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B. Discussion
1. Benefit of the Bargain
The piggyback agreements executed in these cases reflect a
bargained-for exchange: Nontest case petitioners who executed
piggyback agreements surrendered their rights to have their own
cases tried on the merits of the Kersting adjustments in exchange
for respondent's agreement that their deficiencies would be
redetermined in accordance with the outcome of the trial on the
merits of the test cases. Both respondent and nontest case
petitioners expected to benefit under the piggyback agreements by
avoiding the expenses of a trial on the merits.
It is apparent that nontest case petitioners who signed
piggyback agreements did so with the assumption, shared by the
Court, that the trial of the test cases would not include cases
that had been settled before the trial. That the trial of the
test cases would not include settled cases is a matter that we
presume to have been perfectly obvious to the parties and an
implied term of the piggyback agreements.
We now know that Messrs. Sims and McWade misled the Court,
the remaining test case petitioners, and the nontest case
petitioners who signed piggyback agreements by entering into--and
not disclosing--settlements with Messrs. Thompson and Cravens.
Under the circumstances, we are persuaded that nontest case
petitioners who executed their piggyback agreements after the
Thompson and Cravens settlements were negotiated, were partially
induced to execute the piggyback agreements by Messrs. Sims' and
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