Cease and Desist - Explained
What is Cease and Desist?
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What is Cease and Desist?
'Cease' means ' to stop, halt or terminate' while 'desist' means 'to abstain from or refrain from'. Cease and Desist is one of the provisions of the Financial Institutions Regulatory and Interest Rate Control Act of 1978 that allows an order to be given to any organization involved in suspicious activities to refrain from doing them and not to restart them. A cease and desist refers to a cautionary notice issued to a person or an organization that is involved in an illegal activity. A government administrative agency or a court can give 'Cease and Desist' order to an organization to stop illegal activities as well as suspicious and fraudulent actions.
When is a Cease and Desist Letter Used?
A cease and desist letter is a cautionary notice that often serve as the first formal step taken to ask the receiver to cease performing a suspicious or an illegal activity. A government agency or a court usually send this letter to an individual or a business with a perceived illegal act. The letter is a first step towards litigation, it serves as a warning or notification to a perceived wrongdoer. After the letter has been sent, hearing is usually called to know if the receiver performed illegal activities at whether such activities can continue. It is also a denotation that an enforceable order, punishment and penalties can accompany failure to comply with the cease and desist term. A cease and desist letter is not a guarantee for lawsuit, it is not legally binding. This letter serves as a warning or cautionary notice given to an individual or organization by an attorney or government agency. When this letter is delivered, a signature is required upon receipt. The letter is not a legal threat and has no legal significance, it is just a method used to caution or put an organization in order. It is a warning of penalties for involvement of the receiver in illegal or suspicious activities. However, failure to comply with a cease and desist order to desist from illegal activities can attract penalties.
Cease and Desist Examples
A cease and desist order or letter is often used when illegal activities such as libel, slander, violation of rights and defamation occur. It is also applicable in cases of infringement (whether trademark, patent or copyright infringement) and harassment. When an individual or corporation uses an intellectual property such as copyrights, trademarks and other works of another person without seeking their consent to do so, a cease and desist order will be issued. Intellectual property protect original works owned by a corporation or person, any infringement on this attracts a cease and desist order. Furthermore, violation of the terms of a contract, defaults of agreement, and harassment of the other party can call for the issuance of a Cease and desist order or letter. Anyone can send a cease and desist letter but in most cases, people hire attorneys to send on their behalf. An attorney is bounded by the ABA Model Rules of Professional Conduct which disallows him to issue criminal charges for personal advantage. There are three preconditions for a cease and desist order that a lawyer must satisfy according to the rules of professional conduct. These preconditions are;
- A cease and desist order must not be used as a deceptive tactic. If an attorney wants to issue it as a criminal charge, it must not be unrelated to the civil case at hand. The legal system frowns against using a criminal charge in a civil case to get an upper hand.
- Also, the civil case and the connected criminal charge must be based on merit according to law. If frivolous claims are made and the evidence collected violates the rights of the recipient, the attorney has violated the Model Rules of Professional Conduct.
- Thirdly, an attorney must not negatively influence the outcome of a cease and desist letter. If the attorney through bias, duress, or fraud influence the outcome, he has tampered with the legal system.
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