About Time

Posted by on Aug 3, 2011 in Legal Corner | Comments Off on About Time

There has always seemed to be a split amongst retailers as to the desirability of civil recovery.   Further, among those retailers that favor civil recovery, there has always been an additional split as to which cases to take to civil court and when.

Some retailers feel that civil recovery is a helpful way of recouping a small portion of the vast amount of money lost due to theft (even when shrink is kept below industry standards), with the objective being to help fund loss control devices, exception based reporting software, case management software and other Loss Prevention initiatives as well as to help offset payroll for employees working in LP/AP.  Other retailers feel that civil recovery is a necessity of business because they have been told its rewards outweigh its risks and is part of the status quo within the organization and industry. 

It seems that some of these latter retailers hold onto the premise that civil recovery is a secret that needs to “fly under the radar.”  Each approach may seem to be “right” depending on how the organization viewed theft and civil recovery in the past.  Most retailers want the process to be done in a way that is professional and that will not cause a stir internally with other departments’ corporate executives or the general public.  However, in light of the fact that the law is ever changing and in light of the current civil recovery legal landscape, it may be time to re-evaluate whether your company’s philosophy toward theft and civil recovery should change. 

Paradigm shifts may be in order in other areas of Asset Protection as well.  Why are some specialty retailers adept at making external apprehensions despite not having a dedicated AP staff while others choose to almost ignore shoplifters?  Is this something that could be addressed through a training program or with the use of a third party security group?

Many companies have adopted extensive awareness training programs to help employees understand where shrink comes from in hopes that through education, behavior will change to reduce losses within the organization.  Some of these same companies have worked closely with IT departments and other consultants to change POS systems and procedures to help plug the holes for all but the craftiest of dishonest employees and fraudulent refunders.  Many retailers, in an effort to both drive sales and reduce the likelihood of shoplifting, have adopted a proactive approach to the shopping experience by making a policy to reach out and acknowledge all potential customers in the store.  But even after all the “best in class” asset protection measures are enacted, theft still occurs from inside and out.

While there may be different approaches with how to reach out to theft offenders, regardless of the method(s) used, many individuals will simply choose to ignore the civil requests to voluntarily part with their money (when in essence it is often your money – especially when speaking about civil restitution recovery as opposed to statutory civil/ penalty damages).  Have you really thought through the response to the question posed by some of the brazen civil demand letter recipients, “What are you going to do about it?”

With the most recent news that the second half of 2011 may not bring the economic recovery we were all hoping for, isn’t it time to re-evaluate your internal procedures?  It’s time to speak to your civil recovery provider and take the time to go back through your parameters and desired civil recovery procedures.  It’s also time to speak to your in-house legal departments and executives about more openly embracing the laws that were enacted for retailers and forming a united front by  sending a clear message to your former dishonest associates and shoplifters as well as your current associates and the shopping public that if you steal, you can be sued civilly apart from criminal consequences that may often also take place.  While there is no law requiring retailers to sue for civil tort/civil theft claims when theft offenders or those civilly responsible choose to ignore civil recovery letters, many of those who receive these letters choose to heed the advice of internet bloggers and what seems like the army of criminal defense attorneys who tell them to ignore civil demand letters.  Isn’t it about time for those receiving demand letters to get a different message? 

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