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action. The record reveals that the FDIC was first made aware of
petitioner’s harm to business reputation claim upon receipt of
the September 10, 1995, draft of the settlement agreement. By
that time, the FDIC had approved the settlement offer and
prepared a check for petitioner. The FDIC attorney subsequently
requested that the section 104 sentence be removed, and he only
allowed the inclusion of the business reputation sentence because
he did not view petitioner’s belief as relevant.
Although we look to the FDIC’s intent in settling
petitioner’s lawsuit, we note that Mr. Simon testified that he
understood petitioner’s story as “a loss of his business”. He
further testified that his initial legal theories “were all
primarily tort related theories that dealt with the actions of
First City [Bank] that resulted in a loss of petitioner’s ability
to ultimately own, operate, and reap the benefits of this radio
station [referring to Modern World]”. Mr. Simon hired an
appraiser to make a valuation of the radio station and to compute
the value of petitioner’s equity ownership. Further, Mr. Simon
testified that after the mediation, he and his associates
reevaluated the case, and “[they] tried to just refocus on the
point that Bill Mason had been damaged, that his reputation had
been damaged, and that his life-long dream of owning a radio
station had been foreclosed by the activities of First City
[Bank]”. During the final settlement discussions, however, in
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