What Is a Cease and Desist?
A cease and desist is a written notice demanding that the recipient immediately stop an illegal or allegedly illegal activity. It may be an order or injunction issued by a court or government agency or a letter from an attorney.
A cease and desist order or injunction has legal power. A cease and desist letter is not legally binding, although it is a formal step that may be followed by a lawsuit if the recipient ignores it.
- A cease and desist order is issued by a court or government agency and has legal power.
- A cease and desist letter may be sent by an individual or a company. It is a request but it may be followed by legal action if ignored.
- In either case, a cease and desist notifies the recipient of an alleged violation of the rights of the sender and demands that the violation stop.
- Allegations commonly addressed by cease and desist letters or orders include copyright violations, harassment, defamation, and contract violations.
- A cease and desist letter can be an inexpensive and efficient alternative to costly litigation.
Understanding Cease and Desist
A cease and desist order and a cease and desist letter require different responses from the recipient. Neither can be ignored.
Cease and Desist Order
A cease and desist order places an injunction on a company or an individual prohibiting an activity that has been deemed suspicious. It typically takes the form of a temporary injunction that will remain in place until the issue is legally resolved. One possible income is a permanent injunction.
Whether temporary or permanent, a cease and desist order is legally binding. Such an order is issued by a government agency or court when it has been convinced that there is reason to believe that illegal or harmful activity is taking place.
|A Cease and Desist Order...||A Cease and Desist Letter...|
|…is issued by a government agency or a court.||...can be written by anyone, typically an attorney.|
|… requires the offender to stop an activity.||...asks the offender to stop an activity.|
|...requires the offender to respond to an agency or court.||...requests a response from the offender.|
|… prohibits the offender from continuing the activity.||...does not prohibit the activity (but may subject the recipient to legal action).|
Cease and Desist Letter
A cease and desist letter is not legally binding and reflects the opinion of an individual, typically an attorney. A cease and desist letter may serve to warn an offender that legal action may take place if they don't stop the activity. The offender is generally given a set time frame—usually 10 to 15 days—to cease and desist.
A cease and desist letter must comply with laws in the jurisdiction in which it is sent. In addition, the American Bar Association (ABA) Model Rules of Professional Conduct dictate that a lawyer "shall not present, participate in presenting, or threaten to present a criminal charge solely to obtain an advantage in a civil matter." Such a threat has no legal significance other than being a negotiation tactic.
Cease and desist letters often require a signature upon delivery. The letter is typically sent with a return receipt requested, although this is not required.
Legal Considerations for a Cease and Desist Letter
A lawyer is bound by the ABA Model Rules of Professional Conduct. These rules prevent attorneys from presenting—or participating in—threats or issuing criminal charges in order to gain an advantage in a civil case.
Three preconditions usually must be met before an attorney may raise the prospect of charges without violating the professional conduct code.
- The charges must be related to the civil matter at hand. Citing a criminal charge that is unrelated to the civil claim in order to get an upper hand in the civil case is a deceptive tactic that is frowned upon by the legal system. An attorney who breaches trust by maliciously misrepresenting a case or making a false claim would be engaging in misconduct.
- The attorney must believe the civil claim and associated criminal charges are based on merit in relation to the law. A claim that is unfounded and without merit can expose the attorney to an allegation of embarrassment by the person who received the cease and desist letter. The attorney may be found to have filed a frivolous claim in violation of the Model Rules of Professional Conduct.
- An attorney must not attempt to exert or improperly influence the criminal process. An attorney who tries to influence the legal outcome following a cease and desist letter through illegitimate means such as bias, duress, or fraud may be found to have tampered with the legal system. For example, an attorney may not tell a recipient that criminal charges can be avoided if the recipient meets the client’s demands as spelled out in the letter. In legal terms, this could imply that the attorney has some authority over court proceedings, a violation of the ABA Model Rules of Professional Conduct.
