18-2392-cv

Ashmore v. C GI Group

UNITE D STATE S COURT OF APPE AL S F O R T H E S E C O N D C I R C U I T August Term, 2018 (Argued: March 6, 2019 Deci ded: May 8, 2019)

Docket No. 18-2392-cv

B E N J A M I N J. A S H M O R E , S R ., Plaintiff- Appellant, B A R B A R A A. E D W A R D S , C hapter 7 Trustee of the Bankruptcy Estate of Benjami n Jeffrey Ashmore, Plaintiff ,

— v. — C GI G R O U P , I N C . , C GI F E D E R A L , I N C . , Defendants-Appellees

. *

*The C l erk of C ourt i s respectful l y di rected to amend the capti on as l i sted above.B e f o r e: J A C O B S a nd L Y N C H , Circuit Judges , and H A L L , District Judge

. * *

Pl ai nti ff-Appel l a nt Benjamin J. Ashmore, Sr., i nsti tuted thi s whi stl ebl ower acti on under Secti on 806 of the Sarbanes-Oxl ey Act against defendants-appel l ees C GI Group, Inc. and C GI Federal, Inc. (col l ecti vel y, “C GI”), compl a i ning that he was unl awful lyfi red i n retal i ati on for hi s compl ai nts about and objecti o ns to an al l egedl y fraudul ent scheme devel oped by C G I’s executi ves. The Uni ted States Di stri c t C ourt for the Southern Di stri ct of New York (Anal i sa Torres, Judge ) hel d that Ashmore’s Sarbanes-Oxl ey cl ai ms survi ved summary judgment, but l ater di smi ssed Ashmore as a pl ai nti ff for l ack of standi ng due to hi s paral l el bankruptcy proceedi ngs. After Ashmore’s bankruptcy case was cl osed, he moved to be substi tuted in as the proper party-i n-i nterest. The di stri ct court granted hi s moti on but then di smi ssed the case i n i ts enti rety on the grounds of judi c i al estoppel . Because we fi nd that the di stri c tcourt exceeded i ts di screti on i n i nvoki ng the judi c i al estoppel doctri ne, we VAC ATE that judgment and REMAND for further proceedi ngs. Addi ti onal l y, we AFFIRM the di stri ct court’s grant of parti alsummary judgment to C GI on Ashmore’s state-l a w breach of contract cl ai m, and concl u de that the di stri ct court’s order di smi ssi ng Ashmore as a pl a i nti ff i s rendered moot by vi rtue of l ater devel opments.

R O B E R T L

. H E R B S T , Herbst Law PLLC , New York, New York, for Plaintiff-Appellant

. Z A C H A R Y D. F A S M A N (Andrew M Sherwood, on the brief ), Proskauer Rose, LLP, New York, New York, for DefendantsAppellees

.

* *Judge Janet C

. Hal l, of the Uni ted States Di stri ct C ourt for the Di stri c t of C onnecti cut, si tting by desi gnati o n. 2G E R A R D E. L Y N C H , C ircuit Judge :

Thi s case requ i res us to consi der the proper appl i cati o n, i n the context of a pro sedebtor’s bankruptcy court fi l ings, of judi c i alestoppel, a doctri ne devel oped to prevent l i ti gants who “pl ay[] fast and l oose wi th the courts from gai ning unfai r advantage through the del iberate adopti on of i nconsi stent posi ti ons i n successi ve sui t s.” Wight v. BankAmerica Corp. , 219 F.3d 79, 89 (2d C i r. 2000). At i ssue here i s whether a debtor whose i ni ti albankruptcy fi l i ngs do not properl y l i st hi s pendi ng di stri ct court l i ti gati on as an “asset,” but who el sewhere di scl o sed that l awsui t, both i n hi s i ni ti alfi l i ngs and to the trustee and bankruptcy court on numerous subsequent occasi ons, has conceal ed the l i ti gati on from the bankruptcy court such that he shoul d be prevented from proceedi ng i n di stri ct court wi th that sui t. We concl ude that he shoul d not, and that the di stri c t court erred when i t appl i ed judi ci alestoppel to di smi ss pl a i nti ff’s sui t. In addi ti on, we fi nd that the di stri ct court properl y granted summary judgment to the defendants on pl ai nti ff’s pendent state-l a w contract cl ai m. Accordi ngl y, we VAC ATE the judgment of the di stri c t court i n part, AFFIRM in part, and REMAND the case to the di stri ct court for further proceedi ngs.

3BACKGROUND

Thi s case ari ses out of two separate proceedi ngs  ̄one, a l awsui t fi l ed by Benjamin J. Ashmore, Sr., under Secti on 806 of the Sarbanes-Oxl ey (“SOX”) Act i n the Southern Di stri c t of New York (“SDNY”) i n November 2011, and the other, a vol untary pro seC hapter 7 bankruptcy case fi l ed i n the Bankruptcy C ourt for the Di stri ct of New Jersey i n Apri l2013. At i ssue i n thi s appeali s whether Ashmore made i nconsi stent asserti ons i n the two proceedi ngs such that hi s SDNY case shoul d be di smi ssed on judi ci alestoppel g rounds. I. Ashmore’s Sarbanes-Oxley Action On November 28, 2011, Ashmore fi l ed a whi stl ebl o wer compl ai nt i n the Southern Di stri c t of New York (Anal i sa Torres, Judge ), i n whi ch he al l eged that defendants C GI Group Inc. and C GI FederalInc. (col l ecti vel y, “C GI”) had i mproperl ytermi nated hi s empl oyment i n retal i ati on for vari ous acti ons he took upon di scoveri ng that C GI was devel opi ng fraudul ent schemes to generate busi ness. Accordi ng to Ashmore, C GI, a subcontractor for vari o us publ i c housi ng agenci es, feared l o si ng busi ness due to a 2009 change i n pol i cy at the U.S. Department of Housi ng and Urban Devel o pment that woul d l i mi t the number of projects any i ndi vi dualsubcontractor coul d bi d on. Ashmore asserted that he

4rai sed objecti ons to the l egal i ty of a proposal that woul d al l ow C GI to counter the

effects of the new rul e by havi ng empl o yees enter bi ds through sham compani es, and l ater transfer any resul ting contracts back to C GI. It i s undi sputed that the al l eged scheme was never i mpl emented. Ashmore al l eges that he was fi red i n retal i ati o n for hi s objecti ons to and compl ai nts about the fraudul ent scheme. In addi ti on to hi s SOX cl ai m, Ashmore brought a contract cl ai m for a bonus he cl ai med he was owed upon termi nati on. II. Ashmore’s Bankruptcy Action On Apri l8, 2013, Ashmore el ectroni c al l yfi l ed hi s C hapter 7 bankruptcy peti ti on i n the Bankruptcy C ourt for the Di stri ct of New Jersey. When a debtor fi l es for bankruptcy, he or she i s requi red to fi l lout a seri es of forms and schedul es. At the ti me of Ashmore’s fi l i ng, these forms i ncl uded ten schedul es, on whi ch vari ous assets and l i abi l i ti es were to be l i sted, i ncl udi ng, inter alia, “Schedul e A

 ̄ RealProperty,” “Schedul e B

 ̄Personal Property,”and a “Statement of Fi nanci alAffai rs.” At the ti me, the Schedul e B form l i sted 34 speci fi ccategori es of assets, i ncl udi ng

, inter alia, cash, bank accounts, househol d goods and furni shi ngs, furs, annui ti es, patents, l i cense, al i mony, interests i n partnershi ps, farm suppl i es, and

5“[o]ther conti ngent and unl i qui dated cl ai ms of every nature, i ncl udi ng tax

refunds, countercl ai ms of the debtor, and ri ghts to setoff cl ai ms.” Joi nt Appendi x (“J.A.”) 96. It al so contai ned a mi scel l aneous category for “[o]ther personal property of any ki nd not al ready l i sted.” J.A. 97. It di d not speci fi cal l y ask the debtor to l i st l a wsui ts to whi ch he or she was a party, al though Ashmore does not now di spute that a l awsui t seeki ng damages for wrongful t ermi nati on of empl oyment i s an asset that shoul d have been l i sted on the Schedul e B. 1 In contrast, the Statement of Fi nanci alAffai rs (“SOFA”) di rected the debtor to answer a number of speci fi c questi ons, i ncl udi ng, inter alia, to di scl o se “al lsui ts and admi ni strati ve proceedi ngs to whi ch the debtor i s or was a party wi thi n one year i mmedi atel y precedi ng the fi l i ng of thi s bankruptcy case.” J.A. 123. Whi l e fi l l i ng out the paperwork, Ashmore made the deci si on  ̄or error  ̄ that gi ves ri se to the present i ssue. Ashmore l i sted the SOX l i ti g ati on on the SOFA; he wrote both the capti on and docket number and i ndi c a ted that the sui t was empl oyment-rel ated. He di d not, however, l i st i t on hi s Schedul e B.

