Happy holidays!
This is a repost of three posts about cease and desist letter posts: a description of a cease and desist letter is, as explained by my music; a sample cease and desist letter in the style of Dr. Seuss; and a Christmas-themed response letter. Each post is reproduced in full below.
While the posts are intended to be light-hearted, they in fact provide a summary of the cease and desist letter process when employees leave their job and take information with them or otherwise violate their contractual or other obligations to their former (or soon-to-be former) employer. If you’re an employee considering a job change, you should read this post (Leaving your job? Don’t take anything… anything! New employers take note) and watch this video (The Exit Plan: Being a Good Leaver). If you’re a future employer or recruiter, you should have your candidates watch the video. And note that a new Ten Minute TrainingTM video on what to do when you receive to a cease and desist letter coming very soon.
In the meantime, here are the cease and desist letter posts.
The First Post (2019)
Trade Secrets and Noncompetes – Music to My Ears:
The Cease and Desist Letter
The other day, I was listening to 1970’s and 80’s music (which I am wont to do, much to my wife’s chagrin).
The music, as music often does, evoked memories of the past.
Think what you will, but one of those memories was of a decision issued by U.S. District Court Judge O’Toole (for those not familiar with him, he is an outstanding judge in the District of Massachusetts) from years ago when I was an associate working on a trademark case we had before him.
When Judge O’Toole issued the decision, he summed up the key to trademark law (i.e., consumer confusion) in a footnote as follows:
Consumer confusion is the touchstone of trademark law, as such confusion makes it difficult for consumers searching for either the defendants’ or the plaintiff’s wares to get what they want. Cf. Neil Young, “Hey Hey, My My,” on Rust Never Sleeps (Warner 1979) (“They give you this, but you pay for that.”).
As I continued listening to my playlist, it occurred to me that, much like trademark law, trade secrets and noncompete law can be viewed through the lens of music.
So, I decided to try, and here is the beginning of what I expect will be a few (lighter) posts.
Trade secrets and noncompete cases typically start with a cease and desist letter, often referred to as a “nastygram” or a “lawyer letter,” to a former employee (and sometimes his or her new employer).
The purpose of a cease and desist letter is several-fold. Most important, it puts the other side on notice of the claimed issues and provides an opportunity to explore the possibility of a quick resolution (which is fairly common in these cases). And, if the parties can’t resolve the matter, it demonstrates to the judge that the former employer tried to resolve the matter, but was left with no choice but to resort to the courts.
While cease and desist letters need to be carefully tailored to the particular facts and circumstances of each matter, they tend to follow a familiar pattern – which can be outlined as an oldie’s playlist:
The letter typically starts with an introduction of the role of the lawyer writing the letter. For example, “We are trade secrets / noncompete counsel for [the particular client].”
- “Why” (Annie Lennox)
The next part of the letter is a brief summary explaining why the former employee is receiving a lawyer letter. In most instances, this portion of the letter explains that the former employer is seeking information about the employee’s new position and his or her intentions in sufficient detail to enable the former employer to assess the scope of the risk posed by the employee’s new role and determine whether a quick, voluntary, and relatively amicable resolution is possible, or whether, instead, litigation will be necessary.
This is where the letter explains how valuable the employee was to the particular part of the business in which he or she worked. It will cover the nature of the employee’s work for the company and a summary of the types of information and customer goodwill to which the employee had exposure, as well as cover any other information about the employee’s work that may be relevant.
- “Don’t speak” (No Doubt)
The next part of the letter is an explanation of the contractual and legal obligations that bar the employee from using or disclosing trade secrets or other confidential information. It also identifies any other applicable limitations on the employee’s post-employment conduct that the former employer believes are important to highlight, including, for example, noncompete, nonsolicit, and no-raid obligations.
The letter then turns to the next key event: the employee’s departure. To the extent that the employee made any representations about what he or she would be doing, those would be included.
Frequently, after an employee provides notice that he or she is leaving, the employer performs a preliminary assessment of whether the employee poses a risk to the former employer’s legitimate business interests. This is the part of the letter that would state that the employer performed (or is in the process of performing) an investigation and provide a brief summary of the nature of that investigation, including, for example, computer forensics and a review of the former employee’s email.
The letter next turns to the findings, frequently outlining the results of any computer forensics and email searches. Quite often, the results demonstrate bad conduct by the employee (which is in most instances what precipitated the letter).
