Indeck Energy Services, Inc., and Subsidiaries - Page 49




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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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