. If you don’t 

agree to be bound by these Terms, do not use the Services.” Id. at 1, ¶ 1. 

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The FTX US User Agreement’s explicit class action waiver and mandatory individual 

arbitration clause are subject to limited exceptions for qualifying disputes in small claims court 

and equitable claims grounded solely in infringement or misappropriation of intellectual property 

rights. Id. at 12, ¶ 30(b). None of those exceptions apply here.

By registering accounts and using FTX US services, Plaintiffs and any putative class 

members consented to FTX US’s ToS, including the arbitration agreement and class action waiver. 

Sections 29 and 30(a) of the User Agreement dictate that any action related to FTX US will be 

governed by the FAA. Id. at 12, ¶¶ 29, 30(a).3 Further, the ToS provides that any arbitration shall 

be conducted by AAA using its Consumer Arbitration Rules. Id. at 12, ¶ 30(c). 

Plaintiffs also admit, without specifying as to which FTX entity, that FTX provided 

Plaintiffs with terms of service. See Am. Compl. at 17–18, ¶ 61. 

B. FTX Trading Terms of Service

The Amended Complaint also alleges, without specification, that at least one of the named 

Plaintiffs deposited or held assets using FTX Trading Ltd., doing business as FTX Trading.” See

Am. Compl. at 1. Similar to FTX US, in order to use FTX Trading’s services, Plaintiffs would 

have been subject to the Terms of Service for FTX Trading Ltd (“FTX Trading ToS”).4 See

Mishkin Decl. Ex. C (“FTX Trading User Agreement”). 

The FTX Trading ToS, at times relevant to the Amended Complaint, included a

mandatory arbitration clause and class action waiver. Id. at 27. The FTX Trading ToS expressly 

3 The User Agreement also contains choice of law and venue clauses, specifying that for all 

disputes not covered by the arbitration provision, the laws of the State of California govern and 

the courts located in Alameda County, California, shall hear any such action. See FTX US User 

Agreement at 12, ¶ 29.

4 See supra n. 1, n. 2. For the reasons explained previously, the FTX Trading ToS are currently 

unavailable on FTX’s former website. 

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provided that “any Dispute shall be referred to and finally determined by arbitration

administered by the Singapore International Arbitration Centre ("SIAC") in accordance with the 

Arbitration Rules of the SIAC ("SIAC Rules") for the time being in force.” It also provided that 

“(A) any Dispute shall be referred to arbitration in accordance with this Clause 38.12 on an 

individual basis only and not as a claimant or class member in a purported class or 

representative action; (B) combining or consolidating individual arbitrations into a single 

arbitration is not permitted without the consent of all parties. Id. (emphasis added). 

As per the Amended Complaint, Plaintiffs expressly rely on the FTX Trading ToS and

firmly ground certain claims in them, effectively conceding that other portions of the ToS should 

be enforceable. See Am. Compl. at 17–18, ¶ 61. 

II. ARGUMENT

The claims against Mr. Bankman-Fried should be stayed during the pendency of his 

criminal case in order to preserve his Fifth Amendment rights. If the Court does not grant a stay, 

the claims against Mr. Bankman-Fried should be compelled to arbitration or dismissed for lack of 

subject-matter jurisdiction and improper venue, based on Plaintiffs’ consent to the arbitration 

agreements and the class action waivers in FTX US and FTX Trading’s Terms of Service. At a 

minimum, the Court should stay these claims pending resolution at arbitration. 

A. The Claims Against Mr. Bankman-Fried Should Be Stayed During the

Pendency of Parallel Criminal Proceedings

The claims against Mr. Bankman-Fried should be stayed during the pendency of the 

criminal case against him in the Southern District of New York (Case No. 22-cr-00673-LAK). 

The charges in that case arise out of the same core facts as this civil case. Mr. Bankman-Fried’s 

Fifth Amendment rights are thus implicated by nearly every aspect of this civil proceeding. 

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Therefore, if ever a stay pending the resolution of parallel criminal proceedings was both warranted 

and necessary to preserve a criminal defendant’s constitutional rights, this is that case. 

