1. Whether a prior court's denial of a preliminary motion based on a litigant's prior inconsistent position constitutes judicial acceptance of that position, as the First, Second, Seventh, Ninth, and D.C. Circuits have held, or whether it cannot constitute judicial acceptance, as the Sixth Circuit has effectively held.

2. Whether a district court's application of judicial estoppel under federal common law is properly reviewable de novo, as the Sixth Circuit held, or for abuse of discretion, as in every other circuit.

Whether a prior court's denial of a preliminary motion based on a litigant's prior inconsistent position constitutes judicial acceptance of that position