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Although Judge Goffe listed Mr. Thompson's testimony first
among the nine items identified in support of the Court's holding
on the point, we are convinced for the reasons set forth below
that Mr. Thompson's testimony was cumulative of other evidence
and was not material to this holding.
Although Mr. Thompson was the only test case petitioner to
testify that Mr. Kersting had assured him that promissory notes
would not be enforced, Judge Goffe listed eight additional items,
including a number of comfort letters, in support of his holding
that there was a pervasive stock surrender policy. In short,
there is ample evidence in the record, independent of
Mr. Thompson's testimony, to support Judge Goffe's holding on the
point. Along the same lines, we observe that the record in the
trial of the test cases reveals that, at one time or another,
each of the test case petitioners had terminated various Kersting
programs by endorsing their stock certificates and returning them
to Mr. Kersting in exchange for the return of their promissory
notes marked "paid".
Even assuming for the sake of argument that Mr. Thompson's
testimony was material to Judge Goffe's finding that there was
a pervasive stock surrender policy, we are convinced that
Mr. Thompson's testimony was not material to the final outcome in
Dixon II. In particular, Judge Goffe's analysis of the validity
of primary loans was not limited to his holding that Mr. Kersting
and program participants had an understanding regarding the stock
surrender policy. To the contrary, Judge Goffe also found that,
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