A court may exercise its discretion to stay civil proceedings in light of an ongoing criminal 

investigation if the interests of justice require it. United States v. Kordel, 397 U.S. 1, 12 n. 27 

(1970). While the “[t]he Eleventh Circuit has articulated a narrow set of circumstances which 

require that a stay be granted[,]” those circumstances warranting a stay are indisputably present 

here. Gonzalez v. Israel, No. 15-cv-60060, 2015 WL 4164772, at *2 (S.D. Fla. July 9, 2015) (citing 

Global Aerospace, Inc. v. Platinum Jet Mgmt., LLC, 2009 WL 2589116, at *1 (S.D. Fla. Aug.19, 

2009)). In the Eleventh Circuit, courts “must consider whether a defendant in both a civil and 

criminal matter is forced to choose between waiving his privilege against self-incrimination or 

losing the civil case in summary proceedings.” Id. Generally, “the strongest case for a stay is 

when a party under indictment for a serious offense is required to defend a civil or administrative 

action involving the same matter.” Judd v. Weinstein, No. CV-185724, 2019 WL 2879875, at *2 

(C.D. Cal. Apr. 2, 2019) (citations and internal quotations omitted). In determining whether to 

grant a stay, courts in the Eleventh Circuit principally consider the following factors:

[(1)] the degree and severity of overlap between the civil and criminal proceedings; 

[(2)] whether the criminal charges are hypothetical or, by contrast, whether an 

indictment or its equivalent has been issued; [(3)] and the specificity of the 

invocation of the Fifth Amendment privilege relative to the civil proceeding.

Gonzalez, 2015 WL 4164772, at *3 (compiling Eleventh Circuit cases discussing relevant factors). 

Here, each of the three factors weighs in favor of staying this civil proceeding. 5

5 Courts will also consider other factors, including the private and public interests, the degree of 

overlap between the cases, and the case status. Lay v. Hixon, 2009 WL 1357384, at *3 (S.D. Ala. 

May 12, 2009) (internal quotations and citations omitted). These factors also militate in favor of 

a stay.

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First, the level of factual and legal overlap between this case and the criminal proceeding

in New York cannot be overstated. Indeed, the alleged facts giving rise to the criminal charges 

against Mr. Bankman-Fried track almost identically to those alleged here. Therefore, because “the 

similarity of issues in the underlying civil and criminal actions is considered the most important 

threshold issue in determining whether to grant a stay”—Love v. City of Lanett, 2009 WL 

2525371, at *2 (M.D. Ala. Aug.17, 2009) (citation omitted); Doe 1 v. City of Demopolis, 2009 WL 

2059311, at *3 (S.D. Ala. July 10, 2009)—this factor strongly favors a stay.

Second, the status of the criminal proceeding also weighs in favor of a stay. The criminal 

proceeding against Mr. Bankman-Fried is not hypothetical, as the indictment and subsequent 

superseding indictments charging Mr. Bankman-Fried have been formally filed in New York. The 

criminal case is also in active discovery, trial is scheduled to begin on October 2, 2023, and the 

Court has stated on the record that it is unlikely to alter that schedule. See, e.g., Jan. 3, 2023, Minute 

Entry of Arraignment before Hon. Lewis A. Kaplan, United States v. Bankman-Fried, No. 22-cr00673-LAK (S.D.N.Y. Dec. 22, 2022). In addition, three of the defendants in this action—Ellison, 

Wang, and Singh—have pleaded guilty in the criminal case and are expected to be testifying 

witnesses against Mr. Bankman-Fried at trial.

Third, Mr. Bankman-Fried’s Fifth Amendment rights are directly implicated by every 

aspect of this civil action. “A stay is warranted when a defendant in both a civil and a criminal 

case, is forced to choose between waiving his privilege against self-incrimination or losing the 

civil case in [summary proceedings].” A.B. ex rel. Baez v. Seminole Cnty. Sch. Bd., No. 6:05-cv802, 2005 WL 2614622, at *1 (M.D. Fla. Oct. 14, 2005) (citing Shell Oil Co. v. Altina Associates, 

Inc., 866 F. Supp. 536, 540 (M.D. Fla. 1994)) (internal citations omitted). Here, Fifth Amendment 

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implications would arise at nearly every juncture–in written discovery, during depositions, in 

responsive pleadings and motion practice, and also at trial. Thus, should this action proceed, Mr. 

Bankman-Fried will be impermissibly forced to choose between waiving his Fifth Amendment 

privilege in the criminal proceeding or defending this civil action. This too warrants a stay. 

