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turned out, the overall reduction of approximately 62 percent in
the Thompson deficiencies provided by the new settlement was more
than enough to produce the approximately $60,000 of refunds
McWade and DeCastro thought would be needed to pay DeCastro’s
original estimate of what his fees would be. As it further
turned out, the additional interest on the Thompsons’ payments
under the original settlement was sufficient to provide DeCastro
with an additional fee that he (and perhaps Mr. Thompson)
probably felt was justified by his success in keeping the new
settlement in effect, as well as leave a surplus to be retained
by the Thompsons.35
Test case and nontest case petitioners in the main fall into
two groups, both of which are now in different situations from
the situation of the Thompsons 15-20 years ago. It is the
Court’s impression that a substantial majority of nontest case
petitioners are in the unhappy situation of having followed
Kersting’s advice to stand pat. They neither settled their cases
nor made any remittances in respect of the deficiencies
determined against them. With the passage of years and the
operation against them of the force of compound interest, they
claim that they have been facing financial ruin, with all its
35The lack of legal rationale and the opportunistic
character of the new settlement are emphasized by the fact that
it was entered into after the litigation risk that supported the
original 20-percent reduction settlement had evaporated with the
publication of this Court’s opinion in Dixon I.
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