1 The Schedul e B form was amended i n 2015, and now speci fi cal l y di rects debtors to l i st al l “[c]l ai ms agai nst thi rd parti es, whether or not you have fi l ed a l awsui t or made a demand for payment.” Appel l a nt Br. 17. 6Addi ti onal l y, Ashmore was requ i red to l i st hi s l i abi l i ti es. He l i sted a total

of $293,784 i n unsecured debt, of whi ch $135,878 was attributabl e to nondi schargeabl e student l oans and a si gni fi c ant porti on was rel ated to hi s recent di vorce. On Apri l10, 2013, Barbara Edwards was appoi nted interi m trustee of the estate under Secti o n 701 of the Bankruptcy C ode. She conti nued to serve as trustee, under Secti on 702(d), for the remai nder of the rel evant peri od. A. Meeting of Creditors On May 13, 2013, as requi red by Bankruptcy C ode Secti on 341(a), Edwards convened a meeti ng of credi tors. It appears that no credi tor attended thi s meeti ng. Ashmore attended, as requi red, and di scl osed to Edwards that he woul d be unavai l abl e for a future meeti ng due to a schedul ed deposi ti on i n the Southern Di stri c t of New York. The preci se contours of how extensi vel y the SOX l i ti gati on was di scussed are not cl ear from the record, but i t i s undi sputed by al l that i twas at l east referenced at the May 13 meeti ng. 2

2In a certi fi cati on gi ven i n 2017, Edwards stated that Ashmore “testi fi ed regardi ng [the SOX] l i ti gati on at the fi rst meeti ng of credi tors.” Joi nt Appendi x (“J.A.”) 1368. In addi ti on, i n a certi fi cati on gi ven on May 22, 2013, Edwards stated that Ashmore had a schedul i ng confl i ct due to “pendi ng deposi ti ons i n a C ourt acti on i n the Southern Di stri ct of New York Di stri ct C ourt.” J.A. 154. In i t s 7B. Motion to Dismiss Bankruptcy Case

On June 19, 2013, Ashmore moved to di smi ss hi s bankruptcy acti on. In hi s moti on papers he stated that “due to i nterveni ng matters,” he woul d “now be abl e to meet [hi s] obl i gati ons . . . . My fi l ing was a mi stake.” J.A. 185. Ashmore di d not speci fy the nature of the “i nterveni ng matters.” Edwards therefore asked Ashmore to cl a ri fy, “so that both the Trustee and thi s C ourt can have a ful l understandi ng of the rel evant ci rcumstances.” J.A. 186. Accordi ngl y, on June 21, 2013, Ashmore sent an expl anatory l etter to whi ch he attached the SOX compl ai nt. Edwards publ i shed the l etter on the bankruptcy

August 10, 2018, Opi ni on, the court di d not speci fi c al l yaddress the credi bi l i ty of Edwards’s statements, but noted that the 2013 certi fi cati o n di d not “assert that Ashmore di scussed the nature of thi s acti on, reveal ed that he was Pl ai nti ff i n thi s acti on, or otherwi se i ndi cated that thi s acti on was an asset of hi s estate at the § 341 meeti ng.” Edwards v. CGI Grp. Inc. , No. 11-cv-8611(AT), 2018 WL 4043142, at *7 n.4 (S.D.N.Y. Aug. 10, 2018). It further di sregarded the reci tal s i n the Sti pul ati on and C o nsent Order from the Bankruptcy C ourt that “Ashmore di scl o sed the SOX acti o n . . . i n hi s testi mony at the fi rst meeti ng of credi tors” as the C onsent Order had speci fi cal l y noted that “the Sti pul a ted Facts are not bi ndi ng upon C GI, nor shal l the Sti pul ated Facts have or be deemed to have any precl usi ve effect wi th respect to C GI in the SOX acti on (or otherwi se).” Id. , quoting J.A. 1103, 1107. It thus concl uded that there was “no evi d ence . . . that Ashmore di scl osed thi s acti on as an asset at the § 341 meeti ng of credi tors.” Id. , at *7. We concl ude that the fai rest readi ng of the record i s that Ashmore made some di scl o sure at the meeti ng that was suffi c i ent to put Edwards on noti c e of the SOX l i ti gati on, but that di d not qual i fy as a “ful l ” di scussi on of the case. 8court docket on Jul y 17, 2013. She then proceeded to oppose di smi ssalof the

bankruptcy peti ti on, based on the fact that “i t [was] now apparent that [Ashmore] i s the pl ai nti ff i n a substanti alwhi stl ebl ower l awsui t,” and that the l awsui t was a potenti al asset that she shoul d admini ster on behal f of the estate. J.A. 186

S 87. Judge Morri s Stern hel d a heari ng on the moti on to di smi ss on Jul y 23, 2013, of whi ch Ashmore’s credi tors were noti fi ed. The col l o quy at the heari ng focused on the SOX l i ti gati on. Ashmore testi fi ed at l ength about the whi stl ebl ower case, i ncl udi ng a pendi ng summary judgment moti on made by C GI, emphasi zi ng that “tri al. . . i s ri ght around the corner,” and that he therefore had “every reason to bel i eve that the unsecured credi tors i n [hi s] bankruptcy peti ti on have every abi l i ty to be pai d.” J.A. 194

S9 5. He argued for di smi ssalso that he coul d retai n control of the l awsui t . For her part, Edwards appears to have bel i eved that the “whi stl ebl ower l a wsui t. . . now appears to be ready to be settl ed” and that therefore the case shoul d not be di smi ssed so that she coul d effect an “orderl y di stributi on of the asset.” J.A. 191. After heari ng argument from both si des, Judge Stern deni ed the moti on, but noti fi ed Ashmore that i f di sagreements arose between Ashmore and

9Edwards as to the management of the case or the appropri ate settl ement number,

Ashmore coul d return to the bankruptcy court for assi stance. After deni alof the moti on, Ashmore noti fi ed the di stri ct court that he was i nvol v ed i n bankruptcy proceedi ngs and requ ested a 30-day stay for Edwards to retai n counsel and move to be substi tuted in as the party-i n-i nterest. Judge Torres granted the stay on September 11, 2013. C. Letter Agreement On September 16, 2013, after ascertai ning from Ashmore’s counsel that the SOX acti on was not i n fact neari ng an i mminent concl usi on, Edwards reversed course, wri ting to Ashmore that she was “wi l l i ng to cl ose the bankruptcy case and not admini ster the asset at thi s ti me,” so that Ashmore coul d “conti nue wi th the l i ti gati on wi thout any del ay or jeopardy.” J.A. 200. Her proposal was condi ti oned upon Ashmore’s wi l l i ngness to consent to the reopeni ng of the case and “not cl ai m that the l i ti gati o n was abandoned by [her] cl osi ng of the case,” i f “the amount [he] col l ect[s] from the l i ti gati on generates a si gni fi cant di stributi on to unsecured credi tors.” J.A. 200. Ashmore promptl y agreed to the terms by si gni ng the l etter and returni ng i t to Edwards.

10Under Secti on 554 of the Bankruptcy C ode, property of the bankruptcy

estate can be abandoned i n two di sti nct ways: (1) after noti ce and a heari ng, “the trustee may abandon any property of the estate that i s burdensome to the estate or that i s of i nconsequenti alval ue and benefi tto the estate,” § 554(a), and (2) by operati o n of l aw, “any property schedul ed under secti on 521(a)(1) 3of thi s ti tl e not otherwi se admi ni stered at the ti me of the cl osi ng of a case i s abandoned to the debtor,” § 554(c). D. Closing of Bankruptcy Case On September 17, 2013, Edwards fi l ed a “Report of No Di stributi on” wi th the bankruptcy court i n whi ch she stated that “there i s no property avai l abl e for di stributi on,” and that the estate had thus been “ful l y admini stered” under Federal Rul e of Bankruptcy Procedure 5009. J.A. 36. She di d not menti on the SOX l i ti gati on. The same day, she noti fi ed Judge Torres that she had cl osed the bankruptcy proceedi ng and that the SOX l i ti g ati on coul d thus “proceed outsi de of the Bankruptcy C ourt juri sdi cti on.” J.A. 201.

3Secti on 521(a)(1) requi res the debtor, as part of hi s or her bankruptcy peti ti on, to fi l e, inter alia, a schedul e of assets and l i abi l i ti es, a schedul e of current i ncome and current expendi tures, and a statement of the debtor’s fi nanci alaffai rs. 11Wi thout any further menti on of, or i nqui ry i nto, the SOX l i ti gati on, Judge

Stern granted Ashmore’s di scharge on November 18, 2013, and noti fi ed the credi tors on November 20, 2013. On November 22, 2013, the bankruptcy court i ssued a fi naldecree that Ashmore’s bankruptcy estate had been admi ni stered ful l y, that Edwards had been di scharged, and that the case was cl osed. As of that ti m e, Ashmore had l i sted $296,347 i n debt to 29 credi tors. III. The Intersection of the Two Cases After thi s, the cases wound themsel ves i nto a ti ght spi ral . We summari ze the most notabl e aspects of the twi n procedural hi stori es bel ow. A. Edwards Moves to Reopen the Bankruptcy Case For approxi matel y two years after the di scharge decree, Ashmore’s SOX case proceeded i n the SDNY wi th no further reference to hi s standi ng to maintai n the acti o n or to hi s bankruptcy fi l i ngs. In August 2015, however, C GI retained new counsel, who promptl y contacted Edwards to i nform her that Judge Torres was soon to i ssue a deci si on on thei r summary judgment moti on and that there had been “substanti al[settl ement] offers . . . made by the C GI defendants, al lof whi ch were rejected by Mr. Ashmore.” J.A. 478.

