What is a cease and desist letter?
A cease and desist letter is a communication someone sends an individual or company to stop performing a specific action and to not do the action ever again. “Cease” means stop. “Desist” means don’t do it again. Accordingly, a cease and desist letter is telling someone to “stop” something and “don’t do it again”.
For example, someone might send somebody a cease and desist letter to stop them from plagiarizing their content.
A cease and desist letter usually includes a threat of a lawsuit or injunction if the recipient fails to comply with the demand.
A cease and desist letter is different from a demand letter in that a cease and desist letter is telling someone to stop doing something whereas a demand letter is telling someone to pay up some amount of monies. In this regard, a lawsuit to win a “cease and desist” is called an injunction whereas a lawsuit to get a “demand” is an action for damages (i.e. money).
Anyone can send a cease and desist letter, but it is usually sent by a lawyer to carry more weight. This is because a lawyer can actually threaten to bring a lawsuit. When a non-lawyer sends a cease and desist letter, it can come off as weak because the individual sending it doesn’t even take it serious enough to hire a lawyer. If that person couldn’t even hire a lawyer to send a simple and inexpensive cease and desist letter, do you think he or she would actually commence an expensive and complicated lawsuit? A cease and desist letter should only take an hour or two of a lawyer’s time.
Companies most commonly use cease and desist letters to protect their confidential information or other intellectual property. For example, an employer might send an ex-employee a cease and desist letter to stop them from breaching their restrictive covenants such as a non-disclosure agreement (NDA).
What to include in a cease and desist letter?
A cease and desist letter should include:
- The name of the sender and their contact information
- The name of the recipient and their contact information
- A paragraph introducing yourself
- A paragraph stating what the recipient has done wrong (for example, an employee has begun working for a competitor)
- A paragraph stating why it is wrong (for example, the employee has a non-compete clause in their contract)
- A paragraph telling the recipient to stop and not do something again.
- A paragraph explaining what you will do if the recipient fails to cease and desist
A cease and desist letter should not contain any emotion, offensive language or any irrelevant information.
How to send a cease and desist?
A cease and desist letter can be sent in any format and in any way. There are no legal requirements for sending a cease and desist letter because a cease and desist letter is not actually a legal document. A recipient has no obligation to respond to a cease and desist letter or to cease and desist doing something just because they received a cease and desist letter.
However, it would be best to send the cease and desist letter with a courier that requires a signature or a process server. That way, you can be sure your cease and desist letter was actually delivered.
Are cease and desist letters enforceable?
No, cease and desist letters are not enforceable. Only a court-ordered injunction can force someone not to do something.
Essentially, a cease and desist letter is an attempt to settle a matter before commencing formal litigation.
However, a cease and desist letter, if it is written ‘with prejudice’, can be used as evidence of the notice someone gave on a certain date to stop doing a certain thing.
What should you do if you receive a cease and desist letter?
You should consider hiring a lawyer who may advise you to ignore the cease and desist letter as its just an empty threat or to respond denying it or to respond affirming it or to actually cease and desist doing what was asked.
Usually, the parties are able to settle the matter before a lawsuit is commenced.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.