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induce acceptance of the plan by creditors, all the while knowing specific avoidance actions it will pursue post-confirmation.
These cases ultimately suggest a continuum for the analysis of how specific a reservation of avoidance actions must be. The larger the case or the sooner after filing the plan is filed, the less specific a reservation of rights must be to survive the res judicata effect of plan confirmation. The smaller the case or the longer it takes to file a plan, the more specific the reservation of avoidance actions must be to survive confirmation. Furthermore, more specificity is always better. And finally, all plans should at least make reference to specific actions that might be brought, even if it is only a reference to the statement of financial affairs that lists all payments made during the preference period and a blanket statement that all parties who are listed are on notice that the debtor may pursue a preference action to recover the amount transferred by the debtor. Whenever a debtor makes no reference to any potentially preferential payment anywhere in its filings and merely provides a reservation of "all claims," as in Mickey's Enterprises, a court may determine that the debtor is simply lying in wait for its creditors to approve a plan and then proceed to bait and switch and later sue the creditor on the avoidance claim.
Judicial estoppel is a judge-created doctrine that may bar a party from later asserting a position that is Group inconsistent with a position earlier asserted. New Hampshire v. Maine, 532 U.S. 742, 749-51, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). It is meant to prevent "a party from gaining an advantage by taking one position and later seeking another advantage [by taking] an inconsistent position." In re Associated Vintage Inc., 283 B.R. at 566. Judicial estoppel is a far broader doctrine than res judicata; whereas with res judicata there must be a final judgment, judicial estoppel, when applied, prevents merely taking inconsistent positions. Id. at 565 ("[t]he difference between [judicial] estoppel and principles of res judicata is that estoppel is based on conduct of a party in the course of litigation, while claim and issue preclusion follow from the fact of the judgment without reference to anyone's conduct." Generally, a court may bar an action or position where three factors are present. First a party's subsequent position must be "clearly inconsistent" with it prior position. See New Hampshire v. Maine, 532 U.S. at 751, 121 S. Ct. at 1815. Second, the court must have accepted the party's earlier position. Id. And third, the court must determine that the party asserting the inconsistent position will derive an unfair advantage (or impose an undue disadvantage on the opposing side) if the party is not estopped. Id. Furthermore, the judicial estoppel bar will only be raised where there has been an intentional contradiction, not simply an error or inadvertence on the part of the debtor. Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286-87 (11th Cir. 2002).
Relatively few cases have held that judicial estoppel is a bar to pursuit of avoidance
