The Sixth Circuit in Javery v. Lucent Technologies Inc. has declined to address the continuing viability of the de novo standard for judicial estoppel. While the Javery Court recognized that the Supreme Court characterizes judicial estoppel as an equitable remedy invoked by the court at its discretion and that the majority of federal courts review for abuse of discretion, without a “more definitive statement” from the Supreme Court the Sixth Circuit believes itself bound by its own precedent to apply the de novo standard. While this circuit split might be ripe for Supreme Court review Javery may not be the case to resolve the split as the Sixth Circuit held that the district court’s ruling was proper under both the de novo standard historically applied in the Sixth Circuit and the more widely applied abuse of discretion standard.