In sum, all of the relevant factors weigh in favor of a stay as to Mr. Bankman-Fried. Courts 

in this Circuit frequently grant stays, or partial stays, of civil actions during the pendency of parallel 

criminal proceedings when a defendant’s constitutional rights are jeopardized. See, e.g., Gonzalez, 

2015 WL 4164772, at *4 (compiling cases granting stays of civil actions during pendency of 

criminal proceedings); Ventura v. Brosky, No. 06-cv-22026, 2006 WL 3392207, at *2 (S.D. Fla. 

Nov. 21, 2006) (staying civil case due to Fifth Amendment concerns); Doe 1, 2009 WL 2059311, 

at *3 (S.D. Ala. July 10, 2009); Lay v. Hixon, No. 09-cv-0075-WS-M, 2009 WL 1357384, at *5 

(S.D. Ala. May 12, 2009) (“[G]ranting a stay of this action pending resolution of the state-court 

criminal proceedings is appropriate.”). Considering the serious nature of the charges against Mr. 

Bankman-Fried, coupled with the undeniable overlap in subject matter between the criminal case

and this civil matter, the present action should be stayed as to Mr. Bankman-Fried. 

B. Plaintiffs’ Claims Against Mr. Bankman-Fried Should Be Compelled to 

Arbitration or Dismissed Because They Must Be Brought Individually,

Through Arbitration

Plaintiffs’ claims against Mr. Bankman-Fried should be compelled to arbitration or 

dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(3) based on the 

arbitration agreements contained in FTX US and FTX Trading, Ltd.’s Terms of Service.

6

6 Mr. Bankman-Fried, although not a signatory to both ToS, may enforce the arbitration agreement

because, inter alia, Plaintiffs’ claims are intertwined with the duties and obligations arising from 

the ToS. “[A] litigant who is not a party to an arbitration agreement may invoke arbitration under 

the FAA if the relevant state contract law allows the litigant to enforce the agreement.” Kramer 

v. Toyota Motor Corp., 705 F.3d 1122, 1128–30 (9th Cir. 2013) (citing 

Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 632 (2009)); Haasbroek v. Princess Cruise Lines, 

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Regardless of whether Plaintiffs utilized FTX US services or FTX Trading services, Plaintiffs 

agreed to bring any related claims individually, through arbitration, in the agreed venue. In the 

Eleventh Circuit, “[m]otions to compel arbitration are generally treated as motions to dismiss for 

lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).” Schriever v. Navient Sols., 

Inc., No. 2:14-cv-596, 2014 WL 7273915, at *2 (M.D. Fla. Dec. 19, 2014); Baptist Hosp. of Miami, 

Inc. v. Medica Healthcare Plans, Inc., 376 F. Supp. 3d 1298, 1304 (S.D. Fla. 2019). “[I]n ruling 

on a motion to compel arbitration, the Court may consider matters outside of the four corners of 

the complaint.” Baptist Hosp. of Miami, Inc., 376 F. Supp. 3d at 1304 (citations omitted). Notably, 

in the Amended Complaint, Plaintiffs acknowledge, and argue for the enforceability of, certain 

FTX ToS. See Am. Compl. at 17–18. Further, both arbitration clauses are very broad and clearly 

encompass Plaintiffs’ claims against Mr. Bankman-Fried, and both unambiguously bar any effort 

to bring claims as a class action. Simply put, the arbitration agreements and class action waivers 

should be enforced. 

Ltd., 286 F. Supp. 3d 1352, 1361 (S.D. Fla. 2017) (“[A] nonparty may force arbitration if the 

relevant state contract law allows him to enforce the agreement to arbitrate.”).

Under either Florida or California law, Mr. Bankman-Fried may enforce the agreement.

See Dimattina Holdings, LLC v. Steri-Clean, Inc., 195 F. Supp. 3d 1285, 1292 (S.D. Fla. 2016)

(“A non-signatory to an arbitration agreement may compel arbitration when the allegations against 

him are inextricably intertwined with or mirror those against a signatory, or when the allegations 

are of interdependent and concerted misconduct between a non-signatory and a signatory.”); see 

also Kramer, 705 F.3d at 1128–30. Courts in other jurisdictions, when considering defendants 

holding similar company positions to Mr. Bankman-Fried, have allowed those defendants to 

enforce company arbitration agreements. See Frazier v. W. Union Co., 377 F. Supp. 3d 1248, 

1262–64 (D. Colo. 2019) (emphasizing interdependence of claims against signatory and 

nonsignatory defendants and that plaintiffs’ claims were intertwined with the duties and 

obligations arising from the terms of service); Giddings v. Media Lodge, Inc., 320 F. Supp. 3d 

1064, 1081–82 (D.S.D. 2018); CD Partners, LLC v. Grizzle, 424 F.3d 795, 798–99 (8th Cir. 2005). 