12In response, Edwards i mmedi atel y moved to reopen the bankruptcy case,

attaching the September 16, 2013 l etter agreement (the “Letter Agreement”) and stating that she had been “advi sed by defense counsel i n that case that . . . settl ement offers over $800,000.00 have been made.” J.A. 483. The next day, on September 23, 2015, Judge Torres deni ed C GI’s moti on for summary judgment on the SOX cl ai ms, fi nding that genui ne i ssues of materi al fact exi sted. 4C GI i mmedi atel y moved to stay al lproceedi ngs pendi ng the resol uti on of Edwards’s moti on to reopen Ashmore’s bankruptcy case. Judge Torres granted the moti o n. B. Edwards Withdraws Motion to Reopen Upon l earni ng that Judge Torres had stayed the SOX case, Edwards wi thdrew her moti on to reopen the bankruptcy proceedi ngs and contacted the SDNY wi th a cl ear statement of i ntent:

It was [Edwards’s] i ntent at al lti mes that Mr. Ashmore woul d prosecute the Li ti gati on agai nst hi s former empl oyer as the pl ai nti ff and that hi s bankruptcy estate woul d retai n an i nterest i n the proceeds of any recovery. . . . Edwards . . . supports the deci si on to proceed to tri al i n l i ght of the settl ement offers that were di scussed. . . . Edwards wi thdrew her moti on to reopen

4Judge Torres granted summary judgment to C GI on Ashmore’s contract cl ai m, however. 13the bankruptcy case at thi s ti me because i t had seemed to create confusi on as to who was i n a posi ti o n to prosecute the Li ti gati on. J.A. 544

S45. She added that: The ti m i ng of the defendants’ concern for Mr. Ashmore’s credi tors al so i s suspect. There was no attempt to concealMr. Ashmore’s C hapter 7 fi l i ng or the bankruptcy estate’s i nterest i n any recovery i n the Li ti gati on. . . . Ms. Edwards made an i nformed deci si on to al l ow Mr. Ashmore to proceed wi th the Li ti gati on. There are no undi scl osed promi ses between the parti es. J.A. 544

S45. In response, Judge Torres l i fted the stay. C GI then moved to di smi ss for l ack of standi ng, argui ng that the case had not been abandoned to Ashmore to prosecute. C. Edwards Attempts to Reopen for a Second Time On December 16, 2015, i n response to the devel opments i n the SDNY, Edwards made a second moti o n to reopen the bankruptcy case, stati ng that she was “concerned that i f the whi stl ebl ower sui ti s di smi ssed due to a l ack of standi ng a val uabl e asset wi l lbe l ost for both the Debtor and hi s credi tors.” 5J.A.

5Edwards l i sted as a secondary rati onal e that she had “l earned si nce the fi l i ng of the i ni ti alMoti on to reopen thi s case that the debtor had an i nterest i n a 14647. She al so contended that by argui ng i n hi s opposi ti on papers to C G I’s moti on

to di smi ss that Edwards had abandoned her i nterest i n the SOX l awsui t , Ashmore had vi ol ated the Letter Agreement. 6 In response, Judge Torres yet agai n stayed proceedi ngs i n the SOX Acti on. Meanwhi l e, back i n the New Jersey Bankruptcy C ourt, Bankruptcy Judge Vi ncent F. Papal i a was assi gned to the matter upon the death of Judge Stern. At a heari ng on February 16, 2016, Ashmore and Edwards submi tted a proposed consent order aski ng Judge Papal i a to fi nd, inter alia, that “Ashmore dul y di scl o sed [the SOX acti on] i n hi s peti ti o n and i n thi s case” and “[i ]n accordance wi th the terms of [the Letter Agreement], Ashmore, not hi s C hapter 7 Trustee,

settl ement i n connecti on wi th another pre-peti ti o n l i ti g ati on agai nst a former empl oyer, whi ch was not previ ousl y di scl osed i n hi s C hapter 7 case.” J.A. 648. Ashmore recovered $8,553 on a 1.5% i nterest i n a future sal e of C l ean Edi son, whi ch Ashmore cl ai med he bel i eved to be “worthl ess at the ti me he fi l ed hi s bankruptcy peti ti on.” J.A. 659.

6In Ashmore’s opposi ti on papers, he argued that the Letter Agreement “coul d onl y prohibi t [a cl ai m that Edwards abandoned the acti on] i n the New Jersey Bankruptcy C ourt i n the event that, at the concl usi o n of the [SOX] case, the l i ti gati on generated a si gni fi cant di stributi on to unsecured credi tors, and the former trustee determi ned to move to reopen the case. It certai nl y has no appl i cati o n i n thi s C ourt, on i ssues rel ating to standi ng to sue duri ng the pendency of thi s case, before i ts concl usi on resul ti ng i n a recovery for pl ai nti ff. Indeed, to the contrary, the l etter agreement effecti vel y memori al i zed the trustee’s conferral of standi ng upon Ashmore unti lthe end of the case.” 1:11-cv08611-AT (S.D.N.Y.), EC F No. 194. 15has been and remai ns the real and proper party-i n-i nterest i n the Di stri ct C ourt

Li ti gati on.” J.A. 700. C GI objected, and Judge Papal i a noted hi s di scomfort wi th making “l egaland factualfi ndi ngs . . . on a moti on to reopen that di dn’t ask for that rel i ef.” J.A. 752. At a second heari ng on March 15, 2016, Judge Papal i a, stating that he di d not “need to deci de the abandonment i ssue on [a] narrow moti on to reopen,” i ssued a narrower factual fi ndi ng, i ncl udi ng, inter alia, a statement that though the SOX acti on “was not schedul ed on B as an asset,” Ashmore had “l i st[ed] i t on the statement of fi nanci a laffai rs and al so di scl osed i t at vari o us poi nts throughout the bankruptcy case.” J.A. 884, 887. He then reopened Ashmore’s bankruptcy case “for the l i mi ted purpose of admi ni steri ng the Sarbanes Oxl ey Li ti gati on and the C l eanEdi son settl ement.” J.A. 904. He further took care to note that “[n]othi ng contai ned herei n shal lbe consi dered a determi nati o n of the estate’s i nterest, i f

any, i n the Sarbanes Oxl ey Li ti g ati on.” J.A. 905. Once the bankruptcy case was reopened, Edwards i ssued a noti ce i nformi ng credi tors that assets had been l ocated and they coul d fi l e proofs of cl a i m.

16IV. The District Court’s Resolution of the Issue

In thi s posture

 ̄ wi th the Bankruptcy C ase reopened for the l i mi ted purposes stated above, and the SDNY acti on stayed

 ̄the parti es conti nued to argue i n both courts about w hether Ashmore had been, and conti nued to be, a proper party-i n-interest. A. Ashmore’s Motion in Bankruptcy Court When Judge Papal i a decl i ned to opi ne on whether the l i ti gati o n had i n fact been abandoned to Ashmore, he had i nvi ted further bri efi ng, stati ng that i f the i ssue was “ever presented to [hi m] in the proper context, then [he woul d] deci de i t.” J.A. 884. Ashmore moved for such a determi nati on on Apri l5, 2016. The bankruptcy court schedul ed a heari ng to resol ve the i ssue on May 10, 2016, of whi ch Edwards i nformed Judge Torres. B. Judge Torres’s 2016 Opinion The day before the bankruptcy court heari ng, Judge Torres i ssued an opi ni on concl udi ng that Edwards had not abandoned the ac ti on to Ashmore under § 554(c), si nce Ashmore had fai l ed to l i st the asset on hi s Schedul e B. She then di smi ssed the di stri ct court acti o n as to Ashmore and di rected Edwards to substi tute in as the proper party-i n-i nterest.

17C. Appeal to this Court

Ashmore i mmedi atel y appeal ed to thi s C ourt on the i ssue of whether the l i ti gati on had been abandoned to hi m. In a 2017 opini on, we di smi ssed the case for l ack of juri sdi c ti on, concl u di ng that the “di smi ssal of the case as to Ashmore and the substi tuti on of the Trustee as the pl ai nti ff are i nterl o cutory orders that are not i mmedi atel y appeal abl e.” Ashmore v. CGI Grp., Inc. , 860 F.3d 80, 82 (2d C i r. 2017). D. Official Abandonment of the SOX Action Meanwhi l e, on September 5, 2017, Edwards and Ashmore moved i n bankruptcy court for approval of a settl ement i n whi ch Edwards woul d offi ci al l y abandon the SOX acti o n under Secti on 554(a) of the Bankruptcy C ode i n exchange for Ashmore payi ng i n ful lany credi tors who had fi l ed proofs of cl ai m. On Jul y 25, 2017, i n anti ci pati on of settl ement, Ashmore offi ci al l y amended hi s Schedul e B form to i ncl ude the SOX l i ti gati on. The perti nent terms of the proposed settl ement i ncl uded:

(1) that Ashmore woul d “del i ver suffi c i ent funds . . . to pay al lof the al l owed C l ai ms and the Admini strati ve C osts i n ful l ; ” (2) that Edwards woul d fi l e a Noti ce of Abandonment under Secti on 554(a); and

18(3) that Edwards woul d use her “best efforts to reasonabl y cooperate wi th the Debtor i n the substi tuti on of the Debtor i n the SOX acti on as the pl ai nti ff and proper party i n i nterest.” J.A. 1039

S40. The bankruptcy court hel d a heari ng on the proposed settl ement on October 3, 2017, and approved i t over C GI’s objecti ons. 7 As a resul t, Ashmore pai d $50,356.88 to hi s credi tors, coveri ng the totalamount of proofs of cl ai m fi l ed si nce the reopeni ng of the bankruptcy case. The di fference between thi s settl ement payment and the $293,784 of cl ai ms that Ashmore ori g i nal ly l i sted on hi s Schedul e F i s l argel yattributabl e to: (1) $135,878 i n student l oans that were not di schargeabl e (and presumabl y not di scharged); and (2) approxi m atel y $93,000 i n cl a i ms rel a ted to hi s di vorce that Ashmore resol v ed wi th hi s former wi fe outsi de of the bankruptcy proceedi ngs. E. Dismissal for Judicial Estoppel After the SOX l i ti gati on was offi ci al l y abandoned by Edwards, she and Ashmore joi ntly moved i n the di stri ct court to restore Ashmore as the pl ai nti ff

7Judge Papal i a di d, however, i ncl ude a ri der to the Agreement stati ng that “[t]he reci tal s i n thi s Sti pul ati on and C onsent Order . . . are bi ndi ng upon onl y the Trustee and the Debtor. . . . [They] are not bi ndi ng upon C GI, nor . . . [shal lthey] have any precl usi ve effect wi th respect to C GI in the SOX acti on.” J.A. 1107. 19and proper party-i n-i nterest. Ashmore al so renewed an earl i er moti on for

reconsi derati on of the 2016 Order di smi ssi ng the case for l ack of standi ng, and C GI renewed an earl i er moti on for di smi ssalon the grounds of judi ci alestoppel

