Eleventh Circuit on Split Re Judicial Estoppel

Per the Eleventh Circuit in Transamerica Leasing, Inc. v. Institute Of London Underwriters, --- F.3d ----, 2005 WL 3110515 (11th Cir. Nov. 22, 2005):

"[W]e have not yet had occasion to decide whether judicial estoppel should apply when the prior position resulted in a settlement, and not in the court actually adopting a position. This question has divided the circuits. Some courts have held that judicial estoppel does not apply when the prior position was asserted in a case that resulted in settlement. See In re Bankvest Capital Corp., 375 F.3d 51, 60-61 (1st Cir.2004) (refusing to apply judicial estoppel where prior proceeding ended in settlement); Blanton v. Inco Alloys Int'l, Inc., 108 F.3d 104, 109-10 (6th Cir.), supplemented by,123 F.3d 916 (6th Cir.1997) (noting that judicial estoppel should be applied only to positions a party successfully maintained in a prior suit, and that a settlement results in “successful” positions for neither side); Bates v. Long Island R.R. Co., 997 F.2d 1028, 1038 (2d Cir.1993) (noting that because a settlement neither requires nor implies judicial endorsement of a particular argument, a position taken in a case that settles cannot give rise to judicial estoppel). Not all courts share this view. See Commonwealth Ins. Co. v. Titan Tire Corp., 398 F.3d 879, 887 (7th Cir.2004) (noting that judicial estoppel can apply when the prior dispute resulted in settlement); Rissetto v. Plumbers Local 343, 94 F.3d 597, 604-05 (9th Cir.1996) (noting that a favorable settlement is the equivalent of winning a judgment for the purposes of judicial estoppel). We need not address this difficult question because the other elements of judicial estoppel have not been established."