Anyone can send a cease and desist letter. An attorney does not have to be involved. However, an attorney can advise complainants on whether their rights have been violated and if they have legal and meritorious rights to send a cease and desist letter. The attorney also knows the correct language to use.
A restraining order is a type of cease and desist order that may be issued to a person accused of stalking or intimidation.
Cease and Desist Examples
There are four unlawful activities that are most often addressed with cease and desist orders or letters: misuse of intellectual property, harassment, character defamation and libel, and contract violations, including unfair labor practices or unfair compensation.
Remember that, while anyone can write a cease and desist letter, a cease and desist order must be issued by a court or other entity with the legal right to do so.
If you are served with a cease and desist document, examine it carefully—with legal advice, if necessary—to determine who sent it and what legal status and validity it has.
Someone who duplicates work that is under trademark, copyright, or patent without permission is likely to receive a cease and desist letter or order.
For example, a website publisher who plagiarizes content or images from another website without arranging for rights to republish the content risks copyright infringement charges and may be served with a cease and desist.
If an accusation gets to court, the cease and desist letter serves as proof that the recipient was aware of the alleged misconduct.
A person who repeatedly pesters or threatens another person can be sent a cease and desist letter as a warning.
For example, according to the Fair Debt Collections Practices Act (FDCAPA), third-party debt collectors cannot harass, oppress, or abuse anyone in an effort to collect a debt that is owed.
A debt collector who consistently and frequently calls a debtor may be sent a cease and desist letter. In more egregious cases a cease and desist order may be sought and issued.
A restraining order is a special type of cease and desist order used in cases of stalking or intimidation. The definition and rules regarding stalking vary by state.
Character Defamation and Libel
It is illegal to make untruthful comments about another person that could be harmful to their reputation and business, whether in print or verbally. An individual who engages in such behavior should not be surprised to receive a cease and desist letter.
For example, an individual who spreads a false rumor that a fast-food chain's burgers are mostly made of ground-up bugs may be issued a cease and desist letter—or even a cease and desist order—since their lies may damage the business.
A party violating the terms of a contract may be issued a cease and desist letter or order. In the hedge fund sector, for example, employees are usually required to sign a non-compete agreement. This means that if employees leave the company, they cannot take proprietary materials or clients of the hedge fund with them.
If an employee leaves for a new job and solicits clients from the previous employer, the previous employer can send a cease and desist letter warning the employee of a potential criminal charge for breaching a contract.
Cease and Desist FAQs
Here are the answers to some commonly-asked questions about cease and desist letters and orders.
Can Anyone Send a Cease and Desist Letter?
Yes. You don't need a lawyer to prepare a cease and desist letter, although a lawyer will know how to write a letter that properly scares the recipient without going over an ethical line.
In fact, do-it-yourselfers can find templates online with ready-written cease and desist letters for all occasions. Sample letters demanding that the recipient stop unauthorized use of copyrighted work, violating a contract agreement, defamation, and harassment are available at sites like TempateLAB and eForms.
Remember, a cease and desist letter is not legally binding like a cease and desist order from a court or government agency. Its purpose is to alert the recipient that you are aware of an alleged violation and may be prepared to take legal action to protect your rights.
How Effective Are Cease and Desist Letters?
A cease and desist letter can be quite effective.
A legitimate business or an individual with a reputation to protect is likely to pay attention to an allegation of illegal activity.
That said, there are people out there who will ignore anything short of a cease and desist order from a court or a government agency. They know that it would be costly and time-consuming for anyone to pursue legal action against them.
What Happens If a Cease and Desist Letter Is Ignored?
By definition, a cease and desist order alleges that illegal activity is taking place and asks the recipient to stop it immediately.
If a cease and desist letter is ignored, its sender's recourse is to file a lawsuit against the offender. And if it gets to court, the cease and desist letter will serve as evidence that the offender had been warned about the violation and had ignored the warning.