Rolling with the punches isn’t waiver – UPDATED

A defendant adjusted its arguments about appropriate overtime calculation in light of the trial court’s rulings; the Fifth Circuit found no invited error, waiver, or judicial estoppel. As to judicial estoppel in particular, the Court observed: “In arguing for the comparator model, Saybolt never conceded that the FWW plaintiffs were paid based on a 40-hour workweek or were owed overtime at one and one-half times the “regular rate.” There was thus no inconsistency. Nor did the district court accept Saybolt’s initial position as is required for judicial estoppel. Indeed, the court rejected the comparator model by requiring that incentive payments be included in the “regular rate” calculation. This is why Saybolt fell back on the alternative argument that, since incentive payments must be included, the FWW method should be used to calculate the plaintiffs’ damages.” Dacar v. Saybolt LP. No. 16-20751 (Oct. 18, 2018). A brief opinion on rehearing clarified the scope of the opinion.