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Edward C. Hopkins Jr.

Edward Hopkins’s Answers

186 total


  • Libel question

    I am unhappy with a business/person. To be perfectly honest with you "I GOT SCREWED" Moreover, there is nothing I can do about it. I was thinking of having a wrap (it's like paint job) put on my truck. I have already checked on the wrap,...

    Edward’s Answer

    BEFORE YOU BUY THE WRAP, CONSIDER OTHER REASONABLE COURSES OF ACTION

    If the business person violated your legal rights and those violations cost you money, give the business or person an opportunity to make it right. Ask for a refund or a discount.

    If you already asked and your request was denied, consider filing a civil lawsuit against the business or person to recover your damages. If you file the lawsuit in small claims court, the legal costs you will incur will probably be less than the cost of buying the wrap. This approach will give the business or person a fair chance to tell their side of the story and will give a neutral judge a chance to decide whether the business or person owes you money.

    You could also file a complaint with the Arizona Attorney General Consumer Protection Office (https://www.azag.gov/consumer/home) if you believe a business defrauded you or engaged in deceptive business practices. If your goal is to protect the public, filing a complaint with the Attorney General is probably the best thing you could do.

    DEFAMATORY OPINION VERSUS FACT

    If the options I described above do not seem reasonable to you and you are convinced the most reasonable thing to do is to purchase a wrap that states "[Business or Person] screwed me" and drive around town with it on your truck, before you buy the wrap, check to make sure your automobile insurance policy, homeowner’s insurance policy, or renter’s insurance policy will cover your defense costs if you are sued.

    Driving around with that wrap on your truck will expose you to defamation and injurious falsehood (aka trade libel or business disparagement) claims. You might also expose yourself to false light invasion of privacy, intentional interference with economic prospects, or intentional infliction of emotional distress claims.

    The statement "[Business or Person] screwed me" is not necessarily an opinion because it could entail an assertion of fact. Reasonable people could interpret the statement to mean that [Business or Person] cheated you, stole from you, deceived you, or defrauded you. Those are statements that may be proved true or false. So the statement "[Business or Person] screwed me" could give rise to actionable defamation and injurious falsehood claims.

    If you were sued for driving around with the wrap on your truck, you could argue the statement was your constitutionally-protected opinion. But a good defamation lawyer would be able to explain why that statement is capable of being proved true or false and is therefore not an opinion. A good judge who wanted to properly apply Arizona law would let a jury decide. Such a ruling would allow the person or business who sued you to proceed towards a jury trial.

    Read Arizona’s Defamation Jury Instructions, paying close attention to Defamation 4C “Fact versus Opinion,” before you decide whether to buy the wrap and drive it around town. You may download a copy of the instructions at the following web address:

    http://www.azbar.org/media/1032517/defamation2015.pdf

    See question 
  • Is a person allowed to forward my personal emails to their company emails address external third parties?

    I have sent some personal emails to a company email address a person regarding a personal situation that we are both involved . They in turn have forwarded these emails from their work email address to external third parties, editing the emails, i...

