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On appeal, the test case petitioners represented by Izen
argued that the trial of the test cases had been tainted by the
Thompson and Cravens settlements. The Court of Appeals for the
Ninth Circuit agreed, vacating the decisions in the remaining
test cases and remanding them to this Court with directions “to
conduct an evidentiary hearing to determine the full extent of
the admitted wrong done by the government trial lawyers.”
DuFresne v. Commissioner, 26 F.3d at 107. The Court of Appeals,
citing Arizona v. Fulminante, 499 U.S. 279, 309 (1991), directed
the Court to consider “whether the extent of misconduct rises to
the level of a structural defect voiding the judgment as
fundamentally unfair, or whether, despite the government’s
misconduct, the judgment can be upheld as harmless error.” Id.
Further, the Court of Appeals directed this Court to consider on
the merits all motions of intervention filed by affected parties.
See id.
For purposes of the evidentiary hearing mandated by the
Court of Appeals in DuFresne, and to give effect to the direction
of the Court of Appeals regarding intervention, this Court
ordered that the cases of 10 nontest case petitioners, one docket
7(...continued)
attorneys, encompassing both the original project settlement
offer (7-percent reductions) and other settlements obtained by
DeCastro and by Chicoine and Hallett (on the order of 20-percent
reductions).
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Last modified: May 25, 2011