Judge won't dismiss SEC lawsuit against Wells Fargo

By Michelle R. Smith
Associated Press

PROVIDENCE, R.I. (AP) — A federal judge has refused to dismiss a U.S. Securities and Exchange Commission lawsuit that accuses Wells Fargo Securities of defrauding investors in Rhode Island’s failed $75 million deal with 38 Studios, the video game company started by former Red Sox pitcher Curt Schilling.

U.S. District Judge Jack McConnell  did agree to dismiss a Wells Fargo banker from the complaint, but the SEC immediately said it would refile the lawsuit against him and address the judge’s concerns about how the complaint was worded.

Meanwhile, court records in a separate lawsuit in state court showed that five current and former state officials have been subpoenaed to testify at trial, including former House Speaker William Murphy, and Amy Kempe, a spokeswoman for Attorney General Peter Kilmartin. That civil trial is scheduled to start in October.

The SEC sued Wells Fargo and Rhode Island’s economic development agency in March. It accuses them of making materially misleading statements when they sold the bonds used to fund the deal.

The SEC says they failed to disclose that 38 Studios needed at least $75 million but would receive only $50 million of proceeds from the bond offering, leaving a $25 million gap. It also alleges that Wells Fargo was receiving substantial fees for representing 38 Studios while also representing the state agency as bond placement agent and failed to disclose them, a potential conflict of interest.

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 filed for bankruptcy.

During a hearing earlier this month on motions to dismiss filed by Wells Fargo and banker Peter Cannava, Wells Fargo argued that no investors have been harmed because all the bondholders have been paid to date.

The company’s lawyer, Luke Cadigan, said 38 Studios’ failure in 2012 had started “a process of finger-pointing and Monday morning quarterbacking,” and pointed out that the U.S. attorney, FBI, state police and attorney general had all looked at the deal and found no criminal conduct.

“No investors were harmed, no investors were misled,” Cadigan said.

He said the investors who bought to binds were sophisticated, institutional investors who knew the risks.

Cannava’s lawyer said his client’s life has been “turned upside down” by the lawsuit.

“He’s a 30 year-old banker who now finds himself thrown into this fiasco because he was one of many people,” involved in the deal, lawyer Brian Kelly said, adding, “No doubt the Rhode Island investors got a bad deal here, but that’s not Mr. Cannava’s fault.”

The SEC argued it was irrelevant that bondholders have been paid and said their level of sophistication did not matter. SEC lawyer Kathleen Burdette Shields called it a “simple and straightforward fraud.” She said a bank acts through its employees, and Cannava knew there was a funding gap of $25 million.

The judge said the SEC’s action against Cannava failed to sufficiently show that he acted knowingly or recklessly in the matter. Shields said outside court she would file an amended complaint to address those concerns.

While the Rhode Island Commerce Corp. is also named in the SEC lawsuit, it has not made a similar request for a dismissal.

In the state court matter, subpoenas filed in state Superior Court showed that Murphy, Kempe and former state budget officer Rosemary Booth Gallogly were subpoenaed last month by a lawyer for First Southwest, which was the financial adviser for economic development agency on the deal.

The economic development agency is suing First Southwest and several others, including Schilling and Wells Fargo. That lawsuit has so far resulted in nearly $17 million in settlements. It is scheduled to go to trial in the fall.

Murphy, a Democrat, was speaker shortly before the deal came together. His successor, Gordon Fox, is currently in federal prison on unrelated corruption charges.

Kempe, at the time, was a spokeswoman for former Gov. Don Carcieri, a Republican who pushed for the deal. Documents released from the lawsuit last year showed that Kempe directed agency staff to call in to radio shows to sell the deal amid harsh public criticism. She ended one email with the line “In Schilling we trust!”

Kempe has said she was just doing her job.

One current member of the agency’s board, Rhode Island AFL-CIO President George Nee, and a former member, Daniel Sullivan, have also been subpoenaed.

Kempe said it is no surprise she was subpoenaed because she was already deposed in the lawsuit. She said Kilmartin had no comment.

The other current and former officials and lawyers in the case did not immediately return phone and email messages seeking comment.