Does the minority rule apply to judicial estoppel?
MultiRegion, United States of America
The following excerpt is from Admiral Ins. Co. v. Rushmore, 70 F.3d 1277 (9th Cir. 1995):
A majority of courts hold that judicial estoppel is inapplicable unless the first court actually adopted the party's prior inconsistent position. See Morris v. California, 966 F.2d 448, 452 (9th Cir.1991), cert. denied, 113 S.Ct. 96 (1992). The minority rule, in contrast, holds that the doctrine applies even if the party was unsuccessful in asserting the inconsistent position, if by changing positions the litigant is playing "fast and loose" with the court. Id. at 453.
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