By Isaac Kalish, Esq.
When a department store, hardware store, or any other large retail institution accuses an individual of larceny or shoplifting, that same store, or their parent company, will often send out a letter with a demand that the accused pay money or else face a civil lawsuit. We often call these “demand letters.” The store or company will send out this kind of a letter whether or not the police and prosecutor believe they have enough evidence to charge a person with larceny. Many of these letters contain confusing language and legalese that create confusion and make it seem like the company or store has more power than they actually do.
Before you decide whether and how to respond to a letter, you should carefully consider the following:
- Paying the demand letter will not make a criminal case “go away.” If you are being prosecuted for larceny and you receive this sort of a demand letter, you must keep in mind that paying the store in response will not make anyone drop or dismiss the larceny or shoplifting case. In brief, the store is not the entity that brings a criminal larceny case against a person. The Commonwealth (the government) through the district attorney is the one who brings the criminal larceny case, and only the Commonwealth has the power to dismiss your case. The store cannot ‘drop’ or dismiss the criminal case, and paying the store will not necessarily make the government any more likely to dismiss a case.
- A ‘demand letter’ is a threat to bring a civil case, not a criminal case. When retail or department stores have evidence that a person has stolen property from them, they have the power to sue that person in civil court. If they succeed in their lawsuit, they can obtain a court order to force you to pay the amount they claim they are owed. But, as noted above, the store or company is not the Commonwealth, they are not the police, and they do not have the power to either bring or dismiss a criminal case.
- This sort of ‘demand letter’ is not a debt collection letter. Most stores send out demand letters before the case has even been reviewed in court. Until and unless a court has found you liable for taking property from the store, the store does not have a legally enforceable debt. In order to have a legally enforceable debt- like the kinds that allow people and companies to make reports to credit bureaus, place a lien, or garnish wages – the store must have first won a judgment in court, where the accused has the right to fight the case and make the store or company prove it. Without a judgment or order, the store or company does not have the right to take any money from any person.
- The demand letter is not a guarantee about whether the store will sue you. While it is important to pay attention to demand letters, they are not a guarantee that the store will bring civil charges against the person they accused. Court cases can be quite expensive, so the store or company will need to decide whether or not it is worth the expense of legal fees to bring a case of theft in civil court against the accused. The amount allegedly taken is one of the main factors in the store’s calculation of whether a civil case is worthwhile. Moreover, just as in criminal court, the person bringing the accusation must bring evidence to prove that it is more likely than not that the theft occurred and that the person the store accused is the person that stole the item or items of value. While a store or company has the power to bring a case in civil court, the demand letter from the store is not an iron-clad promise that they will actually do so.
I have personally had more than one client accused of larceny who received a demand letter. Some of these clients unfortunately paid the money, believing it would make their case “go away.” In reality, paying the demand did not make the cases go away. Those clients and I still had to fight the same cases through months of court appearances until the prosecutor dismissed the case for lack of evidence or we tried the case to verdict in criminal court.
If you have received a demand letter from a retail or department store, or you need counsel for a larceny or shoplifting case in Massachusetts, give us a call at 617-906-6268 to schedule a free consultation with one of our criminal defense attorneys and civil litigators.