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We do not doubt that Kersting only provided these
personalized comfort letters to investors who insisted
and that petitioners were not among that group. It
does not necessarily follow, however, that the policy
embodied in the letters was unknown or unavailable to
petitioners or other investors. In fact, the record
contains several indications, covering a span of
several years, that Kersting applied this policy to
everyone whether they requested personalized comfort
letters or not:
(1) Thompson testified that Kersting assured him
of the policy at the outset, and no other petitioner
testified that he tendered stock to Kersting and was
refused. Kersting's refusal to accommodate Thompson is
reasonably attributed to the serious falling out that
occurred previously and to Thompson's apparent refusal
to pay leverage loan interest.
(2) Kersting described a 1976 Forbes Acceptance
Stock Subscription Plan to Mil Harr this way: "The
deal is self-liquidating as you can retire all of your
debt by simple surrender of the stock certificate
issued to you."
(3) Gabriele Kersting sent a form letter to Owens
also relating to the 1976 Forbes Acceptance Stock
Subscription Plan, in which she advised him to "Keep
the [stock] certificate in a safe place as you will
need it later to retire the $30,000.00 note."
(4) In a form letter transmitting initiating
documents for the Leasing Corporation Plan of Universal
Leasing, Kersting stated: "All of your debt, except
your monthly payment obligation, can be discharged at
any time at your option by surrender of the stock
certificate which will be issued to you after we have
received the executed documents from you."
(5) In a form letter marking the first anniversary
of a Leasing Corporation Plan for Anseth Leasing,
Kersting noted that "you do have the continuing option
to retire the existing notes by a sale to your
corporation of the stock which you have acquired."
(6) Although in the form of a personalized
comfort letter, Kersting wrote expansively in 1977:
"there is, of course, no problem to reassure you of the
self-sustaining and self-liquidating aspects of the
transaction. We would, in fact, issue a letter to
every participant in the deal outlining that
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