Alternative Suspect(s)

Question 1

Borealis Industries v. Ellen Nora Hobbs (2001)

Answer 1

Plaintiff sued defendant for computer fraud, claiming that she initiated a malware attack that
ultimately resulted in the loss of millions of dollars. At trial, defendant argued that she was not
liable because someone else conducted the malware attack. Plaintiff argues that defendant should
have been precluded from raising an alternative suspect argument because defendant did not plead
any affirmative defenses. Held: Defendant does not need to plead an affirmative defense to argue
an alternative suspect theory. Defenses and affirmative defenses are different. Whereas affirmative
defenses involve admitting the acts in question but claiming a legal justification for those acts,
pure defenses deny committing the acts entirely. An alternative suspect theory is a pure defense,
not an affirmative defense. As a consequence, defendant is free to argue an alternative suspect
theory when disputing a claim without needing to raise an affirmative defense.