The Cease and Desist

    Kevin Thompson is an MLM attorney, proud husband, father of four and a founding member of Thompson Burton PLLC. Named as one of the top 25 most influential people in direct sales, Kevin Thompson has extensive experience to help entrepreneurs launch their businesses on secure legal footing. Recently featured on Bloomberg TV and several national publications, Thompson is a thought-leader in the industry.


    If you’ve been in business for very long, there’s a good chance you’ve received what I call an “eat s%@#” letter from a lawyer. These are commonly referred to as “cease and desist” letters and are designed to serve two functions:

    • Intimidate the other side in an effort to get them to stop doing something; and,
    • Put the other side on notice that if the bad behavior persists, they could get sued.

    Cease and desist letters are commonly used by network marketing companies when distributors are raiding the downline.  I’ve sent dozens of these letters to disgruntled distributors on behalf of companies, usually with a bit of discomfort while hoping the information I’m fed is accurate.  This is my litmus test I explain to clients before sending a C&D: if they’re willing to spend the money to sue the other party if the letter is ignored, I’ll send it. Otherwise, I’m not interested in allowing a client to take a gamble with my credentials.  I’m not a fan of sending hollow threats.  When someone sees a C&D on Thompson Burton letterhead, it needs to be known that we follow up, otherwise C&Ds are meaningless.

    Negative Online Commentary

    Negative online commentary is the cost of doing business. If you’re doing anything meaningful, there’s going to be some skeptical people. And if you’re doing something shady, there’s going to be a lot of skeptical people, some of whom will choose to write an article about you or your business. It’s the nature of the internet. We all have the power to publish content at the push of a few keys. While I have several thoughts on how companies should deal with negative online articles, I’m going to focus instead on what they should NOT do: have their lawyers send Cease and Desist letters.

    In all of my years seeing online publishers post negative commentary about companies here and there, I have never once seen an author actually heed the C&D (hey, that rhymes). Troy Dooly gets them. BusinessForHome gets them. And now we can add Oz over at BehindMLM to the list. Oz was recently sent a C&D regarding his review about “BidsForMyMeds.” And what was the result? The article was not pulled down. On the contrary, Oz dedicated another article to the business and made the poor lawyer famous. Unless a company is willing to defend itself publicly on a platform it does not control, it should always lead with a hand shake instead of a handgun. Be proactive instead of reactive. I have yet to see an instance where an online author posts blatant lies about a company or person. In that scenario, it might make sense to throw a punch. In nearly all cases, the authors are providing their opinions. As biased as those opinions might be, they’re still opinions and given broad protections under the First Amendment.

    Scope of the First Amendment

    When you’re thinking about calling your lawyer to send one of these nasty-grams to an online meanie, it’s important to understand the limits of First Amendment protections. Below, I’ve inserted some notes from one my talks a few years ago with respect to the First Amendment and blogging. Bottom line: save the Cease and Desist for those occasions when the damages are real, you’re justified and you’re fully prepared to go the distance. Otherwise, throw water on the fire instead of gasoline by reaching out human-to-human and engaging in a conversation. Keep your emotions under control.

    If you’ve received a C&D, how did you handle it?

    Beginning of my notes


    A statement is defamatory if it “tends to injure the plaintiff’s reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation.” Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 573 (Minn. 1987).
    The defendant must have known or should have known that the communication was false. The statement must also have been a statement of fact.

    Defamation Per se

    Some statements are so defamatory that they are considered defamation per se; and the plaintiff need not prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease.

    What Constitutes Injury to Reputation?

    The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982).

    Libel-proof plaintiffs

    Some plaintiffs have such poor reputations to begin with, they are considered “libel- proof.” A plaintiff is “libel-proof” when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff’s reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).

    Defenses to Defamation

    Truth is an absolute defense.

    If the communication is designed as a parody where a reasonable audience would not confuse it as factual, it is not actionable. Falwell v. Hustler Magazine. In Falwell, the Supreme Court held, “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”

    In the mid-80s, Hustler magazine printed a satirical advertisement talking about Jerry Falwell’s “first time” with liquor. The advertisement was a play on words that made it seem like Jerry was talking about his “first time” with his mother. Since the advertisement was clearly a parody and one where a reasonable audience would know that the statements were not factual, Jerry Falwell lost his lawsuit.

