Cease and desist letters have become increasingly popular in recent years, particularly in cases of harassment. This can be attributed to a variety of reasons, including the myriad of ways in which one can intimidate, offend, antagonize, or otherwise annoy another without even being in the same state. Such actions are manifested through unwarranted phone calls, obnoxious and threatening text messages, and cyber bullying.
As such, the definition of “harassment” has become more broadly defined. In the modern legal system, many unwanted and consistent actions may be deemed as harassment. Thus, the days of harassment being viewed as wild behavior of jealous ex-boyfriends and demeaning bullies are long gone.
As a result, many have turned to legal self-help remedies such as cease and desist letters. Broadly speaking, a cease and desist letter is used to formally notify another of their unwanted activity and to stop said activity immediately. A cease and desist letter is essentially an unofficial notice requesting somebody to stop doing something, and can be extremely effective when used in the correct context. Having said that, a cease and desist letter is simply the opinion of one person who is asserting that some sort of harm is being done.
Therefore, while these letters are often used in intellectual property cases, contract disputes, and other business conflicts, they are also remarkably powerful in harassment cases and should be the first formal action taken when seeking to stop any harassing behavior. In this article we will discuss the idea of harassment and how a simple cease and desist letter can go a long way in thwarting off these offenders. Additionally, this article provides a how-to guide on writing, delivering, and enforcing cease and desist letters.
Harassment is generally defined as unwanted, unwelcome, and uninvited behavior which annoys, threatens, intimidates, alarms, or puts one in fear for his or her safety. The behavior is often offensive and has an intention to disturb, upset, or annoy the individual being subjected to the harassment.
If you are the victim of any of the following types of actions, you should consider sending a cease and desist letter.
If, after reviewing your options, you believe a cease and desist letter will be effective in stopping unwanted activity, you must begin drafting the letter. While LegalNature provides an excellent cease and desist letter template that is highly recommended, you should keep a few things in mind when filling it in.
The elements of a cease and desist letter are rather simple:
However, in reality, the substance of the cease and desist letter should contain much more. Specifically, it is advisable to use direct and actionable language that not only puts the offender “on notice,” but also incites a certain level of fear of legal repercussions. For example, attorneys love using “Govern yourself accordingly” as the closing sentence, because it puts a proverbial exclamation point on your willingness to pursue both criminal and civil action with the courts if certain actions do not stop.
Additionally, it is helpful to make sure that all legal claims are backed up by relevant case law or statutes. This not only shows your harasser that you are serious about the matter, but also that your claims are not being pulled out of thin air. Expect a heated response, especially when dealing with a case of individual harassment, as most people do not relish the idea of being threatened by legal action. In such cases, just relax and do not engage the offender in any other way. Certainly do not incite any agitation—the letter is enough by itself.
If after receiving the letter the offender refuses your request and continues the behavior, there are additional remedies available which will be discussed later in this article. But before we do so, it is very important to keep in mind that one should not draft a letter that is too aggressive and certainly not one that is offensive.
Ironically, a cease and desist letter can be defined as harassment itself (yes, you read that correctly). This is especially true if the letter contains untruths or claims of legal action which are either not feasible or so threatening as to intimidate or frighten the other party’s sense of safety and security. In short, there is a fine line to walk when constructing a cease and desist letter: it must be firm enough to get the offender’s attention while not being false or overly quarrelsome.
As mentioned above, you should send the letter certified, return receipt via U.S. mail. Additionally, you should send the letter as an email. By sending the letter certified the recipient has to sign for it. This not only forces the harasser to acknowledge the letter, but also adds an additional element of formality.
As we have discussed in harassment cases, a cease and desist letter is used to formally demand the harasser stops their behavior. However, if after sending the letter the offender continues his or her behavior, additional remedies remain at your disposal.
While most state harassment laws do not require the victim to formally request the harasser to stop, some documentation goes a long way in establishing your displeasure with the offender’s actions—hence the cease and desist letter. Therefore, after the victim has provided notification via the cease and desist letter, stronger remedies are more likely to become available, which include a cease and desist order and a restraining order.
A cease and desist order is given by a judge to order a person to stop a certain act. Therefore, one must first petition the court and make a strong argument that the alleged offender’s actions are in fact illegal—either in a criminal or civil manner. If a determination is made by the court wherein the alleged offender’s behavior constitutes a strong likelihood of harassment, a cease and desist order will be served on the other party.
Upon the issuance of a cease and desist order, the offending party will be ordered to “cease” and “desist” certain actions until a hearing is held. This formal order is legally referred to as a “temporary injunction.” The temporary injunction will remain in place until a hearing is held to determine whether or not the order shall remain in place indefinitely.
If the answer to this question is yes, the previously temporary order may turn into a “restraining order” (depending on which jurisdiction you’re in). Definitions aside, if the court finds an offender is unable or unwilling to stop the harassment, or that the harassment is particularly severe, the temporary order will become permanent.
Cases of traditional bullying and stalking are not the only times in which a cease and desist is appropriate. In fact, cease and desist letters can be used to stop debt collection, defamation, and intellectual property violations.
Let’s discuss those obnoxious and frequent communications of debt collectors. The Fair Debt Collection Practices Act (FDCPA) controls such actions, and was enacted with two main purposes in mind.
But before you hire an attorney to file suit against a debt collector, you must first request that they stop the communication. This is done by way of a cease and desist letter, the elements of which will be discussed in further detail below.
The upside of sending debt collectors a cease and desist letter is that they will stop contacting you, and if a debt collector continues the communication, you may have standing to sue for a violation of the FDCPA, which could result in a monetary award due to damages resulting from lost wages, psychological distress, and emotional distress.
