Legal Question in Criminal Law in California

They're a law firm in Florida that does nothing but send "civil demand" letters to people accused of shoplifting. In my experience, they're all bark and no bite. They will send 2-3 letters with increasing amounts they demand. They're hoping you'll be scared into paying. If you pay, they get a cut off the top and the rest goes to the store, even if the store isn't out any money because they recovered the property.

If you choose not to pay, the odds are overwhelming that they will just let it go after sending a few letters. They've been quoted in a newspaper admitting they send out over a million letters a year, but file less than 10 civil suits. Why? Because it's not worth their time and any recovery would be far less than the hassle it's worth.

Well, they have their own website: http://www.civilrecoverylaw.com/Main/

They've been accused of scamming consumers. http://www.law.com/jsp/article.jsp?id=1202423589910&slreturn=1&hbxlogin=1

You requested information regarding our Firm and have listed the question under the California law category. If a person has received correspondence from our Firm it most likely stems from theft from a retail store. Therefore, the information contained in this response is based on an assumption that the person who received correspondence from our office has participated in a retail theft incident. Our �Of counsel� attorney Patricia L. Hastings is licensed in California but I am not. The information contained in this response is based on an assumption that you are an adult and contains information passed on from Ms. Hastings, but the information is not to be construed as legal advice but instead information that may help you understand the request that was made.

Whenever a person commits, or attempts to commit a theft, that action may be considered both a crime and a civil tort. The retailer may request the state to file criminal charges and/or it may choose to take civil action seeking damages. The civil request for damages may be based on common law and/or statutory law and is separate from and independent of any criminal action that may or may not have been taken. If there was a criminal matter, regardless of the outcome of such matter, the retailer may still make a civil damages request (civil settlement offer). However, according to an opinion of the office of the Attorney General of California, payment of a civil damages request pursuant to California Penal Code �490.5 asking for damages between $50 and $500 does not in and of itself result in a civil compromise (global settlement of both the civil and criminal claim). That means that paying a civil settlement offer or civil damages request will not make you "immune" from a separate criminal claim but will only relieve you of the civil liability referred to in the settlement offer itself.

The civil damages request action is often designed to work as a deterrent to future theft as well as to shift the tremendous cost of theft and the resulting security costs from the honest consumer (through higher retail prices) to the offenders who are creating the problem.

The amount demanded by the business establishment for this civil action is for the act committed against the store and is not to compensate for the item, which may or may not have been damaged. In California, the statute providing a civil remedy under Cal. Penal Code �490.5 describes the need for merchandise to be taken from the premises but at least one court in California has held that removing an item from its packaging while being stopped inside the store satisfied this element of being taken from the premises. Whether the item was or was not damaged, or whether or not it was returned to the store has little, if any bearing on the demand amount and a prior Attorney General in California wrote a specific opinion confirming that.

The person who posted the first response feels that you should ignore our client�s request to settle. That is of course your right. However, when realizing that retailers experience losses that go far beyond the value of the merchandise at issue in any one shoplifting incident and realizing that the amount recovered pales in comparison to the extraordinary losses they experience, you may want to consider making an offer to see if the matter can be resolved amicably. Further, because a retailer may have not brought suit in the past does not mean that it would not choose to do so in the future or that an individual does not have civil liability concerning the incident.

The person who posted the second response says that we have been �scamming consumers� and references an article which contains allegations that our Law Firm is in the practice of �Shaking Down Shoppers.� Please note, for clarification purposes, that individuals caught shoplifting are not considered consumers in the eyes of the law but instead are considered tortfeasors. See Shorts v. Palmer, 155 F.R.D. 172 (S.D. Ohio 1994) . Theft of merchandise from a store is considered a common law tort of conversion. Therefore, any request for settlement of statutory civil damages stemming from a retail theft incident in a store is not a debt collection request from a consumer because the request for statutory civil damages did not stem from a consumer transaction for the item or items at issue because it instead arose from the tort of taking or trying to take the item or items at issue. Because our request arises from a tort and not a debt, our civil damages request is not regulated by the Fair Debt Collection Practices Act. See Shorts v. Palmer, listed above.

Also, while we make civil settlement offers pursuant to state civil theft statutes, our office is not a collection agency and is in fact a law firm. In January of 2010, the Federal District Court mentioned in the above-referenced article reviewed and approved our practices, holding that our law firm was engaged in traditional practice of law and granted our Firm Summary Judgment on all counts in the action (that was never certified as a class action). See Kelly v. Palmer, Reifler, & Assoc., P.A., 681 F.Supp.2d 1356 (S.D. Fla. Jan. 11, 2010). Hopefully this makes it clear that while it may not be popular among those caught stealing merchandise from retailers, making statutory civil settlement offers is not a scam but is an acceptable way for retailers and those caught shoplifting to amicably resolve legitimate civil claims allowed by law.

We represent the retailer concerning the matter. If you would like to speak about this matter and the potential for resolving the civil damages request, I would be happy to speak with your lawyers if they are representing you for the civil matter or you if they decide to not represent you for the civil matter. You may also wish to seek the advice of an attorney who would be willing to represent you for the civil matter. Alternatively, if not represented, you may call me at the toll free number listed on our letter or at (866) 875-6565 at extension 143.