Brian Simms, the court-appointed provisional liquidator overseeing the bankruptcy proceedings of FTX Digital Markets in the Bahamas, has called into question the validity of a Chapter 11 bankruptcy filing by subsidiary FTX Trading and 134 other affiliates in a Delaware court on Nov. 14.
In the Nov. 15 document, Simms filed for Chapter 15 Bankruptcy in the United States Bankruptcy Court in the Southern District of New York, which is used when a foreign representative of the debtor seeks recognition in the U.S. for a pending foreign insolvency proceeding.
In the filing Simms notes FTX Digital is not part of the Delaware Petition, and says as the provisional liquidator he is the only one, “authorized to take any act including, but not limited to, filing the Delaware Petition,” adding:
“The Provisional Liquidation Order divests FTX Digital's directors' of the ability to act, or exercise any functions, for or on behalf of FTX Digital unless expressly instructed to so by me in writing.”
The Bahamas-based lawyer argues because he “did not authorize or approve, in writing or otherwise,” he rejects the “validity of any purported attempt to place FTX Affiliates in bankruptcy.”
He further notes, “The entire FTX Brand was ultimately operated from a single location: The Bahamas. All core management personnel likewise were located in The Bahamas.”
FTX’s digital asset exchange was founded in May 2019 by Sam Bankman-Fried (SBF) in Hong Kong, but after China’s crypto ban, SBF relocated the company to the Bahamian capital of Nassau in Sept. 2021.
Simms has not asked the court to dismiss the U.S. bankruptcy proceedings, stating that “no provisional relief seeking the injunction or dismissal of the Chapter 11 is presently sought” but requests the U.S courts recognize the legal actions taking place in the Bahamas.
However, he notes “it is conceivable that the FTX Affiliates that filed Chapter 11 will be impacted by the provisional relief sought,” by his filing.
Chapter 11 is used by businesses to help them reorganize their debts and repay creditors while continuing their operations.
The appointment of provisional liquidators followed the Bahamian securities regulator suspending FTX’s registration status and freezing its local subsidiary’s assets on Nov. 10.