For Lawyers, the Cease and Desist Letter
is the New Press Release
For the longest time, the life of a lawyer’s cease and desist letter was an unpleasant one. For one, the letter was typically written too quickly to allow for important considerations such as, oh, readability and persuasion. And oftentimes, cease and desist letters were full of bluster and, shall we say, questionable assertions of law and fact. But the cruelest injustice for our old pal the cease and desist letter was that it was often banished to a life of loneliness during which it never truly saw the world. While it was being drafted, it probably only jumped from one lawyer’s desk or computer to another lawyer’s desk or computer, with a rare detour to a client’s desk or computer. Once it was sent to its recipient, it likely spent its time in the dark corner of a manila envelope, redweld or email inbox. It was surely an unpleasant life.
But alas, times have changed for our dear friend. In the past few years, lawyers’ cease and desist letters—and responses to the letters—have been much more likely to receive media interest and public interest. Emerging out of the shadows of their drafters and recipients, some cease and desist letters have themselves recently been the stars of news articles and blog posts.
In December 2017, Anheuser Busch hired an actor to play a town crier and deliver an oral cease and desist letter in person to a Minneapolis brewery that launched a beer whose name was the tagline of a new Bud Light advertising campaign. The video of the actor’s reading went viral, providing goodwill, publicity and marketing buzz to Anheuser Busch.
In September 2017, Netflix’s in-house legal counsel was publicly lauded for the company’s cease and desist letter targeting a Chicago pop-up bar whose theme was based on a popular Netflix program. The letter was written with a gentle tone and included a number of references to that very program.
That same month, a New Jersey restaurant group responded to a cease and desist letter from a “certain unnamed chicken brand” by renaming its “Chick Philly” sandwich the “Cease and Desist,” and serving the sandwich in a wrapper that displayed snippets of the original letter.
In October 2016, The New York Times responded to a cease and desist letter written by a lawyer for Donald Trump concerning a recently published article about accusations of inappropriate sexual touching on the part of Trump. The newspaper’s response was widely circulated on the internet, in part because of memorable sentences such as “Nothing in our article has had the slightest effect on the reputation that Trump, through his own words and actions, has already created for himself.”
When a cease and desist letter—or a response to one—attracts media attention and public attention, it becomes more than a simple letter: it serves as a press release for the lawyer signing the letter and the client who asked its lawyer to send the letter. The letter becomes a public representation of the lawyer and the client, and its content directly reflects on the lawyer and the client. The content will likely shape the public’s perception of the lawyer and client.
This new celebrity status for the cease and desist letter brings with it a number of considerations lawyers and their clients should be thinking about when they decide that their concerns about certain conduct rise to the level of requiring a cease and desist letter. Here are four.
Are you going to use vinegar or honey?
With a nod to methods for attracting flies, bees, and other insects, lawyers and their clients must determine what they value more out of their cease and desist letter or their response to one: building goodwill for the client and making a “soft ask,” or intimidating the recipient into submission. Cease and desist letters have traditionally attempted to do the latter. Yet Netflix and Anheuser Busch opted for the former. They did so with good reason. They are both consumer-facing companies in competitive marketplaces that value goodwill from the public and the opportunity to attract favorable publicity and marketing buzz. Some clients might not care about building goodwill or keeping the content of a cease and desist letter consistent with their brand messaging. But building goodwill and making a “soft ask” does not have to come at the expense of seeking or obtaining compliance.
Both Netflix and Anheuser Busch requested that the recipients of their letters comply with their legal requests. Based on published reports, it appears the recipients have done so. As we all know from our everyday lives, polite and nonthreatening requests are more likely to be met with compliance than rude and threatening requests. For cease and desist letters, using “new school” honey instead of “old school” vinegar might lead to quicker compliance while providing some buzz for the company sending the letter. Regardless, lawyers and their clients need to be thinking about which proverbial substance—vinegar or honey—is appropriate in a particular circumstance where they deem a cease and desist letter to be warranted.
Be aware of the “Streisand effect.”
The Streisand effect is the phenomenon in which an attempt to suppress information backfires, generating media and public interest in the very information that may not have ever seen the light of day but for the attempt to suppress it. The effect is named after Barbara Streisand whose attempt in the early 2000s to suppress through litigation an aerial photograph of her Malibu, California, home—a photo which very few people knew existed—drew public attention to the photo in droves. Cease and desist letters concerning publicly available information can inadvertently serve to publicize that information—which no one originally may have known about or cared about—when the letter itself garners public attention. This, of course, is exactly what the sender of the letter wants to keep from happening. Because of the potential for certain public cease and desist letters to trigger the Streisand effect, lawyers and clients should consider if requesting to suppress information through such a letter is worth the risk.
Don’t forget the peanut gallery, either.
Thanks to online and social media, practically anybody who wants a public voice can have one. There are legions of reporters, bloggers, and everyday Joes and Janes who are chomping at the bit to chime in on things that are near and dear to their hearts. There are plenty of legal journalists, authors, professors, students, and lawyers who would love to base a blog post or social media post around a cease and desist letter that contains flimsy theories of legal wrongdoing, maybe a typo or two, and yes—PLEASE YES—Bluebooking errors. A cease and desist letter that is a trainwreck on paper could be damaging to the reputation of the client, its lawyers, and those lawyers’ firm(s). It could lead to lost business for the lawyers and firm(s). It could also weaken the client’s position in a legal dispute. With the knowledge that any cease and desist letter could go viral, lawyers should make sure they are so comfortable with the content and substance of each letter that they would not be embarrassed if each letter was posted in full on the website of this very publication and others.
How can the recipient of a letter put it to good use?
Not every recipient of a cease and desist letter can wrap their products in excerpts of the letter like the New Jersey restaurant group I mentioned above. But recipients and their lawyers should think about how to use the letter to their advantage. It might not always be with an eye toward litigation. Can they publicize the mere receipt of the letter in a way to tilt public opinion in their favor and against the sender? Can they publicize their response in a manner that accomplishes the same goal? Can the client use the letter to drive up sales or build goodwill with its customers and other key audiences? Many lawyers like to claim that they are not just lawyers—they are “business counselors.” If that is truly the case, there may be opportunities with the receipt of a cease and desist letter for a lawyer to provide creative advice to his or her client that deviates from the simple but stale “I’ll review the case law in the letter and draft a response for your review.”
Our old pal the cease and desist letter is having a moment these days. Once banished into the darkest recesses of lawyers’ and clients’ files, the letter has become the life of the party thanks to the media and public attention it has been receiving recently. Because of this new-found celebrity, lawyers and clients should draft future letters and responses carefully, taking into account a number of considerations—including the four I mentioned above. Their next letter might be the latest letter to go viral.
Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a national legal services and communications firm helping other attorneys and clients manage media interest and public interest in those clients’ legal disputes. He is also a director at Baretz+Brunelle, a national communications firm. Contact him at 215-454-2180, or @waynepollock_cs on Twitter.
Reprinted with permission from the March 13, 2018, online edition of The Legal Intelligencer © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - email@example.com.