    Edward’s Answer

    Unless the person who forwarded the emails unambiguously told you beforehand that he would treat all your private email communications as if they were confidential, you probably do not have a viable claim arising merely from his disclosure of unedited emails to others without your consent. If he did make a promise to keep your emails confidential and you relied on that promise, then you could have viable claims for BREACH OF CONFIDENTIALITY.
    You could have viable claims for INVASION OF PRIVACY BY APPROPRIATION arising from the emails he had edited before he disclosed them to third parties. If he edited the emails so that they appeared to be unedited to their readers and the edited versions conveyed very different meanings than the originals, then it is more likely you have a viable invasion of privacy by appropriation claim.
    You could have viable claims for DEFAMATION if he wrote false and derogatory statements about you and sent them to others or if he edited your emails so as to transform their meaning. If the false statements or implications he published about you to third parties concerned your business or profession, you could also have viable claims for INJURIOUS FALSEHOOD (aka trade libel or business disparagement).
    If he owns or works for a company that competes against a company you own, and he published false and derogatory statements about your company to potential clients or costumers so those potential clients or customers would use his company instead of yours, you could have viable claims for violations of the COLORADO CONSUMER PROTECTION ACT or the LANHAM ACT.
    If he blackmailed or extorted you before he sent the emails and he sent the emails to pressure you into giving him something of value, having sex with him, or doing something you had no legal obligation to do, then you might have viable claims for violations of the COLORADO ORGANIZED CRIME CONTROL ACT.
    You could have a viable claim for INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. Reasonable people would have to consider his conduct extreme and outrageous for you to have a viable intentional infliction of emotional distress claim.
    If one of the purposes of his sending the statements to others was to get you fired or prevent people from conducting business with you and you lost income, profits, or business opportunities as a result, you could have a viable claim for INTENTIONAL INTERFERENCE with contracts or economic prospects. If his company prohibits using its company information systems for personal use, his willful violation of that policy to cause you reputational or economic harm could be evidence to support an intentional interference with contracts or economic prospects. If his company knew he was sending defamatory emails about you using its information systems, you could have a viable NEGLIGENT SUPERVISION claim against the company.
    Anyone who helped or encouraged him to engage in the misconduct you described might be at risk of being held liable for AIDING AND ABETTING his tortious conduct.
    You will need to consult with a lawyer to get a complete analysis of your potential claims. The attorney should be able to explain all the defenses the person who did this to you could assert if you filed a lawsuit against him and explain how your evidence would or would not enable you to defeat those defenses. The attorney should also be able to explain all your pre-litigation and litigation options and advise you on which actions, if any, you should take.

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  • What can be considered a public event? Problem: illegal recordings

    Good Afternoon, My concern is related to a reverend's actions. He secretly recorded the conversation of a dance group that was rehearsing in the building annexed to the church. (He wanted to find out how people think and talk about him and his ...

    Edward’s Answer

    • Selected as best answer

    The dance rehearsal was probably not a public event.

    If the dance rehearsal took place on private church property and the general public was not invited or allowed to attend it, it was probably not a public event. If the people who attended the rehearsal believed their conversations were private and had reasonable expectations of privacy while they were talking with one another on church property, then the reverend could have violated the Federal Wiretap Act (18 U.S.C. § 2511) and the Arizona Wiretap Act (A.R.S. § 13-3005). If the reverend violated the either act by recording the group's conversation without the knowledge or permission of any of the group's members, then the reverend could be held civilly liable to each member of the group. If found liable, the reverend could be ordered to pay at least $10,000 in statutory damages to each member of the group who was secretly recorded. See 18 U.S.C. § 2520 and A.R.S. § 12-731.

    Any member of the group whose voice was recorded without permission or knowledge that wants to take legal action against the reverend should schedule a consultation with a privacy attorney who had experience litigating civil wiretap claims. It would also be helpful if that attorney has experience litigating matters for or against churches or their ministerial leaders. Churches and ministerial leaders can assert special First Amendment privileges if church members bring actions against them.

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  • Can I sue my wife's lawyer if he slandered me on the record in court, while arguing with the judge?

    Is it possible to sue my, soon to be, ex wife's lawyer if he slandered me on the record during the final orders hearing of my divorce? He did it twice when he lost his temper while arguing with the judge. Should be easy to prove with court transcr...

    Edward’s Answer

    No.

    In Buckhannon v. U.S. West Communications. Inc., 928 P.2d 1331 (Colo. App. 1996), the Colorado Court of Appeals held that statements made by an attorney in the course of litigation are absolutely privileged. You may read the case at the following Google Scholar web page:

    https://scholar.google.com/scholar_case?case=3766253427995943716

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  • Can I be sued for defamation if I did not write the online review?

    Can a business sue me for an online review my roommate wrote about the company? I hired a general contractor who was a nightmare to work with. I fired him and my roommate wrote about HIS experience. The business owner threatened to sue ME for defa...

