📋 Overview

Pre-litigation demand letters generally enjoy broad legal protection. The sender can claim anti-SLAPP immunity, litigation privilege, or Noerr-Pennington protection for petitioning activity. However, these protections have limits. When a demand letter crosses from legitimate pre-suit negotiation into extortion, threats, or abuse, the protections disappear.

🛡 Anti-SLAPP Protection

California's CCP 425.16 protects statements made in connection with litigation. But the Flatley exception removes protection when conduct constitutes extortion as a matter of law.

⚖ Litigation Privilege

Civil Code 47(b) provides absolute immunity for communications in judicial proceedings. Pre-litigation communications are protected only when litigation is seriously contemplated.

📜 Noerr-Pennington Immunity

Federal doctrine protecting petitioning of government (including courts). The "sham litigation" exception removes protection for baseless threats used as competitive weapons.

When You Receive a Threatening Demand Letter

If you've received a demand letter that feels more like extortion than legitimate legal communication, you need to understand both the sender's potential protections AND the lines they may have crossed. This guide helps you:

  • Identify when a demand letter has crossed into extortion territory
  • Understand when legal protections don't apply to abusive threats
  • Respond firmly without creating your own legal exposure
  • Know when to involve law enforcement or the State Bar
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🛡 Legal Protections for Demand Letters

Understanding what protection the sender might claim helps you evaluate whether their conduct actually qualifies for protection.

Anti-SLAPP Statute (CCP 425.16)

California's anti-SLAPP law protects statements made in connection with issues of public interest or in official proceedings. Pre-litigation demand letters are generally considered "protected activity" because they relate to anticipated litigation.

If you sue someone over their demand letter, they can file an anti-SLAPP motion. If successful, your case gets dismissed and you pay their attorney fees.

Code of Civil Procedure Section 425.16; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106

Litigation Privilege (Civil Code 47(b))

The litigation privilege provides absolute immunity for communications made in judicial proceedings. It extends to pre-litigation communications if: (1) litigation is contemplated in good faith and under serious consideration, and (2) the communication has some relation to the anticipated litigation.

However, the privilege does not apply to malicious prosecution or abuse of process claims, and courts have questioned whether it protects against extortion claims.

Civil Code Section 47(b); Action Apartment Assn. v. City of Santa Monica (2007) 41 Cal.4th 1232

Noerr-Pennington Doctrine

This federal antitrust doctrine protects the right to petition government, including filing lawsuits. It shields parties from liability for petitioning activity. However, the "sham" exception removes protection when: (1) the lawsuit is objectively baseless, and (2) the lawsuit is an attempt to interfere with business relationships through the process itself.

Eastern Railroad Presidents Conference v. Noerr Motor Freight (1961) 365 U.S. 127; Professional Real Estate Investors v. Columbia Pictures (1993) 508 U.S. 49

The Flatley Exception: Extortion Defeats Anti-SLAPP

In Flatley v. Mauro (2006) 39 Cal.4th 299, the California Supreme Court held that when the defendant's conduct constitutes extortion as a matter of law, they cannot invoke anti-SLAPP protection. The Court found that a demand letter threatening to publicize rape allegations unless a celebrity paid money was criminal extortion that stripped anti-SLAPP protection.

  • Conduct must constitute extortion "as a matter of law" - not just arguably
  • Courts examine the totality of the communications
  • The exception is narrow but powerful when it applies

⚠ When Demand Letters Cross Into Extortion

California Penal Code Section 518 defines extortion as obtaining property from another through wrongful use of force, fear, or threat to expose any secret affecting the person or to accuse the person of a crime. Understanding what crosses the line helps you evaluate the letter you received.

California Penal Code Extortion Elements

Element Requirement Threat or Force Obtaining property by means of force, fear, or threat Wrongful Means Threat to injure person/property, accuse of crime, expose secret, or report to immigration Intent Specific intent to obtain property or advantage Connection Threat must be unrelated to any legitimate claim or demand

Threats That Cross the Line

Threat to Report to Immigration (ICE/USCIS)

Threatening to report someone's immigration status to authorities unless they pay money or give up property is classic extortion under Penal Code 519(4). This applies regardless of whether the person's status is actually unlawful.

"If you don't pay the $50,000 we demand, we will be forced to report your work authorization status to immigration authorities."

Threat to Report to Police/IRS for Unrelated Matters

Using knowledge of potential crimes to extract money for a civil dispute is extortion. A legitimate demand letter addresses the dispute at hand; extortion leverages unrelated wrongdoing.

"During our investigation, we discovered discrepancies in your tax filings. Unless this matter settles quickly, we may have an obligation to report what we've found."

Threat to Licensing Boards Tied to Payment

Threatening to file complaints with medical boards, bar associations, or contractor licensing boards unless money is paid can constitute extortion when the complaint is used as leverage rather than genuine reporting.

"We have identified serious licensing violations. We're prepared to file a complaint with the Medical Board unless this matter is resolved to our client's satisfaction within 10 days."

