- 164 -
similar characteristics; and (3) they were concerned about the
possible effect on the other Kersting project cases. The OIG
report includes Mr. Sims' affidavit, executed October 29, 1992,
which states that it was his recollection that the final version
of the Thompson settlement agreement was agreed to before the
trial of the test cases. Mr. Sims' affidavit also includes the
following statement: "I can recall numerous discussions with
McWade concerning our own trial strategy as well as discussions
concerning the anticipated strategies of both Izen and DeCastro,
but no discussions whatsoever concerning any ‘settlement’."
On December 9, 1992, the OIG report prepared by Mr. Halleck
was completed. The OIG report concluded that Messrs. Sims and
McWade had: (1) Agreed to special arrangements with the
Thompsons and the Cravenses; and (2) provided a special
arrangement for the Thompsons designed to compensate them for
their attorney's fees. Mr. Halleck concluded that Messrs. Sims
and McWade had not benefited financially or otherwise by agreeing
to the special arrangements.
In Mr. Halleck's opinion, Messrs. Sims' and McWade's
agreement to arrange a refund to be used to pay the Thompsons'
legal fees violated 31 C.F.R. section 0.735.30(a)(5) (making a
decision outside of official channels).
66(...continued)
Messrs. Sims and McWade to disclose the Thompson and Cravens
settlements to the Court and to reach agreement with test case
petitioners' counsel for selection of replacement cases.
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