    Edward’s Answer

    Your roommate and you should schedule a consultation with an Arizona attorney who has experience litigating Internet defamation, injurious falsehood, false light invasion of privacy, and intentional interference cases in Arizona's state and federal courts. An experienced defamation lawyer will need to learn few more facts to analyze your risks accurately. If you cannot afford to pay a defamation attorney for a consultation, you should read Arizona's civil jury instructions for defamation trials. You can view the instructions at the following website:

    http://www.azbar.org/media/1032517/defamation2015.pdf

    In Arizona, a statement can be defamatory whether or not it is true. Arizona's civil jury instruction for the definition of a defamatory statement states:

    "A statement is defamatory if it tends to bring [Name of Plaintiff] into disrepute, contempt or ridicule, or to impeach [Name of Plaintiff]’s honesty, integrity, virtue, or reputation. The defamatory nature of the statement is determined by the natural and probable effect a reading of the entire [statement, publication, or broadcast] in context would have on the mind of the average [reader or hearer]." RAJI (CIVIL) 5th Defamation 2.

    Some defamation claims do not require the plaintiff to prove the defamatory statement was false. They instead require the defendant to assert the truth defense and prove the statement was true to defeat the defamation claim. See Use Note for RAJI (CIVIL) 5th Defamation 1B; see also RAJI (CIVIL) 5th Defamation 3 and 4B.

    For reasons Mr. L. McDowell wrote about in his answer to your question, the business owner could have legal grounds to hold both you and your roommate liable for defamation, injurious falsehood (aka trade libel or business disparagement), false light invasion of privacy, or intentional interference. If there is evidence you helped or encouraged your roommate to write the defamatory review, the business owner could rely on the aiding and abetting or conspiracy theories to hold both you and your roommate liable for the harm the defamatory review caused.

    If you owned the computer or paid for the Internet access service through which your roommate published the defamation, and you knew your roommate would use those resources to publish the defamatory review, those facts could give rise to a negligence claim against you.

    If publishing the review violated the terms of service for the website through which the review was published, the business owner could rely on evidence of that violation to help prove an intentional interference claim without having to prove a defamation, injurious falsehood, or false light invasion of privacy claim.

    Whether the substantial truth defense could protect you and your roommate against liability will depend on how reasonable people could interpret the meaning of what your roommate wrote and whether any reasonable interpretation of what your roommate wrote could be interpreted as a provably false and defamatory statement. See RAJI (CIVIL) 5th Defamation 4C.

    Depending on which website your roommate published the defamatory review, the value of the business owner's damages could range from a few thousand dollars to at least hundreds of thousands. The clean-up costs for Internet defamation could be monstrous if the defamation was published

    (1) on a website whose content is routinely republished by third parties,
    (2) on a website that does not allow its users to delete their defamatory reviews, or
    (3) on a social media website that allows its users to easily like or republish other users' statements.

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  • Is recording phone conversations without any party consent illegal in Arizona? Do I have a case to go to court?

    I just found out my ex-husband has been recording our phone conversations (my sons' and my phone calls) for a couple of months now, through my 10 year old son's cell phone using an app. Without neither of our consent nor us knowing about it. Fina...

    Edward’s Answer

    The facts you describe indicate your ex-husband illegally wiretapped or eavesdropped on phone calls. This conduct violated A.R.S. § 13-3005 "Interception of wire, electronic and oral communications." It states:

    “A. Except as provided in this section and section 13-3012, a person is guilty of a class 5 felony who either:

    1. Intentionally intercepts a wire or electronic communication to which he is not a party, or aids, authorizes, employs, procures or permits another to so do, without the consent of either a sender or receiver thereof.

    2. Intentionally intercepts a conversation or discussion at which he is not present, or aids, authorizes, employs, procures or permits another to so do, without the consent of a party to such conversation or discussion.

    3. Intentionally intercepts the deliberations of a jury or aids, authorizes, employs, procures or permits another to so do.