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1. The Federal Arbitration Act governs the FTX arbitration agreements

and mandates their enforcement.

The FAA governs both ToS. The FTX US User Agreement explicitly provides that the 

FAA governs the present arbitration agreement. See FTX US User Agreement at 12, ¶¶ 29, 30(a). 

As to the FTX Trading User Agreement, the FAA, through the New York Convention, applies to 

international arbitration agreements so long as no conflict exists. Escobar v. Celebration Cruise 

Operator, Inc., 805 F.3d 1279, 1284 (11th Cir. 2015); Bautista v. Star Cruises, 396 F.3d 1289, 

1297 (11th Cir. 2005) (“. . . with FAA provisions applying only where they did not conflict.”).

“The Federal Arbitration Act (“FAA”) governs written arbitration agreements affecting interstate 

commerce.” Norde v. Ctr. for Autism & Related Disorders, LLC, No. 22-cv-00639, 2022 WL 

4227274, at *2 (N.D. Cal. Aug. 22, 2022) (citing Cir. City Stores, Inc. v. Adams, 532 U.S. 105, 

111-12 (2001)).7 The FAA dictates that an arbitration agreement “shall be valid, irrevocable, and 

enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 

9 U.S.C. § 2. 

“[I]n deciding whether to compel arbitration, a court must determine two ‘gateway’ issues: 

(1) whether there is an agreement to arbitrate between the parties; and (2) whether the agreement 

covers the dispute.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015) (citing Howsam 

v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)). Analyzing both issues leads inexorably to 

the conclusion that the claims in this lawsuit must be arbitrated.

Here, there are explicit, broad arbitration agreements contained in both User Agreements. 

See FTX US User Agreement at 12-13; FTX Trading User Agreement at 27. The present dispute 

concerns Plaintiffs’ alleged use of FTX services, and thus is covered by Section 30 of the FTX US 

7 As addressed in Section (3), below, Ninth Circuit law governs, in accordance with the FTX US 

ToS choice-of-law provision. 

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User Agreement and Section 38.12 of the FTX Trading User Agreement. See FTX US User 

Agreement at 12, ¶ 30(a) (“any dispute, claim, or controversy arising out of or relating to ... the 

use of the Services ... will be resolved solely by binding, individual arbitration ...”); FTX Trading

User Agreement at 1 (“Section 38.12 (Arbitration) requires all Disputes to be resolved by way of 

legally binding arbitration on an individual basis only and not as a claimant or class member in a 

purported class or representative action.”). Further, were Plaintiffs to contest the validity or 

arbitrability of the arbitration agreements, any such disputes would similarly be covered and thus 

could only be determined in the arbitration process. Id.; see also Ahlstrom v. DHI Mortg. Co., 

Ltd., L.P., 21 F.4th 631, 634 (9th Cir. 2021) (“It is well-established that some “gateway” issues 

pertaining to an arbitration agreement, such as issues of validity and arbitrability, can be delegated 

to an arbitrator by agreement.”). Both gateway conditions are accordingly met. 

Since both conditions are met, “the [FAA] requires the court to enforce the arbitration 

agreement in accordance with its terms.” Lim v. TForce Logistics, LLC, 8 F.4th 992, 999 (9th Cir. 

2021) (citing Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). 

“By its terms, the [FAA] leaves no place for the exercise of discretion by a district court, but 

instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to 

which an arbitration agreement has been signed.” Norde, 2022 WL 4227274, at *3 (citing Dean 

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985)). The FAA requires arbitration of these 

claims. 

2. Dismissal, as opposed to a stay pending resolution at arbitration, is 

warranted.

As all claims against Mr. Bankman-Fried are arbitrable and must be submitted to 

arbitration, dismissal of these claims is appropriate. The Ninth Circuit and Eleventh Circuit are in 

agreement that on its face, the FAA requires federal district courts to stay judicial proceedings and 

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compel arbitration of claims covered by a written and enforceable arbitration agreement.”

