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On 24 November 2008, two of the remaining four defendants, former KPMG tax partner Robert Pfaff and former senior tax manager John Larson, filed a motion to dismiss the charges against them or declare a mistrial. The motion said that during the trial prosecutors elicited testimony from a witness accusing Pfaff and Larson of concealing information from KPMG and its tax department to obtain KPMG approval for BLIPS, thus transforming a tax fraud conspiracy with KPMG against the IRS into an honest services fraud conspiracy against KPMG. The motion said the defense had received no notice of such a change in the prosecution's theory and could not prepare a defense and so sought to have the judge to dismiss the indictment or grant a mistrial.

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