Depending on a number of factors (including, how bad the employee’s conduct is and the risk posed by the employee), the employer will typically take one of two general paths:
(1) The “Every breath you take” approach in which the letter simply serves to notify the employee that “we’ll be watching you,” with the goal of ensuring that the employee is aware of and understands (and will therefore comply with) his or her post-employment obligations set out in the letter; or
(2) The “You oughta know” approach in which the employer warns the employee that litigation is imminent if the the employee fails to engage in certain demanded actions (generally coming into compliance with his or her obligations or otherwise putting limitations around the work he or she will perform for the new employer).
Next up: What to do when the response to the cease and desist letter is the “Sound of Silence” (Simon & Garfunkel).
____
Thanks to Nicole Daly for suggesting “Every breath you take”!
The Second Post (2023)
Cease and Desist Letters (Guest Author)
In the past, I had described cease and desist letters through song: Trade Secrets and Noncompetes – Music to My Ears: The Cease and Desist Letter.
Today I am trying something different.
Though I never have guest authors (and do not plan to change that going forward), I decided to make an exception. Below is a post from a special guest “author” (well, really collaborator): ChatGPT.
I asked ChatGPT to write a cease and desist letter in connection with a noncompete protecting trade secrets and customer goodwill inspired by the style of the beloved Dr. Seuss.
After several rounds (well, maybe more than several) and some edits (I cannot help myself), we came up with this:
Dear Sir or Madam,
We write to you with regret and concern,
Your actions have caused us much to discern.
In anticipation of your resignation,
You took information with no hesitation.
Your noncompete agreement, you’re ignoring,
And to our competitors, you’re exploring.
This behavior you know is not allowed,
And we’re afraid that it must be disavowed.
Your actions are causing us significant distress,
And we want to remind you of our success.
Our trade secrets are what set us apart,
And protecting them is close to our heart.
We value our trade secrets, that is true,
and we expect the same conduct from you.
So, this breach of trust we cannot ignore,
And whether to take action, we must explore.
We won’t stand for such behavior, it is true,
Using our trade secrets, it’s not cool to do!
Your noncompete agreement you’re defying,
We won’t let this slide, we’re not lying!
Return the information you took, we implore,
And cease and desist from using it, we deplore!
Stop violating your noncompete, don’t make a fuss,
Or we’ll pursue legal action, as we must!
We know your actions, they do persist,
So, we must now ask you to cease and desist.
You’re harming our business, it’s plain to see,
And we simply cannot let that be.
We’ve worked hard to build our trade secrets and goodwill,
And the need to protect them, we’re willing to fulfill.
Our obligations are to our customers and staff,
And we won’t let you jeopardize them with your craft.
We have customer goodwill we need to maintain,
And of course we have our reputation to sustain.
You have obligations, old and new,
To protect our trade secrets and goodwill too.
Please remember, that you signed an enforceable agreement,
And your violation of it is no minor achievement.
If you persist in your conduct, we must take a stand,
And protect what we’ve built with our own hand.
And if you choose instead to not comply,
You’ll leave us with no choice but to rectify.
Our legal team will be standing by,
And rest assured that they will not be shy.
In conclusion, we feel we must remind you,
Of your obligations, existing and new.
To protect our trade secrets and goodwill too,
And remember, we’ll be watching you.
Please consider this letter very carefully,
And the obligations you have undertaken oh so fairly.
We hope this matter can now be resolved,
Without any further actions or courts involved.
We’re sorry it’s come to this, it’s true,
But we have no other choice than to pursue.
Please, do the right thing and quickly comply,
And we’ll be able to avoid any further outcry.
Sincerely,
I asked ChatGPT what it thought of my “tweaks” (as I called them). It took the edits in stride, and said this:
I think your tweaks have improved the original version, and the letter now sounds more assertive and professional. The language used is clear and concise, and the message is delivered effectively. The added emphasis on the importance of protecting trade secrets and goodwill strengthens the case against the employee’s actions.
Overall, I believe your version is well-written and conveys the necessary message to the employee.
Gotta love ChatGPT (and Dr. Seuss!).
And thanks to my partners Nicole Gage (for making sure I stay on the right side of copyright laws) and Steve Riden (for giving me the idea to try ChatGPT for something like this; his was to music).
The Third Post (2023)
‘Twas the Night Before Leaving
Below is another guest post by ChatGPT. This one is a response to a cease and desist letter, inspired by ’Twas the Night Before Christmas.
