- 19 -
interest or other violation of the ABA Model Rules of
Professional Conduct * * * [rule] 3.7”. See Rule 24(g).
____________________________
We conclude that petitioners have not met their burden of
introducing evidence as to specific and credible facts which
would lead us to conclude that a fraud was perpetrated which
“[subverted] the integrity of the court”. In re Intermagnetics
Am., Inc. 926 F.2d 912, 916 (9th Cir. 1991).
In so concluding, we note a split of authority between two
Courts of Appeals as to whether prejudice is a necessary element
of fraud on the Court. Compare Dixon v. Commissioner, 316 F.3d
1041, 1046 (9th Cir. 2003), revg. T.C. Memo. 1999-101, with
Drobny v. Commissioner, 113 F.3d 670 (7th Cir. 1997), affg. T.C.
Memo. 1995-209. Without deciding that prejudice is an element of
proving fraud on the Court, we find that petitioners have not
established facts proving prejudice. On the contrary,
petitioners were represented by independent counsel, as well as
by Jacob. We could not find prejudice given the presence of
Hesselbacher. We therefore hold that petitioners have failed to
meet their burden of showing a fraud on the Court sufficient to
set aside a decision entered over 1� years before they moved to
vacate it. We have considered all of the arguments of the
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011