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thereunder.40 Although Izen has attempted, through litigation, to
establish the liability of four steering committee members (all
nontest case petitioners) to pay for a portion of his appellate
services, those efforts have thus far proved unsuccessful. We
therefore have no basis for finding any individual payment
obligations vis-a-vis the Defense Fund.
c. Direct Payments
In their second supplement to the Izen fee request, the Izen
petitioners submitted a list of “payments on appeal” made to Izen
by 19 nontest case petitioners. As discussed below, the Izen
petitioners have also submitted (or established the existence of)
individual contracts for appellate legal services between Izen
and 15 of the listed payors. Since none of those 15 payors is
credited with having made “payments on appeal” in excess of his
contractual obligation (the latter amount independently
satisfying the “paid or incurred” requirement), we focus on the
four remaining listed payors. We further narrow our focus to the
three remaining payors out of that group for whom we have
received net worth affidavits.
In our May 10, 2006 order, we indicated that, if the Izen
petitioners were unable to establish a payor’s fixed contractual
obligation to pay for Izen’s appellate services, we would assume
40 As indicated above, Izen’s initial agreement to provide
legal services in this litigation was with Kersting, not the
Defense Fund as reconstituted after Kersting’s death in March
2000.
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