(Or… How ransom demands are killing my profession)
(Or… Yes, I really did just receive this letter)[1]
I received a demand letter recently from a new local law firm in Pepper Pike, Ohio, a suburb of Cleveland. It recited a number of totally inaccurate statements about our firm, no law whatsoever, an accusation of wrongful termination and a settlement demand of $35,000 for our terminating an administrative employee for performance reasons. It concluded with this paragraph:
You know how this works. You and I both know that this case – like any wrongful termination case – will not be pretty and will get ugly fast. Among other things, you will be named as a co-defendant along with your firm, I already have a laundry list of people I’ll need to depose, and the written and electronic discovery process will be incredibly invasive to your business operations. …
Considering everything I’ve outlined above, our demand to settle the case pre-suit is $35,000.
I’ve been practicing law for almost two decades now and this amateur stuff always sickens me – totally transparent attempts to shake down our business clients for money just so they can avoid the expense and publicity of totally meritless litigation.
After advising our clients of their anticipated expenses and available “fight or flight” options, we watch them shake their heads despondently at the ruin that our legal system has become. “How can they get away with this?” is a common refrain.
“It sucks,” we usually say, “but the system usually protects shakedowns.”
Most civil cases settle because the defendant just wants to get on with their business, and we neither blame them nor judge them. Every business litigator and most business owners know that frivolous lawsuits are, unfortunately, part of the cost of doing business in America.
But quite often, our clients ask us to fight back and let us do what we do: defend them and aggressively go after the shakedown artists. They stand on principle. They let us take the fight to the enemy. Those cases, those clients, they energize us as lawyers and they help our profession self-regulate.
You know how this works
That’s our clients. And then this happened… a blatant shakedown letter from a new Cleveland law firm directed to me and my firm, not to one of my clients. Most letters from plaintiffs’ lawyers are layered with accurate, compelling facts and punctuated with citations to state and federal statutes and regulations. Not this one – not a single material fact stated accurately; not a single law cited at all, accurately or otherwise.
(So you can see what this “demand letter” looks like in all of its shakedown glory, as well as how we respond to one, I have included links to both letters here, redacted to protect the innocent and the guilty.)
But what’s even more striking than the complete lack of factual substance or legal argument is how brazen and open this shakedown attempt is: this “will not be pretty and will get ugly fast” … “You know how this works.” Threatening to name the owner as an individual defendant. The “laundry list” of witnesses that need to be deposed. The depositions and document requests in the discovery process that he promises to be “incredibly invasive to your business operations.” All immediately followed by a demand for $35,000.
My profession is sullied by dishonorable attempts to prey on businesses for ransom.
A warning to business owners and bad lawyers
To the businesses and business owners out there who have received letters like this, know that you are not alone, that even law firms are targets for shakedowns, and that the laws do provide remedies and recourse to address heavy-handed tactics like those. I described those remedies at the end of my response letter:
I would encourage you to research your pleading requirements, the elements of the claims and the Same Actor Doctrine. I also urge you to become very familiar with Civil Rule 11, Ohio’s Frivolous Lawsuit Statute at R.C. 2323.51, and Rule 3.1 of the Ohio Rules of Professional Conduct. We will absolutely seek recovery of 100% of our attorneys’ fees from you and your firm in responding to these ridiculous allegations, this meritless case and your shameless ransom demands.
And to my fellow lawyers: we need to hold ourselves to a higher standard. If you won’t, the business community does fight back; there are those among us who will always help them fight back; and you’re hurting our profession when you extort settlements by threatening to be “incredibly invasive”. We’re better than this.
[1] All credit must go to the Grateful Dead for penning the lyrics in their classic “Shakedown Street” that are the title of this article.
This article is meant to be utilized as a general guideline for dealing with frivolous demand letters. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.
Also, to comply with our state’s Rules of Professional Conduct, and to protect both the individuals at issue and the firm sending the “demand” letter, we have omitted all names from this letter except the author’s.
Alex Gertsburg is a managing partner at Gertsburg Licata. He may be reached at (216) 573-6000 or at [email protected].
Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.