    “Actual Malice”

    If the Plaintiff is considered a Public Official or Public Figure, they have to prove that the Defendant acted with malicious intent to harm the Plaintiff. It’s an extra element that makes it more difficult for public figures to file suit against their detractors.

    What’s a Public Figure/Official

    In general, Public Officials are individuals that hold public office while public figures are individuals that are in the forefront of particular issues.

    Large, publicly traded companies are typically treated as “public figures” for purposes of First Amendment cases. If a citizen lashes out at Comcast and communicates false statements. Comcast would have the additional burden of proving that the individual acted with malicious intent to harm the company.

    Opinion defenses

    The First Amendment protects statements of opinion, as distinct from statements of fact, against claims of defamation. A statement is an opinion when:

    (1) the statement is genuinely believed; and
    (2) that there is a reasonable basis for that belief; and
    (3) that the speaker is not aware of any undisclosed facts tending to undermine the accuracy of the statement.

    Prefacing a sentence with “in my opinion” is not always the cure. Statements of opinions can be actionable when one of the above factors is absent.

    — end notes —

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      Kevin Thompson is an MLM attorney, proud husband, father of four and a founding member of Thompson Burton PLLC. Named as one of the top 25 most influential people in direct sales, Kevin Thompson has extensive experience to help entrepreneurs launch their businesses on secure legal footing. Recently featured on Bloomberg TV and several national publications, Thompson is a thought-leader in the industry.

      • Another great article KT! Our reputation defense team similarly serves
        at the front end of a company’s need to “do something” to combat online
        Meanies. Lawsuits as you know are often just too distracting, involved and
        expensive for some CEOs.

        The good news is, companies CAN
        defend themselves, often without the Meanie even knowing, via online
        suppression strategies. Though several of the sites frequented by Meanies such as or can be very damaging due to their ability to rank in search
        engines, the search engine *itself* is the route to victory.

        short, if the offending page doesn’t rank on Google, it doesn’t really
        matter. It’s the same as if two people are talking trash in a corner of a
        crowded stadium. No one really hears them; however give them the
        announcer’s microphone and suddenly everyone hears. The search engines are the
        mic — and companies can actually influence who has access to it.

        Companies have the power to defend themselves against these attacks, with the right experts and experienced approach.

        Jonathan Gilliam

        • kschang

          So what happens when it’s not just “meanies”, but real analysis of potential fraud? What if it’s actual news of embarrassing choices?

          Do you just SEO some stuff to crowd out the “negative info”?

          Let’s say one of your clients just found that he hired a felon. Do you go after sites that reported such?

          or do you hope that you never run into a client like that?

          • Kevin Thompson

            kschang, I used to be a purist that believed that the search results were an accurate reflection of a company’s brand. With that mentality, I took a “don’t be a jerk” approach to SEO i.e. operate a clean business and the search engines will treat you favorably. But negative articles always rank higher than positive; thus, it’s not really a fair representation of a company’s brand. If there’s a sea of negative, I get it. It’s a bad business. But if there’s both good and bad and the good search results are buried on page 3, the company needs to get serious about SEO.

            • kschang

              But isn’t the “bad reflection of search results” a result of SEO efforts?

              If so, isn’t that more like “sinking to their level”?

              The American “mainstream media” have focused on negative news because those sells papers. But I have not found the same to be online.

              Given the fact that people can put up shill reviews (which are generally positive, except for some cases where people plant fake negative reviews about competitors, like that lawfirm Yelp sued) and reputation managers will attempt to “manage” negative reviews, I personally think that negative reviews would “reveal” more than a positive review (which can be influenced by expectations, placebo effect, sunk cost, and so on).

              Having been on the receiving end of a badly managed “reputation defender”, perhaps I am a biased against people in the business.

              Frankly, everybody should practice “due diligence”, even in testimonials. Remember, one can BUY fake testimonials on Fiverr for $5.00.

