Saturday, October 4, 2014

Large Retailers and the Civil Demand Letter

Recently, we have been receiving a lot of questions about large retail stores like WalMart and Target sending "Civil Demand Letters." Under Florida Law, if a person can prove by clear and convincing evidence (a low burden) that they are victim of theft, robbery or similar crimes or abuse or neglect of the elderly or disabled including fraud, they are entitled to three times the actual damages and a minimum of $200, attorneys' fees and court costs. The "Victim" must write a letter giving the defendant an opportunity to pay the demand. If the defendant does not pay the demand within 30 day, they are subject to a civil suit. If the defendant does comply within 30 days, they shall be released from liability in writing.
What's the Problem?
First, the Statute says that parents are liable for the civil damages for unemancipated minors who cause the damage. Sorry, parents. Retailers are sending these letters to those minors who they assume have parents to will shell out possibly unfounded demands. For example, if your child takes a $20 set of headphones, and gets caught walking out of the store, and the headphones aren't damaged or altered in anyway, and are replaced for sale where are the actual damages? That product when back on the shelf and was resold. But these retailers send a letter threatening the civil suit, damages and costs, and mom and dad shell out a the minimum $200 because they don't know that despite the authority to file the suit, they may not get past a motion to dismiss due to lack of merit. These companies are being made whole ten-times over, and more because they made another $20 from the person who bought the headphones and they may have also received Restitution in the criminal case.  It's not right.
The Other Problem:

General Counsel offices get paid a lot of money to know the law. They know darn well that the damages must be actual, but very rarely do these parents question the letter or consult an attorney.  Just the other week, we called the undersigned counsel to ask what the actual damages were, and they responded that the $250 demand was for the hour billed to write the letter. (Then we wondered what kind of lawyer takes an hour to write a letter.) While the Legislature's intention was well-placed, the result looks like a "get rich quick" scheme for huge retailers and their General Counsel who is clearly over-billing. 

What to Do If You Get a Civil Demand Letter:

Parents need to consult an attorney when they receive these letters. They need to know that they do not owe punitive (punishment) damages, only actual. Attorneys need to speak up, and consider what remedies are available when a letter is sent and no actual damages happened. It seems like certain retailers are taking advantage of the law, and they need to be held accountable for that. If you or your child receives a Civil Demand Letter, take advantage of a consultation. It's also important to retain these letters, to avoid paying recitation in a criminal case as Florida Law also does not allow a victim to be made whole and recover more on the Criminal Law side.

Contact us at 904-516-5562 if you would like more information about Civil Demand Letters. 

Plata Schott Attorneys and Counselors at Law is based in Northeast Florida. Their attorneys are licensed to practice in Florida and Federal Court. Learn more at www.plataschott.com.




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