- 53 - the trial, and that their agreements had not been disclosed to the Tax Court or the other test case petitioners. Respondent further explained that the settlement agreements with those two test case petitioners provided that they could proceed to trial but would receive the benefit of the better of their pretrial settlement agreement or the results of the trial. All the foregoing demonstrates that, when petitioners through their attorneys agreed to settle in March 1993, petitioners and their attorneys knew of the predicate facts that later gave rise to the holding of fraud on the Court by the Court of Appeals for the Ninth Circuit. This knowledge of petitioners and their attorneys precludes a claim of fraud that would vitiate the settlement stipulation from which petitioners, through those same attorneys, now ask to be relieved. In view of the overwhelming evidence of actual knowledge, we are puzzled by petitioners’ assertion that, at the time they settled, they thought no fraud on the Court existed. Perhaps their claimed unawareness means that they, or their attorneys, were unaware of the legal consequences of fraud on the Court. We would not be persuaded by an assertion to that effect. Rule 60(b) of the Federal Rules of Civil Procedure explicitly discusses “An action * * * to set aside a judgment for fraud upon the court.” Moreover, Messrs. Izen and Sticht, counsel for other Kersting petitioners, explicitly alleged “fraud on the court” inPage: Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 Next
Last modified: May 25, 2011