My Response to a Cease-and-Desist Letter

In a somewhat unusual departure from my typical blog posts, this one is about a cease-and-desist letter addressed to me personally.

The letter (here, with selected exhibits and below), from Florida lawyer Casey Cummings of Florida law firm Kenner & Cummings PLLC, asserts that a blog post I published on June 3, 2014 is “defamatory”, asks me “kindly” to take it down, and threatens to sue me in New York and (bizarrely) Florida if I don’t. Here’s my initial response.

Cease-and-desist letters containing litigation threats can be scary (particularly for a non-lawyer), especially when, as here, they arrive by Certified Mail, attach multiple Exhibits, and cite to impressive-looking things like U.S. Supreme Court cases and treatises.

However, upon closer inspection and analysis, what initially appears to be a solid brick may very well be (and in this case is) nothing more than a flimsy playing card. See, e.g., People v. Gambini.

Mr. Cummings writes:

It has come to our attention that your firm has posted on its website information that the Florida Circuit Court deemed defamatory … [W]e hope that you will simply remove the posting from your firm’s website, so as to alleviate the need for us to proceed further either back in Florida Circuit Court, or in New York’s Supreme Court – something we are loathe to do, and something wholly unnecessary if you will simply and kindly remove the defamatory posting.

Initially, the assertion that my “firm has posted on its website information that the Florida Circuit Court deemed defamatory” is simply not true.

Perhaps Mr. Cummings did not expect the recipient of his threat to actually review/read the materials cited in support of it. In any event, playing fast-and-loose with facts and evidence is a sure-fire way for a lawyer to lose credibility; if Mr. Cummings were to try this with a judge, he would have more to worry about than merely an Internet flogging.

In my June 3, 2014 blog post, I discussed and quoted from New York Supreme Court Justice Arthur F. Engoron’s publicly-filed/accessible memorandum decision in the sexual harassment lawsuit captioned Thomas v. EONY LLC and David Shavolian, N.Y. Sup. Ct. N.Y. Cty., Index No. 158961-2013. (FYI, court filings are accessible at, e.g., SCROLL, NYSCEFPACER; see also these resources.)

I wrote about this decision because I believe that employment discrimination and sexual harassment are important issues of public concern and that the public should be aware of how such claims are adjudicated in our court system. Indeed, the court’s strongly-worded (and, in my view, correct) rebuke of the defendants’ attempt to dismiss the case on the pleadings pursuant to NY CPLR 3211(a)(7) – even though the complaint so clearly stated a claim – is in itself an important lesson for defense attorneys in employment cases.

While this post is not intended as a primer on or summary of defamation law, in the spirit of educating Mr. Cummings (and those out there who are or may be inclined to follow the same foolish path), here are some things he should have, but apparently did not, consider before drafting and sending his poorly-conceived letter:

  • New York has a one-year statute of limitations on defamation claims, running from the date of publication. See NY CPLR 215(3). Therefore, any defamation action in New York based on the referenced post, published on June 3, 2014, is now time-barred. (Although the cease-and-desist letter is dated May 30, 2015, one could reasonably question the wisdom of sending a demand letter threatening to assert a claim that will be time-barred within the week.)
  • New York Civil Rights Law § 74 (codifying the so-called “fair report privilege”) provides, in pertinent part, that “[a] civil action cannot be maintained … for the publication of a fair and true report of any judicial proceeding.” Notably, courts have held that “[c]omments that essentially summarize or restate the allegations of a pleading filed in an action are the type of statements that fall within § 74’s privilege.” Lan Sang v. Ming Hai, 951 F. Supp. 2d 504, 521 (S.D.N.Y. 2013). New York courts have recently applied this law to dismiss defamation lawsuits against lawyers for writing about court proceedings. See, e.g., Katz v. Lester SchwabRakofsky v. Wash. Post. While I am not admitted to practice law in Florida, and do not purport to summarize or state what the law is there, it appears that that state likewise recognizes a fair report privilege.
  • New York law provides for sanctions (including attorney’s fees) against parties and attorneys for making frivolous filings. See, e.g., 22 NYCRR 130-1.1NY CPLR 8303-a.
  • Filing baseless defamation lawsuits against lawyers based on their publications concerning true and accurate reports of judicial proceedings has ended embarrassingly/badly for at least two plaintiffs, namely this one and this one.
  • Taking steps – such as filing a lawsuit or sending a baseless cease-and-desist letter to an attorney – to suppress or censor information may have the opposite, undesired, and unintended effect of publicizing the information more widely. This phenomenon has been called the “Streisand effect“.

Unfortunately for Mr. Cummings and/or Mr. Shavolian (on whose behalf Mr. Cummings claims to have sent the letter), I have zero tolerance for bullies who threaten to misuse defamation law to censor protected expression. I certainly hope, for the sake of his practice and his clients, that Mr. Cummings has better things to do with his time than threaten out-of-state lawyers with meritless defamation lawsuits.

It is indeed a dark day for free expression when lawyers are dissuaded, under the threat of litigation, from writing about and/or commenting on judicial proceedings. Free speech is more likely to die by a thousand ostensibly innocuous cuts (e.g., threats like Mr. Cummings’), rather than by sweeping legislative reforms, constitutional amendments, and the like.

That is, of course, only if we let it.

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