R.I., Wells Fargo charged with fraud in 38 Studios deal

PROVIDENCE, R.I. — The U.S. Securities and Exchange Commission on Monday charged Rhode Island’s economic development agency and Wells Fargo with defrauding investors in the state’s disastrous $75 million deal with 38 Studios, the video game company started by former Red Sox pitcher Curt Schilling.

The civil complaint, filed in U.S. District Court in Providence, accuses the Rhode Island Commerce Corp. and Wells Fargo Securities of making materially misleading statements when they sold the bonds used to fund the deal.

Schilling moved his company from Massachusetts to Rhode Island in 2010, after the agency agreed to give it a $75 million loan guarantee. The deal was financed through bonds offered to investors. Less than two years later, 38 Studios ran out of money and closed its doors, filing for bankruptcy.

Schilling isn’t accused of wrongdoing in the SEC action, but he and others, including Wells Fargo, are being sued by the economic development agency in state court. That case so far has netted nearly $17 million in settlements. Schilling has blamed state officials for failing to support his business venture.

A spokesman for Wells Fargo disputed the SEC’s allegations and said the company will respond in court.

A spokeswoman for the Commerce Corp. said the allegations against Wells Fargo and others are consistent with what the agency has alleged in its lawsuit, but she didn’t address the specific allegations the SEC brought against it.

Also named in the SEC complaint are former agency officials Keith Stokes and Michael Saul, and Peter Cannava, a Wells Fargo banker on the transaction. Stokes and Saul agreed to settle the SEC charges without admitting the allegations and must each pay a $25,000 penalty.

The SEC complaint says the officials knew that 38 Studios needed at least $75 million to bring its game, code-named “Project Copernicus,” to completion. But under the deal with the state, the company would receive only $50 million of proceeds from the bond offering.

Despite that, the bond offering documents failed to disclose the funding gap, the complaint alleges.

“38 Studios’ funding gap was known at the time the Bond Placement Memo was sent to investors. It was not speculative. It was an existing risk that should have been disclosed to potential investors in the offering,” the complaint says.

Wells Fargo also had a “dual role” in the offering, the SEC alleged, representing both the state agency and 38 Studios, a potential conflict of interest it didn’t disclose to investors.

Cannava’s lawyer, Brian Kelly, disputed the SEC’s contention that Cannava was the lead banker on the matter.

“The SEC is trying to scapegoat a mid-level banker instead of focusing on the mistakes of Rhode Island politicians,” he said.