Wells Fargo Sued by SEC Over Bond Sale for Curt Schilling

Former Boston Red Sox Pitcher And 38 Studios CEO Curt Schilling

Curt Schilling.

Photographer: Scott Eells/Bloomberg
  • Bank and Rhode Island didn't disclose cash shortfall, SEC says
  • Former Red Sox star's company needed an additional $25 million

Wells Fargo & Co. and a Rhode Island government agency were sued by a U.S. regulator for allegedly misleading investors about how much money a company led by former Boston Red Sox pitcher Curt Schilling needed to develop a video game.

After being hired to find financing for Schilling’s 38 Studios LLC, Wells Fargo failed to disclose that the $50 million raised from a bond offering was at least $25 million short of what the company needed to bring the game to market, the Securities and Exchange Commission said in a statement Monday. The Rhode Island Economic Development Corp. also knew that the bond sale wouldn’t raise enough money for Schilling’s company, the SEC said.

“Municipal issuers and underwriters must provide investors with a clear-eyed view of the risks involved in an economic development project being financed through bond offerings,” Andrew J. Ceresney, head of the SEC’s enforcement division, said in the statement.

In 2010, Schilling’s company was developing a multi-player online game that it estimated it would need at least $75 million to complete, according to the SEC. When 38 Studios couldn’t obtain additional financing following the bond sale it failed to produce the game and defaulted on the loan.

Job Creation

Rhode Island Commerce Corp., formerly known as the Rhode Island Economic Development Corp., sold the federally taxable municipal bonds to induce the former baseball star to move his startup video game company from Massachusetts to Providence. The state expected it would create hundreds of jobs.

“Wells Fargo disputes the SEC’s allegations in connection with the placement of these municipal bonds,” Mark Folk, a spokesman for the bank, said in an e-mailed statement. “We will respond to the specific allegations in the complaint in court.”

While the Rhode Island agency raised $75 million from the sale, $25 million of that was used to pay offering expenses, and to set up a reserve fund and capitalized interest fund, the SEC said. 38 Studios declared bankruptcy in 2012, with taxpayers responsible for repaying the money. The majority of the securities don’t come due until 2020, meaning the state is on the hook to pay interest until then.

“The Commerce Corporation is still reviewing today’s filing, which concerns events that occurred under a previous administration,” Kayla Rosen, a spokeswoman for RICC, said in an e-mailed statement. “The Corporation will continue to work toward its goals of recouping money for Rhode Island.”

Undisclosed Payments

Keith Stokes, who was previously the agency’s highest-ranking employee, agreed to pay a $25,000 fine for allegedly aiding and abetting the fraud. James Saul, the agency’s former deputy director, also agreed to pay a $25,000 fine. Stokes and Saul settled the SEC claims without admitting wrongdoing.

Wells Fargo also failed to tell investors that its compensation from the bond offering was almost double the amount disclosed, the SEC said. A memo for the bond sale specified that the bank would receive placement-agent fees of $406,250 and an additional $50,000 to cover due diligence on 38 Studios, according to the regulator’s complaint. However, 38 Studios paid Wells Fargo an additional $400,000 that wasn’t disclosed for meeting “milestones” tied to the debt offering, the agency said.

The SEC also sued Wells Fargo banker Peter Cannava. The case against him is continuing, the agency said.

“Contrary to what the SEC is trying to suggest, Mr. Cannava was not the lead banker on this matter,” said Brian Kelly, his attorney. “The SEC is trying to scapegoat a mid-level banker instead of focusing on the mistakes of Rhode Island politicians. We will fight this vigorously.”

About $51 million of the debt raised remains outstanding after a portion matured in November. Rhode Island lawmakers have occasionally floated the notion of failing to pay on the bonds, causing Moody’s Investors Service and Standard & Poor’s to threaten downgrades to the state’s credit.