Commercial Litigation and Arbitration

Elements of Judicial Estoppel (Majority View) — Application to Statements of Counsel

From Ries v. Paige, 2010 U.S. App. LEXIS 13780 (5th Cir. June 28, 2010):

"Judicial estoppel is an equitable doctrine that 'prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.'" Hopkins v. Cornerstone Am., 545 F.3d 338, 347 (5th Cir. 2008) (quoting Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003)). 3 In Superior Crewboats, Inc. v. Primary P & I Underwriters (In re Superior Crewboats, Inc.), we described the doctrine's purpose and defined its requirements as follows:

The purpose of the doctrine is to protect the integrity of the judicial process by preventing parties from playing fast and loose with the courts to suit the exigencies of self interest. Importantly, because judicial estoppel is designed to protect the judicial system, not the litigants, detrimental reliance by the party opponent is not required. Generally, judicial estoppel is invoked where intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. This circuit, however, has recognized three particular requirements: (1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent.

374 F.3d 330, 335 (5th Cir. 2004) (internal citations and quotation marks omitted).

[Footnote 3] "Because judicial estoppel was raised in the context of a bankruptcy case . . . we apply federal law." Browning Mfg. v. Mims (In re Coastal Plains, Inc.) , 179 F.3d 197, 205 (5th Cir. 1999).

[Footnote 4] Typically, judicial estoppel focuses on the positions a party has taken in its pleadings, see Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir. 1988), but may also include counsel's statements in open court, see Ergo Science, Inc. v. Martin, 73 F.3d 595, 600 (5th Cir. 1996).

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