Vague Reputational Threats

Threatening unspecified harm to reputation, business relationships, or public standing unless demands are met can constitute extortion, especially when the threats are vague and designed to create fear.

"My client has extensive media contacts and influencer relationships. Unless this matter is resolved privately, there will be significant public attention to your company's practices."

Demands to Sign One-Sided Confessions or Stipulations

Requiring admission of wrongdoing or signing of one-sided stipulations as a condition of not pursuing legal action may cross into extortion, especially when coupled with other threats.

"As part of any settlement, your client must execute the attached confession of judgment and stipulation admitting to fraud, which we will hold in escrow."

Overbroad Takedown Demands

Demanding removal of protected speech (truthful statements, opinions, reviews) under threat of litigation can be abusive. While not always extortion, overbroad demands may constitute abuse of process or tortious interference.

"You must immediately remove ALL posts, comments, and references to our client from all platforms, whether positive or negative, factual or opinion, or face immediate litigation."

Legitimate vs. Extortionate Threats

The key distinction is whether the threatened action is logically connected to the legal claim. Legitimate threats:

  • "We will file a lawsuit for breach of contract" - Connected to the dispute
  • "We will seek attorney fees if we prevail" - Authorized by law/contract
  • "We may seek injunctive relief" - Appropriate legal remedy

Extortionate threats leverage unrelated matters to coerce payment. The threat and the demand must have no legitimate connection.

🔍 Evaluate the Threat You Received

Use this framework to analyze whether the demand letter you received crosses legal lines.

📄 Letter Analysis

  • ✓ Does it threaten to report you to government agencies (immigration, IRS, police)?
  • ✓ Does it threaten professional licensing complaints?
  • ✓ Are the threats connected to the actual dispute?
  • ✓ Does it demand you sign confessions or admissions?

📝 Red Flags

  • ✓ Threats to "expose" personal information or secrets
  • ✓ Vague reputational threats ("media contacts")
  • ✓ Demands far exceeding any reasonable claim value
  • ✓ Extremely short deadlines designed to create panic

Risk Assessment Matrix

Type of Threat Likely Protected? Extortion Risk
"We will file a lawsuit for breach of contract" Yes - Connected to claim LOW
"We will seek attorney fees under the contract" Yes - Legal remedy LOW
"We may report licensing violations we discovered" Questionable - May be unrelated MEDIUM
"We will contact your business partners" Questionable - Depends on context MEDIUM
"We will report you to immigration" No - Classic extortion HIGH
"Pay or we expose your affair to your spouse" No - Criminal extortion HIGH

When Litigation Privilege Doesn't Apply

The litigation privilege requires that litigation be "seriously contemplated." Signs that litigation is NOT seriously contemplated include:

  • No specific legal claims are identified
  • The letter threatens action the sender clearly cannot take
  • The pattern suggests using threats to extract money without intent to sue
  • The sender has made similar threats to many others without ever filing

📝 How to Respond Safely

Your response must be firm without creating your own legal exposure. Here's how to craft a response that protects your rights.

Call Out Improper Threats

If the letter contains extortionate threats, identify them specifically. Put the sender on notice that you recognize the threats as potentially unlawful and that you're preserving evidence.

  • Creates a record
  • May deter further threats
  • Preserves your options

Demand Specificity

Vague threats often indicate weak claims. Demand that they identify specific legal theories, damages calculations, and factual bases. This exposes whether they have a real case.

  • Exposes weak claims
  • Creates record of vagueness
  • Buys time to respond

Warn of Anti-SLAPP Exposure

If their claims relate to protected speech (reviews, criticism, public interest), warn them that any lawsuit will face an anti-SLAPP motion with mandatory fee-shifting.

  • Creates financial deterrent
  • Shows you know your rights
  • Shifts the risk equation

Reserve Rights & Options

Explicitly reserve your right to report extortionate conduct to law enforcement or the State Bar. Don't make this a counter-threat; simply note that you're preserving all options.

  • Puts them on notice
  • Not counter-extortion
  • Documents your concerns

Writing a Safe Response

DO: Be Direct About Improper Conduct

"Your letter contains what appears to be an unlawful threat to report my client to immigration authorities unless payment is made. This threat has no connection to any legitimate legal claim and we view it as potentially extortionate. We are preserving this letter and all related communications."

This identifies the problem without making counter-threats.

DO: Request Legitimate Basis

"Please identify the specific legal theory supporting your claim for damages, the factual basis for each allegation, and a calculation showing how you arrived at your demand amount. Absent this information, we cannot evaluate your claim."

This is appropriate regardless of whether threats are improper.

DON'T: Make Counter-Threats

Avoid language that could be construed as your own extortion or threats. Don't say "If you sue us, we'll report YOU to the police for extortion." Instead, simply note that you're preserving evidence and consulting counsel.

WRONG: "Two can play this game. We have information about YOUR misconduct that we're sure your wife would find interesting."

