Here are the elements of judicial estoppel:
The doctrine of judicial estoppel is “a common law doctrine by which a party who has assumed one position in his pleadings may be estopped from assuming an inconsistent position,” particularly in situations where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Courts in the Fifth Circuit generally consider three criteria when evaluating a defense of judicial estoppel, including whether (1) the party against whom judicial estoppel is sought has asserted a legal position that is “plainly inconsistent” with a position asserted in a prior case; (2) the court in the prior case accepted that party’s original position, thus creating the perception that one or both courts were misled; and, (3) the party to be estopped has not acted inadvertently. Love v. Tyson Foods, Inc., 677 F.3d 258 (5th Cir. 2012).