Houtchens v. Google LLC, No. 22-cv-02638, 2022 WL 17736778, at *2 (N.D. Cal. Dec. 16, 2022) 

(citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014)); Baptist Hosp. of 

Miami, Inc. v. Medica Healthcare Plans, Inc., 376 F. Supp. 3d 1298, 1311 (S.D. Fla. 2019) (citing 

Lambert v. Austin Indus., 544 F.3d 1192, 1195 (11th Cir. 2008)). 

However, the Circuits also agree that “courts have discretion to stay or dismiss claims 

subject to a valid arbitration agreement.” Houtchens, 2022 WL 17736778, at *8 (citations omitted); 

Baptist Hosp. of Miami, Inc., 376 F. Supp. 3d at 1311 (“The Eleventh Circuit has also affirmed 

dismissal on those grounds.”) (citing Caley v. Gulfstream Aerospace Corp., 333 F.Supp.2d 1367

(N.D. Ga. 2004), aff'd, 428 F.3d 1359 (11th Cir. 2005)). “A trial court may act on its own initiative 

to note the inadequacy of a complaint and dismiss it for failure to state a claim....” Sparling v. 

Hoffman Const. Co., 864 F.2d 635, 638 (9th Cir. 1988) (citations omitted) (affirming dismissal of 

claims based on agreement to arbitrate); see also Alvarado v. Pac. Motor Trucking Co., No. 14-

cv-0504, 2014 WL 3888184, at *7 (C.D. Cal. Aug. 7, 2014), aff’d, 672 F. App’x 687 (9th Cir. 

2016) (“When a court determines that the entirety of a dispute is subject to arbitration, the court 

lacks subject matter jurisdiction and dismissal of the complaint is proper”) Here, dismissal is 

proper because all claims against Mr. Bankman-Fried must be submitted to arbitration. 

Courts in the Eleventh and Ninth Circuits also agree that for binding, valid, and enforceable 

arbitration clauses, federal courts lack subject-matter jurisdiction and dismissal under Rule

12(b)(1) is appropriate. Villasenor v. Cmty. Child Care Council of Santa Clara Cnty., Inc., No. 

18-cv-06628, 2019 WL 2603316, at *1 (N.D. Cal. June 25, 2019) (noting dismissal under Rule 

12(b)(1) for lack of subject matter jurisdiction is sufficient to enforce arbitration provision); Baptist 

Hosp. of Miami, Inc., 376 F. Supp. 3d at 1304. 

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3. The applicable ToS include choice-of-law and choice-of-forum 

provisions requiring these disputes to be heard elsewhere. 

The FTX US ToS arbitration clause contains California choice-of-law and choice-of-forum 

provisions: 

Governing Law and Forum Choice. These Terms and any action related thereto 

will be governed by the Federal Arbitration Act, federal arbitration law, and the 

laws of the State of California without regard to its conflict of laws provisions . . 

. the exclusive jurisdiction for all Disputes (defined below) that you and FTX.US 

are not required to arbitrate will be the state and federal courts located in 

Alameda County in California, and you and FTX.US each waive any objection 

to jurisdiction and venue in such courts.

See FTX US User Agreement (emphasis added). Under the FAA, which governs the FTX US 

ToS, parties are free to structure their arbitration agreements as they see fit, including choice-oflaw provisions. Am. Exp. Fin. Advisors, Inc. v. Makarewicz, 122 F.3d 936, 940 (11th Cir. 1997).

The parties here decided that that these claims should be heard in California. And even if Plaintiffs 

dispute the enforceability of the arbitration agreement or class action waiver, those disputes are 

also properly heard and decided by the arbitrator, not this Court. 

The FTX Trading ToS also contains an English choice-of-law and Singapore choice-offorum clause. Specifically, any dispute shall be referred to and determined “by arbitration 

administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the 

Arbitration Rules of the SIAC (“SIAC Rules”)[,]” and the seat of the arbitration shall be Singapore. 

Id. Based on this clear language, the claims cannot be adjudicated here. See Atl. Marine Const. Co. 

v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 66 (2013) (“In all but the most unusual cases” 

“the interest of justice is served by holding parties to their bargain” regarding forum-selections 

clauses.). Courts in other jurisdiction have granted motions to dismiss or stay claims with similar 

arbitration provisions requiring arbitration in Singapore. Sanum Inv. Ltd. v. San Marco Cap.

