Now THIS Is How You Write A Cease-And-Desist Letter

You're not just an attorney, you're an attorney for a specific client; act like it.

Most non-attorneys have an idea of how attorneys are supposed to act, speak, and go about their careers. But why do all attorneys have the same reputation despite practicing in different areas of law, having different clients, and having different levels of involvement in the day-to-day operations with their clients?

I recently read a cease and desist letter on Adweek that made me wonder why more attorneys do things their way instead of their clients’ way. The letter, sent from Netflix’s legal department, was in regard to a Stranger Things themed pop-up bar (full disclosure: I am big fan of the show and recommend it to just about anyone, regardless of what genres you typically enjoy). Netflix’s attorneys sent the cease and desist letter thanking the owners of the bar for loving the show and telling them to “wait until you see Season 2!” Needless to say, this was not your typical cease and desist.

The letter did ultimately ask the bar to discontinue the themed pop-up bar, but requested only that the owners “not extend the pop-up beyond its six-week run ending in September,” and even told the bar that if they were interested in doing it again they should just ask for permission. Netflix gets it; there is obviously enough of a market for Stranger Things fans that a bar was willing wanted to make their bar themed after the show to bring in customers. So why alienate those customers and insult a company that was essentially marketing your show for free (albeit without permission)?

Winning vs. Best Serving Your Client

Many attorneys would argue the letter mentioned above was not professional, would not work, was not threatening enough, or some other reason they would never have sent a cease and desist that looked like that. For those that follow the show, Netflix’s legal department did issue a slight threat in stating that “the Demogorgon [a monster in the show] is not always as forgiving. So please don’t make us call your mom.” However, Netflix took the opportunity to both get its message across and do so in a way that didn’t alienate its customer. Overall, it resulted in a bunch of free, good publicity. See how some publications are reporting it: Not a Regular Cease-and-Desist, A Cool Cease-and-Desist, The Atlantic (“Phrases that are not often used to describe a cease-and-desist letter: ‘the best,’ ‘hilarious,’ ‘cool,’ ‘perfect,’ ‘super classy.’”); and Netflix’s ‘Stranger Things’ Legal Team Sent the Chillest Cease-and-Desist Letter, PureWow (“Netflix’s legal team sent a brilliant cease-and-desist letter kindly asking a pop-up Stranger Things-themed bar to L’Eggo their unauthorized Eggos.”).

There is a multitude of reasons why Netflix likely decided to handle this in the way that it did, but ultimately it chose the path that best correlated with its corporate values and would be effective at the same time.

Attorneys everywhere can learn from this. Winning is important, keeping your client happy and successful is more important, and the two are not always tied to one another.

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Sure, Netflix’s attorneys could have sent a scathing letter to the pop-up bar threatening scorched-earth litigation if anyone so much as mentions Stranger Things within a square mile of that bar, but what kind of message would that have sent? Netflix makes money off of fans of shows that it creates—a relatively new income stream for Netflix, which formerly just had a library of other production companies’ shows and movies. Netflix does not want to play hardball with a bar owned by a couple of guys just trying help everyone have a good time, they just don’t want to be caught by surprise when they find out someone has a Stranger Things bar.

Netflix took a negative and made it into a positive by turning something that often pops up online to show companies in a negative light—cease and desist letters—to positively market not only Stranger Things, but Netflix’s values.

Attorneys in every field of law can learn from this. When you draft a brief, negotiate a contract, buy a competitor, or do anything else for your client, don’t always think solely about the end goal, but think about how you are going to get there.

It’s Not About Where You’re Going; It’s About How You Get There

I can’t tell you how many litigations our firm has been involved in where the matter could have been solved before attorneys were ever necessary, or at least before litigators were even necessary. People may laugh at Netflix for taking a non-confrontational approach to what is normally one of the most confrontational legal documents pre-litigation—the cease and desist letter—but since I have already used one over-used idiom I may as well use another: you catch more flies with honey than vinegar.

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Netflix was polite, yet firm, in its letter. In the end it did not want the bar to continue its pop-up but knew a strongly worded letter might result in endless litigation over something that was planned to be over within a couple of weeks, not to mention bad press. Just think about how you, as an attorney, would have responded to Netflix’s letter in comparison to some other cease and desists that have been published in these pages.

Had Netflix sent a letter requiring the bar cease all operations immediately and pay Netflix any profits from the use of its trademark, you bet your law degree that bar would have lawyered up and fought a prolonged legal battle, causing Netflix to either put up or shut up, likely having to file a TRO to close at least the pop-up portion of the bar during the pendency of the litigation, which could take years, costing both Netflix and the bar a ton of money, all while being litigated in a public forum.

Netflix didn’t want this; it didn’t want the bar using its trademark, but it also really did not want to sue anyone, and it likely won’t have to. Netflix accomplished more with a friendly cease and desist letter than most scorched Earth cease and desists letters will ever accomplish; Netflix protected its trademark, got its point across, likely actually got the bar to cease and desist instead of threatening them into lawyering up, saved costs by not having a prolonged legal battle, and got Netflix good publicity and marketing, all at the same time, and all because one of Netflix’s attorneys had the wherewithal and creativity to do something different than the norm.

This can be applied to every area of law, not just cease and desist letters. Yes, you want to win that case, but at what cost to your client? Everything filed and said in court is public (aside from the exceptions everyone is aware of) and you represent your client whenever you file or say something. Not only be careful what you say, but be sure that how you are handling your case and yourself is in line with your client’s values. (I’m not saying that if you represent Comedy Central you should be cracking jokes in front of the jury or if you represent a soap opera everything you say should be extremely dramatic followed by tense music.)

But also remember that if you represent any company and do something against that company’s culture, it is going to look worse for your client than it is for you (aside from your client’s view of you). Sticking with Netflix, had the cease and desist been a typical, threatening letter, Netflix would have gotten some harsh backlash because it would have gone against everything Netflix stands for; the attorney that drafted it may have been fired by Netflix, but the average person never would have heard the attorney’s name.

My colleagues and I do whatever our clients demand of us, whether that be to be the “bad guy” threatening litigation or the “good guy” trying to negotiate a good deal for both parties or between childhood friends who are now CEOs of companies looking to do business together. But we are never afraid to let our clients know when we believe something they want to do goes against their company’s values or culture and leave it to them to decide the right thing to do.

It’s not easy putting on all different hats, especially when you realize one hat works better, but your job is not to always win your way, but to best serve your client while doing everything in your power to get to the finish line.


brian-grossmanBrian Grossman was an attorney at Balestriere Fariello, a trial and investigations law firm which represents clients in all aspects of complex commercial litigation and arbitration from pre-filing investigations to trial and appeals. You can reach firm partner John Balestriere at john.g.balestriere@balestrierefariello.com.