Decentralized autonomous organizations (DAOs) will likely consider implementing legal structures following the exploit of Solana-based decentralized finance (DeFi) lending protocol Mango Markets, according to Benjamin Bathgate, a partner at Canadian-based law firm McMillan LLP.
Bathgate, co-chair of the fraud group at McMillan for over 15 years, said “a whole bunch of issues are wrapped” into whether DAOs can make legal settlements. That’s partly because a majority don’t have legal structures in place, he said.
“In many situations, the DAO is just a collection of users,” Bathgate, told CoinDesk TV’s “First Mover” on Friday. “It’s a community of users, perhaps with a core contributor doing the coding.”
In October, crypto trader Avraham Eisenberg, took to Twitter to declare he had been part of the group that exploited Mango Markets, a cryptocurrency exchange, for more than $100 million, by manipulating the price of the exchange’s native token MNGO.
Eisenberg appeared to have avoided civil liability after returning $67 million of the stolen funds and reaching an agreement with the Mango Markets DAO. However, Bathgate called the settlement “ill advised” on the DAO’s part and one that was “doomed to fail from the beginning.” Eisenberg currently faces commodities fraud, commodities market manipulation and wire fraud charges.
Bathgate said the case against Eisenberg is also different and “unusual to some extent” because Eisenberg’s name was made public. In other exploits, a supposed bad actor isn’t as easy to find, but because Eisenberg outed himself, “it does raise the question if you’re doxxed, are you going to make these arguments now in the court of law?’
Now, Mango Labs, a Wyoming limited liability company that governs the Mango Market DAO, is seeking to claw back the remaining $47 million, arguing that the deal was made under duress. Bathgate, however, said it is unlikely Mango Labs’ suit will succeed and to that point, may be a wake-up call for the DAO ecosystem.
“There’s going to be a reality check because these kinds of settlements are not likely to be enforceable by the courts,” Bathgate said, adding later that it may prompt wider conversations about the structures of DAOs moving forward, including whether “some form of LLC [or] limited liability structure” will be implemented.
Though Bathgate argues that the suit may not be successful, having an LLC at least gives the DAO the ability to bring the claim to court.
“That’s going to be one of the interesting approaches — are we going to see more of that and that legal construct so that they can act on its [DAOs] behalf and take steps on its behalf?” Bathgate said.
But that may not settle the issue entirely, Bathgate cautioned, since it raises questions for DAO community members about settlement law and a proper binding settlement.
“What constitutes agreement by the users?” Bathgate asked. “Does simply clicking on a vote for a proposal crafted by the principles of the DAO for settlement, does that mean you’ve agreed to it and are bound by those terms and conditions?”
Eisenberg’s lawyer, Brian Klein, did not immediately respond to a request for comment for this story.
Read more: Alleged Mango Markets Exploiter Eisenberg Is Working to Negotiate Bail Following First NY Court Hearing
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