SEC Settlement In The Curt Schilling 38 Studios Matter Highlights The Section 17(a)(2) Liability Of Initial Purchasers In Rule 144A High Yield Offerings

Author:Mr Christopher Auguste, David S. Berg, John Bessonette, Fabien Carruzzo, Kenneth Chin, Richard E. Farley, David J. Fisher, Todd E. Lenson, Douglas Mannal, Jordan M. Rosenbaum, Terrence L. Shen, Sanjay Thapar, Drew Allen, Mark Chass, Jennifer L. Godyn, Sara Hung, Daniel King, Matthew L. Klegon and Elaine Lo
Profession:Kramer Levin Naftalis & Frankel LLP

On March 20, 2019, an agreement between Wells Fargo Securities LLC (Wells Fargo) and the Securities and Exchange Commission (SEC) to settle litigation involving failed video game company 38 Studios, LLC, headed by former Boston Red Sox pitcher Curt Schilling, was approved by the federal district court in Rhode Island. In addition to injunctions against future violations of securities laws and disgorgement of profits, Wells Fargo was ordered to pay an $812,500 civil penalty.

In a complaint against Wells Fargo (and others) filed on March 7, 2016, the SEC alleged that Wells Fargo was aware of a funding deficit 38 Studios faced after giving effect to a private placement of $75 million of bonds for which it acted as placement agent, but nonetheless participated in the private placement notwithstanding that the funding deficit was not disclosed in the offering materials. In addition, Wells Fargo was alleged to have not disclosed all of the fees that it would be paid in connection with the private placement. The full text of the SEC's complaint can be found here.

The SEC alleged that Wells Fargo violated, among other laws, Section 17(a)(2) of the Securities Act of 1933, as amended (the Securities Act). Section 17(a)(2) provides that "it shall be unlawful for any person in the offer or sale of any securities . . . to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order...

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