Lesson 17: How lawyers write letters. Musk vs Zuckerberg: the cease and desist letter

The language of the letter

On 5 July 2023, the lawyers for X Corp (the business owned by Elon Musk that purchased Twitter, Inc.) sent Mark Zuckerberg a letter claiming "systematic, willful, and unlawful misappropriation of Twitter's trade secrets and other intellectual property", on the same day that Meta's Threads was released to the public. A copy of the letter can be downloaded by clicking on the link below. In this issue, we are going to look at the format, composition and language of the letter. Please remember that this is a newsletter about language, not law.

How American lawyers set out their letters

We will first look at the letter's format as an introduction to the American style of correspondence. Note the personal tone of the letter. The author Alex Spiro is a partner of Quinn Emanuel Urquhart & Sullivan, LLP, but he does not write in the name of the firm. Instead of writing "We [the partners, or the firm] write on behalf of X Corp …", he states, "I write on behalf of X Corp …", and he addresses the letter to Mr. Zuckerberg as Chairman and CEO of Meta Platforms. A copy was also sent to Meta's Chief Legal Officer, Jennifer Newstead (see the section at the foot of the letter after the signature) as a courtesy.

After that, the letter is written in the third person; how his client Twitter is telling the company Meta how to respond.

Twitter intends to strictly enforce its rights, and demands that Meta take immediate steps …

Please note the format of the date: July 5, 2023 (month day comma year). In the first sentence of this article, you can see how British lawyers format the date (day month year).

The subject of the letter is short - one word, "Threads". It couldn't be shorter. It follows the introductory word "Re:" which is an unnecessary but common addition, and lawyers love to use it. It is an abbreviation of the Latin phrase "In re" and means "in the matter of" or "about" and introduces the subject matter, or purpose of writing, of the letter. Outside of legal correspondence the only place I have seen it is in an email, and Re: is automatically added to the subject line of the reply. When writing a letter to English-speaking lawyers or clients it doesn't matter whether it is included or not. I have not used it for years.

At the end of the letter, the author signs himself "Very truly yours". This is used widely in America and not at all in the UK. I am informed that it is used by government agencies (Alex Spiro was once a District Attorney for Manhattan) and signifies the lawyer's seriousness and integrity in writing the letter. Letters are more commonly signed Yours sincerely if it is addressed to a named individual, or Yours faithfully if it is addressed to an organisation.

Emails are less formal, and the writer decides how to sign off. Mine has always been Regards; Best wishes and Best regards are also common.

Now we get down to the serious contents of the letter.

A summary of the letter

The letter is brief and gets right to the point. The first paragraph sets out the accusation: Meta has engaged in "systematic, wilful, and unlawful misappropriation of Twitter's trade secrets and other intellectual property".

The second paragraph sets out the relevant facts. In short, Twitter alleges that Meta has intentionally hired staff formerly working at Twitter and employed them to swiftly develop the "copycat" Threads app (which is also twice called a "competing app") using Twitter's trade secrets and intellectual property.

Meta spokesperson Andy Stone responded to Spiro’s letter, writing, “no one on the Threads engineering team is a former Twitter employee — that’s just not a thing.”

The third paragraph contains the *demand (*stop using Twitter's trade secrets and confidential information) and the warning (we will seek both injunctive relief and civil remedies).

The fourth paragraph is all about crawling and scraping Twitter's website for data on Twitter's followers. It isn't clear whether this is an accusation that they have done this or a warning that it is unlawful activity as it is a breach of Twitter's Terms of Service and their robots.txt file (which if you are interested is available here). again, Meta is warned of possible injunctive relief and civil remedies.

The final paragraph reminds Meta that they must preserve all documents that are relevant to the dispute, for the discovery stage of litigation.

As I said, the letter is short and to the point. That may be because it was written as soon as it was known that Threads had launched, and it was more important to get a letter out that said as much as was needed and no more.

The language used

Writing a list using semicolons. The second paragraph lists four things in a single sentence that Meta knew and acted on, but instead of putting them in a numbered list i to iv or 1 to 4, they are separated by a semicolon (;).

First, I think there is an error in the first line. It says, "Twitter knows that these employees previously worked at Twitter". I believe that this should be "Meta knows that these employees previously worked at Twitter".

Using semicolons to form a list is good practice where extra information is supplied within each item in the list. Here is an example of a list where commas alone would be sufficient.

Please bring with you: a pen, a pad, a laptop and a name badge.

If more information would be needed, this would be written.

Please bring with you: a pen for taking notes; a notepad so you can write questions for the speaker to answer; a laptop to do some online research; and a name badge that also shows your middle name.

Please note that a colon can be used at the start of the list.

"Twitter reserves all rights", "including but not limited to …"

Both parts of this phrase are used repeatedly. "Twitter reserves all rights" appears twice: the right to seek civil remedy and injunctive relief for breaching intellectual property rights, and also for breaching their Terms of Service. To "reserve all rights" is a way of putting the other side on notice of possible action to be taken in response to the breach. It is a phrase used to tell someone that you have the right to do something specific and that you will use that right if you feel it is necessary. More than that, it prevents a later claim by the defendant that the plaintiff waived (gave up) their rights to take action by not warning of the possibility of taking action. Sending a letter that warns of a specific consequence is a necessary step in litigation in both the US and the UK.

Twitter believes that they have other legal powers that it could use, so the phrase "including but not limited to …" is added. This is another form of giving notice, and it may be general at this stage. If the case goes to court there will be specific pleadings for each form of legal enforcement taken.

This phrase is added twice more: Twitter's sources of data that could be scraped, and the documents that are to be retained. It is a way of being both specific (the items that are named and listed) and vague (other items that are similar to those in the list which may therefore be guessed).

Other phrases and word groups used

Willful - meaning deliberate, intentional - is the US spelling. It is spelled wilful in the UK. Likewise, willfully US and wilfully UK.

Seek civil remedies. Seek has two meanings in English: to attempt to find something, and to ask for or request something. The idea of asking the court for a remedy is linked to the word pleadings. To plead also **means to ask for, so the formal statements of case are called pleadings. In former times, a request to the court was also called a prayer.

As set forth. I believe the writer means "as set out in ..." or " as set down in Twitter's Terms of Service". Forth means forward in time or direction.

Onboarding is the training of new employees and introducing them to the company's procedures and ways of working.

Or employee or Meta (the last words of the letter). I believe this should be "employee of Meta".