. 8 On August 10, 2018, Judge Torres resol ved al loutstandi ng moti ons. She fi rst granted Ashmore’s moti on to be substi tuted as pl ai nti ff, then deni ed hi s moti on for reconsi derati on as moot i n l i ght of Edwards’s offi ci alabandonment of the SOX acti on, and fi nal l y granted C GI’s moti on to di smi ss on the grounds of judi ci alestoppel

. Thi s appeal fol l ows. DISCUSSION On appeal, Ashmore chal l enges three orders of the di stri c tcourt: fi rst, the August 10, 2018, Order i n whi ch the di stri ct court di smi ssed hi s case on the grounds of judi ci alestoppel ; second, the May 9, 2016, Order i n whi ch the di stri ct court found that Edwards had not abandoned the l i ti g ati on to Ashmore and so di smi ssed the case for l ack of standi ng; and thi rd, the September 23, 2015,

8Duri ng the pendency of the settl ement approval, both parti es had made moti ons i n the SDNY

 ̄C GI to di smi ss the SOX acti on on the grounds of judi ci a l estoppel, and Ashmore for reconsi derati on of the 2016 Order. Judge Torres deni ed both moti o ns pendi ng the bankruptcy court’s deci si on, fi ndi ng that “judi ci a leffi ci ency warrants wai ti ng unti lthe bankruptcy court has determi ned whether to approve the settl ement.” J.A. 1026. 20deci si on of the di stri ct court granti ng summary judgment to C G I on hi s contract

cl a i ms. I. Standard of Review A di stri ct court’s deci si on to i nvoke judi ci a lestoppel i s revi ewed for abuse of di screti on. Clark v. AII Acquisition, LLC , 886 F.3d 261, 265 (2d C i r. 2018). We have emphasi zed, however, that “[w]hi l e deferenti al, abuse of di screti on revi ew i s not a rubber stamp. A di stri ct court may not do inequi ty i n the name of equi ty.” Id. at 266 (i nternal quotati on marks omi t ted). We revi ew orders granti ng di smi ssalor summary judgment de novo

. Giuppone v. BH S & B Holdings LLC , 737 F.3d 221, 225 (2d C i r. 2013). II. Judicial E stoppel “The doctri ne of judi ci alestoppel prevents a party from asserti ng a factual posi ti on i n one l egalproceedi ng that i s contrary to a posi ti on that i t successful l y advanced i n another proceedi ng.” R odal v. Anesthesia Grp. of Onondaga, P.C. , 369 F.3d 113, 118 (2d C i r. 2004). Judi ci alestoppel functi ons to “protect the i ntegri ty of the judi ci alprocess by prohi bi ti ng parti es from del iberatel y changi ng posi ti ons accordi ng to the exi genci es of the moment.” New Hampshire v. Maine, 532 U.S. 742, 749

S50 (2001) (i nternal quotati on marks and ci tati ons omi t ted). Thus,

21“[w]here a party assumes a certai n posi ti on i n a l egalproceedi ng, and succeeds

i n maintai ning that posi ti on, he may not thereafter, si mpl y because hi s i nterests have changed, assume a contrary posi ti on, especi al l y i f i t be to the prejudi ce of the party who has acqui esced i n the posi ti on formerl y taken by hi m.” Id. at 749 (i nternalquotati on marks and ci tati ons omi tted). Judi ci a lestoppel i s properl y i nvoked where: (1) a party’s l ater posi ti on i s cl earl y i nconsi stent wi th i ts earl i er posi ti on, and (2) the party’s former posi ti on has been adopted i n some way by the court i n an earl i er proceedi ng. Id. at 750

S5 1 . We have al so often, but not al ways, requi red a showi ng that the party asserti ng the two i nconsi stent posi ti ons woul d deri ve an unfai r advantage agai nst the party seeki ng estoppel

. I d. at 751; see also BPP Illinois, LLC v. Royal Bank of Scotland Grp. PLC , 859 F.3d 188, 194 (2d C i r. 2017). Fi nal ly, “[b]ecause the doctri ne i s pri mari l y concerned wi th protecti ng the judi ci alprocess, rel i ef i s granted onl y when the ri sk of i nconsi stent resul ts wi th i ts i mpact on judi ci al i ntegri ty i s certai n.” Adelphia Recovery Tr. v. Goldman, Sachs & Co. , 748 F.3d 110, 116 (2d C i r. 2014) (i nternal qu otati on marks omi t ted). In sum, “[j]udi ci alestoppel i s desi gned to prevent a party who pl ays fast and l oose wi th the courts from gai ni ng unfai r advantage through the del iberate

22adopti on of i nconsi stent posi ti ons i n successi ve sui ts.” Wight, 219 F.3d at 89.

Moreover, “there must be a true i nconsi stency between the statements i n the two proceedi ngs. If the statements can be reconci l ed there i s no occasi on to appl y an estoppel .” Simon v. Safelite Glass Corp. , 128 F.3d 68, 72

S 73 (2d C i r. 1997). Fi nal l y, the “exact cri teri a for i nvoki ng judi ci alestoppel wi l l vary based on speci fi c factualcontexts.” Adelphia, 748 F.3d at 116 (internal quotati on marks and ci tati ons omi tted). A. Judicial Estoppel in the Bankruptcy Context Judi ci a lestoppel i s regul arl yi nvoked i n the bankruptcy context; speci fi cal l y, “[j]udi ci alestoppel wi l lprevent a party who fai l ed to di scl ose a cl ai m i n bankruptcy proceedi ngs from asserti ng that cl ai m after emergi ng from bankruptcy.” BPP, 859 F.3d at 192 (i nternal quotati on marks and ci tati ons omi tted). Moreover, whether a party i s advanci ng i nconsi stent cl ai ms i n the bankruptcy context “i s l argel y i nformed by the bankruptcy court’s treatment of those cl ai ms.” Adelphia, 748 F.3d at 118. We have emphasi zed that “[d]etermi nati o n of the ownershi p of assets i s at the core of the bankruptcy process. . . . It i s therefore cruci al, both for the sake of fi nal i ty and the needs of

23debtors and credi tors, that cl ai ms to ownershi p of vari ous assets be determi ned

i n the bankruptcy proceedi ngs.” Id. For the purposes of judi ci alestoppel, we typi c al l yfi nd that a bankruptcy court “adopted” a parti cul ar posi ti on “when the bankruptcy court confi rms a pl an pursuant to whi ch credi tors rel ease thei r cl ai m s against the debtor.” BPP, 859 F.3d at 194 (internal quotati on marks and ci tati ons omi tted). We have recentl y affi rmed the use of judi ci a lestoppel i n two opini ons deal i ng wi th fai l ure to di scl ose assets i n bankruptcy court. Fi rst, i n A delphia Recovery Trust v. Goldman, Sachs & Company, we affi rmed the use of judi c i al estoppel where the pl ai nti ff cabl e company had fai l ed to l i st on i ts bankruptcy fi l i ngs an account whose ownershi p was i n questi on. 748 F.3d at 118. Throughout a fi v e-year bankruptcy proceedi ng, pl ai nti ff never cl ai med the account as one of i ts assets; however, i t l ater brought sui t in the di stri ct court cl a i ming that the account was i ts own. We hel d that judi ci alestoppel was properl y i nvoked, concl u di ng that “[a] di fferent rul ing woul d threaten the i ntegri ty of the bankruptcy process by encouragi ng parti es to al ter thei r posi ti ons as to ownershi p of assets as they deem thei r l i ti gati o n needs to change.” Id. at 119.

24Then, i n BPP Illinois LLC v. the Royal Bank of Scotland Group PLC, we

affi rmed the use of judi ci alestoppel where a group of hotel

- rel ated busi nesses brought a fraudul ent i nducement sui t against several banks, but where, i n a paral l elbankruptcy proceedi ng, thei r “schedul e of . . . assets, i ncl udi ng l egal cl a i ms, never l i sted [the fraudul ent i nducement] cl ai ms,” 859 F. 3d at 191, and pl ai nti ffs never di scl osed the paral l ell egalproceedi ngs throughout a two-year bankruptcy proceedi ng. Id. at 191

S94. In contrast, i n Clark v. AII Acquisition, LLC , we hel d that the di stri ct court abused i t s di screti on where a debtor, “unsure of whether hi s bankruptcy asset schedul es needed to be updated to refl ect hi s di agnosi s [of mesothel i oma] and i ntenti on to l i ti gate

 ̄ al erted hi s bankruptcy counsel . . . and trusted hi mto do what was requi red under the l aw.” 886 F.3d at 264 (internal quotati o n marks omi tted). C l a rk’s counsel fai l ed to convey the i nformati on to the bankruptcy court, however, and the di stri ct court subsequentl y di smi ssed C l a rk’s personal i njury sui t on judi ci alestoppel grounds. Id. at 265

. Noti ng that “judi ci alestoppel i s not a mechani cal rul e,” id. at 266, we hel d that “[n]othi ng i n the record . . . suggests that the C l arks wi thhel d Mr. C l ark’s di agnosi s from the bankruptcy

