> Yes, but again this is not unique to the DAO. Moreover, it occurs all the time that marketing materials are put out with disclaimers that the marketing material is just that marketing material and that any inconsistencies between the marketing material and the contract, the contract prevails. It doesn't always make it so and there is good public policy reason why.

I don't deny this, and I agree in the general case. However, I haven't see any case where the DAO marketing materials did not state that the code was the terms and conditions. This was, after all, its defining feature. The marketing materials and public information were practically bragging about this, and all pointed to the contract state on the Ethereum blockchain so you could see for yourself.

> My analogies are always kind of shot down as it relates to the DAO, but I think they help flush out the legal reasoning. How about valeting your car, obviously there is an implied contract that you will pay the fee and get your car back (maybe even a verbal representation, "just bring the stub back and we will pull your car around") but what if the stub includes language (as they do) that you agree the valet will not be responsible for stolen property and then they don't bring your car back. Who knows who took your car? Maybe the valet, maybe the valet gave the keys to someone else, maybe someone legit broke in and stole your car without the valet being aware... even though you agreed to the contract/terms of the valet ticket it does not become a contractual right for valet to take your car, they could still be liable (potentially criminally in addition to civilly).

It sounds like you're getting at the officious bystander test. The thing is, when the whole community of developers and investors were going on and on about how the code is law, the answer to the question "Should the Ethereum developers intervene if the code does something we don't like?" could very easily have been answered by all parties with a resounding "NO!".

I encourage you to search through the Ethereum subreddit during the DAO's ascension, for example. You'll find cases where people were asking about what to do in this very situation, and the answer has consistently been to the effect of "whatever the code executes will be the outcome."

> Moreover, representations remain false even with disclaimers acknowledging the representation may be false.

Please point out a single case where the developers solicited investment using a false representation of the DAO. They were very clear, very open, and very loud about the fact that the code itself was the contract terms and conditions. The code is open-source as well, and lives on the Ethereum blockchain.

Honestly, I'm having a very hard time not seeing this as a bunch of investors losing money for their failure to do due diligence. Especially since the flaw that lead to the DAO's undoing was published years beforehand, in two places [1] [2]. Maybe there's a case for negligence to be made against Slock.it, but it sounded like they were otherwise clear, up-front, and honest about what it was they were soliciting investments for.

[1] https://github.com/LeastAuthority/ethereum-analyses/blob/mas...

[2] https://forum.ethereum.org/discussion/comment/42100