Partners LLC, 263 F. Supp. 3d 491, 497 (D. Del. 2017) (granting motion to dismiss based on 

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Singapore arbitration clause); Mullen Techs., Inc. v. Qiantu Motor (Suzhou) LTD., No. 19-cv-1979, 

2020 WL 3573371, at *4 (S.D. Cal. July 1, 2020) (holding agreement to arbitrate dispute in 

Singapore valid and enforceable); Krystal, Inc. v. China United Transp., Inc., No. 16-cv-02406, 

2017 WL 6940544, at *6 (C.D. Cal. Apr. 12, 2017) (enforcing agreement to litigate before SIAC). 

Plaintiffs’ claims relating to use of FTX Trading should be similarly dismissed. 

4. Plaintiffs consented to FTX’s terms of service, which included 

arbitration agreements and class action waivers.

At all relevant times, Plaintiffs could not have created FTX US accounts, which were 

required to use the platform’s services, without consenting to the FTX US User Agreement.

8

 See

January 6, 2023 Internet Search; see also FTX US User Agreement at 1, ¶ 1 (“By using our 

Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, 

do not use the Services.”); id. at 1, ¶ 2 (“If you continue to use the Services after we have posted 

updated Terms it means that you accept and agree to the changes.”). Section 30 of the FTX US 

User Agreement mandates that disputes “will be resolved solely by binding, individual arbitration 

and not in a class, representative or consolidated action or proceeding.” See FTX US User 

Agreement at 12. In addition to Section 30, there exists a bolded, capitalized warning on the first 

page of the terms of service which emphasizes the class action waiver and individual arbitration 

clause. Id. at 1. Moreover, around and as of May 16, 2022, FTX US displayed its ToS prominently 

at the bottom of its website, under the header “Legal.”9

Plaintiffs similarly consented to the FTX Trading User Agreement, to the extent they allege 

use of FTX Trading services. See FTX Trading User Agreement at 1 (“By registering for a 

8 See supra n. 1.

9 See supra n. 1.

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Platform account . . . or using the Services, you agree that you have read, understand and accept 

the Terms . . . and you acknowledge and agree that you will be bound by and comply with the 

Terms.”). Section 38.12 of the FTX Trading User Agreement contains an arbitration agreement 

and class action waiver. See FTX Trading User Agreement at 27 (“[A]ny Dispute shall be referred 

to and finally . . . determined by arbitration . . . on an individual basis only and not as a claimant 

or class member in a purported class or representative action[.]”). The FTX Trading User 

Agreement also calls attention to the arbitration agreement and class action waiver on its first page. 

Id. at 1 (“. . . all Disputes to be resolved by way of legally binding arbitration on an individual 

basis only and not as a claimant or class member . . .”). 

Accordingly, if Plaintiffs used FTX US or FTX Trading services as alleged, they consented 

to the respective platform’s terms of service. See Am. Compl. at 1 (alleging use of platform 

services). This includes the arbitration agreements and class action waivers contained therein. 

5. The class action waivers are enforceable.

It is well-settled that arbitration agreements containing class action waivers are 

enforceable. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011). “Requiring the 

availability of classwide arbitration interferes with fundamental attributes of arbitration and thus 

creates a scheme inconsistent with the FAA.” Id. Concepcion ended California’s prohibition 

against class action waivers in this setting, as previously set forth in Discover Bank and progeny. 

Concepcion, 563 U.S. at 344 (abrogating Discover Bank v. Superior Ct. of L.A., 113 P.3d 1100 

(Cal. 2005)); Laver v. Credit Suisse Sec. (USA), LLC, 976 F.3d 841, 846 (9th Cir. 2020) (affirming 

enforcement of class action waiver); Lag Shot LLC v. Facebook, Inc., No. 21-cv-01495, 2021 WL 

2660433 (N.D. Cal. June 25, 2021) (noting Discover Bank prohibition against class action waivers 

was rejected by Supreme Court and granting motion to compel arbitration; Nguyen v. Tesla, Inc., 

No. 819-cv-01422, 2020 WL 2114937, at *6 (C.D. Cal. Apr. 6, 2020) (dismissing class claims 

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which were barred by individual arbitration agreements). Here, Plaintiffs’ class claims are barred 

by the class action waivers and should be dismissed.

6. The FTX arbitration agreements are valid and enforceable.

The FTX arbitration agreements, which contain a class action waiver, are valid and 

enforceable. Valid arbitration agreements were formed when Plaintiffs used FTX services. “In 

determining whether a valid arbitration agreement exists, federal courts apply ordinary state law 

principles that govern the formation of contracts.” Houtchens, 2022 WL 17736778, at *2 (citations 

omitted).10 

Similar arbitration agreements, including those containing class action waivers and those 

existing in an online ToS, are regularly enforced by courts applying California law (which is the 

applicable law, in accordance with the choice-of-law provision in the same ToS). See Allen v. 