25court i n an effort to game the bankruptcy system,” and that therefore “pri nci pl es

of equi ty requi re the courts to entertai n [the] personal i njury cl ai ms,” id. a t 268. B. Third Circuit Law We l ook to the l aw of the ci rcui t in whi ch the bankruptcy proceedi ng occurred “for the l i mi ted purpose” of determi ni ng whether the fai l ure to l i st a parti cul a r cl ai m on a debtor’s bankruptcy fi l i ngs “i s equi val ent to an asserti on that [the debtor] di d not have such a cl ai m.” BPP, 859 F.3d at 192. Because Ashmore’s bankruptcy proceedi ng was fi l ed in New Jersey, we exami ne whether, under Thi rd C i rcui t l aw, fai l ure to l i st a cl ai mamounts to a deni al that the cl ai m exi sts. As di scussed bel ow, the Thi rd C i rcui t’s anal ysi s depends on the facts and ci rcumstances of the case, and i s i ntertwined wi th that ci rcui t’s judi ci alestoppel standard. More speci fi cal l y, the Thi rd C i rcui thas ”expressl y l eft open the questi on of whether . . . nondi scl osure [on bankruptcy fi l i ngs], standi ng al one, can support a fi nding that a pl ai nti ff has asserted i nconsi stent posi ti ons wi thi n the meani ng of the judi ci al -estoppel doctri ne.” Ryan Ops. G.P. v. Santiam-Midwest Lumber Co. , 81 F.3d 355, 362 (3d C i r. 1996). Because the Thi rd C i rcui t test focuses heavi l y on the i ntersecti on between i nconsi stent asserti ons and bad fai th on behal f of the party

26accused of maki ng the contradi ctory statements, i thas not needed to answer that

narrow questi on, but has i nstead stated that “[a]sserti ng i nconsi stent posi ti ons does not tri gger the appl i c ati on of judi ci alestoppel unl ess i ntenti onalsel fcontradi cti on i s . . . used as a means of obtai ni ng unfai r advantage.” Id. ( i nternal quotati o n marks omi tted). It has further cl ari fi ed that “[a]n i nconsi stent argument suffi ci ent to i nvoke judi ci alestoppel m ustbe attributabl e to intentional wrongdoing.” Id. (emphasi s added). In i ts l eadi ng cases on the i ntersecti on of judi ci alestoppel and bankruptcyrel ated nondi scl osures, the Thi rd C i rcui t has twi ce consi dered whether judi ci al estoppel was appropri ate and answered i n the negati v e. Fi rst, i n Ryan , the court consi dered whether the debtor’s fai l ure to l i st vari o us cl a i m s for breach of warranty on ei ther hi s Schedul e B or SOFA forms was tantamount to an asserti on that they di d not exi st. Id. Whi l e Ryan had not yet fi l ed sui t at the ti me he fi l ed for bankruptcy, the Schedul e B at the ti me requ i red the debtor to l i st, inter alia, “conti ngent and unl i qui dated cl ai ms of every nature.” Id. The court found that Ryan had vi o l ated hi s statutory duty of ful ldi scl osure by fai l i ng to l i st the cl ai m, but neverthel ess found judi ci alestoppel i nappropri ate under the facts of that

27case, noti ng that Ryan’s l a ck of di scl osure di d not provi de a basi s for i nferri ng hi s

bad fai th. Id. at 364. The court then conti nued:

[P]ol i cy consi d erati ons mi l i t ate agai nst adopti ng a rul e that the requi si te i ntent for judi ci al estoppel can be i nferred from the mere fact of nondi scl osure i n a bankruptcy proceedi ng. Such a rul e woul d undul y expand the reach of judi c i alestoppel i n post-bankruptcy proceedi ngs and woul d i nevi tabl y resul t in the precl usi on of vi abl e cl ai ms on the basi s of i nadvertent or good-fai th i nconsi stenci es. Whi l e we by no means deni grate the i mportance of ful ldi scl osure or condone nondi scl osure i n bankruptcy proceedi ngs, we are unwi l l i ng to treat carel ess or i nadvertent nondi scl osures as equi val ent to del iberate mani pul ati o n when admini steri ng the “strong medi c ine” of judi ci al estoppel

. Id. More recentl y, i n In re Kane, the court found no error when a di stri c t court di d noti nvoke estoppel when a debtor had l i sted her di vorce proceedi ng on her SOFA, but not, i ni ti al l y, on her Schedul e B. 628 F.3d 631 (3d C i r. 2010). The Kane C ourt noted that Ryan had l eft open the questi on of whether nondi scl osure al o ne coul d support a fi ndi ng of “i rreconci l abl e i nconsi stency,” and hel d that judi ci al estoppel was not requi red. Id. at 639. The court emphasi zed that “a debtor’s burden i s l i mi ted to reasonabl e di l i gence i n compl eti ng schedul es.” Id. at 643 (i nternalquotati on marks and al t erati o ns omi tted). 28We thus cannot di scern i n Thi rd C i rcui t l aw an absol u te answer to the

narrow questi on our case l a w asks us to consi der: whether any nondi scl osure on behal f of Ashmore consti tutes an asserti on that the l i ti gati on does not exi st. The answer, i t seems, i s that i tdepends upon the facts and ci rcumstances of the case, and how those facts and ci rcumstances rel ate to the Thi rd C i rcui t’s di stinct test for when to appl y judi ci alestoppel ’s “strong medi ci ne.” Moreover, i n cases not terribl y di fferent from the i nstant one, the Thi rd C i rcui t has l eaned agai nst i ts appl i cati o n. Havi ng so establ i shed, we proceed to an exami nati on of the four factors that our precedent requi res us to consi der. C. Application of the Four Factor Test In i ts opi ni o n, the di stri c t court concl u ded that each of the factors wei ghed i n favor of judi ci alestoppel . Ashmore argues that these concl usi ons were erroneous. We wi l lexami ne each factor i n detai l

.

1. Advancement of Inconsistent Factual Positions The fi rst requi rement for a fi ndi ng of judi ci a lestoppel i s that “a party’s l ater posi ti o n i s ‘cl earl yi nconsi stent’ wi th i ts earl i er posi ti on.” DeRosa v. Nat’l Envelope Corp. , 595 F.3d 99, 103 (2d C i r. 2010).

29The di stri ct court fi rst anal yzed Thi rd C i rcui t l aw, concl udi ng that the

fai l ure to l i st a pendi ng acti on i n the schedul e of assets consti tutes an asserti on that the acti o n does not exi st. It based thi s concl usi on on three thi ngs: (1) a readi ng of the pre- Kanecase l aw whi ch emphasi zed the debtor’s duty of di scl o sure; (2) two di stri ct court cases i n whi ch courts have stated, wi thout ci t a ti on, that nondi scl osure i s an asserti on that an acti on does not exi st; 9and (3) the contenti on that Kanei s di sti ngui shabl e from the i nstant case, based pri mari l y on the fact that the debtor i n Kaneal most i mmedi atel yamended her Schedul e B (whereas Ashmore amended i t four years after the i ni ti a lfi l i ng). We fi nd these rati onal es unpersuasi ve. Fi rst, as noted above, the better readi ng of Thi rd C i rcui tcase l aw suggests that the questi on i s not settl ed and that the court, despi te numerous opportuni ti es to opi ne on the questi on, has speci fi cal l y l eft i t open, preferri ng i nstead to focus i ts anal ysi s on the bad or good fai th of the debtor. Wi thout a doubt the Thi rd C i rcui t emphasi zes the cri ti cal nature of the duty of di scl osure; i t pai rs that di recti ve, however, wi th concern for precl usi on of otherwi se vi abl e sui ts based on “carel ess or i nadvertent

9Bartel ex rel. McQueen v. Charles Kurz & Co. , 110 F. Supp. 3d 579, 587 (E.D. Pa. 2015); Giordano v. Saxon Mortg. Servs., Inc., 2013 WL 12158378, at *7 (D.N.J. Oct. 31, 2013). 30nondi scl o sures,” Ryan , 81 F.3d at 364, and l i mi ts a debtor’s burden to “reasonabl e

di l i gence,” In re Kane, 628 F.3d at 643, parti cul arl y i n cases where the trustee or bankruptcy judge has i ndi cated to the debtor that he has sati sfi ed hi s di scl osure requi rements. Second, our anal ysi s i s not affected by the fact that two di stri ct courts i n the Thi rd C i rcui t have stated, wi thout supporti ng ci tati o n, that a fai l ure to di scl o se a cl ai m i s a representati on that such a cl ai m does not exi st. Such deci si ons are not bi ndi ng on us and do not consti tute persuasi ve evi dence that the Thi rd C i rcui t di d not mean what i t has cl earl y stated. Thi rd, the di stri ct court’s concl usi on that Kane i s i napposi te i s entwi ned wi th i ts fi ndi ng that “Ashmore’s conduct at several stages of the Bankruptcy acti on and thi s acti on suggests an effort to conceal the exi stence of thi s acti on as an asset and shi el d i t from hi s credi tors.” Edwards v. CGI Grp. Inc. , No. 11-cv8611(AT), 2018 WL 4043142, at *8 (S.D.N.Y. Aug. 10, 2018). We do not agree that Ashmore’s acti ons are consi stent wi th an i ntent to conceal the SOX acti on’s exi stence. The di stri ct court ci tes three acti ons taken by Ashmore as supporti ng i ts concl usi on: (1) the fact that Ashmore’s i ni ti alJune 2013 moti on to di smi ss hi s bankruptcy case ci ted onl y to “interveni ng matters;” (2) that Ashmore and

31Edwards fai l ed to di scl ose the Letter Agreement to the bankruptcy court; and (3)

that Ashmore opposed Edwards’s second moti on to reopen and argued i n the di stri ct court that she had abandoned the acti on to hi m. These acti ons cannot bear the wei ght assi gned to them by the di stri ct court, especi al l y i n l i ght of the numerous acti o ns that Ashmore took that demonstrate candor about the SOX l i ti gati on. To begi n wi th, we note that i n Ashmore’s very fi rst fi l i ng, as part of the SOFA, he l i sted the SOX l i ti gati on by name and docket number. Undoubtedl y, he shoul d have l i sted i t on the Schedul e B. But i t i s di ffi cul t to attribute to a pro se l i ti gant a scheme to hi d e a fact that he di scl osed on what woul d surel y appear to a l ay person to be a paral l elschedul e. Moreover, Ashmore di d menti on the l i ti gati on to Edwards at the credi tors’ meeti ng, and provi ded her wi th a copy of the compl ai nt a few weeks l ater. Shortl y thereafter, Edwards provi ded that communi cati on to the bankruptcy judge and posted i t on the docket for al lto see. It i s thus undi sputed that by Jul y 2013, a mere three months after hi s i ni ti alfi l i ng, both Edwards, as the estate trustee, and Judge Stern, the judge presi di ng over the bankruptcy acti on, were ful l yaware of the SOX l i ti gati on, and thus wel lsi tuated to protect the credi tors’ i nterests. That Ashmore i ni ti a l ly attempted to di smi ss hi s

