Shoplifting, Larceny, Theft Civil Demand Letters, Retail Theft and Recovery

  1. Shoplifting and retail theft may consist of small amounts of money. However, it is a serious crime treated as larceny by the law and taken seriously by retail stores. If you have been caught shoplifting, you may have been told that you will receive a civil demand letter or you might be surprised to see one arrive in your mailbox. If this is the case, it is important for you to understand shoplifting law, civil demand letters and what to expect going forward.

    What is Civil Recovery?

    In 2010, studies estimated that shoplifting accounted for $13 billion of losses for retailers along with $17 billion more in employee theft. Most stores must budget a significant amount of money to combat theft crimes. Expenses for theft prevention many include the following:
    • Hiring licensed loss prevention officers (the security guards you may see at the entrance and exits of a store) and a loss prevention manager on the site;
    • Surveillance and security systems such as hidden cameras (CCTV), video recording devices such as DVRs (Digital Video Recorders) and other security equipment;
    • Cost of time and effort made by loss prevention employees in dealing with a shoplifter including apprehending the shoplifter, contacting the police and local law enforcement, and time to complete paperwork;
    • Cost of legal expenses including having a law firm on retainer and paying their legal fees for civil demands and prosecution;
    • Losses that result from goods stolen that are recovered but not able to be made available for sale due to the poor condition of the goods or other reasons;
    • Losses due to goods stolen but not recovered.
    A retail store must find a way to recover all of the money it spends on loss prevention. If it can't, it goes out of business. If you're wondering why it might cost significantly more money to buy a product in a retail store than online, you have your answer. Shoplifting and retail theft costs add yet another cost layer in addition to high storefront rents. The average family spends an average of over $400 per year in order to fight shoplifting and employee theft. That cost is built into the shelf price you see for a retail product.

    State Civil Recovery Law

    All states have enacted laws that provide retail stores with the right to send letters demanding civil damages from shoplifters. The amount demanded will vary based upon state law, the individual store, and the amount of the goods taken or stolen. Typically the amount demanded will be greater than the cost of goods stolen since the costs of the shoplifting prevention program and retail theft are included, in addition to legal costs. Let's take at New York's shoplifting law as an example. New York General Obligation Law Section 11-105(5) states that:

    An adult or emancipated minor who commits larceny against the property of a mercantile establishment shall be civilly liable to the operator of such establishment in an amount consisting of: 1. the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed fifteen hundred dollars; plus 2. a penalty not to exceed the greater of five times the retail price of the merchandise or seventy-five dollars; provided, however, that in no event shall such penalty exceed five hundred dollars.

    So shoplifters from a New York store might be liable for more than just the price of a stolen item. Even if recovered, a shoplifter may also be required to pay a penalty of up to five times the retail price of the merchandise, for a total of $500. As retailers need to recover the significant costs of theft prevention and enforcement, they are usually quick to send civil demands to apprehended shoplifters for restitution (reimbursement) of the cost.

    The Civil Demand Letter

    In many instances, a person who has been caught shoplifting will be told by store security that a civil demand letter will be sent by mail. These letters will be sent either from the store, a law firm or debt collector. It will refer to the date of the shoplifting or retail theft incident and will make a demand for an amount of money, usually payable in cash or cashier's check. It will contain a certain amount of time to make payment. If payment is not made, you can expect to receive additional follow up letters, some which may tack on fees which reflect the collection efforts.

    Civil Demands Versus Criminal Charges

    A civil demand only concerns a civil matter. However, a store may choose to file a criminal complaint with the police. Sometimes the motivation for doing so is the belief that a civil demand will be ineffective against the accused person. A district attorney or prosecutor will review the complaint and make a decision whether or not to file criminal charges against the accused. If a prosecutor doesn't pursue a case, it does not necessarily mean that the store cannot pursue a civil lawsuit. And if a store decides not to file a civil lawsuit, it does not usually prevent a prosecutor from filing criminal charges against a shoplifter or an employee who commits retail theft. This is the case even if you pay a civil demand. Some states allow both to occur at the same time while others may only allow occur one action to proceed. It is important to know your state's shoplifting and retail theft laws.

    Should You Pay a Civil Demand?

    There is no right answer to this question and you need to do what is right for you. But in order to make an educated decision, you should understand how this system generally works. A civil demand is just a demand for money - that's all. Some lawyers will advise people to ignore civil demands since they cannot be enforced without a judgment or an order from a court of law. They will refer to the fact that civil demands are a numbers game. Not every shoplifting case is pursued in court since it is usually not cost effective for the store. Many of these cases are small claims court matters and concern defendants who are already deeply in debt. They may be unable to pay even small judgments awarded by the court should they lose. The stores hope that a good number of people who receive demand letters will pay them rather than opting for a court hearing. And in order to keep the threat of going to court real, they do take a small percentage of these cases to court.

    In the event that a store decides that you will be the person they have chosen to pursue in court, the expenses and legal fees incurred by the store ("costs of enforcement") will usually be included in the amount demanded. As you've seen above, that number could be up to five times the value of the merchandise plus costs. As a result, the $50 item you tried to shoplift may result in a $2,500 lawsuit to recover the amount of the item, the penalties under statute as well as the costs of enforcement. Whether you want to "roll the dice" and ignore the letter is you call. In order to have peace of mind, you may wish to negotiate the amount of a civil demand. It is not uncommon for the store and shoplifter to settle for less than the amount demanded. The store may also agree upon a payment plan. In all instances, it is extremely important to make sure that any settlement is contained in a written agreement, preferably reviewed by a lawyer, and provides you with a full release after it is paid in full. And remember the even paying a civil demand does not guarantee that a prosecutor will decide not to pursue criminal charges.

    Criminal Consequences of a Shoplifting Conviction

    While shoplifting is a misdemeanor crime (punishable by less than one year in jail), it is generally considered a "crime involving moral turpitude" or "CIMT" for short. Especially if you are an immigrant, it can have some serious consequences. If you are applying for a job, a visa or to be a U.S. citizen, you may be asked whether you have been arrested or convicted of a crime involving moral turpitude. If you're convicted of a shoplifting charge then you will need to answer "yes" to this question. Immigrants and those in the U.S. under a visa might avoid being deported for a first offense under a petty theft exception. Regardless, they will still likely be required to report the conviction as a crime involving moral turpitude on an I-94W Nonimmigrant Visa Waiver Arrival/Departure Form. A conviction can require an immigrant to wait at least five years to show good moral character before applying for citizenship.

    Should I Hire a Lawyer if I Receive a Civil Demand?

    With regard to civil matters, if a store has filed a lawsuit then it is likely that they have had the assistance of a lawyer in preparing their case. You may wish to retain an attorney to help you understand what to expect, how to act and to help you prepare your defense. With regard to criminal charges, there can be significant consequences if you're convicted of a crime in moral turpitude. It is probably beneficial to consider the assistance of an experienced criminal lawyer in such circumstances.
    Criminal Law & Procedure:
    Criminal Charges - Shoplifting, Petty Theft
    Criminal Charges:
    Larceny

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.
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  1. CRod2017
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