Shutterfly, Inc., No. 20-cv-02448, 2020 WL 5517172, at *6 (N.D. Cal. Sept. 14, 2020) (“In sum, 

the Court finds that Shutterfly may compel Plaintiff to arbitration pursuant to the 2018 TOS.”); 

Tompkins v. 23andMe, Inc., No. 5:13-cv-05682, 2014 WL 2903752, at *14 (N.D. Cal. June 25, 

2014), aff’d, 840 F.3d 1016 (9th Cir. 2016) (“The Court addresses these in turn and finds that the 

terms are not so unduly harsh or one-sided that they are substantively unconscionable.”); 

California Crane Sch., Inc. v. Google LLC, No. 21-cv-10001, 2022 WL 3348425, at *5 (N.D. Cal. 

Aug. 12, 2022) (finding a valid arbitration agreement in ToS existed and compelling arbitration); 

Bertha Dominguez v. Sonesta Int’l Hotels Corp., No. 22-cv-03027-JCS, 2023 WL 25707, at *9 

(N.D. Cal. Jan. 3, 2023) (granting motion to compel arbitration). The present arbitration 

agreements, including the class action waivers, should be similarly enforced here. 

10 For FTX Trading, the proper discussion is likely grounded in English law, as stated in the FTX

Trading User Agreement. For the sake of brevity, this argument is excluded from the Motion. 

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Plaintiffs might try to argue that the arbitration agreements are unconscionable under 

California law, but such an argument would fail. “Under California law, a court may refuse to 

enforce a provision of a contract if it determines that the provision was ‘unconscionable at the time 

it was made.’” Lim v. TForce Logistics, LLC, 8 F.4th 992, 1000 (9th Cir. 2021) (citing Cal. Civ. 

Code § 1670.5(a)). An unconscionability defense requires the party opposing arbitration to 

demonstrate both procedural and substantive unconscionability. Id. (citations omitted). If either 

form of unconscionability is not present, the contract is not unconscionable. Id. 

“[T]he threshold inquiry in California’s unconscionability analysis is whether the 

arbitration agreement is adhesive.” California Crane Sch., Inc., 2022 WL 3348425, at *3 (N.D. 

Cal. Aug. 12, 2022) (citing Mohamed v. Uber Techs., Inc., 848 F.3d 1201, 1210 (9th Cir. 2016)). 

“If there is an opportunity to opt out, the arbitration agreement is not adhesive, and thus not 

procedurally unconscionable.” Id. (alterations and internal quotations omitted). Here, the 

arbitration agreements are not adhesive, as they offer users the opportunity to opt-out through 

declining to use FTX’s services entirely.

Even if the arbitration agreements were adhesive, the agreements are still not procedurally 

unconscionable because reasonable market alternatives existed when Plaintiffs allegedly 

registered their FTX accounts. “Contracts of adhesion are often procedurally unconscionable, but 

not always, especially when reasonable market alternatives exist.” Flores-Mendez v. Zoosk, Inc., 

No. 20-cv-04929 WHA, 2022 WL 2967237, at *2 (N.D. Cal. July 27, 2022) (citations omitted). 

Plaintiffs could have instead chosen to register with one of FTX’s ubiquitous competitors.11 

11 “If you’re interested in buying cryptocurrency, you need to open an account with a crypto 

exchange. There are around 500 examples to choose from[.]” Farran Powell, 10 Best Crypto 

Apps & Exchanges Of 2023, FORBES, Mar. 1, 2023,

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Accordingly, regardless of the question of adhesion, the arbitration agreements are not 

procedurally unconscionable. 

The arbitration agreements are also not substantively unconscionable. “[A] proper showing 

of substantive unconscionability requires the provision in question to be so one-sided as to shock 

the conscience.” Id. (citations omitted). As explained above, 

In Concepcion, the Court upheld the enforceability of AT&T’s class-action waiver 

which provided for arbitration of all disputes between the parties but required that 

the claims be brought in an individual capacity, and not as a plaintiff or class 

member in any purported class or representative proceeding. In doing so, the Court 

rejected the argument that a contractual provision is substantively unconscionable 

for making an individual action less financially attractive than a class action.

