Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 430

                                                 -72-                                                   
            Thus, respondent argued in his posttrial briefs that Schaffel,                              
            Frey, Schnitzer, and Eulich generally were unaware Ballard and                              
            Lisle were using their influence at Prudential to steer business                            
            opportunities to them, and they generally believed they were                                
            compensating Kanter for his influence.  As discussed in greater                             
            detail, see infra pp. 229-235, in the light of respondent’s                                 
            theory the STJ report gave undue weight to testimony by The Five                            
            that they did not participate in a kickback scheme.                                         
                  The STJ report also incorrectly stated:  “respondent’s claim                          
            of fraud is not based, per se, on the payments by The Five to                               
            Kanter or any of the other entities to which such payments were                             
            directed.”  Respondent clearly asserted in his opening brief that                           
            Kanter’s, Ballard’s, and Lisle’s actions were fraudulent because                            
            (1) they knew all the payments from The Five to IRA and THC                                 
            represented income that was taxable to each of them individually,                           
            and (2) Kanter, Ballard, and Lisle intentionally used IRA and THC                           
            to (a) shelter the payments from The Five from taxation, and (b)                            
            to channel the payments to themselves disguised as capital                                  
            contributions, loans, and payments to family members.                                       
            Respondent’s Opening Brief at 556-557.                                                      
                  In addition, the statement in the STJ report limiting                                 
            respondent’s theory of fraud to the failure of Kanter, Ballard,                             
            and Lisle to report as income amounts “dropped down” to them in                             
            the form of loans is inaccurate and incomplete.  In fact,                                   






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