              • Kevin Thompson

                The “reputation defender” that were alluding to in your comment sank to such incredible lows in his quest to make money in the aftermath of Zeek, he doesn’t deserve to be mentioned in the same sentence as normal SEO professionals.

                Negative articles rank higher, period. In a perfect world, positive stories will dramatically outweigh the negative (which is what Karen was mentioning below). But when it’s an even fight, a company might sink some cash into some SEO stuff. Is it shady? I don’t think so. And if the company’s reputation is so bad, there’s not much an SEO expert can do to help.

          • kschang,
            If the clients engages us we take a strategic approach to clean up the search results using a variety of tactics, not just SEO. Our job is to male page 1 (and 2, hopefully) completely neutral or positive.

        • Kevin Thompson

          Thanks for the comment, Gill-um;) I agree that suppression strategies are important when there’s a mess. Unfortunately, negative articles rank higher than positive because there’s more engagement / emotion; thus, justifying the SEO strategies. I know your company does a great job with search engine work.

          • It’s Gill-eee-um! ha Our firm has actually had recent success actually “de-ranking” individual negative links, directly. Not sure how long that will last but we’ve got some pretty happy clients on that one.

            I must say you sir are pretty darn knowledgeable about SEO, for a lawyer that is 😉

      • Another tactic to help in these situations is to be sure to train your existing field representatives in strategies to build their own ethical online presence within your company’s guidelines, such as a Facebook Page, a personal blog, or other social media profiles. Imagine if you had 100s, 1000s or multi-1000s out there creating doorways into your company online that are positive reflections of your brand. The meanies wouldn’t have a chance. Just another perspective. 🙂

        • Guest

          Another great article, Kevin, I have recently been down this path, and replied almost verbatim to this article. Specifically, I used the Opinion Defense, It’s like GMTA, 🙂

          • Kevin Thompson

            I’m glad you found it helpful. And thanks for teaching me “GMTA”;) I had to search for that one.

        • Kevin Thompson

          This makes sense. It would be hard for negative articles to show up if the field were sharing good links like crazy.

      • Another great article, Kevin. I have recently used the Opinion Defense.. 🙂 I found this online:

        The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject’s feelings or diminish their reputations. Such terms represent what is called “pure opinions” because they can’t be proven true or false. As a result, they cannot form the basis for a defamation claim.

        • Kevin Thompson

          I like the quote! Thanks for sharing. I’ve added it to my First Amendment notes.

      • erin

        Awesome article but the one question that I am curious to is if someone issues a C&D that is frivolous in nature without any truth/libelous, can the said C&D be turned into a Defamation /Slander issue in behalf of the person with whom it’s addressed to? Thank you

        • Kevin Thompson

          In order for there to be a claim for slander, the statement needs to be published publicly. Receiving a private letter does not count.

      • Senna Rain

        There is a big difference between free speech and an advertising agency setting up a forum “for” your business, and allowing a misrepresentation of this business online. Yelp does something that google and facebook don’t – your business page appears due to no action of the owner. Then, you are cajoled into signing up and editing wrong business information. Then, in come the reviews and they will not remove them because it’s not a human that is deciding whether or not it is hateful or defamatory, it is an algorithm. Furthermore, this can be construed as an extortion game. If you pay Yelp, and pay online “reputation managers” (a growing field) they can ‘hide’ the bad reviews which, if you don’t pay, tend to pop up right at the top of a person’s search. I believe there are legal strategies to counter this. This is unfair/deceptive practice. This isn’t speech, it’s advertising. Advertisers engaging in commerce in your name without your initiation is fraud. There is also the issue of refusing to take down the entire page when asked to do so. Since these comments are forever announcements in a globally visible page, it’s no longer just free speech. It gives someone too much ability to attack you personally through your business. It is too easy for one person to appear as multiple people, by simply creating as many profiles as they want, without any verification of identity whatsoever, and libel away! This has happened to me, I have provable libel within some of these comments, but no way to identify the person. In this case, I feel the respondent superior doctrine applies – the advertising agent is to blame or is accessory to the damage. Any thoughts?