- 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 Next
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