State Bar Complaints for Attorney Misconduct

If an attorney sent the threatening letter, you may have grounds for a State Bar complaint. Under California Rules of Professional Conduct Rule 3.4 and Business & Professions Code Section 6068, attorneys may not threaten criminal prosecution to gain advantage in civil matters. Document everything and consult with an attorney about your options.

📄 Sample Response Templates

Customize these templates for your situation. Always have an attorney review before sending.

Response to Extortionate Threats
RE: Your letter dated [DATE] We are in receipt of your demand letter on behalf of [CLIENT NAME]. We are troubled by several aspects of this communication. Your letter contains threats to [report my client to immigration authorities / file complaints with licensing boards / expose information to third parties / etc.] unless payment is made. These threats appear unrelated to any legitimate legal claim and may constitute extortion under California Penal Code Sections 518-524. As the California Supreme Court held in Flatley v. Mauro (2006) 39 Cal.4th 299, when pre-litigation communications constitute extortion as a matter of law, they lose protection under both the litigation privilege and anti-SLAPP statute. We are preserving your letter and all related communications. We reserve all rights and remedies, including but not limited to reporting this matter to appropriate authorities. If your client has a legitimate legal claim, we invite you to identify: (1) the specific legal theories supporting the claim; (2) the factual basis for each allegation; and (3) a good-faith calculation of damages. We will evaluate any legitimate claim on its merits. We will not respond to threats.
Response with Anti-SLAPP Warning
RE: Your cease and desist dated [DATE] Your letter demands that my client [cease speech / remove content / retract statements] regarding [TOPIC]. We decline this demand. The statements at issue are [true / protected opinion / matters of public concern] and are protected by the First Amendment and California Constitution Article I, Section 2. Before your client makes the expensive decision to file suit, please be advised: 1. Any lawsuit will be subject to California's anti-SLAPP statute (CCP 425.16), which provides for early dismissal of meritless claims targeting protected speech. 2. Under CCP 425.16(c), the prevailing defendant is entitled to mandatory attorney fee recovery. Anti-SLAPP fee awards in similar cases routinely range from $30,000 to $100,000 or more. 3. Your client will bear the burden of demonstrating a probability of prevailing on the merits at the anti-SLAPP stage. Additionally, we note that your letter contains [vague threats regarding media exposure / threats to contact business partners / other inappropriate language]. Such threats appear designed to coerce compliance through fear rather than legitimate legal process. My client will not be silenced by overreaching legal threats. We reserve all rights.
Response Demanding Specificity
RE: Your demand letter dated [DATE] We acknowledge receipt of your letter demanding [AMOUNT / ACTION] from our client. Your letter makes broad allegations but lacks the specificity necessary for us to evaluate the claim or respond substantively. Before we can consider any settlement discussion, please provide: 1. The specific legal cause(s) of action you intend to assert 2. The factual basis for each allegation, with dates and supporting documentation 3. An itemized calculation of damages showing how you arrived at your demand 4. Identification of the specific statements or conduct you allege to be actionable 5. Your client's actual, documented damages (not speculative or punitive amounts) We also note that your letter contains language that may exceed the bounds of legitimate pre-litigation communication, including [describe problematic threats]. We are preserving this correspondence. We will respond substantively within [14] days of receiving the above information. Until then, we reject your demand and reserve all rights. This letter is written without prejudice to any defenses available to our client, including but not limited to statute of limitations, failure to state a claim, truth, opinion, privilege, and anti-SLAPP protection.

📚 Legal Resources & Citations

Key Cases

  • Flatley v. Mauro (2006) 39 Cal.4th 299 - California Supreme Court established that extortion as a matter of law defeats anti-SLAPP protection
  • Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 - Pre-litigation communications are protected activity under anti-SLAPP
  • Action Apartment Assn. v. City of Santa Monica (2007) 41 Cal.4th 1232 - Litigation privilege requirements for pre-litigation communications
  • Professional Real Estate Investors v. Columbia Pictures (1993) 508 U.S. 49 - Noerr-Pennington sham litigation exception
  • Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799 - Settlement demand threatening criminal prosecution may be extortion

California Statutes

  • CCP 425.16: Anti-SLAPP statute - special motion to strike
  • Civil Code 47(b): Litigation privilege
  • Penal Code 518: Definition of extortion
  • Penal Code 519: Fear induced by threats (including immigration threats)
  • Penal Code 520: Extortion by threatening letter
  • Penal Code 523: Attempted extortion
  • Penal Code 524: Attempted extortion penalties
  • Bus. & Prof. Code 6068: Attorney duties (prohibition on threatening prosecution)
  • Rules of Professional Conduct 3.4: Fairness to opposing party

Reporting Options

State Bar of California

For attorney misconduct including improper threats. File complaint at calbar.ca.gov or call 800-843-9053.

Local District Attorney

For criminal extortion. Contact your county DA's office. Preserve all communications as evidence.

FBI

For extortion involving interstate communications or federal matters. Report at tips.fbi.gov.

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Navigating extortionate threats requires careful strategy. Get a professional response that protects your rights without creating exposure.

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