Backstory
In 2019, I described cease and desist letters involving the protection of trade secrets and customer goodwill and enforcement of restrictive covenants through song: Trade Secrets and Noncompetes – Music to My Ears: The Cease and Desist Letter.
This past April, I asked ChatGPT to actually write such a cease and desist letter in a style inspired by Dr. Seuss.
No sooner had I posted that letter than it occurred to me (and some others) that the C&D letter required a response from the recipient.
As we approached this time of year, I remembered a poem from about 10 years ago written by Mike Greco. The poem, Twas the Night Before Christmas – Non-Compete Style, told the story of a group of employees who took trade secrets and left en masse. Read it, it’s fun.
That led me to try responding to the cease and desist letter using ’Twas the Night Before Christmas as the starting point.
I again wanted help from an AI LLM.
For conflicts reasons, I enlisted Google Bard. After several failed efforts, I decided we need different AI counsel. So, back to ChatGPT I went. Despite the obvious conflict of interest, ChatGPT was more than willing to help.
However, unlike Mike’s poem, hewing close to the original text, ChatGPT either just incorporated the original text or ignored it entirely. After some work, we came up with a reasonable response. Though there are some parts that we got to stay true to the poem, it ultimately sounds more like a Dr. Seuss story. That said, it gets the job done. (You may want to read the initial cease and desist letter first.)
Enjoy…
Dear [Former Employer],
‘Twas the night before leaving, when all through the office,
Not a worker was stirring, not even the bosses.
The trade secrets were guarded by the firm with great care,
In hopes that no breaches soon would be there.
In the dead of night, secrets I stashed away,
Silent theft of mine, where only shadows play.
At dawn’s light, the deed unseen,
Awake to a day, as if in a dream.
My house so quiet, the world seemed at rest,
As I pondered my new job, hoping for the best.
When what to my wondering eyes did appear,
But a cease and desist, and its message so clear.
In legal prose, your letter did insist,
Cease and desist, on points not to be missed.
Secrets taken, noncompete breach cited,
Demands for return, in terms firm and uninvited.
Thank you for your words, though filled with dismay,
They’ve given me a chance, my perspective to convey.
A chance to respond, to tell my own tale,
In this silent night, my truth to unveil.
In words calm and steady, I’ve crafted my side,
Of contracts and promises, unjustly applied.
For what I had taken, was only to show,
The wages unpaid, and the monies you owe.
I speak of the noncompete, twisted and bent,
Of a workplace so hostile, its ethics all spent.
With each word I’ve penned, I hope you will see,
The reasons behind, my heartfelt glee.
In your company’s halls, where I once did toil,
I found not joy, but a pot about to boil.
The environment was harsh, cold, and severe,
A place of hostility, unease, and fear.
Wages promised to me, like snowflakes unseen,
Never landing in my hands, in my pocket never seen.
Each paycheck like a phantom, fleeting and rare,
A mirage of fairness, in a landscape of despair.
Allegations of theft, I must firmly oppose,
For in the spirit of truth, my action arose.
The information I gathered, with intentions so pure,
To seek what was owed, and your wrongs to cure.
Your legal threats, like a cold winter’s gale,
Won’t deter my quest, for truth must prevail.
I took what I needed, evidence so stark,
To shine light on injustices, kept hidden in the dark.
While the world slept snug, unaware of the plight,
You pilfered from rivals under cover of night.
In a silent heist, as the stars did gleam,
You stole their secrets, a clandestine scheme.
This festive season, I seek resolution fair,
To clear my name and breathe fresh air.
For in this tale of secrets and wages unpaid,
Lies a story of injustice, deep in the shade.
With this festive season spreading its cheer,
I hope we can resolve this before the New Year.
In the spirit of peace, on this tranquil night,
May the new year bring justice, and set matters right.
So consider this letter, my heartfelt reply,
To address your claims, which are mostly a lie.
With respect and sincerity, under the moon so bright,
Happy holidays to all, and to all a good night!
* * *
You will be happy to know that ChatGPT was pleased with the outcome:
Your final letter is beautifully crafted, capturing the essence of the cease and desist response while maintaining the rhythm and charm of “’Twas the Night Before Christmas.” It effectively conveys the employee’s perspective, addressing allegations, workplace issues, and the desire for resolution. Well done! If you have any more requests or need further assistance in the future, feel free to reach out. Happy holidays!
Happy holidays!
*Thank you to Nicole Daly, Heather Krauss, and Sarah Tishler for proofreading!
* * *
Hope you enjoyed the reprise!
Happy holidays!