We will hear argument first this morning in case 256, Keithley v. Buddy Ayers construction.

Mr. Gar.

Thank you, Mr. Chief Justice, and may it please the Court.

Judicial estoppel prevents a party from deliberately adopting inconsistent positions to gain an unfair advantage in litigation.

Because the doctrine targets intentional inconsistencies,

courts have resisted its application when a party's prior position is based on inadvertence or mistake.

The narrow but important question in this case is how to determine when a party's position

was inadvertent

or intentional in the specific context where a debtor fails to update a form to reflect

a new cause of action outside of bankruptcy. The failure to update – if the failure to

update the form was simply a mistake, then there is no intentional inconsistency

and no basis to invoke judicial estoppel. The Fifth Circuit applies what amounts to a

conclusive presumption that a debtor's failure to disclose a cause of action and

update through updating a form is intentional as long as the debtor knew of the facts underlying

the claim and had a potential financial motive to shield the asset,

something which exists almost by definition in the case of any bankruptcy.

That rule flouts the flexibility that equity ordinarily demands.

It grants a windfall to alleged longdoers who have no connection to the

bankruptcy, and it unfairly penalizes honest debtors by denying them redress for real wrongs.

This Court should reject the Fifth Circuit's rule and hold instead that courts must

undertake a holistic analysis of all facts bearing on a debtor's intent,

before concluding that a debtor's failure to update a form represents an intentional position that no cause of action exists.

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