A Cease and Desist Letter is a letter written to request an entity (organization or individual) to stop (cease) a specific action and refrain (desist) from doing it again in the future and that legal actions may be sought against them if they fail to do so.
A cease and desist letter usually takes one of two forms; an injunction issued by a court or a government administrative agency to stop illegal or suspicious activities, or a letter written by an attorney or a legal entity as a first formal step to request the infringing party to cease and desist from performing an illegal or suspicious activity.
Reasons to Serve a Cease and Desist Letter
There are very many reasons why a cease and desist letter may be issued. One of the common reasons witnessed in recent years is harassment. Harassment can be defined as unwanted, unwelcomed, and uninvited behavior that can instill fear or cause one to be annoyed or antagonized.
Other common reasons that may warrant the use of a cease and desist letter include:
- Stalking
- Invasion of privacy
- Property boundary encroachment
- Breach of contract
- Intimidation
- Cyberstalking
- Slander or Libel
- Bullying
Other than the reasons stated above, this letter can also be used for more formal reasons such as:
Stopping debt collection
Debt collectors usually call defaulters when they fail to service their debt on the agreed date. Although they must inform the defaulter that they default on a loan, some debt collectors usually go way off limits with their obnoxious and frequent calls. The FDCPA-Fair Debt Collection Practices Act controls how a debt collector contacts the defaulter and collects their debts.
The FDCPA protects the defaulter in two main ways; one, it provides a guideline for how an entity may attempt to collect their debts and bans abusive and deceptive conducts and two, it gives the defaulter the right to force the debt collector to cease from frequent calls and emails and provides the defaulter with legal remedies including the ability to sue the debt collector for financial damages.
Intellectual property violation/copyright infringement
A cease and desist letter can be written to the offending party, informing them that they should cease and desist from infringing your intellectual property. Upon receiving the letter, the infringer may recognize their infringement and cease their actions or send an official correspondence stating why they are not liable for any wrongdoing.
Note: When sending a cease and desist letter, it is recommended that you provide sufficient information to help the defaulting party understand why the letter is being addressed to them and why they should desist from their actions.
Pre-Serving Checklist of Considerations
When writing such a letter, there are several things that you should take into consideration to ensure that the infringing party understands why they are being served the letter and that the letter can be used in court should the infringing party fail to cease and desist from their actions.
These considerations include:
Use direct and actionable language
Using direct and actionable language is very important when drafting a cease and desist letter. This is because direct and actionable language not only notifies the offender of their breach/violation but also clarifies that should they fail to heed the letter’s demand, legal action may be taken against them.
Back it up by law and statutes
When writing a cease and desist letter, you must provide relevant case laws or statutes that will help establish your case. This shows the defaulter that you are aware of your rights and are ready to take up any legal battles should they fail to remedy their actions.
Note: It is recommended to seek the help of an attorney or a legal entity when dealing with letters that may lead to legal actions such as cease and desist letters. This is because attorneys understand the legal nature of such letters and may offer the best possible advice and/or help you include the best information depending on your situation.
Keep a mild tone
It is important to note that when sending a cease and desist letter, especially in cases of copyright violations, the party in breach may not be aware that they have infringed on your intellectual property. Since a cease and desist letter serves as a first warning to the offender, you must use a mild tone when writing.
It shouldn’t be overly quarrelsome
Do not be aggressive or use offensive words when writing the cease and desist letter, as this may turn things around, and you may be considered as the one harassing or threatening the life of the party in breach. When writing the letter, ensure that the information you provide is enough to capture the offender’s attention and that the information is true, valid, and verifiable.
How to Serve a Cease and Desist Letter
It is important that before serving a cease and desist letter, you gather all vital information and ascertain that the other party is indeed in violation of your rights or intellectual property.
After making sure that they are in violation, here are some of the things that you should do to ensure that they remedy their act:
Draft the letter
The first step is to draft a legally enforceable letter. An effective letter should include a few key provisions. The letter should categorically state the activity you want the other party to cease and desist from and why it is illegal for them to continue doing so. The letter should also include a warning that failure to remedy such actions may lead to legal actions. Other key components that must also be included in the letter include; date of writing the letter, your name, address, recipient’s name and address, description of the “breach/violation/harassment”, and a written demand that they will cease and desist from such acts in the future.
Deliver the letter
After drafting the letter, the next step is to deliver the letter to the recipient, i.e., the infringing party.
Here are some options you can use to deliver the letter and a few things to consider when delivering the letter:
- Deliver the letter to the infringing party in person
- The second option is to deliver the letter through registered mail and obtain a certificate of posting
- Seek the services of a process server to deliver the letter on your behalf
- Make two copies of the letter and keep one in a safe place for future reference
- Send the other copy to your attorney
In some cases, the infringing party may claim to unintentionally fail to remedy their act because the letter wasn’t delivered to them appropriately. It is essential that before sending the letter, you research the best way to serve it to the recipient as cease and desist letter laws usually vary by jurisdiction.
Enforcing the letter
Once you have sent the letter and ascertained that the recipient has received it, the next step is to wait for a response from the recipient.
If they fail to remedy their act or acknowledge the issue, then you may decide to do the following:
Commence legal proceedings
You may decide to sue them or file a civil action claiming infringement and request the court to issue an injunction against the infringing party. An injunction is simply a court order directing the infringing party to cease and desist from their acts failure to which further action will be taken against them
Sue for damages
The next option is to sue the infringing party for damages caused by their actions. For instance, if the infringing party fails to remedy their act, leading to revenue loss, the court may order that they pay for such damages by suing them.
Note: Before commencing legal action against the infringer, it is essential that you give them enough time to respond and/or remedy their acts.
Advantages and Disadvantages of Serving a Cease and Desist Letter
Before drafting and sending a cease and desist letter, it is vital to understand its advantages and disadvantages to ensure that it is the best option to use to service your case.
Below are some of the advantages and disadvantages of issuing a cease and desist letter:
Advantages
Some of the advantages of issuing a cease and desist letter include:
- The letter can be issued to debt collectors to make them cease and desist from contacting you
- If the debt collector fails to heed the demands of the cease and desist letter, you have an option of suing them for the violation of FDCPA.
- The FDCPA may require that you be compensated “statutory damages” of up to $1000 by the debt collection agency if you have sufficient evidence showing that the debt collection agency has failed to remedy their act.
Disadvantages
Some of the disadvantages of issuing a cease and desist letter include:
- Even though issuing a cease and desist letter may get the debt collector to desist from contacting you, the debt may still affect your credit value and may limit you from getting future loans from other financial institutions.
- Issuing a cease and desist letter may affect your relationship with the debt collector as they may view the letter as an attempt for you to avoid servicing your debts.
- The debt collector may decide to escalate the matter to court and sue you for financial damages in an attempt to receive their money back when you issue them with a cease and desist letter
Before sending a cease and desist letter, it is essential to consider all factors and only send it when you are guaranteed to get the best results out of it.
Tip: Make sure to keep all correspondences between you and the other party to produce any evidence in court should the case escalate to litigation.
Final Thoughts
A cease and desist letter is a great way to get an individual/organization to desist from a specific action and refrain from doing it again in the future. However, it is important to include all the key components and send them to the recipient through certified mail to make the most out of the letter. It is also important to give the recipient enough time to remedy their acts before seeking legal action against them.
Upon receiving the cease and desist letter, the infringer may recognize their infringement and cease from their actions or send an official correspondence explaining why they are not liable for any wrongdoing. If the explanation provided is not enough and you still feel that they have infringed your rights and/or intellectual property, you may proceed with the litigation against them.
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