The Truth About “Cease and Desist” Letters in Virginia

Most non-compete disputes start with a knock on the door.

The mailman hands you a package for your signature. Inside, you discover a cease and desist letter that your former boss has sent on the stationary of a large law firm.  The letter contains vaguely threatening language that the employer is willing to take “legal action” to “protect their legal rights.” You are asked to reply in writing by the end of the week with your intentions.

Before you respond, here’s the truth about cease and desist letters from your boss’s perspective.

Consider what the law firm Epstein Becker Green recently said to its corporate clients in its newsletter, Preparing for Non-Compete Litigation, which is a guide to enforcing non-compete contracts for employers:

The cease and desist letter provides an employer with an opportunity to resolve a dispute without proceeding with litigation. Some individuals respond to the mere threat of legal action, so the employer may be able to avoid the time and costs involved with litigation.

The employer is seeking a response from you, in part, to gather evidence for a potential lawsuit:

An employer can learn valuable information about a suspected violation before commencing litigation. In many instances, an employee (or his counsel) responds to a cease and desist letter by arguing that the employee’s conduct is not unlawful or the non-compete is unenforceable. The response may include information about the circumstances that caused the employee to terminate his employment, details about his new job responsibilities and whether he considers the new employer a direct competitor of the former employer.

For your boss, a cease and desist letter is everyday business, not a red alarm, but it is something to take seriously before deciding how to respond.

So here is what you can do when you receive a cease a desist letter:

1. Gather Your Documents

You have a right to obtain a copy of your employment contract, which may be requested on your behalf by an attorney. Non-compete agreements are different from other contracts because they restrict trade and implicate public policy concerns. A court could strike the non-compete agreement if it is too broad in geographic scope or duration, but you will need to review the terms with a licensed attorney.

2. Get Legal Advice Before Responding

Many times, cease and desist letters are invitations to make a statement against interest, as the employer practice guide make clear above. That request to respond by the end of the week? Often, the ex-employer is going fishing for evidence that may be used against you in a lawsuit. Talk to an attorney before making any statements in response to the letter.

You need to act carefully to protect your rights as an employee.

Every case is different and you should speak with an attorney who regularly handles non-compete disputes before deciding how to respond to the cease and desist letter.