Id. (internal citations and quotations omitted). Accordingly, the clauses are not substantively 

unconscionable. Regardless, both forms of unconscionability are needed to render a provision 

unconscionable. Accordingly, Plaintiffs cannot avoid the contractual arbitration agreements and 

class action waivers by asserting they are unconscionable. 

In sum, by allegedly using FTX’s services, Plaintiffs entered into valid and enforceable 

arbitration agreements included in the FTX US User Agreement and FTX Trading User 

Agreement. Those arbitration agreements are governed by the FAA.12 As described above, both 

gateway issues for determining whether Plaintiffs’ claims must be submitted to arbitration are met. 

Therefore, this Court should enforce the arbitration agreements by their terms, as dictated by the 

FAA and Supreme Court precedent. As Plaintiffs’ own pleading establishes that they cannot bring 

these claims in this Court, the claims against Mr. Bankman-Fried should be compelled to 

arbitration or dismissed with prejudice. 

exchanges/#:~:text=If%20you're%20interested%20in,both%20new%20and%20experienced%20i

nvestors (emphasis added). 

12 The FTX Trading User Agreement is also governed by SIAC. 

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7. Florida and Eleventh Circuit law would not result in a different 

outcome for either ToS.

Although the applicable law is explicitly included in each ToS, applying Florida or 

Eleventh Circuit law would not change the outcome for either ToS. See Jones v. Waffle House, 

Inc., 866 F.3d 1257, 1264 (11th Cir. 2017) (discussing purpose of FAA). As described above, 

Eleventh Circuit law supports enforcing the respective choice-of-law and choice-of-venue 

provisions. 

Similar arbitration agreements, including those containing class action waivers and those 

existing in an online ToS, are regularly enforced by courts with the Eleventh Circuit. See, e.g.

Webb v. DoorDash, Inc., 451 F. Supp. 3d 1360, 1369 (N.D. Ga. 2020) (enforcing class action 

waiver); Rodriguez v. JPay, Inc., No. 19-cv-14137, 2019 WL 11623936, at *6 (S.D. Fla. Oct. 17, 

2019), report and recommendation adopted, 2019 WL 11623933 (S.D. Fla. Oct. 31, 2019)

(granting motion to compel arbitration based on agreement within terms of service); Healy v. 

Honorlock Inc., 609 F. Supp. 3d 1294, 1298 (S.D. Fla. 2022) (granting motion to compel 

arbitration based on clause within terms of service); Babcock v. Neutron Holdings, Inc., 454 F. 

Supp. 3d 1222, 1236 (S.D. Fla. 2020) (granting motion to compel arbitration). 

III. CONCLUSION

For the foregoing reasons, the Court should stay this case as to Mr. Bankman-Fried pending 

the conclusion of the criminal proceedings against him. Alternatively, the Court should compel 

arbitration or dismiss with prejudice the claims against Mr. Bankman-Fried in the Amended

Complaint. 

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)

Counsel for Mr. Bankman-Fried conferred with Plaintiffs’ counsel and Co-Defendants’ 

counsel regarding the relief sought in this motion in a good faith effort to resolve the issues raised 

in the motion. Plaintiffs do not oppose Mr. Bankman-Fried’s request for a stay pending resolution 

of the criminal proceeding. The “Celebrity Defendants” take no position on the request for a stay.

Dated: April 14, 2023 Respectfully Submitted,

/s/ Adam M. Schachter

GERALD E. GREENBERG

Florida Bar No. 440094

ggreenberg@gsgpa.com

ADAM M. SCHACHTER

Florida Bar No. 647101

aschachter@gsgpa.com

GELBER SCHACHTER & GREENBERG, P.A. 

SunTrust International Center 

One Southeast Third Avenue, Suite 2600

Miami, Florida 33131 

Telephone: (305) 728-0950

E-service: efilings@gsgpa.com

JEREMY D. MISHKIN (pro hac vice)

jmishkin@mmwr.com

RICHARD M. SIMINS (pro hac vice)

rsimins@mmwr.com

MONTGOMERY MCCRACKEN

1735 Market Street, 21st Floor

Philadelphia, PA 19103-7505

Telephone 215-772-1500

Counsel for Defendant Sam Bankman-Fried

Case 1:22-cv-23753-KMM Document 152 Entered on FLSD Docket 04/14/2023 Page 23 of 23