Profile: 38 Studios Attorney Max Wistow
The attorney representing Rhode Island in the 38 Studios litigation has been involved in some of the state's most high-profile legal battles over the years.
Photographed by Dana Smith
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Max Wistow has won millions of dollars for his clients in some of Rhode Island’s most notorious lawsuits. But in taking on the 38 Studios mess on behalf of taxpayers, his biggest legal challenge may still be ahead.
On September 8, 2006, Curt Schilling issued a press release introducing Green Monster Games, LLC, "a new company dedicated to producing innovative and genre-defining massively multiplayer online games.” The Boston Red Sox pitcher was two years removed from his “bloody sock” performance that came to symbolize the team’s gritty march to its first World Series title in eighty-six years, and he had no shortage of confidence. He invested $5 million of his own money upfront in the new company. He delivered the keynote address at an October 2006 forum at MIT called “Tomorrow's Games.” And, in an online job listing, his company — which soon changed its name to 38 Studios, in honor of Schilling’s uniform number — boasted of “assembling the world's most creative talent to produce what will be seen as the most epic, industry-changing game in the history of online gaming.”
Of course, 38 Studios would ultimately leave a different legacy, which House Speaker Nicholas Mattiello has described as “one of the biggest debacles in the country’s history and certainly Rhode Island’s history.” And instead of celebrating the company’s ninth birthday in 2015, Rhode Islanders are marking other anniversaries. It’s been five years since the Rhode Island Economic Development Corporation (RIEDC) board voted eight to one to approve a $75 million, taxpayer-backed loan guarantee for Schilling’s company. It’s been four years since the company moved its headquarters from Maynard, Massachusetts, to downtown Providence. And it’s been three years since 38 Studios released its debut game, Kingdoms of Amalur: Reckoning, just months before delivering a bad check to the RIEDC, laying off more than 300 Rhode Island-based employees and filing for bankruptcy.
If the 38 Studios story were a play, we would be watching its long, painful, final act. Schilling has exited the Rhode Island stage, after selling his mansion, auctioning off its contents and retreating to a job as an ESPN baseball analyst. (He still occasionally tweets defiantly about 38 Studios.) Former House Speaker Gordon Fox and former Governor Don Carcieri have, for different reasons, mostly disappeared from public view. So had Carcieri’s successor, Lincoln Chafee, until his recent announcement that he’s considering a presidential run. Chafee criticized the 38 Studios deal from the campaign trail to his final interviews in office, and he left behind an official state portrait described by the Providence Journal as “a serious, solitary Chafee staring into a black abyss.”
These days, the job of finding an answer to the still-lingering question, “Will we ever get our money back?” falls largely on the shoulders of a seventy-two-year-old Glocester resident named Max Wistow, the lawyer hired for the lawsuit that would become “PB-12-5656: Rhode Island Economic Development Corporation v. Wells Fargo Securities, LLC, et. al.” Fourteen defendants were listed in the November 1, 2012 complaint, which read, at one point, “Defendants Knew or Should Have Known, But Failed to Inform the EDC Board, That 38 Studios was Destined to Fail According to 38 Studios’ Own Financial Projections.” In a YouTube speech released the day the suit was filed, Chafee described Wistow as “a seasoned attorney with decades of experience in complex litigation matters, including financial restitution and settlements.”
A closer look reveals a lawyer who charges more than $700 per hour, but accepted the 38 Studios case at a lower-than-average contingency rate of 16.67 percent, which Chafee calls “very reasonable.” He doesn’t advertise, yet he has rarely shied from high-profile cases over the course of a four-decade career. He has represented both the Rhode Island Democratic and Republican parties, the office of the attorney general, a house speaker, the former CEOs of GTECH and Bess Eaton, and the ex-wife of former Providence Mayor Buddy Cianci during their divorce proceedings in the 1980s. A 2007 Journal article about his defense of then-Senate President Joseph Montalbano, in an Ethics Commission inquiry, described how his “shouts were sometimes audible in the hallway outside the board room.”
