Whether a prior court's denial of a preliminary motion based on a litigant's prior inconsistent position constitutes judicial acceptance of that position

QUESTIONS PRESENTED Under federal common law, a district court may utilize the doctrine of judicial estoppel to protect the judicial system from improper gamesmanship by litigants. In the majority of federal courts of appeals, the second factor of judicial estoppel—judicial acceptance—is flexible; those courts have held that judicial acceptance can occur when a prior court denies a preliminary motion. Moreover, nearly all courts of appeals review judicial estoppel rulings for abuse of discretion. But the Court of Appeals for the Sixth Circuit has adopted a rigid, formulaic approach to judicial acceptance, and the Sixth Circuit alone applies a de novo standard of review to judicial estoppel rulings. In this case, the Sixth Circuit created a circuit split over judicial acceptance and reinforced its divergent de novo standard of review. The questions presented are: 1. Whether a prior court’s denial of a preliminary motion based on a litigant’s prior inconsistent position constitutes judicial acceptance of that position, as the First, Second, Seventh, Ninth, and D.C. Circuits have held, or whether it cannot constitute judicial acceptance, as the Sixth Circuit has effectively held. 2. Whether a district court’s application of judicial estoppel under federal common law is properly reviewable de novo, as the Sixth Circuit held, or for abuse of discretion, as in every other circuit.