At some point if the funds aren't returned I would contact the New York Attorney general and have them start looking into a case of credit card fraud.
Sounds exciting, but do you honestly consider this fraud? C'mon, honestly? Tom delivered FPGA products before. He was running the whole thing like a somewhat profitable hobby. Then ASICs became an option, and he bit more then he can chew. He folded under pressure, and acted like an idiot on few occasions. Obviously, some people are getting refunds. Is everyone going to get their money back? We don't know. Is he (and others from his former team) trying? Obviously, yes. Was he competent and able to deliver ASIC products? Obviously no. Was this fraud? No. See above.
Were refunds promised to anyone who requested one?
Yes:
https://bitcointalk.org/index.php?topic=79637.msg1163190#msg1163190If this promise is not honored, I would call that fraud.
No, it's bankruptcy.
Unless you can prove he tried to cheat you on purpose (which doesn't seem to be the case) then it's a failure of his business. If he doesn't have enough money to pay back all the refunds, then it's bankruptcy. Most business fail, the success story is rare. But if you can't prove willful intention to deceive, and you don't actually have real proof of this, then don't potentially set yourself up for libel.
I'm not saying you are- but for others who are considering saying anything about Tom without thinking first, remember Theymos will give your data over to a court if asked. If for example he has committed no fraud, but is just in a difficult business situation- a situation made more difficult to get out of because of people saying untrue things (like saying without proof it's a scam or it's fraud) then his lawyers could make a very solid case that the damage to his reputation based on false claims of fraud prevented him from successful reorganization of his business and caused him to fall into bankruptcy. The people who posted falsely that he was a fraud could then be held monetarily liable.
Libel and Slander- while standard fare and par for course on the internet, is a serious thing.
Let me get this straight. A person can start a company with intent to fraud. They collect pre-order funds while stringing the customer along. At some point, the customers start claiming fraud and the business starts to go under. The shop is closed as people bring the owner to court. The lawyer argues that the business failed due to the customers and others claiming it was a fraud. The business owner then is able to sue those who claimed fraud for damages.
If this is correct, what a beautiful business model.