Jottings By An Employer's Lawyer

Friday, April 02, 2004

Failure To List Discrimination Claim In Bankruptcy Not Always Fatal - 11th Circuit


The folks at Wendy's have a little less to be happy with this week as they lost one of those fun 'wins on a technicality'. After a plaintiff filed her discrimination lawsuit, she filed a no asset bankruptcy without listing the case. After receiving a discharge, she discovered she should have reported the claim and notified the Trustee. He investigated and moved to reopen the bankruptcy to pursue the case which was granted. Wendy's successfully argued in district court that the case was barred under the doctrine of judicial estoppel, because the plaintiff had taken different positions about her claim in a court, relying on a prior 11th Circuit case. Unfortunately, the Court found distinguishing factors, here concluding based on the timing the omission was inadvertent and to strike the claim would only grant a windfall to Wendy's. Parker v. Wendy's International, Inc. (11th Cir. 3/31/04) [pdf].


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