32bankruptcy case due to “i nterveni ng matters,” and di d not el aborate on what

those matters were unti lasked, i s i nsuffi ci ent evi dence of an i ntent to conceal

. Indeed, i ti s not cl ear how Ashmore’s effort to u ndo hi s bankruptcy fi l i ng, rather than to press ahead to obtai n a di scharge, suggests an effort to hi de assets i n order to defraud credi tors. And cl earl y, from that poi nt forward, rather than attempting to conceal the acti on, nearl y every acti on Ashmore took i n bankruptcy court had the SOX l i ti gati o n at i ts centerpi ece. That Edwards i ni ti a l l y fai l ed to di scl ose the Letter Agreement to the bankruptcy court i s probati ve not of A shmore’s bad fai th or wi l l i ngness to pl ay “fast and l oose” wi th the judi ci ary, but, i f anythi ng, of Edwards’s derel i cti on of duty under Bankruptcy Rul e 9019(a), whi ch requi res the court to approve a “compromi se or settl ement” wi th noti ce to the credi tors. Indeed, i t i s di ffi cul t to faul t Ashmore, a pro sedebtor, when Edwards was the onl y party wi th the authori ty to move the bankruptcy court for approval of the Letter Agreement. See Fed. R. Bankr. P. 9019(A) (“ On motion by the trustee and after noti ce and a heari ng, the court may approve a compromi se or settl ement.”) (emphasi s added). It i s even more di ffi cul t to do so once we al so recogni ze that i t i s the trustee, not the debtor, who i s charged wi th servi ng as the representati ve of the credi tors and as

33an offi cer of the court. Moreover, there i s no evi dence that Ashmore desi gned or

drafted the terms of the Letter Agreement, whi ch i nstead was sent by Edwards to Ashmore for hi s si gnature. Even assumi ng that Ashmore was the movi ng force behi nd the Letter Agreement, i t i s apparent from the face of the Agreement that, far from seeki ng to channel recovery to Ashmore at the credi tors’ expense, the Letter Agreement sought to preserve the credi tors’ ri ghts i n any settl ement. Fi nal l y, Ashmore’s l egalargument i n the di stri c t court that hi s Letter Agreement wi th Edwards prohibi ted hi m from argui ng about abandonment i f the SOX l i ti gati on generated a si gni fi cant settl ement i s just that

 ̄a l egal argument. It i s not probati ve of any i ntenti o n on Ashmore’s part to conceal the SOX l i ti gati on from the bankruptcy court. In fact, i n argui ng abandonment, Ashmore consi stentl yrepresented to the di stri ct court and the bankruptcy court that, under the Letter Agreement, hi s credi t ors had a ri ght to any recovery that he mi ght obtai n upon successful prosecuti on of the whi stl ebl ower sui t. Under these ci rcumstances, i t cannot be concl uded that Ashmore asserted cl earl y i nconsi stent posi ti ons. Ashmore’s posi ti on i n the di stri ct court

 ̄that he di d i ndeed have a SOX cl ai m  ̄i s cl earl y not i nconsi stent wi th: (1) l i sting the l i ti gati on on hi s SOFA at the ti me of fi l ing; (2) di scl osi ng at l east the exi stence of

34the l i ti gati on at the credi tors’ meeti ng; (3) attachi ng the compl ai nt at Edwards’s

request when he fi rst attempted to di smi ss the bankruptcy acti on; or (4) gi vi ng i n-depth testi mony at the Jul y 23, 2013, heari ng as to the nature of the SOX acti on and hi s desi re to control the l i ti gati on. The scant facts rel i ed upon by the di stri ct court are not suffi ci ent, i n the face of these acti o ns, to support a fi ndi ng that Ashmore i ntended to persuade the bankruptcy court that he di d not have a cl ai m agai nst C GI. We therefore hol d that the di stri ct court cl earl y erred i n fi ndi ng that Ashmore’s posi ti ons were “cl earl y i nconsi stent,” and that i t erroneousl y i nterpreted Thi rd C i rcui t l aw when i t concl uded that hi s fai l ure to l i st the cl ai m on hi s Schedul e B was, i n and of i tsel f, an asserti o n that the l i ti gati on di d not exi st. 2. Adoption The second requi rement for judi c i a l estoppeli s a fi ndi ng that “the party’s former posi ti on has been adopted i n some way by the court i n the earl i er proceedi ng.” DeRosa, 595 F.3d at 103. The di stri ct court concl uded that the bankruptcy court adopted the posi ti on that there was no SOX l i ti gati on, ci ti ng several d i stri ct court cases for the proposi ti on that “a di scharge of debts . . . together wi th the cl osi ng of a

35bankruptcy case wi thout the di stributi on of an asset, consti tutes an adopti on of

the posi ti on that the asset does not exi st.” Edwards , 2018 WL 4043142, at *8. It thus found that, when the bankruptcy court ori gi nal l ydi scharged Ashmore’s debts wi thout the di stributi on of any assets on November 18, 2013, i t adopted the posi ti on that the SOX l i ti gati on di d not exi st. Upon a thorough revi ew of the record, the di stri ct court has agai n sl i ced the argument too narrowl y. The record does not tel l u s why Judge Stern di d not i nqu i re about the SOX l i ti gati on when he di scharged Ashmore’s debts; i t does, however, make cl ear that Judge Stern was ful ly aware of, and previ ousl y consi dered thoroughl y, the potenti alof the SOX l i ti gati on to generate assets for the credi tors. It i s true that under our case l aw, hi s di scharge of the debt i n 2013 coul d be read as an adopti on of the posi ti on that the l i ti g ati on di d not exi st. We do not questi on the hol di ng of Adelphia that “adopti on i n judi ci alestoppel i s usuallyful fi l l ed when the bankruptcy court confi rms a pl an pursuant to whi ch credi tors rel ease thei r cl ai ms agai nst the debtor.” 748 F.3d at 118 (i nternal quotati o n marks and al terati o ns omi tted; emphasi s added). But gi ven the meanderi ng course of thi s bankruptcy under the i nconsi stent acti ons of Edwards, the trustee, thi s i s not the usual bankruptcy case. At a mi ni mum, from the ti me

36that the bankruptcy acti on was reopened i n March 2016, “for the l i mi ted purpose

of admini steri ng the Sarbanes Oxl ey Li ti gati o n,” J.A. 904, there can be no credi bl e argument that the bankruptcy court had adopted such a posi ti on. Thus, when l ooked at as a whol e, i n l i ght of the bankruptcy court’s cl ear understandi ng in July 2013 that the l i ti gati on exi sted (despi te i ts wi l l i ngness l ater to di scharge Ashmore’s debts), as wel las i ts totalcl ari ty as to the potenti alval ue of the l i ti gati on upon Edwards’s moti on to reopen, we cannot say that the bankruptcy court adopted a posi ti on that the SOX l i ti g ati on di d not exi st. We therefore concl ude that the di stri ct court’s anal ysi s of the adopti on questi on was

erroneous. 3. Unfair Advantage/Detriment We often requi re  ̄ i n addi ti on to the two requi rements above

 ̄ that the “party seeki ng to assert an i nconsi stent posi ti o n woul d deri v e an unfai r advantage or i mpose an unfai r detri ment on the opposi ng party i f not estopped.” New Hampshire, 5 3 2 U.S. at 751

. However, “[w]e have been parti cu l arl y apt to overl ook the general requ i rement that a party seeki ng estoppel have suffered prejudi ce where . . . the party to be estopped fai l ed to make the proper di scl o sures duri ng bankruptcy,” Clark , 886 F.3d at 267, and have i nstead justi fi ed

37the i mposi ti on of judi ci a lestoppel i n part on any unfai r advantage the estopped

party may have gai ned over “former credi tors, who had a ri ght to consi der the [undi scl osed] cl a i ms duri ng the bankruptcy proceedi ng,” B PP, 859 F.3d at 194. The di stri ct court consi dered thi s factor and concl uded that “Ashmore deri ved an unfai r advantage from hi s fai l u re to di scl ose thi s acti on as an asset to the Bankruptcy C o urt.” Edwards , 2018 WL 4043142, at *9. That concl usi on, too, i s erroneous, as the argument that Ashmore gai ned any advantage at the expense of hi s credi tors i s theoreti cal and specul ati ve. Al though Ashmore was i ni ti al l y di scharged of hi s debts i n September 2013, the Letter Agreement provi ded that he woul d consent to reopen the case i f he succeeded i n the SOX l i ti g ati on. And i n any event, the bankruptcy was l ater reopened and the credi tors were advi sed of the l i ti gati on and i nvi ted to submi t proofs of cl ai m against the estate. Though i t recogni zed these facts, the di stri ct court anal yzed Ashmore’s potenti alunfai r advantage over hi s credi tors by compari ng the ori gi nalamount owed at the ti me of the 2013 fi l i ng (over $290,000) wi th the roughl y$50,000 i n cl a i ms that were fi l ed upon the reopeni ng of hi s bankruptcy acti on. It thus inferred that Ashmore was abl e to save nearl y $240,000

