Why Send a Cease and Desist Letter?
- April 30, 2022
- The Law Office of Greg Tsioros
- Comments Off on Why Send a Cease and Desist Letter?
A cease and desist letter is the first step in the legal process to get another party to stop offensive or harassing behavior. Before drafting one, consider some of the ramifications, including the recipient’s reaction to your letter.
Cease and Desist Letter: A Definition
A cease and desist letter is a document you use to tell another party to stop something. Often, these letters are sent to stop harassment but are also used in cases of copyright infringement and other issues.
An individual or company can issue a cease and desist letter. However, you want to consult an attorney to ensure your letter is effective and within legal bounds. Also, a letter from an attorney’s office may garner a more measured response.
Harassment is defined as unwanted, unwelcome, and uninvited behavior that annoys, threatens, intimidates, alarms, or puts you in fear for your safety. A cease and desist letter is a written notice demanding the recipient to stop the behavior immediately and signals the potential for further penalties.
Harassment can take multiple forms and can occur even when you and the harasser are not in the same state. Cyberbullying, unwarranted phone calls, and obnoxious, threatening text messages are all forms of harassment meant to intimidate, offend, antagonize, or otherwise annoy you.
A cease and desist letter has legal power but is not legally binding. It can be considered harassment if the wording is too aggressive or offensive. If you make unsubstantiated legal claims, state untruths, or attempt to intimidate the recipient, you might find yourself in legal hot water.
Legal Considerations for Cease and Desist Letters
If you hire an attorney to draft your cease and desist letter, the attorney is bound by the American Bar Association (ABA) Model Rules of Professional Conduct. The issue must meet three preconditions before a lawyer can consider drafting your letter:
- All charges must be related to the civil matter under consideration.
- The attorney must believe the civil claim and associated criminal charges are based on merit concerning the law.
- The attorney must not attempt to exert or improperly influence the criminal process.
Even if you decide to draft the letter yourself, you should keep these preconditions in mind.
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When Should You Send a Cease and Desist Letter?
If you are a victim of any of the following actions, you can send a cease and desist letter to the appropriate party:
- Bullying or intimidation, including some debt collection behavior
- Stalking, including cyberstalking
- Invasion of privacy
- Breach of contract
- Libel or slander
- Infringement of intellectual property rights, including copyright, trademark, and patents
- Property boundary encroachment
You might send a letter to someone who is knowingly contributing to the infringement but did not actively participate, sometimes called secondary liability or contributory liability.
A cease and desist letter is appropriate if someone is bullying you and doesn’t stop when you ask (politely), like making mean comments about you in front of others. Stalking includes calling or texting you endlessly or showing up at your home or place of business repeatedly and warrants a cease and desist letter.
Defamation of character or character assassination can take the form of libel or slander, and rumors are considered defamation:
- Libel is defamation in writing, such as in a newspaper or social media post.
- Slander is defamation issued orally, in or out of your presence.
Character assassination doesn’t apply to nonspecific utterances, like calling you a jerk. However, if someone claims to have heard your business practices are on the shady side and you take people for all their money, you can claim slander or libel.
Infringement of intellectual property right issues differ in when infringement applies.
- Copyright applies from the moment you author something.
- Trademark applies to using a specific brand name, phrase, or trade dress in connection with professional practices.
- Patents must be registered for infringement protection and include inventions, physical creations, and the process that makes them function.
If you feel a debt collection agency is harassing you, the Fair Debt Collection Practices Act (FDCPA) might protect you. It bans abusive or deceptive conduct and gives you the right to force the debt collector to stop communicating with you. You might be able to obtain financial damages.
What to Put In a Cease and Desist Letter
You can find a template online, but you still need to customize it to your specific situation. Alternatively, you can consult a lawyer to draft a letter for you.
Your letter should always contain the names and addresses of you and your recipient. The letter should also include a demand to stop the harassment, but you need to word it carefully.
Include a clear, concise description of the harassing behavior or action, a warning of further legal action, and a deadline by which the recipient must remedy the situation. Typically, most people provide 10 to 15 days as a time limit.
The goal of a cease and desist letter is to get the harasser to stop what they are doing. If the behavior continues, you must be prepared to move forward with the legal action. Bring in a lawyer immediately if the behavior escalates or prompts legal action. An attorney can help you get a cease and desist order from a judge, which has the legal standing your letter lacks.
Use direct, actionable language in the letter and ensure all your claims are supported by relevant case law or statutes. An attorney can help here as well.
- Use threats or threatening tones such as threatening to sue early in the process
- Make empty threats. Always be prepared to follow through with any action you state
- Forget to have a clear reason. A vague letter is an ineffective letter.
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Sending and Enforcing a Cease and Desist Letter
Always send a cease and desist letter by certified mail, return receipt requested via the U.S. Postal Service. The recipient must sign for the letter acknowledging it, and it adds a formality to the proceedings.
If you want, you can send a copy by email, but a written letter acknowledging receipt works in your favor if you must continue with legal action.
Enforcement of a cease and desist letter depends on state harassment laws. Most state laws don’t require the victim to formally request the harasser to stop, but documentation is always helpful in establishing a case. For example, after a victim provides notification of a cease and desist letter where the harasser continues the behavior, you can use stronger remedies like a restraining order.
A cease and desist letter is the first step in stopping a harasser or enforcing intellectual property rights. Even though the behavior may continue, sending a letter and obtaining acknowledgment of receipt can bolster a legal case.
To ensure you include relevant case law and statutes, consult the legal experts here at the Office of Greg Tsioros. We can help you evaluate the seriousness of the grounds for action and draft an effective letter and provide experienced legal help to enforce any further measures should the activity continue. Writing your own letter could place you at greater risk by not citing the proper grounds for future legal action.