Indeed, Wistow has been at the table for many of the notable civil cases in recent state history. His firm — Wistow, Barylick, Sheehan and Loveley, based in downtown Providence — was a key player in securing the landmark $176 million settlement for victims of the Station fire. (Wistow’s partner, John Barylick, later published the book, Killer Show: The Station Nightclub Fire, America’s Deadliest Rock Concert.) Wistow was hired for work related to the labyrinthine lawsuit following the banking crisis of the early 1990s, and the lawsuit filed by the family of Cornel Young Jr., the off-duty Providence police officer killed by two fellow officers in 2000. In 2010, Wistow secured a $1.3 million settlement for the family of a mentally ill man shot and killed by Pawtucket police.
“Nobody’s ever surprised when he gets hired to handle a monstrous case,” says former District of Rhode Island U.S. Attorney Robert Corrente, who worked for Wistow as a young associate in the 1980s. “If you’re in a fight like that, if he’s not one of the first two or three people you think of, then you’ve got the wrong list.”
Max Wistow was born in New York, but he says there is “hardly anybody old enough to remember” when he moved here. By that measure, he says, he’s a Rhode Islander.
He grew up in the Bronx, where he delivered milk for his parents’ grocery store in the mornings before school, and he was the first in his family to go to college, when he attended the University of North Carolina at Chapel Hill. He says it was a 1950s courtroom drama that fueled his interest in the law. “The lawyer was always for the underdog, he was always doing the right thing,” Wistow says.
Wistow enrolled in night classes at Boston’s Suffolk University Law School shortly before moving to Rhode Island for a job as a personnel officer at the Veterans Administration in the mid-1960s, and he was sworn in to the Rhode Island Bar in 1969 — the year of Woodstock, Richard Nixon’s presidential inauguration and the opening of the Newport Bridge.
“Everybody knew he was special when he started,” says Superior Court Presiding Justice Alice Gibney, who ticks off the qualities that distinguish Wistow. He’s smart, creative, meticulously prepared, quick “like a boxer” to respond to moves by his opponents and seemingly effortless in the way he breaks down complex issues and communicates them to a jury. “Even if you have a roomful of talented people — and he usually is in a room with talented people — he’s apt to be the most talented,” she says.
He is also “hands down the best deposition taker you’ll ever see,” says Corrente, who points to Wistow’s command of these pretrial interviews as a key factor in his ability to reach settlements. In this setting, where the witness is pinned to a chair across the table and there is no judge or jury to risk offending, “he just tortures people,” Corrente says. “He thinks faster than you do, and he’s a very intimidating questioner…it’s scary to watch.”
Whether you like him or not, and Corrente concedes “there a lot of people that can’t stand him,” it’s hard not to be impressed with Wistow’s track record. In 1982, he worked on the lawsuit that successfully declared Rhode Island’s state senate and representative district lines unconstitutional — a case that pushed back senate elections until the following summer. In 1990, Wistow won a $19 million settlement (the biggest product liability judgment in state history, at the time) against the pharmaceutical juggernaut Parke-Davis on behalf of a mother who had given birth to mentally handicapped twins after taking an anti-seizure medication during pregnancy. Years later, Wistow was hired after family members of a couple murdered by Hamas militants in Israel sued the Palestinian National Authority in Rhode Island under U.S. anti-terrorism laws. (One of the victims was a U.S. citizen.) The case made national headlines when local U.S. District Court Judge Ronald Lagueux froze the assets of the Palestinian Authority in the United States. In the middle of the fray was Wistow, who traveled to East Jerusalem for a deposition with then-Palestinian Authority Prime Minister, Salam Fayyad, before the case settled under undisclosed terms in 2011.
And so when 38 Studios entered its death spiral in 2012, Chafee legal adviser Jonathan Savage says he helped the governor produce a short list of lawyers who might investigate the murky origins of the transaction. Wistow, whom Savage calls “a very politically savvy guy, but...not a political lawyer,” was on it. Any kind of 38 Studios-related legal action was sure to be politically charged, Savage says, and he distinctly remembers his conversation with the governor. “The analogy I used was, ‘If you start down this road, you need to do it without regard to what driveways you might have to stop at,’ ” he says. On June 26, 2012, Chafee announced his office had hired Wistow to look into the deal.