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Trumped-up legal letters

Published:Saturday | December 19, 2015 | 12:00 AMTony Deyal, Contributor

If you use the terms 'reverse back', 'overexaggerate', 'dilapidated ruins', 'new innovation' and even 'foolish virgins', you need to know these are tautologies, essentially expressing something by repeating or saying it in a different way. This is all well and good, you might say, but what about lawyers and their cease-and-desist letters? This phrase has to be repetitious and redundant, not to mention, tautological as well.

Actually, it is also a Siamese twin. This is a term which, in the context of the English language, is a pair or group of words used as an idiomatic expression. Some like 'spick and span' might be obsolete. While we know one of the meanings of span (as in 'The movie spans a period of a hundred years'), the meaning of 'spick' has been lost in time, but can be found in common usage still, especially by people with limited word spans who recently learnt to spick English.

'Cease and desist' is like 'aid and abet', 'by hook or by crook', 'nook and cranny' and is almost as widely used as 'head and shoulders', although when you receive one, it can be more annoying and embarrassing than dandruff. In fact, sometimes the receiver of a cease-and-desist letter towers head and shoulders above the sender and changes the equation by seizing the initiative and resisting the demand to desist from whatever caused the issue in the first place.

Since lawyers are perhaps the most hated and ridiculed professionals, and they generally use cease-and-desist letters to cow underdogs into submission, there is a rising tide of public opinion when lawyers and their clients get their comeuppance.

 

Starbucks coffee

One of the more popular 'biter bit' stories is about Starbucks, the coffee giant. According to Staci Zaretsky in AboveTheLaw.com, the Starbucks big-time lawyer, Anessa Owen Kramer of Honigman Miller Schwartz, and Cohn sent a cease-and-desist letter to Jeff Britton, the owner of Exit 6 Pub and Brewery in Cotteville, Missouri, over a beer named Frappicino.

She comments, "As the world knows, the lords of coffee sell a frozen drink (a coffee Slurpee?) by the name of 'Frappuccino'. Yes, the names are similar, but to be confused enough to think you could order the nectar of mall-hopping teenage girls at a bar, you'd have to be pretty drunk. Rather than cower in fear over the legal consequences threatened by America's coffee monarch, Britton decided it would be in his best interest to write a response on his own, without the assistance of legal counsel, because he didn't need no stinkin' lawyer."

Jeff Britton's classic, supposedly written under the influence of several of his Frappacinos, includes: "It has recently come to Exit 6 Pub and Brewery's attention that there were three check-ins to the beer with a very similar name to the F Word. Unfortunately, it was only similar to the F-word because we meant to call it the same thing. Lucky for us, we're poor spelers.

"I would like for both Ms Owen Kramer and Mr Bucks to rest assured we meant no deception, confusion, or mistaking in the naming of the beer F Word. We never thought that our beer-drinking customers would have thought that the alcoholic beverage coming out of the tap would have actually been coffee from one of the many, many, many stores located a few blocks away.

"I guess that with there being a Starbucks on every corner of every block in every city that some people may think they could get a Starbucks at a local bar. So that was our mistake."

Britton included a cheque for six dollars (representing the profits from the sale of the 'F' beer) which he hoped would help Mr Bucks to cover part of the fee of Ms Kramer.

The latest of the responses to a cease-and-desist warning letter is very special. It concerns Donald Trump. Abovethelaw.com states, "Under the suspicion that Jeb Bush's Super PAC (Political Action Committee) Right To Rise USA may run ads that were critical of The Donald, his lawyer, Alan Garten, proactively sent a cease-and-desist letter out to the wrong PAC. Garten instead sent the letter to Right to Rise PAC, Inc, a Leadership PAC that merely supports conservative candidates, including Jeb Bush.

Charles Spies of Clark Hill, counsel to Right to Rise PAC, sent back an awesome response, where he not only trolled the hell out of both Garten and Trump, but also attached an FEC complaint, imploring the agency to investigate Trump's expenditures."

 

LETTER'S CONTENTS

Among the gems in the Spies letter are:

We are intrigued (but not surprised) by your continued efforts to silence critics of your client's campaign by employing litigious threats and bullying. Should your client actually be elected commander-in-chief, will you be the one writing the cease-and-desist letters to Vladimir Putin, or will that be handled by outside counsel?

If you have the time between bankruptcy filings and editing reality-show contracts, we urge you to flip through the Supreme Court's decision in New York Times v Sullivan.

If your client is so thin-skinned that he cannot handle his critics' presentation of his own public statements, policies and record to the voting public, and if such communications hurts his feelings, he is welcome to purchase airtime to defend his record. After all, a wall can be built around many things, but not around the First Amendment.

Although your client may think he is above the law and be accustomed to using lawsuits to bail out his failed business deals, the Federal Election Campaign Act and the FEC's Regulations nonetheless apply to him and his campaign.

Just as your client is attempting to quickly learn the basics of foreign policy, we wish you personally the best in your attempts to learn election law.

In the meantime, Donald Trump jokes outnumber all other jokes on the late-night comedy circuit, even lawyer jokes. One of them by Seth Meyers highlighted Trump's effort to own the intellectual property rights for everything in sight. He quipped, "A protester had to be escorted out of a Donald Trump rally last night for yelling, 'Trump's a racist.' The protester was removed because the Trump campaign has that phrase copyrighted."

- Tony Deyal was last seen repeating Conan O'Brien's joke, "Donald Trump's doctor wrote a letter saying that if elected, 'Mr Trump will be the healthiest individual ever elected to the presidency.' Then, when asked about Trump's mental health, the doctor got very quiet."