- 270 -
presenting their cases at trial. In particular, our review of
the record convinces us that Mr. Izen, who represented
petitioners in six of the eight test cases, was not impeded in
any sense by the Government misconduct in presenting his cases to
the Court. Because Mr. Izen was aware before the trial that the
Government intended to rely on the so-called comfort letters at
the trial of the test cases, we are satisfied that Mr. Izen was
not unduly surprised by Messrs. Thompson's and Alexander's
testimony that Mr. Kersting had assured them that they could
exchange their Kersting corporation stock certificates for the
cancellation of their promissory notes.113 Further, Mr. Izen was
prepared and permitted to cross-examine Messrs. Thompson,
Cravens, and Alexander and to probe and expose the bases of
Messrs. Thompson's and Alexander's hostility towards Mr.
Kersting. Considering all the facts and circumstances, we
conclude that petitioners are not entitled to relief under rule
60(b) of the Federal Rules of Civil Procedure or Rule 161 or 162.
113 Mr. Izen testified at the evidentiary hearing that he
was aware of the comfort letters because some of them were
part of the stipulated record. Further, Mr. Izen informed
Mr. DeCastro before the trial of the test cases that he would
offer evidence of collection actions brought by various Kersting
companies against Kersting program participants to counter
respondent's reliance on the comfort letters. However,
Mr. McWade was aware of collection litigation before the trial
because Mr. Kersting had encouraged certain program participants
to raise the point with Mr. McWade during pretrial settlement
discussions.
Page: Previous 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 NextLast modified: May 25, 2011