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respondent’s litigating position in response to the mandate of
the Court of Appeals in Dixon V--in general, that the mandate
requires a 20-percent reduction in deficiencies plus payment of
actual attorney’s fees--as a settlement offer. They then
elaborate on the terms of that putative offer to their benefit,
by assuming it contains both a forgiveness of interest for the 12
years preceding 1992 and a reduction of proposed deficiencies by
62 percent. They conclude by asking the Court to impose this
settlement upon respondent. As we decided in an order in these
cases dated February 24, 2005, we decline to be put into the
anomalous position of compelling a settlement, especially when
the “settlement” as set forth by Messrs. O’Donnell and Jones
might most generously be construed to be no more than a
counteroffer to a position articulated by respondent.
Following the remand in Dixon V, the remaining test case
petitioners and a representative group of non-test-case
petitioners who did not accept respondent’s January 1993
settlement offer (including non-test-case petitioners represented
by Messrs. O’Donnell and Jones) have made prodigious efforts to
discover and introduce evidence that the Thompson settlement was
actually more generous to the Thompsons than is apparent from its
formal terms. Whether those efforts have been successful is
irrelevant to our disposition of the pending motions for leave.
The Thompson settlement as it had become known in 1993 has been
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