When the failure to list the asset is a result of inadvertence or mistake, judicial estoppel does not prevent the plaintiff/debtor from pursuing the discrimination action. The question is how to define "inadvertence or mistake." The majority of Circuits have adopted a narrow interpretation of these terms that focuses on whether the plaintiff knew of the claims and had a motive to conceal them. Disagreeing with this narrow test, the Court held:
In these circumstances, rather than applying a presumption of deceit, judicial estoppel requires an inquiry into whether the plaintiff’s bankruptcy filing was, in fact, inadvertent or mistaken, as those terms are commonly understood. Courts must determine whether the omission occurred by accident or was made without intent to conceal. The relevant inquiry is not limited to the plaintiff’s knowledge of the pending claim and the universal motive to conceal a potential asset—though those are certainly factors. The relevant inquiry is, more broadly, the plaintiff’s subjective intent when filling out and signing the bankruptcy schedules.
Slip op. at 19. The Court remanded to the district court to determine the plaintiff/debtor's intent in completing her bankruptcy schedules.
The opinion is available here.