- 16 - without examining the truth of either statement." Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990); see Allen v. Zurich Ins. Co., supra at 1166. Petitioners cite Huddleston for the proposition that judicial estoppel requires a party to have "affirmatively persuaded a court" to accept their "particular position". Huddleston v. Commissioner, supra at 26. "Judicial estoppel generally requires acceptance by a court of the prior position". Id. The Court later defined what it meant by "acceptance": Acceptance by a court does not mean that the party being estopped prevailed in the prior proceeding with regard to the ultimate matter in dispute, but rather only that a particular position or argument asserted by the party in the prior proceeding was accepted by the court. [Id.; citation omitted.] The Court in Fazi I did not accept an argument or position of petitioners; it accepted respondent's concession. Judicial estoppel is a doctrine adopted to protect the Court; the Court has discretion as to when it should be used: "Estoppel is an equitable concept, and its application is therefore within the court's sound discretion." In re Cassidy, 892 F.2d at 642. Petitioners' actions are not causing any "inappropriate and prejudicial consequences" to the Court. We have not been misled or whipsawed by petitioners; any loss to the revenue has been the direct result of respondent's erroneous concession in Fazi I. The elements required for judicialPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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