Shoplifting - Retail Theft - Civil Demand Letters

Criminal Cases

You can be charged with a crime for retail theft, in any amount. Larger amount can be charged as felonies and usually will be. Lesser amounts can be charged as misdemeanors, as civil ordinance violations, or just have a Civil Demand Letter. If you are charged with a Misdemeanor, it is a criminal charge and you need to talk to a lawyer about it. When Should You Talk to the Police? Advice from Experienced Attorneys and Police

Civil Cases - Ordinance Violations

Rather than refer minor shoplifting cases to criminal courts, many police departments and prosecutors pursue them as municipal court cases. These are not criminal and a conviction will not result in a criminal record.

Civil Demand Letters - Instead of or in addition to criminal charges

In addition to, or instead of any police charges, a company's lawyers may send you a "Civil Demand Letter."

See this Wall Street Journal Article: Big Retail Chains Dunn Mere Suspects. These letters are often sent to people who do not owe any money. I look on them as semi-legalized extortion.

There is a law in most states, including Wisconsin, which allows for civil action collection when there is a retail theft.

Most people choose to ignore the demand. Most lawyers advise ignoring them. They get a few more letters, each time asking for more, and then they stop.

While the retailer can sue you, I have never heard of anyone actually getting sued.

You do not owe any money unless you are sued and the retailer wins.

This is a common ploy. Do not pay.

If you do, you will be in a database which could affect your ability to get a job and could impact your life in other ways.

If you are uncomfortable, have your lawyer write a letter. That should be the end of it.

(paraphrased from something written by Illinois Atty. Judy A Goldstein but it is my opinion as well)

The Wisconsin Statute is Sec. 943.51 which provides that owners of retail businesses can sue those who hurt them through retail theft. The merchants take the position that they can sue even if the merchandise is recovered in pristine condition. They claim for their "loss prevention" worker's time, for any cost of restocking. These demands will often exceed $200 for an item that costs less than $5.00 at full retail. In addition, having made a demand, the law says they can recover up to three times their loss as exemplary (punitive) damages without any proof and actual attorney fees. There is a cap on this extra, though, that makes such suits unlikely. The cap is $500.00.

I have been practicing law for more than thirty years and this is a relatively recent trend. I've been seeing the demand letters over the past five years or so. I have yet to see or hear of any lawsuits, though. My thought is that if the letters annoy you enough, you can pay them money you don't owe so they go away. If you do this, you will go in their shoplifter database. I think it is better called a "patsy" database. However, larger retailers have access to this database and may use it in making employment decisions.

Here is another take on this by yet another lawyer, Jeffrey Moore from California:

"What this basically says is that if you're caught shoplifting, the business can take you to small claims court and sue you for damages of up to $500 plus costs, just for the act of the theft. So most major retailers hire a law firm that sends out demand letters under this law or similar laws in other states. They are essentially trying to recover these "damages" without the time and effort of filing a bunch of small claims cases all over the country. If you do not pay their demand, they could take you to small claims court and try to recover damages and costs there. That is a pretty big hassle for the average retailer, especially the large, national chains. I have never seen a large chain attempt to recover through the small claims process, although it could happen in theory.

"Ultimately, it's up to you. I typically counsel my clients not to pay the demand letter, as there is no legal (or moral, or ethical, in my opinion) obligation to do so.

"Also, keep in mind that paying the demand will not help you resolve or compromise any criminal case which is filed against you. Along the same line, not paying the demand will not hurt you in any criminal case which is filed against you. In short, I've never seen an upside to paying these demands."

Here is the Wikipedia Article on this subject, to which I am a contributor (Wisconsin section): Civil Recovery Demands

Here is my AVVO Legal Guide on this subject: Civil Demand Letters - Retail Theft - Shoplifting - In addition to or instead of criminal charges

 

 

 

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