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David Einhorn's Cease and Desist Letter

Cease and Desist letter, page 1 (PDF format)

Cease and Desist letter, page 2 (PDF format)

Edward Einhorn and his girlfriend showed up the second night of our show demanding we comp them (give free admission) for the show. This was after Einhorn had sent an email to our cast and crew trying to sabotage the show. Einhorn's girlfriend kept taking notes, apparently in an attempt to intimidate us with their legal might. I wasn't there but when they confronted Jonathan with this cease and desist letter from Edward's lawyer brother David, I heard that Jonathan said, very slowly so that the girlfriend could get every word "it's - not - worth - the - paper - it's - printed - on."

But it turns out that Jonathan was wrong about that. It wasn't worth anything to them but we feel that on the basis of this letter, David Einhorn's career will be negatively impacted. As Judge Kaplan said (from court transcript):

Truly, one of the sad parts of this whole mess, as luck would have it, is that Mr. Einhorn's brother, Mr. David Einhorn, is a lawyer who, I take it, regards himself as an intellectual property specialist. So, the brothers got together and what is labeled a cease and desist letter was prepared on the letterhead of a well-known firm in this city in which the claim was made, on behalf of Mr. Edward Einhorn, that any performance of the play would constitute a willful infringement of copyrighting; and two, the blocking and choreography owned by Edward Einhorn, the offer to grant a license to the production company for the eight scheduled performances only if $2,000 -- double the agreed compensation -- were paid before the show opened the day the letter was written. Moreover, it indicated that if the defendants ever wished to perform the play after this currently scheduled run, they would have to pay more. It concludes with this paragraph: Failure to provide this payment to Einhorn -- meaning Edward -- will subject you to liability for willful infringement of Einhorn copyrighting and to the blocking and choreography. You are put on notice that in accordance with 17, U.S. Code, Section 504(c)(2), if this run continues without his permission, you may be liable for statutory damages of up to $150,000 per performance of the play and for all of Einhorn's attorneys' fees. You are put on further notice that further performances of the play using our client's blocking and choreography may render you liable for criminal copyright infringement under 17, U.S. Code, Section 506 and 18, U.S. Code, Section 2319.
Now, once again I digress and make two parenthetical remarks about this letter. The first is that it bears the date October 22, which was the day after the show opened. In fact, I find that it was written, as distinguished from delivered, on October 21st, indeed, in all likelihood, shortly after Edward Einhorn got finished sending his e-mail to the cast of the show in an effort to upset the opening. The second parenthetical comment I would make, and it is parenthetical only because it is not to the point of a decision but to the conduct of Mr. David Einhorn, it is a violation of Disciplinary Rule 7-105 of the Code of Professional Responsibility in the State of New York for an attorney to threaten criminal prosecution to gain advantage in a civil dispute. I think it is at least arguable that David Einhorn's inclusion of the last line of the letter constituted a violation of the disciplinary rules. I will not render any final decision on that now. It is not my place to do that now or later. But, surely good judgment had been dispatched with long before this letter went out of the office of Mr. David Einhorn, even if it didn't go so far as to violate the disciplinary rules.