-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,Page: Previous 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 Next
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