What is a Cease and Desist Letter?

A cease and desist letter is a way of informing the recipient that they have allegedly infringed on a legal right of the sender and demanding that they stop. It is common for cease and desist letters to be sent in the context of protecting confidential information or intellectual property, but they may also be used in cases of harassment, defamation, or other forms of unlawful conduct.

the recipient is under no legal obligation to respond to a cease and desist letter, it should be seen as a cause for concern and evaluated properly. It is important to decide on a course of action once you have received the cease and desist letter, which may involve consulting a lawyer to evaluate both sides of the presented case, as well as discussing the situation with any business partners, your employer, or other individuals that may be affected by the course of action that you choose to take.

Receiving a Cease and Desist Letter as an Employee

You may receive a cease and desist letter during the course of your employment. This post will discuss three specific instances in which this may be the case. First, you may simply be the first point of contact for a cease and desist letter that is ultimately directed to your employer. Alternatively, you may receive a cease and desist letter that is directed to you personally for activities conducted outside the course of your employment.

Finally, you may receive a cease and desist letter from a former employer setting out, for example, that your activities at your new place of employment are in breach of the in-force provisions of the employment or other agreement you signed with your former employer. All of these possibilities will be further explored in this post, alongside potential next steps to take. 

Being the First Point of Contact for a Cease and Desist Letter Directed to Your Employer

If you receive a cease and desist letter during the course of your employment, it is important to establish whether you are the appropriate recipient of the letter. While cease and desist letters do not necessarily follow a specific format, they often have common features, one of which is the recipient’s information.

If you have established that the intended recipient of the letter is your employer, and not yourself, it is appropriate to ensure that your employer receives it so that they can evaluate their options and decide how to proceed.

Receiving a Cease and Desist Letter for Activities Outside of the Course of Employment

It is possible that you receive a cease and desist letter during the course of your employment for activities not related to your employment. It is important to stay calm and not to respond immediately to the letter without first considering the possible consequences.

Any comments or response you make to the sender may be used against you in future litigation. Therefore, it is recommended to avoid publicly discussing the contents of the letter before consulting counsel and/or carefully considering your next steps.

Regardless of the content of the cease and desist letter, you are not bound to choose one of the options presented therein or comply with any one or more of the demands contained therein.

This is why the advice of an experienced professional is valuable when considering a course of action in response to such a letter, which can include complying with the demands of the letter, ignoring the letter, or negotiating to arrive at a mutually acceptable outcome.

Receiving an Employment Cease and Desist Letter

You may have received a cease and desist letter from a former employer that suspects that you are violating your post-employment restrictions. As a former employee, you have a continuing common law obligation to not misuse your previous employer’s confidential information. This obligation may also be embedded in your employment agreement.

You may have even greater obligations if you were a fiduciary, or if you have signed a valid restrictive covenant agreement with your former employer, such as not being allowed to solicit employees of your former employer or not competing with your former employer. If you have signed a non-compete agreement with your former employer (and such agreements are still legal in your jurisdiction), you may be prohibited from starting a similar business as your past employer or working for a competitor of your past employer for a specified period of time after your employment ends.

If you violate the terms of your non-compete agreement, your former employee may commence a lawsuit against you. Often times, a cease and desist letter is sent first, in an effort to resolve the matter without recourse to litigation. 

If you receive an employment-related cease and desist letter, it is important not to ignore it. By ignoring it, you risk the situation escalating, and the sender starting a legal proceeding against you. It is therefore important to obtain the advice of an experienced professional so that they may advise you on how best to proceed.

Conclusion

While the recipient of a cease and desist letter is not legally obligated to reply or comply with the terms therein, such letter should be evaluated properly to determine appropriate next steps to pursue. It is first important to establish whether or not you are the intended recipient of the letter. If the letter was intended to reach your employer and you were the first point of contact, it is important to ensure that your employer receives the letter so that they can decide how to proceed.

If the letter was intended for you, it may be helpful to establish whether it was for activities that took place outside of the scope of your employment, or whether it is specifically related to current activities within the scope of your employment, and your former employer wishing to ensure that their employment agreement provisions are not breached.

If you are indeed the intended recipient, regardless of the subject matter of the cease and desist letter, it is advisable to contact a lawyer right away upon receiving the letter, so that they may help you analyze it and plan a course of action that is best suited for your needs.

Christopher Heer is the owner and founder of Heer Law. He is an intellectual property lawyer, registered patent agent, registered trademark agent, and is also certified as a specialist in intellectual property law (patent) by the Law Society of Ontario.

He believes that intellectual property rights add tremendous value to businesses by enabling them to raise capital, build asset value, and grow faster under the protection that these exclusive rights give them.

Co-authored by Annette Latoszewska and Rareș Minecan.