Don’t Panic: What to Do When You Receive a Cease & Desist Letter


If you’ve received a cease-and-desist letter, now is the time when it is most important to engage in rational decision-making.

There is a famous saying by Carl von Clausewitz that war is “simply the continuation of political intercourse, with the addition of other means.” Similarly, litigation, and pre-litigation activity like cease-and-desist letters, can often be viewed as a form of business negotiation through other means. The more successful you are, the more that legal confrontations are an inevitability.

When you receive a cease-and-desist letter, it means someone is taking a very aggressive stance toward your business and your business model. This might be grounded in a legitimate legal claim, or it might be a means of intimidation to get you to stop competing against them. But it is a time when making the right decisions could be a matter of survival, reputation, or very large sums of money.

Companies that litigate rarely spend less than $100,000 in legal fees, and that’s before we get to cost of an adverse judgment.

If you’ve received a cease-and-desist letter, the cost of being wrong in how you respond is very high.

Types of Demand Letters

There are a few primary motivations for a company sending a cease-and-desist letter:

  1. The bluff

For some cease-and-desist letters, the only goal is intimidation. If a company can scare you away from competing or challenging its business model by spending a few thousand dollars on a lawyer letter, that can be one of the best investments they can make.

As a non-lawyer, it’s difficult to know whether a potential legal claim has the strength to stand up to scrutiny.

One example of a legal claim that tends to be weak (depending on the jurisdiction) is legal claims related buying another company’s Adwords. Most companies hate this, but in most (but not all) jurisdictions it’s perfectly legal.

A good lawyer should be able to answer the question of whether a cease-and-desist letter has merit. And that’s the first step you need to ascertain before you develop your strategy on how to respond.

  1. Establishing the elements of a legal claim

Some cease-and-desist letters play a role in the legal claim itself.

For example, in the case of browsewrap contracts and web scraping, a cease-and-desist letter is a critical part of laying the legal foundation for a successful legal claim. If written effectively, the cease-and-desist letter can take what is potentially an unenforceable breach-of-contract claim and make it an enforceable online breach-of-contract claim.

Particularly in the context of web scraping, and in light of this recent precedent, the specific nuances of how you respond have never been more important.

In the context of trademark infringement, a cease-and-desist letter could play a role in establishing the plaintiff’s burden in showing that trademark infringement is “willful,” which could lead to a shift in attorneys’ fees and treble damages.

Notice and intent is an element of many legal claims. If drafted effectively, the cease-and-desist letter establishes the element of notice and intent when a company is warned of illegal conduct and continues to pursue that same course of conduct.

Which, again, is why it’s so important to know whether the substance of the legal claim itself has merit.

  1. This is your last warning

Sometimes, cease-and-desist letters are a plain, straightforward way of someone warning you that you need to stop what you’re doing or they’ll sue.

Of course, that’s what all these letters say. But sometimes it really is that simple.

Unless a lawyer is working a contingency fee (which is rarely the case for corporate attorneys), litigation is expensive for both sides.

The company that faces the prospect of suing might not be any more eager to sue than the company that faces the risk of getting sued. The potential plaintiff usually has as much motivation to stop the alleged misconduct without having to proceed to formal litigation as the potential plaintiff does.

  1. Let’s talk

In some instances, the letter is an aggressive invitation to negotiate. I recently had a client that received a cease-and-desist letter from a Fortune 100 company, engaged in an eight-month long negotiation with that company, and then developed a fantastic business relationship with them. The company then got acquired and had a fantastic exit!

Every cease-and-desist letter requires a bespoke strategy to resolve the situation in the most effective strategy possible. In some instances, the recipient of a cease-and-desist letter might end up better off than how they started.


Many of my clients find it strange when I encourage them to use certain DIY legal services such as LegalZoom or Clerky. In a sense, I’m recommending the competition. But the reality is that not all legal work requires individualization or circumspection. Sometimes automation and internet services are a cheaper and more effective alternative to hiring an attorney.

But if you’ve received a cease-and-desist letter, this is not the time to DIY. You need to know exactly the strength of your legal position, and you need to understand industry norms for how to respond given your circumstances. It’s effectively impossible to have this knowledge without specific expertise and high-powered legal research tools.

If this is you, the next decision you make might be the most important one in the history of your business.

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