Cease and Desist - General (New York)

CEASE AND DESIST LETTER — STATE OF NEW YORK

New York-specific template invoking New York General Business Law, New York Civil Rights Law, and New York common law remedies. Drafted for use by counsel admitted in the State of New York.

IMPORTANT NEW YORK NOTICES BEFORE USE

☐ Anti-SLAPP Caution. The 2020 amendments to N.Y. Civil Rights Law §§ 70-a and 76-a greatly expanded New York's anti-SLAPP statute to cover "any communication in a place open to the public or a public forum in connection with an issue of public interest." Before sending this letter based on any speech-related claim (defamation, tortious interference, publicity rights, etc.), counsel must assess whether the Recipient's conduct constitutes protected public petition/participation. An improper cease and desist may expose Sender to mandatory attorney-fee shifting under § 70-a(1)(a) and compensatory and punitive damages.

☐ GBL § 349 Screen. If Sender is asserting a deceptive practices claim, the conduct must be (i) consumer-oriented, (ii) materially misleading, and (iii) have caused injury. Private plaintiffs recover actual damages, discretionary treble damages capped at $1,000 under § 349(h), and attorneys' fees. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995).

☐ Trade Secret Framework. New York has NOT adopted the Uniform Trade Secrets Act. Misappropriation claims proceed under New York common law following Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009), which also establishes that a presumption of irreparable harm does NOT automatically arise from mere possession of a trade secret by a competitor.

1. SENDER AND RECIPIENT

From:
[________________________________] (Sender)
[________________________________] (Title)
[________________________________] (Entity, if applicable)
[________________________________] (NY Street Address)
[________________________________] (City, NY, ZIP)
Tel: [________________________________]
E-mail: [________________________________]

Through counsel:
[________________________________], Esq.
[________________________________] (Law Firm)
Admitted in the State of New York
[________________________________] (NY Office Address)

To (via Certified Mail, Return Receipt Requested, and E-mail):
[________________________________] (Recipient)
[________________________________] (Title)
[________________________________] (Entity)
[________________________________] (Street Address)
[________________________________] (City, State, ZIP)

Date: [__/__/____]

Re: Formal Demand to Cease and Desist — [________________________________]

2. STATEMENT OF FACTS

2.1 Sender is a [________________________________] organized under the laws of the State of New York with its principal place of business in [________________________________] County, New York.

2.2 On or about [__/__/____], Sender first became aware that Recipient has engaged, and continues to engage, in the following conduct within the State of New York (the "Unauthorized Conduct"):

[________________________________]
[________________________________]
[________________________________]

2.3 Documentary evidence of the Unauthorized Conduct is identified in Exhibit A hereto (screenshots, correspondence, invoices, WHOIS records, certified translations where applicable, and affidavits).

2.4 Sender has suffered actual and continuing injury in New York, including [lost sales in the New York metropolitan area / reputational harm among New York customers / confusion among New York consumers / loss of enterprise value].

3. LEGAL BASES UNDER NEW YORK LAW

Counsel asserts the following New York causes of action, which Sender is prepared to pursue in the Supreme Court of the State of New York, Commercial Division (where jurisdictional thresholds under 22 NYCRR § 202.70 are met) or in the United States District Court for the [Southern/Eastern/Northern/Western] District of New York:

☐ Deceptive Acts and Practices — GBL § 349. Recipient's consumer-oriented conduct is materially misleading and has caused injury. Available remedies: actual damages, discretionary treble damages (capped at $1,000), and reasonable attorneys' fees.

☐ False Advertising — GBL § 350. Recipient's advertising contains statements that are false or misleading in a material respect. Available remedies: actual damages or $500, whichever is greater; discretionary treble damages (capped at $10,000); and attorneys' fees.

☐ Trademark Dilution — GBL § 360-l. Sender owns a famous and distinctive mark entitled to protection against blurring and tarnishment under New York's anti-dilution statute, which does NOT require proof of competition or confusion.

☐ Common-Law Trademark Infringement and Unfair Competition. New York recognizes unfair competition as the "misappropriation of the labors and expenditures of another." ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467 (2007).

☐ Misappropriation of Trade Secrets (Common Law). Because New York has not adopted the UTSA, Sender proceeds under the Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d 395 (1993), factors and Faiveley standard.

☐ Tortious Interference with Contract / Prospective Economic Advantage. Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413 (1996).

☐ Breach of Restrictive Covenant. Governed by BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999), which requires the restraint to be (i) no greater than necessary to protect a legitimate interest, (ii) not unduly burdensome, and (iii) not injurious to the public.

☐ Defamation / Trade Libel. Subject to New York's one-year statute of limitations under CPLR § 215(3) and the heightened anti-SLAPP standards of Civ. Rights Law § 76-a (actual malice required for matters of public concern).

☐ Right of Privacy/Publicity — N.Y. Civil Rights Law §§ 50, 51. New York does not recognize a common-law right of publicity; statutory claim is available for unauthorized commercial use of name, portrait, picture, or voice.

