How to Respond to a Cease and Desist Letter

cease and desist letter being pushed through mail slot

I am frequently consulted by potential clients, who call to ask how best to respond to a cease and desist letter from an attorney, that claims the caller is guilty of defamation or some other wrongful act. The letter demands that the defamatory remarks be removed and/or the wrongful conduct cease immediately, and typically states or implies that legal action will follow if the demand is not honored.

The problem is, the caller did not make the remarks (or they were entirely truthful) and/or did not engage in the wrongful conduct. The caller is hopping mad that some attorney, without even asking the caller for their side of the story, is making these spurious claims. The caller wants to know how they should respond to the letter.

The answer is that there is no way to know the best way to respond. Thanks from coming. Be sure to tip your server.

But I can tell you this . . .

The answer to the question depends on many variables, some of which are unquantifiable. So this is a question where the best lawyerly answer I can provide is, “it depends.” I can, however, offer the following list of factors to consider in determining how best to respond to a cease and desist letter.

The letter is not defamatory.

Let’s first get this point out of the way. Callers often want to sue the attorney and his or her client for defamation for daring to send the letter containing such false accusations. But the letter was sent to you, and you can’t be defamed to yourself. Defamation requires publication to a third party.

If you look down at the bottom of the letter and see that it is copied to a third party, that could conceivably be the basis for a defamation action, but probably not. People often add a “cc” to a letter just to make it appear more intimidating, as in, “I am really serious about this to the point that I copied the Federal Trade Commission on this letter.” It doesn’t mean that the FTC was really copied, or bothered to read it.

And, no, the fact that the clients told these horrible lies to the attorney so that he or she could write the letter will not be enough. Communicative acts done in anticipation of possible litigation are protected by the litigation privilege (Civil Code § 47). If you sue for what is stated in a cease and desist letter, you’ll almost certainly be met with an anti-SLAPP motion and end up having to pay the other side’s attorney fees (Code of Civil Procedure § 425.16).

There are exceptions to every rule, as in the case where an attorney’s letter went so far that he was successfully sued for extortion, so by all means have an attorney review the letter, but it is extremely unlikely it will form the basis for an action. 

The letter may be a toothless threat.  

Cease and desist and demand letters are a nice source of income for attorneys. I know of an employment attorney who charges $5,000 for a letter, and his clients are happy to pay it. After being told by 20 attorneys that due to the law regarding at-will employment they have no claim, they finally find at attorney willing to write to the employer and “give them what for.” The hope is that the letter might scare the employer enough that they pay some money to avoid the threatened legal action.

But that attorney seldom, if ever, follows through on the threat. And that is often the case with attorney letters, especially in the defamation context. The letter is sent in the hope that the person will stop saying whatever it is they are saying about the attorney’s client, but the attorney may have already concluded that it would not make economic sense to pursue the action, or that the statements do not support a defamation claim.

Look at it this way. If goal is to silence the alleged defamer, wouldn’t an actual lawsuit be far more effective? Or the attorney could send a cease and desist letter along with the unfiled complaint. It only takes a little longer to put the allegations in a complaint, as opposed to a letter.

Attached hereto is the complaint we intend to file if you do not remove your Instagram post about our client within five days.

Isn’t that far more threatening? The recipient sees that the plaintiff has already taken the time to prepare the complaint, and is ready to pull the trigger. The fact that the attorney and client elected instead to proceed by way of a letter is an indication that they want to avoid litigation.

Or they could be setting a trap.

On the other hand, a cease and desist letter is a fast way to draw a line in the sand, and to set up certain arguments that can later be made at trial.

If you comply, that will be used against you.

So you receive a letter, demanding that you remove an allegedly defamatory review you posted on Yelp. Even though everything you said is true, you decide it just is not worth fighting about, so you immediately remove the review. If the plaintiff does sue you, he will almost certainly claim at trial that you removed the post because you knew what you said were lies.

If you don’t comply, that will be used against you.

Conversely, if you don’t comply with the request to remove the review, that will be used against you as well, especially if anything you said is found to be defamatory. Given the backlog caused by Covid, it now takes around 18 months to get a case to trial. If you don’t comply with the request, plaintiff’s counsel will argue to the judge or jury that punitive damages are appropriate, because even after you were nicely asked to remove the comments, and told why they were false and defamatory, you left them up for the next 18 months.

You can do nothing, and see what happens.

Nothing says that you must respond to a cease and desist letter. As I explained above, if they really intend to sue, they would just sue. If the letter says they won’t sue you if you do what they ask, you can do nothing and see if they make good on the threat. If they were willing to walk away before the lawsuit, they will probably still be willing to do so after filing the complaint, if you then comply with the demand (although they might then demand reimbursement of the fees and costs they have incurred).

Consider how your silence will be perceived.