38through hi s al l eged attempts to conceal the acti on from the credi tors. We cannot

agree. As an i ni ti al matter, and as the di stri ct court referenced i n a footnote, of the $293,784 Ashmore ori g i nal l y l i sted on hi s Schedul e F, $135,878 was for nondi schargeabl e student l oans. Accordi ngl y, the di scharge di d not affect Ashmore’s l i abi l i ty for that amount. Roughly $93,000 of the ori gi nalamount l i sted represented debts owed to hi s wi fe and wi fe’s attorney as part of a di vorce proceedi ng. 10Ashmore l ater represented to the di stri ct court that “in May 2015, [he] reached an agreement wi th hi s former wi fe that resol ve[d] the economi c and other cl ai ms between them, i ncl udi ng her cl ai ms i n bankruptcy.” 1:11-cv-08611- AT (S.D.N.Y.), EC F No. 179, n.7. C GI offers no evi dence or anal ysi s to di scredi t that representati on. Of the remai ni ng roughl y $65,000 that Ashmore owed to credi t ors, cl ai ms were fi l ed i n the amount of $50,356.88. To concl u d e that Ashmore was unfai rl y advantaged because no cl ai ms were fi l ed for the other roughl y $15,000 i s to

10 More speci fi cal l y, Ashmore’s Schedul e F l i sts the fol l owi ng potenti alcl ai ms: $49,530 to Ashmore’s ex-wi fe as part of a di vorce judgment; $30,000 for Ashmore’s ex-wi fe’s l egalfees; $12,046 for Ashmore’s share of a court-appoi nted attorney for hi s chi l dren duri ng the di vorce; and $1634 to a “charged off account duri ng di vorce due to ex-wi fe charges.” J.A. 104

S 05. Thi s total s $93,210.00. 39engage i n an undul y specul ati ve enterpri se. Many of the cl ai ms were for as l i ttl e

as $125 or $1000. There i s substanti aluncertai nty as to whether the credi tors who chose not to fi l e a proof of cl ai mi n 2016 after bei ng advi sed of the potenti alval ue of the whi stl ebl ower sui t mighthave found i tworthwhi l e to do so i n 2013 had they known about the same sui t then. Our precedents, A delphia and BPP, deal wi th numbers at a compl etel y di fferent scal e. Moreover, they deal wi th si tuati ons where the l i ti gati on was never di scl o sed. Here, every credi tor was noti fi ed i n 2016 of the opportuni ty to fi l e a cl ai m in l i ght of a potenti al l y val uabl e SOX l i ti g ati on. The reasons i ndi vi dualcredi tors fi l ed or di d not fi l e are presumabl y vari ous; there i s no evi d ence, however, that any of them were di sadvantaged by anythi ng that happened i n ei ther proceedi ng. Moreover, C GI has fai l ed to demonstrate that i t has been unfai rl y di sadvantaged by Ashmore’s acti ons. 11 Whi l e we have no occasi on to address the

11 We fi nd no meri t in C G I ’s argument, on appeal, that i t was di sadvantaged because of “Ashmore’s l ack of standi ng and hi s conti nued attempts to regai n control of thi s l i ti gati on.” Appel l ee Br. 53

S54. The parti es on both si des have taken strategi c approaches that generated costs for the other si de, as i s the case i n al ll i ti gati on. That cannot be what we mean when we di scuss an “unfai r detri ment” that woul d l ead to judi c i alestoppel . Whether Ashmore or Edwards control l ed the l i ti g ati on, the pl ai nti ff’s posi ti on i n that l i ti g ati on was adverse to C GI, both had an interest i n wi nni ng a substanti alaward at C GI’s expense, and C GI’s chances of prevai l i ng on the SOX cl ai m were unaffected. 40meri ts of Ashmore’s underl yi ng sui t, i t does not escape our noti ce that C GI was

deni ed summary judgment on Ashmore’s SOX cl ai m . To estop Ashmore from pursui ng a non-fri v ol ous cl ai m based on a specul ati ve and hypotheti cal unfai rness to the credi tors who chose not to fi l e a cl ai m even after bei ng advi sed that the estate had assets after al l, and thus to termi nate a potenti al l y meri tori ous sui t , does not comport wi th judi ci al estoppel ’s proper rol e. Indeed, i tri sks “do[i ng] i nequi ty i n the name of equ i ty.” Clark , 886 F.3d at 266 (i nternalquotati on marks omi tted).

4. Impact on Judicial Integrity Fi nal l y, “because [judi c i alestoppel ] i s pri mari l y concerned wi th protecti ng the judi ci alprocess, rel i ef i s granted onl y when the ri sk of i nconsi stent resul ts wi th i ts i mpact on judi ci al i ntegri ty i s certai n.” A delphia, 748 F.3d at 116 (al terati ons and i nternalquotati on marks omi tted). The di stri ct court here concl uded that i nvoki ng judi ci alestoppel was necessary to protect judi ci al i ntegri ty, hol di ng that to “[a]l l ow[] a debtor to engage i n such conduct ‘woul d onl y di mini sh [hi s] i ncenti ve to provi d e a true and compl ete di scl o sure of [hi s] assets to the bankruptcy courts . ’” Edwards , 2018

41WL 4043142, at *9, qu oti ng Azuike v. BNY Mellon , 962 F. Supp. 2d 591, 599

(S.D.N.Y. 2013). We di sagree that judi ci ali ntegri ty requ i res di smi ssalhere. Both the bankruptcy court and Edwards made a seri es of strategi c deci si ons i n an attempt to best preserve the SOX l i ti gati on as a potenti a lasset for Ashmore’s credi tors, concl udi ng i n an offi ci alsettl ement whereby Ashmore pai d the cl ai ms of al l credi tors who sought rel i ef, 12and Edwards offi ci al l y abandoned the l i ti gati on to hi m. To now find that Ashmore conceal ed the acti on from that same court woul d undermi ne the years of heari ngs and moti ons on exactl ythi s i ssue. In Azuike, the di stri c t court case from whi ch the opi ni on bel ow quotes, the facts tel l a di fferent story. There, the pl ai nti ff, who was represented by counsel at the ti me of hi s bankruptcy fi l i ng, fai l ed to l i st hi s EEOC c l ai m on eitherhi s SOFA

orhi s Schedul e B, an omi ssi on that was not remedi ed at any timepri or to the cl o si ng of hi s bankruptcy case. Id. at 594. He reopened hi s bankruptcy case and di scl o sed the acti on to the trustee and bankruptcy court onlywhen hi s adversary

12 The Department of Educati on fi l ed a proof of cl ai m for the enti re bal a nce due and owi ng on Ashmore’s student l oans; however, the bankruptcy court determi ned on June 29, 2016, that the student l oans, on whi ch Ashmore was not i n defaul t, were nondi schargeabl e under the Bankruptcy C ode. 42i n di stri c t court chal l enged hi s standi ng. Id. at 596. Here, pl ai nti ff fi l ed pro se, did

di scl o se the acti o n i n hi s i ni ti alfi l i ngs, d id di scl ose i n consi derabl e detai lto both Edwards and the bankruptcy court the nature of the SOX acti on, and even sought to wi thdraw hi s peti ti on rather than seek a di scharge, l ong before the bankruptcy court deci ded to grant a (l ater revoked) di scharge. Thus, the concerns for judi ci ali ntegri ty ci t ed by the di stri ct court, based on a case i n whi ch a pendi ng cl ai m was never di scl osed to the bankruptcy court, are consi derabl y l ess wei ghty under the di sti nct factualci rcumstances presented by thi s case. D. Previous Cases Our concl usi on i s strengthened by cri ti cal di sti ncti o ns between thi s case and the other bankruptcy cases i n whi ch thi s court has approved the use of judi ci alestoppel

. The most sal i ent di sti ncti on i s that i n each other case i n whi ch we have had the opportuni ty to consi der nondi scl osure of a l awsui t in a bankruptcy proceedi ng, the l awsui t has been fully nondisclosed

 ̄ that i s, the acti o n was menti oned nei ther on the Schedul e B nor on the SOFA, nor at the meeti ng of credi tors, nor at any poi nt i n the bankruptcy proceedi ngs. That was the case both

43i n BPP, where the pl ai nti ff at no poi nt i n the bankruptcy proceedi ngs di scl osed

any potenti alcl ai m rel ating to LIBOR mani pul ati on, 859 F.3d at 192, and i n Adelphia, where the pl a i nti ff at no ti me duri ng i ts bankruptcy proceedi ngs cl a i med ownershi p of the account i n questi on, 748 F.3d at 118. It was true even i n Clark , i n whi ch we found judi c i alestoppel wrongl yi nvoked despi te the fact that the debtor’s personal i njury l awsui t was never di scl osed to the bankruptcy court. 886 F.3d at 268. Two of our si ster ci rcui ts have deal t wi th more anal ogous ci rcumstances, i n whi ch pendi ng l i ti g ati on was oral l y di scl osed to the trustee, but not i ncl uded on the wri tten bankruptcy fi l i ngs. In Spaine v. Community Contacts, Inc. , 756 F.3d 542 (7th C i r. 2014), the pl ai nti ff, a pro sebankruptcy fi l er, fai l ed to l i st a pendi ng empl oyment di scri minati o n cl ai m on ei ther her Schedul e B or her SOFA, id. at 544. She had, however, “tol d the bankruptcy trustee about her l awsui t,” and cl a i med i n an affi d avi t that she had not been “tol d by the bankruptcy court of any need to amend her schedul es.” Id. at 545. The S paineC ourt, noti ng that the evi dence showed onl y “i ncompl ete schedul es that were ti mel y corrected through an oral di scl osure,” concl uded that i n order for judi ci alestoppel to appl y, the defendant woul d have needed to “show more than an i ni ti alnondi scl osure on a