☐ Violation of the SHIELD Act — GBL § 899-aa. Where the Unauthorized Conduct involves unauthorized access to private information of New York residents.

4. DEMANDS

Pursuant to the foregoing, Sender demands that Recipient, within ten (10) calendar days of receipt of this letter (the "Compliance Deadline"):

4.1 Cease and Desist. Immediately and permanently cease all Unauthorized Conduct within the State of New York and elsewhere, including the specific acts described in Section 2.2 and Exhibit A.

4.2 Written Assurances. Provide Sender's counsel with a written, signed assurance, on Recipient's letterhead, confirming compliance with this demand and undertaking not to resume the Unauthorized Conduct.

4.3 Litigation Hold. Implement and maintain a litigation hold under the standards articulated in Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), and VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33 (1st Dep't 2012), preserving all ESI, metadata, communications, server logs, and backup tapes concerning the Unauthorized Conduct.

4.4 Accounting. Provide an accounting of all revenues derived from the Unauthorized Conduct to enable Sender to assess damages and disgorgement remedies available under New York law.

4.5 Destruction/Return. Deliver to Sender's counsel (or, at Sender's option, irreversibly destroy) all materials embodying or derived from the Unauthorized Conduct.

5. CONSEQUENCES OF NON-COMPLIANCE

5.1 Injunctive Relief. If Recipient fails to comply by the Compliance Deadline, Sender will seek emergency injunctive relief in the Supreme Court of the State of New York, [________________________________] County, pursuant to CPLR §§ 6301–6330, including a temporary restraining order on notice or ex parte where good cause is shown. Sender will rely on the Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839 (2005), standard for preliminary injunctive relief (likelihood of success, irreparable harm, balance of equities).

5.2 Monetary Relief. Sender will seek:
- Actual damages, plus prejudgment interest at nine percent (9%) per annum from the earliest ascertainable date the cause of action existed pursuant to CPLR §§ 5001 and 5004;
- Disgorgement of Recipient's profits from the Unauthorized Conduct;
- Discretionary treble damages under GBL §§ 349(h) and 350-a (subject to statutory caps);
- Punitive damages where the conduct is sufficiently egregious under Walker v. Sheldon, 10 N.Y.2d 401 (1961); and
- Reasonable attorneys' fees where authorized by statute or contract.

5.3 Commercial Division Venue. Where jurisdictional thresholds are met under 22 NYCRR § 202.70(b), Sender will file in the Commercial Division of the Supreme Court, which offers expedited discovery protocols and specialized judicial expertise in business disputes.

6. PRESERVATION OF RIGHTS

6.1 Six-Year Limitations Period. Sender reserves all rights under the six-year statute of limitations for contract claims under CPLR § 213(2) and applicable limitations periods for other claims.

6.2 No Waiver. Nothing in this letter is intended as, and nothing shall be deemed to constitute, a waiver of any right, remedy, defense, or position available to Sender, all of which are expressly reserved.

6.3 Settlement Communication. This letter is a confidential communication sent in anticipation of litigation and is protected from disclosure under CPLR § 4547 (New York's settlement privilege). It is not admissible as evidence of liability.

6.4 Not a License. Nothing in this letter or any response hereto shall be construed as granting any license, permission, or consent to use Sender's Protected Rights.

7. GOVERNING LAW AND FORUM

7.1 This letter and any resulting dispute shall be governed by and construed in accordance with the substantive laws of the State of New York, without regard to conflict-of-law principles, pursuant to N.Y. Gen. Oblig. Law § 5-1401.

7.2 Recipient is hereby notified that any litigation will be commenced exclusively in the Supreme Court of the State of New York, [________________________________] County, or the United States District Court for the [________________________________] District of New York, pursuant to N.Y. Gen. Oblig. Law § 5-1402 where applicable.

8. DELIVERY AND RESPONSE

Please direct all responses to undersigned counsel within the Compliance Deadline:

[________________________________], Esq.
[________________________________] (Firm)
[________________________________] (NY Address)
Tel: [________________________________]
E-mail: [________________________________]

Governed by the New York Rules of Professional Conduct (22 NYCRR Part 1200).

9. SIGNATURE

Very truly yours,

___________________________________
[________________________________], Esq.
Counsel for [________________________________]
NY Attorney Reg. No.: [________________________________]

Date: [__/__/____]

Enclosures: Exhibit A (Evidence of Unauthorized Conduct)
cc: Client; File

Sources and References

• N.Y. Gen. Bus. Law § 349 — https://www.nysenate.gov/legislation/laws/GBS/349
• N.Y. Gen. Bus. Law § 350 — https://www.nysenate.gov/legislation/laws/GBS/350
• N.Y. Civ. Rights Law §§ 70-a, 76-a (Anti-SLAPP)
• N.Y. CPLR § 6301 (Injunctive Relief)
• BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999)
• Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009)
• Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995)
• 22 NYCRR § 202.70 (Commercial Division Rules)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. It must be reviewed and customized by a New York-licensed attorney before use.