Effective cease and desist letters do not require fancy lawyerly language. Like many other letters, they need to be direct and terse without sugarcoating the fact your company will take certain actions to protect its trade secrets and other confidential information. Your goal is to convince the new employer’s legal counsel, not the former employee, that legitimately defending against any claims is virtually impossible.
Cease and desist letters should generally follow this format:
First, if you are seeking immediate relief–a temporary restraining order or injunctive relief–this must be shared immediately and emphatically (e.g., use of italics). It must be coupled with a short timeframe for a response, which should not exceed twenty-four hours. Otherwise, a court will question whether an emergency actually exists and, therefore, deny your request for immediate relief.
Of course, if you threaten taking action, you must then follow through. For if you do not, then your credibility is irreparably damaged for the remainder of the dispute.
Second, share the relevant sections of the agreements and policies that are violated. The letter should recite specific sections of the agreements or policies, with full copies of the agreements or policies attached to the letter. Failure to provide the full agreement or policy indicates the former employer is concerned other language in those documents could defeat the attempt at enforcement.
Likewise, cite the specific provisions of state and federal trade secret acts, the Computer Fraud and Abuse Act, state unfair competition laws, intellectual property laws, and all other laws or regulations to match your claims.
Third, inform the former employee of the conduct that violates the agreement or policy. This section of the letter should include specific and general statements of the violations. When sharing specific acts, provide sufficient detail such that no doubt exists the former employer has substantial and obvious proof to present a strong case. An accusation of “downloading of emails” is not enough. The number of emails, names of files, receiving email accounts, and time of downloading should be shared. Because the facts show the former employer cannot be defeated in Court there is no reason to elaborate beyond the plain facts of the situation.
Fourth, list your demands and the timeframe for implementation. There are two particular sets of considerations. (1) How do you want the former employee to be limited in his future employment? (2) How would you like confidential materials be returned or destroyed. This section should be written with the Judge in mind–you want the former employee to continue working to support his family without jeopardizing your company’s interests. Put differently, do not look like a jerk who is seeking personal revenge.
Most notably, sympathy for former employees’ need to continued access to cell phones and computers is understandable. Ways to dodge this bullet include offering new equipment, ensuring personal photos will be protected, and promising a quick turnaround time to return the files and/or devices.
Fifth, state the letter is also a “litigation hold” letter that creates certain document and metadata preservation obligations. This signals future litigation is contemplated without setting a hard deadline for filing a lawsuit.
In total, a cease and desist letter should be a blunt communication without hyberbole and bluster. Both style and substance must show this is a serious matter than will not be taken lightly.
David Seidman is the principal and founder of Seidman Law Group, LLC. He serves as outside general counsel for companies, which requires him to consider a diverse range of corporate, dispute resolution and avoidance, contract drafting and negotiation, real estate, and other issues. He can be reached at david@seidmanlawgroup.com or 312-399-7390.
This blog post is not legal advice. Please consult an experienced attorney to assist with your legal issues.
