Keathley v. Buddy Ayers Construction, Inc. · ¶37

Despite its slow and late start, judicial estoppel has now become commonplace in the Courts of Appeals. As generally understood, the doctrine can bar a party’s suit based on its representations in an entirely unrelated suit against another party. In the Fifth Circuit, for example, judicial estoppel can bar a claim whenever it is inconsistent with a prior position that the party took; a court accepted the prior position; and the party’s inconsistency was not inadvertent. In re Flugence, 738 F. 3d 126, 129 (2013) (per curiam). In this way, judicial estoppel reaches much further than the older doctrine of “equitable estoppel,” which requires the party invoking the doctrine to prove that it was itself the object of a previous representation, that it relied on the previous representation, and that it was prejudiced by the change in positions. See Konstantinidis, 626 F. 2d, at 937.

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