In response to some questions from in and out of class about what satisfies STO and what is an insufficient "but-for:"
• Someone pointed out in class Wednesday that there would be discovery overlap between Kinsmann's claims and Winston's counterclaims: Whether Winston committed sexual assault goes to the merits of her battery claims and the truth of her statements for purposes of Winston's defamation counterclaim. That may suggest that courts should not entirely reject a but-for connection in defining STO. That while there is no discovery connection in Jones, there could be in other cases. For better or worse, however, courts have not gone that route--if the only connection is but-for, it is not enough. Work through the Bose problem for the same analysis.
• When we discussed joinder of plaintiffs, we said it is possible to frame what look like sequential events into a single transaction or occurrence (one big fraud scheme instead of individual acts of fraud). That might be a way to understand Clear Code's counterclaim under the new contract. At first blush we have two distinct occurrences--Clear Code makes bad code, Holmes stops paying. But we can connect them as one because of the contract and the business relationship, which links them together.
• To be clear, a but-for connection between events never satisfies STO under any rules. The question is whether you can identify and argue for a relationship that is closer than but-for.
• In thinking about but-for in joinder: Don't think of it as "but-for cause" (as you sometimes see in the legal standard for a claim, as in torts or in the discrimination claims in Section B's Essay # 1). This is a but-for relationship between real-world events (one event leads to another) that give rise to distinct claims. It's not about the governing legal standard.
• The question of whether you can "bring" unrelated claims is independent of the merits of those claims. That is, a party can join all of these claims in their pleadings, even if unrelated, when the rules allow. That has nothing to do with whether any of these claims will survive a 12(b)(6) or even be sanctionably frivolous. Our focus is entirely on what then joinder rules allow. And recall Rule 21--misjoinder of claims is not grounds for dismissal of those claims.
