Legal How-To: Deciphering a Cease-and-Desist Letter
"Cease and desist" has a commanding and alarming ring to it, one that makes recipients of cease-and-desist letters quake in their figurative boots.
But there's really nothing magical or legally damning about a cease-and-desist letter. Often they are just a cheap way for one party's lawyers to shock or bully another party into "ceasing" or "desisting" without actually filing suit.
Don't be fooled by angry words in legalese. Here's how to decipher a cease-and-desist letter:
1. Take a Breath.
No one wants to receive a cease-and-desist letter in their snail mail or email, but it's also not the end of the world. The sender hasn't summoned the hunter-destroyer drones and the ring-wraiths won't be stalking around your hobbit hole. First off, the letter isn't even legally binding.
Here's what a cease-and-desist letter is: It's one party's legal team informing you of its opinion of the law. It may seem threatening because it's possibly on a fancy law firm's letterhead, but at its core, it's only a strongly worded request.
2. Identify Request(s) and Legal Authority.
Try to sift through the puffery about terrible nature of your current activity (attorneys love using the word "egregious") and skip to the part where you're being asked to stop doing something. Hopefully the drafter put this information both at the top and bottom of the cease-and-desist letter, so it should be easy to find.
Next, try to locate any place where the letter mentions legal code sections, intellectual property terms, or other unintelligible legal jargon. WorkMadeForHire notes that legal citations typically look like "17 U.S.C. §506(a)(1)(A)" for a law and "Smythe v. Jones, 123 F.2d 4567, 4570 (9th Cir., 2009)" for a legal opinion. Highlight these for later.
3. Call an Attorney.
Now that you know what you're being asked to cease from doing and why, you can contact an attorney who is knowledgeable in that area of law. For example, if the cease-and-desist letter accuses you of violating a trademark, you may want to consult with a trademark attorney.
An attorney can help you decide how to respond to this letter or whether it merits a response at all. Follow your attorney's instructions, and do not:
- Post the cease-and-desist letter to Facebook;
- Send the other party angry emails; and/or
- Blog, tweet, post about how stupid the other person is.
Assuming you don't stir up anything new, your attorney should help resolve your cease-and-desist letter in short order.
- Coping with a Cease and Desist Letter (Independent Book Publishers Association)
- Legal How-To: Responding to a Lawsuit (FindLaw's Law and Daily Life)
- Legal How-To: Responding to a DMCA Takedown Notice (FindLaw's Law and Daily Life)
- Quite Possibly the Best Cease and Desist Response Letter of All Time (FindLaw's Courtside)