Consumer Panel—judicial Estoppel: Its Development, Current Status, and How the Eleventh Circuit's Forthcoming Opinion in Slater Might Portend the End of Its Rigidity

• Publication year: 2017

Consumer Panel—Judicial Estoppel: Its Development, Current Status, and How the Eleventh Circuit's Forthcoming Opinion in Slater Might Portend the End of its Rigidity

The Honorable Paul W. Bonapfel

Sacha Dyson

J. Erik Heath

Leon Jones

CONSUMER BANKRUPTCY PANEL

JUDICIAL ESTOPPEL: ITS DEVELOPMENT, CURRENT STATUS, AND HOW THE ELEVENTH CIRCUIT'S FORTHCOMING OPINION IN SLATER MIGHT PORTEND THE END OF ITS RIGIDITY

The Honorable Paul W. Bonapfel^* Sacha Dyson^** J. Erik Heath^*** Leon Jones^****

MR. JUMBECK: Good morning, everyone. Welcome to our Journal's Fourteenth Annual Symposium. My name is Jake Jumbeck, and I'm this year's Editor-in-Chief. It's a pleasure to have you all here today for these two terrific panels. Before I introduce Dean Schapiro, who's going to say a few remarks, there are a few certain individuals that I need to thank.

First and foremost, thank you to Jacob Dean and Kaylynn Webb, our Executive Symposium Editor and Symposium Editor, respectively, for their hard work that stretches back as far as this summer. These two have gone above and beyond to research topics, research panelists—to do everything they could to make sure that this event goes off without a hitch. And I know that for everyone here today, we're all truly indebted to them.

Second, thank you to our panelists for being here today. We know that being here today involves taking time away from the bench, the office, the classroom, flying in from California, Arizona, Chicago. We're truly appreciative of that commitment and your support of our Journal and our event here today.

Finally, I must thank the Emory Law School staff, Amy Tozer, Rhonda Heermans, Amy Marcellana, Susan Clark, Amish Mody, Alyssa Ashdown, Corky Gallo, Scott Andrews; anybody else I forgot to mention, I'm sorry. This event requires so much behind-the-scenes work that very few people see, and

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without the help and support of these individuals it simply does not happen. So please join me in giving these individuals a round of applause.

Please welcome Dean Robert Schapiro.

DEAN SCHAPIRO: Thanks very much, Jake. Thanks to all of you for being here. Welcome to Emory Law School. I certainly want to add my thanks to the people who made today possible. I'd like to thank the sponsors of this event. Please look at your program to see their names. Happily, too many for me to name individually, but we are very grateful and many of those firms are represented here. We'd like to thank those who are involved in the Emory Bankruptcy Developments Journal. The faculty advisor, Ralph Pardo, couldn't be here today. Of course we also Charlie Shanor, and of course the advisor Keith Shapiro who helps us with everything we do here at the Emory Bankruptcy Developments Journal. And of course the outstanding students of the Emory Bankruptcy Developments Journal. I'd like to add my thanks to Jacob Dean, the Executive Symposium Editor, Kaylynn Webb, the Symposium Editor, and of course Jake Jumbeck, the Editor-in-Chief of the Emory Bankruptcy Developments Journal.

I'd like to thank the panelists who come from near and far to be with us today. Especially pleased that many of them have been here before as visiting faculty or teaching here for longer than that. We'd like to think that when there are exciting things going on in bankruptcy it all in some ways touches Emory Law School.

Now I will say this is our centennial year, so making 100 years of advancing the School of Law. It's a chance for us to celebrate some of the milestones in the history of Emory Law School. To mention some of those milestones include 1983 when the Emory Bankruptcy Developments Journal was founded. 2004 when this Symposium was created and has become such an important part of the fabric of Emory Law School.

It's also a chance for us to celebrate our commitment to a curriculum that integrates theory and practice, to the close ties we like to foster between the Law School and the bench and the bar, and our bankruptcy program is an outstanding illustration of all of that. The way in which we are able to connect so closely and can do what we do because of the support of practitioners and judges in Atlanta and elsewhere. And as we see this Symposium today, it's a wonderful way of illustrating that as we bring together outstanding academic

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practitioners and judges from around the country to address the most compelling topics in the consumer and corporate areas.

