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This literary lawsuit could pose lasting problems for company whistleblowers.

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October 19, 2021, 11:22am

Uh oh: Publishers Weekly reported yesterday that makeup company (and multi-level marketing scheme) Mary Kay is suing Jennifer Bickel Cook, long-time personal administrative assistant to Mary Kay founder Mary Kay Ash, director emeritus of the Mary Kay Museum, and the author of Pass It On: What I Learned From Mary Kay Ash, published on October 5th by Brown Books Publishing Group. If successful, this suit could pose lasting problems for employees and former employees writing about work.

The lawsuit alleges that Cook, in Pass It On, used materials from works copyrighted by Mary Kay Inc. without permission; falsely implied that Mary Kay and its founder endorsed the book; violated Cook’s NDA with Mary Kay; and persuaded members of Mary Kay’s sales force (independent salespeople, because Mary Kay is a multilevel marketing scheme) to promote her book. The lawsuit asks the court to stop Cook from advertising or selling Pass It On, remove all references to any of Mary Kay’s products or IP, ask Internet search engines to remove Mary Kay IP which associates Mary Kay with Cook, and stop Cook from asking Mary Kay sales force members to sell the book.

This lawsuit is especially surprising because Pass It On is essentially a love letter to Mary Kay Ash and her company. The publicity copy frames the book as Jennifer Bickel Cook “celebrat[ing] the international legacy of her friend, mentor, and boss-a woman whose incredible journey in faith shaped her own.” (And it’s not that there’s nothing negative to say about MLMs like Mary Kay!) It’s very Philip Roth picking a biographer.

Brown Books will continue with the book’s second printing despite the lawsuit. According to Brown Books, the book was vetted by a lawyer prior to publication, and this is the first time in the company’s history that “one of [their] authors’ First Amendment rights has been directly challenged.”

Tom Reale, president and COO of Brown Books, suggests that the lawsuit, filed in the Dallas division of the U.S. District Court for the Northern District of Texas, sets a concerning precedent for former employees being able to write freely about their experiences working for companies. If Mary Kay wins this lawsuit, companies may have grounds to shut down any speech about them based on intellectual property. Reale told Publishers Weekly that if Mary Kay’s lawsuit is successful, “no employee, ever, would be able to speak about a company they work for, or have ever worked for, without fear of legal reprisal. This includes speech that is supportive of the company as well as speech that is critical, of which there is none in this case.” If this can happen to essentially a book-long ad, who knows what could happen to actual whistleblowers?

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