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the Thompson and Cravens settlements were contrary to
petitioners' assumption or expectation that none of the test
cases would be settled before the trial, the record shows that
the trial of the cases of the six test case petitioners
represented by Mr. Izen remained fully adversarial. Further, we
have already observed that Mr. Izen was not prevented or
inhibited from fully and fairly presenting his cases to the Court
and that the testimony and evidence associated with the Thompson
and Cravens cases did not affect the outcome in Dixon II.
Considering that the cases of the six test case petitioners
presented by Mr. Izen were representative of the various Kersting
programs in dispute, see table setting forth test case array
supra pp. 38-41, we conclude that petitioners were not deprived
of the benefit that they reasonably expected under the piggyback
agreements.
We balance the fact that petitioners were not deprived of
the benefit of their bargain under the piggyback agreements
against Messrs. Sims' and McWade's misconduct in failing to
disclose the Thompson and Cravens settlements before the trial of
the test cases, as well as the indirect damages that petitioners
have suffered as a result of Messrs. Sims' and McWade's
misconduct. As a consequence of Messrs. Sims' and McWade's
violation of an implied term of the piggyback agreements, some
petitioners undoubtedly have suffered consequential damages such
as accrual of additional statutory interest under section 6601
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