Again, with regard to our students who always make this happen, a little note. It was two years ago they weren't sure if we could have the symposium because it was snowing in Atlanta on this day. Not too delighted, but the symposium did go on. Today it's sun rather than snow that is greeting our guests. Whether it's sun or snow, we know that this is always an outstanding event on the calendar of Emory Law School. So thank you again to our panelists. Thanks to all of you. Thanks for being here. Look forward to an outstanding day.

JACOB DEAN: Good morning. My name is Jacob Dean, and I'm the Executive Symposium Editor for this year's Emory Bankruptcy Developments Journal. I have the pleasure today of introducing the Consumer Panel, and just to give you an idea of the timeline of events, it's also printed in your pamphlets. We're going to have a ninety-minute consumer panel, followed by a ten-minute break. That's going to be followed by a ninety-minute corporate panel, and then we'll end with lunch today at 12:15.

They've asked me to keep the panel introductions short, but I don't want you to mistake a short introduction for a short CV. They just want to dive into the materials, and I'm happy to let them do that.

Seated to my right is Judge Paul Bonapfel. He's a bankruptcy judge at the Northern District of Georgia where he's served since 2002. He graduated from Florida State University, and had his J.D. from the University of Georgia. He has a Chapter 13 Practice and Procedure that he co-authors, and if you'd like to be entered for a raffle for that, you can put your business card outside.

Seated to his right is Leon Jones. Mr. Jones is a partner and co-founder of Jones & Walden, LLC. He graduated with his undergrad degree from the University of Georgia, and also received his J.D. from there as well. He practices consumer bankruptcy litigation as well as other bankruptcy litigation matters.

Seated to his right is Ms. Sacha Dyson. She's sort of the outlier, but really relevant for this discussion. She's not a bankruptcy attorney.

JUDGE BONAPFEL: She's a real lawyer.

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MR. DEAN: She's a real lawyer. She practices employment law mainly, and also business litigation matters in Tampa, Florida, and will bring the employment law perspective to the panel. She received her undergraduate degree from the Rochester Institute of Technology and her J.D. from Stetson University College of Law.

Then finally at the end we have Mr. Erik Heath. Erik previously practiced here in Atlanta for quite a while but now practices in San Francisco, California. He wins the award for the farthest panelist to come all the way from California. He's operating on West Coast time today. He received his undergraduate degree from Southern Methodist University and his J.D. from Northeastern University School of Law. His relevance here is he submitted an amicus brief on behalf of the National Association of Consumer Bankruptcy Attorneys in the Slater case that was just argued recently. I'm sure we'll hear more about that. I'm going to sit down now and conclude the introductions, but please join me in welcoming the Consumer Panel. Thank you.

JUDGE BONAPFEL: Good morning. We're delighted to be here. Our topic, as you know, is judicial estoppel, and in particular we're going to talk about development of case law in the Eleventh Circuit similar to other circuits, and then get into the Eleventh Circuit has recently heard en banc, the pronunciation of which is a matter of discussion and you can ask your academic panelists in the next program which one is proper if you want.

We have a disclaimer which is we're here basically as CLE faculty, and not in our own individual capacities. We also have these other disclaimers, in particular, the opinions expressed may or may not be our own, and si non cogitas nimis bonum, non nimis cogita. That is Latin for, "if you don't think too good, don't think too much."

Here's what judicial estoppel is about. There's a case called New Hampshire v. Maine,¹ and so this is a quote from there. It's "[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him."² So that's the Supreme Court in a 2001 case citing a nineteenth century case. That's where this idea comes from. There have been other descriptions that are in the materials.

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In the Eleventh Circuit, one of the frequent statements is, "[T]the doctrine is designed to prevent the parties from making a mockery of justice by inconsistent pleadings" and prevents them from playing fast and loose with the courts.³ We'll come back to some of that also.

There are three factors in the New Hampshire v. Maine case:

One, a party's subsequent position "must be clearly inconsistent with the party's earlier position";⁴

Two, a second factor is whether the party succeeded in persuading a court to accept the earlier position "so that judicial acceptance of an inconsistent position in a later proceeding would create 'the perception that either the first or the second court was misled'";⁵

The third factor is whether the party making the inconsistent statement would obtain an unfair advantage or whether it would be an unfair detriment to the other party if they were permitted to do so.⁶

So how does that arise in a bankruptcy case? Well, the typical scenario that has been...