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McWade's failures to disclose the true status of all the test
cases. Moreover, we conclude that Messrs. Sims and McWade
violated an implied term of the piggyback agreements by allowing
the trial of the test cases to proceed without disclosing the
Thompson and Cravens settlements.
Notwithstanding the foregoing, we are obliged to consider,
under either of petitioners' theories for relief, whether
petitioners' received the substance of the performance promised
under the piggyback agreements; i.e., whether petitioners
received the benefit of the bargain. See Ice v. Benedict Nuclear
Pharms., Inc., supra; 1 Restatement, supra sec. 165. Stated
differently, we must determine whether Messrs. Sims and McWade
violated a material or essential term or condition of the
piggyback agreements before we can declare the piggyback
agreements invalid. See First Interstate Bank v. Small Bus.
Admin., supra.
We begin with the observation that Messrs. Sims' and
McWade's misconduct did not deprive petitioners of the benefit
that they reasonably expected under the piggyback agreements. As
previously discussed, petitioners expected that their cases would
be decided in accordance with the Court's opinion following a
trial of test cases that would be representative of the various
Kersting programs in dispute in their cases. The piggyback
agreements imply an understanding that the trial of the test
cases would be an adversarial proceeding (and that the trial
would not include test cases that had been settled). Although
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