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Indeck and Mr. Polsky reached an agreement over it, a contingency
well within Indeck’s control. Indeck instead could have opted
not to settle and taken its chances with a decision in the Lake
County Lawsuit.
Judicial Estoppel
Indeck also argues that the Polskys are precluded under the
doctrine of judicial estoppel from maintaining in this proceeding
that the settlement payment did not contain interest, because Mr.
Polsky took an inconsistent position in the Lake County Lawsuit
when his counsel represented to that court that the settlement
payment included $4,856,922 in interest.
Judicial estoppel has been applied in this Court to prevent
a party from maintaining a position that is inconsistent with a
prior position advanced and accepted in this or another court.
See, e.g., Huddleston v. Commissioner, 100 T.C. 17, 26-30 (1993).
There are differences among the Courts of Appeals regarding the
contours of judicial estoppel. Compare Teledyne Indus., Inc. v.
NLRB, 911 F.2d 1214, 1219 (6th Cir. 1990) (settlements do not
give rise to judicial estoppel unless court in prior proceeding
had duty to ensure fairness of settlement) with Kale v.
Obuchowski, 985 F.2d 360, 361-362 (7th Cir. 1993) (settlement
gives rise to judicial estoppel if party prevailed on basis of
prior inconsistent contention). For purposes of the instant
cases, we shall apply judicial estoppel as that doctrine has been
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