    B. Except as provided in sections 13-3012 and 13-3017, a person who intentionally and without lawful authority installs or uses a pen register or trap and trace device on the telephone lines or communications facilities of another person which are utilized for wire or electronic communication is guilty of a class 6 felony.”

    Violations of this statute may be prosecuted as criminal or civil actions or both. Wiretapping or eavesdropping victims may have private causes of action under A.R.S. § 12-731 "Recovery of civil damages." It states:

    “A. Except as provided in title 13, chapter 30, any person whose wire, oral or electronic communication is intentionally intercepted, disclosed or used in violation of title 13, chapter 30 may bring a civil action to recover from the person or entity that engaged in the violation the following:

    1. Such preliminary and other equitable or declaratory relief as may be appropriate.

    2. Damages in an amount that is the greater of either:

    (a) The sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation.

    (b) Statutory damages of one hundred dollars a day for each day of the violation.

    (c) Statutory damages of ten thousand dollars.

    3. Punitive damages in appropriate cases.

    4. Reasonable attorney fees and other reasonable costs of litigation.

    B. A civil action under this section may not be commenced later than one year after the date upon which the plaintiff first has a reasonable opportunity to discover the violation.”

    VICARIOUS CONSENT

    Any Arizona parent who files a claim under A.R.S. § 12-731 for damages he or she suffered due to another parent's secret recording of a conversation with the parents’ child, should expect the parent who made the recording to assert the "vicarious consent" defense. A parent asserting this defense might cite the following case to support the argument that Arizona recognizes the vicarious consent defense: State v. Morrison, 203 Ariz. 489, 56 P.3d 63 (App. 2002). But no Arizona appellate court has adopted the vicarious consent defense as a defense to civil actions for statutory damages brought under A.R.S. § 12-731 for violations of A.R.S. § 13-3005. Until an Arizona appellate court adopts such a defense for civil actions or the Arizona Legislature changes the law to incorporate the vicarious consent defense into A.R.S. § 13-3005, every time someone secretly records or eavesdrops on a parent and his or her child talking on the phone without first obtaining consent from both of them violates A.R.S. § 13-3005.

    Under A.R.S. § 12-731, wiretapping or eavesdropping victims are entitled to a minimum of $10,000 per violation as well as their reasonable attorneys’ fees as long as they can prove each violation by a preponderance of the evidence.

    NEXT STEPS

    If you or your child live in Arizona and someone else harmed you by violating A.R.S. § 13-3005, you may report each violation to the local police. If you want to take legal action, meet with or retain an Arizona privacy lawyer who has experience litigating A.R.S. § 12-731 claims.

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  • What can be done when someone publicly defames you and your character and I have proof(written)?

    Harrassment and defamation of character by a former teammate via Internet and Facebook slander.

    Edward’s Answer

    If someone intentionally published false and derogatory statements about you via Facebook, they violated Facebook's terms of service and defamed you. Depending on the reasons why the person defamed you, the nature of the information disclosed via the defamatory statements, your relationship and history with the person who defamed you, and the extent of the emotional distress you suffered, the person who defamed might have done things that could give rise to legal claims other than defamation.

    If you and the person who defamed you live in Colorado, Colorado's defamation law will likely determine the type of defamation claims you have and the types of defenses the person who defamed you has. If the person who defamed you lives in another state, Colorado's defamation law might not apply.

    In Colorado, there is a one-year statute of limitations for defamation claims. Generally, you must sue someone for defamation no later than one year after the defamation was published via the Internet.

    If you have suffered enough harm to justify the expense of obtaining legal advice, having a defamation lawyer write a letter for you, or suing the person who defamed you, then you should schedule an appointment with an attorney who has litigated Internet defamation claims. That attorney will be able to

    - review your evidence,
    - explain the law,
    - explain whether Colorado's law or another's state's law will apply to your claims,
    - explain personal jurisdiction law if necessary,
    - explain why you will not be able to hold Facebook accountable for defamatory statements someone else published,
    - help you estimate your damages,
    - explain your legal options, and
    - advise you on which course of action will most likely help you achieve your goals.