There is a maxim of law that silence does not mean consent. Under the law, if someone says you are lying, and you do not respond, that does not mean that you agree you are lying. But in the real world, that is not the case. We expect people to stand up for themselves.

I remember something a Judge said to me in Federal court. I represented the defendant in the case, and the plaintiff’s attorney sent discovery, seeking a certain document. My client informed me that no such document ever existed, and we responded as such.

Plaintiff’s counsel wrote twice more, demanding the document, and I responded each time that according to my client, the document had never existed. Plaintiff’s counsel wrote a third time, this time threatening to bring a motion to compel, and to seek sanctions against the client and I, if the document was not produced. I responded again that, according to my client, the document did not exist, and that if she thought a motion to compel was warranted, she should file the motion, but that I would have no further communication with her about that nonexistent document. The attorney wrote to me 18 more times about the document, but never brought the threatened motion to compel. As promised, I did not respond to any of her 18 subsequent demands.

At a status conference, opposing counsel pulled out the 21 letters demanding the document, and the exchange went something like this:

Opposing counsel: Your Honor, I’m sorry we are not further along in the litigation, but defendant and his counsel are not cooperating in the discovery process. I have written to Mr. Morris 21 times demanding production of this document, and he has never produced it. In fact, the last 18 times I have written to him, he has not even shown me the courtesy of replying.

Judge: Is that true, Mr. Morris?

Me: Partially, but Ms. Jones left out crucial facts. After I responded to her three times that, according to my client, no such document has ever existed, I told her she should bring a motion to compel if she deemed that to be appropriate, but that I would have no further communication with her regarding the document. I consider it unethical to allow opposing counsel to generate unnecessary fees for my client, and often that is the specific intent of making the same demand so many times. I had already informed her of our position regarding that document, and incurring the time and expense of responding to her 18 more times, after specifically informing her that I would not do so, would not be appropriate. And, you’ll note, Ms. Jones never brought a motion to compel, as I suspect she is well aware that the document never existed.

Judge: I practiced many years before joining the bench, and I never would have failed to respond to a letter. I mean, 18 times she accused you and your client of acting in bad faith by failing to produce this document, and you never responded. That makes you and your client look really bad.

The point of this long-winded war story is that while seemingly any rational person would agree that I was under no duty to respond to 18 more letters after I had made our position clear, something was so ingrained in this Judge’s mindset about having to respond to every letter that she concluded that failing to do so made the client and I “look really bad.”

I’m sure this Judge is not the only one who thinks that way. Contrary to the law, if you simply fail to respond to a cease and desist letter, it might be viewed as conceding the points contained therein.

Incidentally, the document in question was not particularly important, and plaintiff dismissed the case against my client about three days after the status conference. I think the case was filed entirely for leverage by making my client incur attorney fees, and seeing that I would not play the game, plaintiff gave up.

If you don’t respond, any chance at settlement may be lost.

Conversely, if you don’t respond, and the plaintiff does file the action, that momentum may destroy any settlement possibilities. It could be that the plaintiff wanted to sue, but the attorney suggested a more measured approach. “Before we incur the costs of preparing and filing a complaint, let me see if I can talk them into just removing the comments they posted.” But then you didn’t even respond, and the plaintiff is now twice as mad. His willingness to walk away is gone.

You can respond without responding.

There is one approach I have used very effectively on several occasions, when the client did not do what is being claimed in the letter.

Let’s say you receive the following letter:

Dear Ms. Johnson,

We represent Dave Jones. Mr. Jones is informed that you have communicated to his neighbors that he is operating an illegal opium den in his basement. If you do not respond to this letter within five days, promising to never again make this claim, we will be forced to bring legal action.

Very truly yours,

Joe Dokes, Esq.

But you never told anyone that Mr. Jones is doing anything illegal. In such a case, there is no problem with agreeing to what is being requested, so long as you make clear you never did it.

Dear Mr. Dokes,

I represent Ms. Johnson, and this letter is in response to your letter dated May 20, 2024. Ms. Johnson has never discussed Mr. Jones with anyone in the neighborhood or elsewhere, and has never stated he is operating an opium den.

Your client will likely want to respond with all the reasons he (erroneously) concluded that Ms. Johnson made such statements, but such response is not necessary. She agrees to your demand to never state that Mr. Dokes is operating an opium den. Based on your letter, we will assume the matter is resolved.

All best,

Aaron Morris

Historically, they almost always respond anyway, to state why they are confident my client did do what was stated in the letter, but that’s as far as it goes. On one occasion, they saber-rattled about how they were now going to sue because my client was failing to take responsibility for what had occurred, but they never did so.

So as I said at the outset, there is no one “best” way to respond to a cease and desist letter, but you now know some of the factors to consider when deciding how to proceed.

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Aaron Morris
Morris & Stone, LLP
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630
(714) 954-0700

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