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Although the Thompson and Cravens settlement agreements
contain the basic elements of an MCA, the tax liabilities of the
Thompsons and the Cravenses were not tied to a Sliding Scale
Clause. Rather than having a direct financial stake in the
outcome of the case adverse to that of the remaining test case
petitioners, the Thompsons and Cravenses had their tax
liabilities capped, and those liabilities would have been further
reduced or eliminated if the test case petitioners had prevailed
at trial. Although the Thompsons' and Cravenses' adversarial
posture toward respondent had been diluted, they remained
adversaries of respondent in some residual sense.
Even more important, the Thompson and Cravens settlement
agreements did not realign their interests so as to justify the
conclusion that they had become adversaries of the remaining test
case petitioners. The record shows that Mr. Cravens appeared at
the trial of the test cases and testified in support of the test
case petitioners' position. Although Mr. Thompson did not have a
direct interest in a decision against the remaining test case
petitioners, the record indicates that Mr. Thompson may have
viewed the trial of the test cases as an opportunity to gain
some advantage against Mr. Kersting's threats to enforce Mr.
Thompson's promissory notes.124 While it might be argued that the
Thompsons expected or received some benefit from the Court's
124 Of course, Judge Goffe was aware that Mr. Thompson
was hostile towards Mr. Kersting and was able to assess
Mr. Thompson's credibility from that standpoint.
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