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  • I was to sue my ex-wife for making false statement to the AZ medical board and to the Vancouver police department in Canada.

    I continue to deal with an ex-wife and her attempts to ruin my personal and professional relationship. I divorced her and the decree went through in March/Aril 2015. Our assets have been dividing and she no longer receives spousal maintenance. ...

    Edward’s Answer

    Well-briefed trial court judges in Maricopa Superior Court would likely rule the defamatory statements your ex-wife published to the AZ Medical Board were matters of public concern or were subject to a qualified privilege. Therefore, were you to sue her for the damages arising from the harm those statements caused, you would likely have to prove by clear and convincing evidence: "At the time the statement was made, said, or written, [Name of Defendant] knew that the statement was false or acted in reckless disregard of whether the statement was true or false." See REVISED ARIZONA JURY INSTRUCTIONS (CIVIL), 5TH, Defamation 1A and 4A (http://www.azbar.org/media/1032517/defamation2015.pdf).

    If you call or meet with an attorney to discuss your options, ask him or her to analyze whether you have evidence that would support bringing an abuse of process claim.

    Also ask if you have enough evidence to prove a claim brought under the Racketeer Influenced and Corrupt Organizations Act or the Arizona Organized Crime, Fraud and Terrorism Act. If your wife threatened to defame you and she obtained something of value from you as a direct result of the threat, she probably violated federal or state extortion laws. If she violated federal or state extortion laws as part of a scheme to obtain money or something else of value from you, you might have grounds to bring a Civil RICO action against her.

    Finally, ask the attorney you consult to explain whether personal jurisdiction laws could prevent you from litigating your claims in Arizona.

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  • CAN I SUE THE NEWS ?

    I WAS RECENTLY A VICTEM /WITNESS OF A VERY TRAUMATIC MURDER AND DISMEMBERMENT OF MY EX BOYFRIENDS BODY SEVERAL DEATH THREATS WERE MADE AGAINST ME AND I HAD TO GO INTO HIDDING DUE TO THE FACT THAT CHANNEL 7 NEWS REPORTED AND PUBLISHED MY NAME IN TH...

    Edward’s Answer

    If any of the private information the news company published about you was available in police records, then it is unlikely you will have a viable invasion of privacy claim against the news company for publishing it. But if the news company published false and derogatory statements about you that were not corroborated by a reliable source, you could have a viable defamation claim. You could also have a viable intentional infliction of emotional distress claim if there is very strong evidence the news company knew or should have known people would threaten to harm you if your name or private information were disclosed to the public at large (rather than the small percentage of people who know how to and would bother to access public records) via their mass media broadcasts or Internet publications.

    You will need to consult an experienced plaintiffs' defamation or privacy attorney to determine if you have any viable claims worth prosecuting. Bear in mind that the top news companies, thanks to their wealth or insurance policies, tend to hire the best media defense lawyers money can buy to aggressively protect them against defamation and invasion of privacy lawsuits, even the meritorious ones. These news companies also benefit from constitutional protections that were originally designed to protect brave journalists from powerful people and entities who wanted to keep the public from learning the truth. Today, those constitutional protections are more likely to serve an ignoble purpose: protecting incompetent, politically-biased, unethical, or irresponsible journalists.

    An experienced plaintiffs' defamation or privacy attorney who has litigated against the firms that protect news companies whether they are right or wrong should be able to evaluate your evidence, explain the law, and advise you about your legal options.

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  • Where to file defamation suit?

    If I live in Colorado and someone put information online and they live in California where do I sue for defamation? In what state?

    Edward’s Answer

    If you have a viable defamation claim against someone who lives in California, you may sue the person in California. Whether you have the option to sue a California resident in Colorado will depend on whether there is evidence that proves state or federal Colorado courts may exercise personal jurisdiction over the California resident. An experienced Colorado defamation attorney should be able to help you determine if you may initiate a defamation lawsuit against a California resident in a Colorado court that will survive a motion to dismiss.

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