44bankruptcy schedul e.” 13 I d. at 547

S48. It then went on to state that “Spai ne’s credi tors were not and coul d not have been i njured by i ncompl ete C hapter 7 schedul es that were oral l y corrected before Spai ne recei ved a di scharge,” and contrasted the case to others i n whi ch “debtors engaged i n affi rmati ve mi srepresentati ons,” i ncl udi ng those who deni ed thei r pendi ng l a wsui t s when asked di rectl y by the trustee. Id. It hel d that where, i n contrast, the evi dence was “l i mi ted to an omi ssi on fol l owed by a truthfuloraldi scl osure,” judi ci alestoppel was no l onger the proper remedy. Id. at 548. The D.C . C i rcui t reached a contrary resul t in Marshall v. Honeywell Technology Systems Inc. , 828 F.3d 923, 925 (D.C . C i r. 2016). There, too, pl ai nti ff fai l ed to di scl o se an empl oyment di scri m i nati on sui ton e itherher SOFA orher Schedul e B, but di d make an oraldi scl osure. Id. The court there found judi ci al estoppel appropri ate, concl udi ng, i n contrast to the Seventh C i rcui t, that “oral di scl o sure to the trustee di d not consti tute noti ce to her credi tors and coul d not correct the fal se i nformati on she conveyed on her schedul es.” Id. a t 930. Its convi cti on that judi ci al estoppel was appropri a te was strengthened by the facts of

13 The C ourt di d note that i twoul d have reached a di fferent resul t “[i ]f there were undi sputed evi dence that Spai ne i ntenti onal l y conceal ed her cl ai m .” Spaine, 756 F.3d at 548. 45that case i n whi ch the debtor had l i sted some, but not a ll, of her admi ni strati ve

proceedi ngs. Id. at 931. Thi s l ed the Marshall C ourt to the concl usi on that her omi ssi on was not l i kel y the product merel y of i nadvertence or mi stake. Id. at 931

S3 2

. We concl ude that the ci rcumstances here are more l i ke those i n Spaine, and, l i ke the Seventh C i rcui t, we fi nd judi ci a lestoppel i nappropri a te. Indeed, Ashmore was i n some ways moreforthcomi ng than Spai ne: unl i ke Spai ne, Ashmore’s pendi ng l i ti gati on was l i sted i n hi s ori gi nalbankruptcy fi l i ngs. We therefore thi nk that Ashmore’s arguments agai nst judi ci alestoppel are stronger than Spai ne’s were and, as noted above, we do not thi nk the record supports a fi nding that there was “undi sputed evi dence that [Ashmore] i ntenti onal l y conceal ed [hi s] cl ai m .” Spaine, 756 F.3d at 548. We do not di scount or deprecate the fai l ure to accuratel y l i st a debtor’s assets. On the contrary, we recogni ze agai n today that ful ldi scl osure by debtors i s essenti alto the proper functi oni ng of the bankruptcy system and that, therefore, judi c i al estoppel i s an appropri ate remedy for those who pl ay “fast and l oose” wi th the di scl osure requi rements. But we bal a nce that concern agai nst our convi cti on that the “exact cri teri a for i nvoking judi ci alestoppel wi l lvary based

46on ‘speci fi c factualcontexts,’ and that ‘courts have uni forml y recogni zed that i ts

purpose i s to protect the i ntegri ty of the judi ci alprocess by prohi bi ti ng parti es from del iberatel y changi ng posi ti ons accordi ng to the exi genci es of the moment.’” Adelphia, 748 F.3d at 116, quoting New Hampshire, 532 U.S. at 749

S51. We further reaffi rm that “judi ci alestoppel i s not a mechani cal rul e.” Clark , 886 F.3d at 266. We therefore hol d that where, as here, a pro sedebtor has l i sted hi s pendi ng l i ti gati on on the SOFA, rather than the Schedul e B as i t was consti tuted at the ti me of Ashmore’s fi l i ng, and then di scl osed i t to the trustee and the bankruptcy court pri or to di scharge of hi s debt, and the trustee and the bankruptcy court were on suffi ci ent noti c e to take steps to protect the credi tors’ i nterests, the debtor i s not estopped from pursui ng that l i ti gati o n by vi rtue of the doctri ne of judi ci alestoppel

. 14For estoppel to appl y, there must be greater i ndi ci a than presented here of an i ntent to decei ve the court for the debtor’s benefi t. 15

14 We express no vi ew as to whether di fferent i nferences woul d be warranted i f a peti ti oner fai l ed to l i st a l awsui t on the present Schedul e B form, whi ch expl i ci tl y asks for i nformati on about l egalcl ai ms. 15 We note that i n the past we have referenced a “good fai th” excepti on to the doctri ne of judi ci alestoppel

. See Simon v. Safelite Glass Corp. , 128 F.3d 68, 73 (2d C i r. 1997). We have rarel y i nvoked thi s excepti on, or expl ored i ts l i mi ts, and need not do so today, as we fi nd that the affi rmati ve requ i rements for judi ci alestoppel 47III. Abandonment under Section 554(c)

Ashmore al so appeal s the May 9, 2016, Order of the di stri ct court i n whi ch i t found that he was wi thout standing to pursue the SOX acti on, the acti on never havi ng been properl yabandoned to hi m by Edwards. He argues that hi s oral di scl o sure and di scl osure on the SOFA i s adequate for the purposes of the § 521(a)(1) “schedul i ng” that i s requ i red by § 554(c). That Order, however, i s moot. Si nce i t was i ssued, Edwards has unqu esti onabl y effected a successful abandonment of the l i ti gati on under § 554(a). There i s thus no remai ni ng questi on as to Ashmore’s standi ng. We therefore l eave for another day the questi on of whether an asset di scl osed to the bankruptcy court oral ly and on a SOFA, but not on a Schedul e B, i s abandoned to the debtor. 16

were not met.

16 We note that i n Ayazi v. New York City Board of Education , 315 F. App’x 313, 315 (2d C i r. 2009), a panelof thi s court found, by summary order, that such ci rcumstances woul d n otl ead to abandonment by operati on of l aw, emphasi zi ng that the “stri ct formal i ti es surroundi ng abandonment exi st for the protecti on of the credi tors.” 48IV. Contract Claims

Ashmore al so appeal s the grant of summary judgment to C GI on hi s contract cl ai ms, argui ng that materi alquesti ons of fact remai n as to whether C GI deni ed hi m a bonus to whi ch he was contractual l y enti tl ed. Ashmore’s offer l etter states as fol l o ws: You wi l lbe el i gibl e to be a parti c i pant i n the C G I-Profi t Parti c i pati on Program. Through thi s program, you can earn an annual bonus based on the achi evement of certai n fi nanci alresul ts, cl i ent sati sfacti on, member sati sfacti on and other measures ti ed to your performance. Thi s program i s dependent upon the success of the company, your busi ness uni t and your own performance. J.A. 295. Ashmore al l eges that C GI breached the terms of the offer l etter by fai l i ng to provi de hi m a bonus under thi s program. He argues that materi alquesti ons of fact remai n as to hi s el i gibi l i ty for a bonus. We di sagree. Fi rst, by i ts very terms, the bonus i s di screti onary, and dependent on several f actors, i ncl udi ng both Ashmore’s and the company’s performance. Second, evi dence was presented that i t was the cl earl y-stated pol i cy of Ashmore’s group to offer a bonus onl y after an empl oyee had worked for at l east

49si x months and was sti l lempl o yed at the end of the fi scal year. 1 7 Ashmore

presented no evi dence to the contrary. In thi s case, Ashmore began work i n May 2009. Havi ng not worked for C GI for 6 months by the cl o se of that fi scalyear  ̄September 30, 2009

 ̄he was not el i g ibl e for a bonus at that ti me. Whi l e Ashmore worked for more than si x months i n the 2009

S2010 fi scalyear, he was fi red before the end of the fi scalyear, and thus he was not el i gibl e for a bonus that year. Al though Ashmore argues that the offer l etter requi res hi m to recei ve a bonus, he poi nts to no evi dence supporti ng that i nterpretati on. We thus fi nd that there i s no materi al questi on of fact as to whether C GI breached the terms of the offer l etter, and affi rm the di stri ct court’s grant of summary judgment on Ashmore’s contract cl ai ms. V. Judicial Reassignment Fi nal l y, Ashmore requests reassi gnment to a new judge, argui ng that hi s case “deserves a fresh l ook by a di fferent pai r of eyes,” ci ti ng Armstrong v. Guccione, 470 F.3d 89, 113 (2d C i r. 2006). He states wi thout support that Judge

17 On December 14, 2009, Ashmore’s supervi sor, Marybeth C arragher, sent the fol l owi ng emai l : “It has al ways been our pol i cy . . . not to gi ve [bonuses to] those members on board l ess than 6 months of the [fi scalyear].” J.A. 304. 50Torres has “shown . . . ani mus to Ashmore,” such that “her i mparti al i ty mi ght

reasonabl y be questi oned.” Appel l ant Br. 68. We di sagree. The premi se of Ashmore’s request i s that reassi gnment i s needed because the “facts mi ght reasonabl y cause an objecti ve observer to questi on the judge’s i mparti al i ty.” Spiegel v. Schulmann , 604 F.3d 72, 83 (2d C i r. 2010). But Ashmore has not poi nted to any such facts, nor coul d he on the record before us. Whi l e Judge Torres found that Ashmore had engaged i n decepti ve conduct, absol utel y nothi ng in the record suggests that her judgment was affected by i mparti al i ty or ani mus. We therefore deny Ashmore’s req uest for reassi gnment. CONCL USION For the foregoi ng reasons, we VAC ATE the judgment of the di stri ct court i nsofar as i t appl i es ei ther judi c i al estoppel or l ack of standi ng to di smi ss Ashmore’s cl ai ms under the Sarbanes-Oxl ey Act, AFFIRM the judgment di smi ssi ng hi s breach of contract cl ai m, and remand for further proceedi ngs before Judge Torres consi stent wi th thi s opi ni on.

51