Thursday, February 25, 2016

Gather Round Childrens -- Let's Talk Judicial Estoppel!


Settle in kiddies, gather round the campfire, and get ready to be wowed and amazed by an 11th Circuit tall tale involving the "dignity" of our court system -- don't change positions just for tactical advantage:
The equitable doctrine of judicial estoppel, also known as the doctrine of preclusion of inconsistent positions, “precludes a party from asserting a . . . position that contradicts or is inconsistent with a prior position taken by the same party.”  18 James Wm. Moore et al., Moore’s Federal Practice ¶ 131.13[6][a] (3d ed. 2015).  The doctrine differs from the doctrines of issue and claim preclusion in that the policy animating it “is not [primarily] concerned with preserving the finality of judgments” but is concerned, instead, with “the orderly administration of justice and regard for the dignity of court proceedings.”  Id. ¶ 131.13[6][c].  The doctrine may be invoked by a third party: that is, someone who was not a party in the adversary’s prior proceeding and therefore would suffer no prejudice were the adversary permitted to go forward with the inconsistent position.  Id. ¶ 134.33[1].1
This is so in our circuit.  We do not require that the party invoking the doctrine have been a party in the prior proceeding.  “The doctrine of judicial estoppel protects the integrity of the judicial system, not the litigants; therefore, . . .[w]hile privity and/or detrimental reliance are often present in judicial estoppel cases, they are not required.”
But Judge Tjoflat holds his nose in special concurrence:
I concur in the court’s judgment because the result is dictated by Eleventh Circuit precedent.  I write separately because that precedent, the doctrine of judicial estoppel as laid out in Burnes v. Pemco Aeroplex, Inc.1 and Barger v. City of Cartersville,2 was wrongly decided.  The consequences of today’s decision make the problem clear: U.S. Steel is granted a windfall, Slater’s creditors are deprived of an asset, and the Bankruptcy Court is stripped of its discretion.
So was the "integrity of the judicial system" protected by this outcome?

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