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Huber. Mr. Sticht contends that Mr. Seery's apparent conflict of
interest, at a time when Mr. Seery represented nontest case
petitioners Rogers, Eggers, and Huber, provides a basis for
releasing nontest case petitioners from their piggyback
agreements.
Respondent contends that Messrs. Sims' and McWade's failure
to disclose the Thompson and Cravens settlements did not rise to
the level of failure to perform a contractual duty owed to the
nontest case petitioners. Respondent further contends that the
piggyback agreements should be enforced on the ground that the
nontest case petitioners were not prejudiced by Messrs. Sims' and
McWade's misconduct.116
Respondent also filed objections to Mr. Sticht's Motions for
Release From Piggyback Agreement. In short, respondent contends
that the validity of the piggyback agreements is not adversely
affected by either Mr. Seery's alleged conflict of interest or
the events occurring during the trial of the test cases.
A. Principles of Contract Law
Although the piggyback agreements in dispute are titled
"Stipulation of Settlement For Tax Shelter Adjustments", we have
noted that such agreements do not reflect a settlement or
116 Respondent did not address the enforceability of the
piggyback agreements in respondent's opening brief in the belief
that it was premature to address the question pending the Court's
decision whether the Government misconduct in the trial of the
test cases constituted a structural defect. By order dated
Feb. 27, 1998, the Court directed respondent to address the
question in respondent's reply brief, and respondent did so.
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