There are two types of cease and desist actions, which vary in their legal power and mandate different responses. A cease and desist order is known as an “injunction” or “restraining order”, it is different from a cease and desist letter also known as the “demand letter.” The letter is typically sent by an individual or his attorney, an order is an official legally-binding document that is issued by a government agency or a court.
A cease and desist order communicates to a person or company to stop engaging in illegal activities and if they do not comply by the order they will face penalties such as fines or jail time. However, the letter is meant to serve as a warning only, not to have immediate legal consequences to the party that is committing the prohibited activity. A cease and desist order is the first step in obtaining legal action towards the noncompliant party. It is considered to be one of the cheapest and quickest ways to resolve a dispute because lawsuits can be time consuming and expensive.
In general, the demand letter must abide with laws in the jurisdiction where it is sent. Additionally, the American Bar Association (ABA) Model Rules of Professional Conduct require 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.” The threats should only be utilized for a negotiation tactic. Cease and desist letters typically require a signature upon delivery. The letter is sent with a return receipt requested, but it is not required.
Some common situations in which a cease and desist order letter can be used include:
- Infringement of an intellectual property right (copyright, trademark, patent);
- Breach of contract;
- Debt collection services;
- Defamation cases (Liber, Slander) and;
- Harassment cases (Bullying, Stalking, Cyberstalking, Intimidation, Invasion of privacy).
Are Cease and Desist Orders Enforceable Under The Law?
Yes, the cease and desist order itself is given by a judge, therefore you must first petition the court and argue that the party’s behavior is illegal – either criminal or civil manner. Thereafter, the court will make a determination if the party’s behavior does constitute illegal behavior. If it is considered so, a cease and desist order will be served on the other party.
Once the violator receives the court granted order, they have to immediately “cease” and “desist” the specific actions until a hearing is held. This order will remain in effect until then. This formal order is known as the “temporary injunction” as mentioned earlier. After a hearing is held and the judge concludes that the behavior is illegal then the temporary order turns into a “restraining order.” However, the terminology and procedures may vary depending on the jurisdiction. However, the cease and desist letter’s purpose is to formally demand the harasser or violator to stop their illegal behavior. It is not legally enforceable unlike the cease and desist order granted by the judge.
How Can I Obtain a Cease and Desist Order?
To obtain a cease and desist order, you need to file a lawsuit or other essential paperwork with the court. The papers filed and the terminology varies depending on the circumstances and your state law. After the right paperwork is filed, the other side will have an opportunity to respond to the case, and thereafter the court will decide on the matter based on all of the facts presented.
However, you should not send a cease and desist order unless you are certain you have the legal leverage in pursuing a suit. However, drafting the cease and desist letter can be accomplished by following these simple writing guidelines. Here are some important provisions to include in the content of cease and desist letter:
- The specific activity you need the person or company to cease;
- Describe why the activity it illegal;
- A clear warning that legal action will follow – such as a lawsuit if the activity does not end and;
- A statement of waving present and future rights to sue based on prior misconduct.
A lawyer must comply with the ABA Model Rules of Professional Conduct. Generally, there are three preconditions that are required before an attorney can raise the prospect of charges without violating their professional conduct code. First, The charges must be related to the civil matter at hand. If there is a criminal charge unrelated to the civil claim, it must be separate to avoid any deception.
Next, the attorney must believe the civil claim and associated criminal charges are actually based on merit in relation to the law. A claim that is without merit can expose the lawyer to embarrassment by the person who received the cease and desist letter. Therefore, it is crucial to research the matter that is being considered illegal to avoid making frivolous claims.
Lastly, an attorney should not attempt to exert or improperly influence the criminal process. An attorney who tries to influence the legal outcome after a cease and desist letter through illegitimate means such as bias, duress, or fraud, may be found to have tampered with the legal system.
A lawyer who is considering sending out a cease and desist letter on behalf of their client must satisfy the above preconditions so that their capability as a lawyer is not called into question. Although, anyone can write a cease and desist letter, an attorney can assist with determination which legal rights were violated and how you can pursue further legal action if necessary.
What if a Cease and Desist Order is Violated?
Penalties and fines for violations of the cease and desist order will vary by state. Some violations can even lead to jail time. Therefore, if you have been a named party on a cease and desist order it is important to contact a lawyer to ensure your rights are not violated and you are able to abide by the order.
Do I Need a Lawyer for Assistance with a Cease and Desist Order?
If you need help drafting a demand letter or need to obtain a cease and desist order, you can consult with a commercial lawyers. A cease and desist letter may be the first appropriate pathway of resolving the dispute and determine which rights are being violated.
As mentioned above anyone can send a cease and desist letter, no need for an attorney to draft one. But an experienced attorney can advise them on whether their rights have been violated and if they have legitimate legal claim to send a cease and desist letter.
Furthermore, the lawyer can help with the correct language to use for the proper tone of the letter. However, if you think that there needs to be immediate action, a petition in court may be necessary to stop the illegal behavior and obtain the cease and desist order form the judge. Do not hesitate to contact your local attorney to guide you in drafting the necessary paperwork.
