In a lawsuit filed yesterday, the Commodity Futures Trading Commission accused failed crypto exchange FTX of combining its funds—including ostensibly untouchable customer deposits—with those of sister hedge fund Alameda Research. One area that saw heavy investment with these funds was FTX’s marketing efforts.

“On information and belief, commingled funds, including FTX customer funds, were also furtively used by [CEO Sam] Bankman-Fried and FTX for extensive marketing and promotional expenses in the U.S.,” the lawsuit claims.

The CFTC went on to specifically cite expenses that were financed by the improper money: FTX’s Super Bowl commercial featuring Larry David and its now-terminated sponsorship of the Miami Heat’s basketball arena—arguably the two highest-profile pieces of the firm’s marketing strategy.

The charge sheds new light on the extent to which fraud allegedly rippled through FTX’s business. It also suggests an astonishingly simple explanation for how the crypto firm was able to boost its image through massive marketing promotions: stolen money.

For a full year, FTX was one of the most active marketers in the crypto space, teaming with celebrity partners including Tom Brady and Steph Curry, slapping its name on numerous sports entities and achieving what most brands can only dream of—an ad in the Super Bowl. Disgraced former CEO Bankman-Fried later called these efforts “a bunch of bullshit” to try and make the firm look good. The deals eventually came tumbling down when the exchange collapsed and declared bankruptcy in early November.

Now, as U.S. government agencies begin to file formal charges against the exchange—including three separate lawsuits this week from the CFTC, the SEC and the DOJ—as well as seek to extradite newly arrested Bankman-Fried, other parties are falling in the line of fire. 

Dentsu Creative, formerly FTX’s agency partner, worked with the exchange on its Super Bowl commercial, and thus may have played a part in the handling of improperly accessed funds, though unwittingly. It is unclear whether the agency will be called in for questioning at some point in the legal proceedings, but if it is, its perspective could help to provide much-needed clarity regarding FTX's fraud, said Gökçe Güven, co-founder and CEO of Web3 brand loyalty platform Kalder. 

Moreover, even the compensation FTX paid to Dentsu could have been improper in source, which could subject the agency to potential clawbacks, although that decision will depend on the prosecution. The Bahamian government has previously considered using clawbacks at early points in its investigation, according to the Wall Street Journal. Dentsu Creative declined to comment for this story.

NBC is another ad partner whose dealings with FTX may be called into question. As broadcaster of Super Bowl 2022, the media company sold advertising space to FTX, which was presumably purchased with commingled funds. Depending on the contracts involved, as well as the intentions of the prosecutors, this money may also be subject to clawbacks. NBC did not immediately return a request for comment.

"How will that clawback occur? There is no answer. But probably part of the stolen money [was] being paid as marketing budget, and retail investors need to be protected," said Güven.