Separate and in addition to these damages, the FDCPA allows the consumer to recover damages “up to $1,000” from the creditor—these types of damages are referred to as “statutory damages.” The court can award statutory damages if the consumer provides substantial evidence that the debt collector violated the FDCPA.
What’s more, as opposed to the physical and emotional distress damages, the consumer does not have to prove that the violation caused any actual harm—just that the debt collector violated the Act. However, keep in mind the $1,000 statutory damages are per individual lawsuit—not per violation. Therefore, no matter how many times the debt collector has violated the FDCPA, you still may only collect up to $1,000 (in addition to any other damages mentioned above).
However, there is a downside to sending a cease and desist letter to a creditor. While it may stop all communication, and put you in a good position to sue if they do not stop, the debt will not go away, and in cases of large debt, ignorance is certainly not bliss. Therefore, it is a “keep your enemies close” scenario so you can keep a watchful eye on your debt and your creditors. Sending a cease and desist letter also creates an adversarial relationship, when oftentimes it is best to work directly with your creditors in an effort to amicably manage your debt.
Additionally, when you force a creditor to cease communications with you, the debt collector often either sells the debt to a different collector, or pursues legal action to sue you in court to collect the debt. For this reason, sending a cease and desist letter may increase the chances that the debt collector will file suit against you to collect on the debt.
Moreover, if the creditor does files suit you must defend it like any other claim to avoid defaulting, and thus automatically losing. If this becomes the case, the court will use the various tools available to enforce payment of the debt, including wage garnishment and an order to liquidate your assets. Therefore, before you send a cease and desist letter to your creditors, make sure that you are aware of all the possible repercussions that may result.
An intellectual property violation (or “infringement”) is a serious matter and unfortunately cannot be discussed in its entirety in this article. However, there are some basic tips and rules to follow when sending a cease and desist to a potential trademark infringer that are separate from a harassment or FDCPA cease and desist letter. Therefore, assuming you or your company has a valid claim to the mark by way of registration or common law, a cease and desist letter is a great place to start if there is indeed infringement occurring.
By sending a cease and desist to the offending party you are claiming the validity of your intellectual property, and requesting immediate secession of their use of it. Upon receipt, an accused infringer may recognize its infringement, or reply with an opposing opinion as to why they are not liable for any wrongdoing. In any case, you should include enough information to alert the opposing party of their violation.
In contrast, you should not provide every detail regarding your protected material. For example, you certainly do not want to provide information that would allow the other party to modify their material so as to avoid liability. Additionally, it is highly advisable that you send the cease and desist certified mail in order to record the dates that you sent the letter and dates when the offending party received the letter. That way, you will have evidence that the other party failed to respond to your requests.
If it becomes apparent that the other party has received your cease and desist but they have not responded to it, you may have several options available to you.
However, there are downsides to sending a cease and desist, as to cease and desist or not to cease and desist is often a complicated question. While cease and desist letters are widely used as cost-effective trademark enforcement mechanisms, there are many instances where sending that letter is not the best option for your business.
One must consider other options other than sending a traditional and aggressive cease and desist letter. Such options include sending a friendly/modified cease and desist letter.
One primary concern is that by sending a cease and desist letter, you may trigger a declaratory judgment action by the accused infringer.
In a declaratory judgment lawsuit, the accused infringer requests the court for a formal decree that it is not infringing on the rights of the trademark owner. Without getting too technical, this is not good, mostly due to the fact they will likely file suit in their home state, thus gaining a “home field advantage.” Such a suit could also render a judgment that your intellectual property is not protected, when prior to this it was.
Therefore, in cases of trademark or copyright infringement, do not “jump the gun” and fire off a cease and desist. Rather, call or send a respectful letter detailing your rights and requesting the other party to reconsider their use. In fact, there are even cases of businesses offering to pay for the design of a new logo and labels. However, if they force your hand by not responding or complying with your request, you can and should take the more aggressive step of sending a cease and desist letter.
So what happens if you receive a cease and desist? In short, relax and talk to an attorney. If nothing else, consult the information available on LegalNature, and thoroughly research the claims that are being made in the cease and desist.
Additionally, you should realize that a cease and desist is not legally binding, nor is it truly a legal document, so take a deep breath. This does not mean you should not take the letter seriously, because you should, but do not get so anxious you let the letter consume your life.
Also, keep in mind a cease and desist letter is not a guarantee of a lawsuit. While it is likely the person writing the cease and desist letter will say they will pursue legal action, and they may even genuinely have plans to do so, getting a cease and desist letter does not mean you will definitely be sued. The truth is suing someone is extremely expensive, and most people (both plaintiff and defendant) would rather avoid it if possible.
If you do in fact decide to hire an attorney (which is highly recommended), do a little bit of homework, and read the letter thoroughly so you can get the right help. If you receive a cease and desist letter claiming harassment, don’t go to an Intellectual Property lawyer, and vice versa.
Additionally, prepare some factual information in order to better assist your attorney in defending your case—this also generally reduces their work, and results in a less expensive bill. For example, if the cease and desist letter concerns your unwanted and persistent contact with the claimant, detail all relevant communications including:
DO NOT go to your attorney with a twenty-page manifesto on why the other person is a horrible human being and how they made a mean comment to you five years ago.
If you cannot afford one, there are plenty of lawyers seeking to fulfill their pro bono quota. Many state bar associations have programs where attorneys agree to take cases on for a discount or offer a free evaluation. The referral program can give you the names of attorneys in your area who fit your needs.
If you are on the receiving end of a cease and desist, remember that a cease and desist letter is just one attorney’s opinion on the law. While attorneys are sworn to tell the truth and not make intentionally false or unfounded claims, they are not prohibited against having bad or even wrong opinions.
In sum, each occasion calls for a different choice of action. In doing so, always weigh the pros and cons of sending a cease and desist letter.
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