In an interesting and potentially significant move for the scholarly publishing world, the U.S. District Court for the District of Nevada has granted a preliminary injunction against a major journal publisher and conference organizer in response to a complaint by the Federal Trade Commission (FTC). The injunction was granted on the basis of the Court’s analysis of evidence provided by the FTC and its finding that the FTC’s complaint, if allowed to proceed, “is likely to succeed on the merits” and that the public interest would be served by granting it.

deceptive shark

 

The FTC alleges that OMICS Group and its affiliates iMedPub LLC and Conference Series Ltd have engaged in a variety of “unfair and deceptive practices with respect to the publication of online academic journals and organization of scientific conferences,” including:

  • Falsely claiming to provide rigorous peer review of articles submitted for publication in their journals;
  • Claiming as “editors” individuals who never received manuscripts to review or edit, or who never even agreed to be appointed as editors — some of whom say that OMICS ignored or refused their demands that they be removed from journal mastheads;
  • Sending solicitations to potential authors on behalf of other academics, without the latter’s permission or knowledge;
  • Giving their journals names “nearly identical to other respected journals, which has led to consumers mistakenly submitting articles to Defendants’ journal”;
  • Failing to disclose publication fees to authors until after their articles had been submitted and published, then levying those fees on the authors, continuing to demand payment after the authors had requested that their articles be withdrawn;
  • Misrepresenting the Impact Factors of their journals;
  • Falsely claiming that their journals are included in prestigious professional and academic indexes;
  • Organizing putatively academic or professional conferences and seeking to increase attendance by falsely advertising the participation of respected individuals (who have, in some cases, had to resort to legal action in order to get their names removed from the conference advertisements).

In response to the FTC complaint, the defendants filed a motion to dismiss, providing evidence in defense of their business practices. The FTC responded to the defendants’ motion, the defendants provided a rejoinder, and after evaluating all of the motions, statements, and replies, the Court granted the FTC’s motion for preliminary injunction and denied the defendants’ motion to dismiss.

What does this mean for the defendants?

The first part of the injunction is not particularly noteworthy; it instructs the defendants not to lie about their business practices. In other words, they are enjoined to behave in good faith: no claiming to provide peer review when you don’t, no falsely claiming to have a high Impact Factor, no putting people’s names on editorial boards if they haven’t agreed to serve, etc. If, as the defendants claim, these are not behaviors in which they engage, then this part of the injunction should create no burden whatsoever for them.

The second part of the injunction requires that the defendants prepare and submit complete financial statements and that they refrain from destroying any documents relating to the companies’ business practices. It also gives the FTC the right to obtain credit reports on the defendants. Again, though, even this part of the injunction (though annoying and time-consuming) should pose no actual threat to the defendants unless their business practices are not, in fact, above-board.

Why is this significant?

For one thing, the FTC complaint and the District Court finding in the FTC’s favor come at about the same time as a recent statement from the National Institutes of Health on “publication resulting from NIH Funded Research.” This statement provides guidance to NIH-funded authors, specifically regarding their obligation to publish in “credible journals.” Having “noted an increase in the numbers of papers reported as products of NIH funding which are published in journals or by publishers that do not follow best practices promoted by professional scholarly publishing organizations,” the NIH lays out examples of what it means by failing to “follow best practices.” In the words of the NIH statement, these include:

  • Misleading pricing (e.g., lack of transparency about article processing charges)
  • Failure to disclose information to authors
  • Aggressive tactics to solicit article submissions
  • Inaccurate statements about editorial board membership
  • Misleading or suspicious peer-review processes

(Do these sound familiar?)

The NIH warns that “publications using such practices may call into question the credibility of the research they report,” and provides links to a number of resources that offer authors guidance on choosing a publishing venue — including, notably, an FTC blog posting titled “Academics and Scientists: Beware of Predatory Journal Publishers.” Guidance like this from a funding agency is significant because funding agencies control money. When the funding agency in question is as large and powerful as the NIH, its guidance carries that much more weight.

The action by the FTC is significant because it’s a formal legal action that not only helps to shed much-needed light on a serious and growing problem in the scholarly communication ecosystem, but also has the potential to set a precedent: the fate of OMICS Group, iMedPub LLC, and Conference Series LLC (not to mention the fate of those companies’ CEO who was named separately in the complaint) will either embolden publishers that engage in the kinds of practices of which they’re accused, or give them pause.

For another thing, the Court’s requirement that OMICS provide comprehensive information on its financial situation could turn out to be very interesting. Either OMICS will comply, in which case we’ll have a window on the finances a large and diversified science publisher (which, if the FTC’s allegations are correct, is one of the the most globally successful predatory publishers on the scene right now), or they won’t comply, in which case the plot will thicken in interesting ways.

The FTC is not accusing OMICS of publishing low-quality journals, but of deceiving and defrauding authors.

A fourth reason that this is a significant development is that, for the first time, it pits an agency of the U.S. government against a publisher that is widely suspected of behaving in a predatory or deceptive way. There has been lots and lots of talk about this issue, in a variety of fora, but I believe this marks the first time a U.S. government agency has taken formal action against a publisher for this particular reason. (Commenters, please correct me if I’m wrong about that.)

Quality vs. Honesty

It’s worth noting, again, that the publishing practices about which both the FTC and the NIH are complaining don’t particularly concern “quality” — scholarly rigor and selectivity — itself. They are much more specifically about deceptive business practices. The NIH guidance does not urge its funded authors to publish in fancy, high-ranking or high-reputation journals, but rather in “credible” ones; the FTC’s allegation against OMICS et al., is not that they publish low-quality journals, but that they deceive and defraud authors. What it comes down to is that the FTC’s and NIH’s concerns are about whether the journals in question are really scholarly journals at all, or just elaborately (or even crudely) crafted scam operations that publicly claim to publish rigorously-selected scholarship but really publish anything for which the submitting author is willing to pay an article processing charge (APC).

Unfortunately, too much of the current discussion about “predatory” or deceptive journals in the scholarly communication space elides this very important distinction. As I’ve discussed here previously, there is a very big difference between saying “we need to figure out how to get low-quality journals out of the marketplace” and saying “we need to figure out how to get fraudulent enterprises out of the marketplace.” There’s nothing wrong with publishing a non-peer-reviewed journal, as long as you don’t falsely represent it as a peer-reviewed journal; there’s nothing wrong with publishing a journal with a low or nonexistent Impact Factor, as long as you don’t lie about what your Impact Factor is. There is certainly something wrong with putting scholars’ and scientists’ names on editorial board lists without their permission, with hiding APCs until after publication and then sending authors dunning notices, and with giving journals titles designed to create confusion in the marketplace.

I wish there were something closer to universal agreement among members of the scholarly communication community that these practices are worth taking seriously and taking action against. I’m grateful that at least the FTC and the NIH are stepping up and doing so.

Rick Anderson

Rick Anderson

Rick Anderson is Associate Dean for Collections and Scholarly Communication in the J. Willard Marriott Library at the University of Utah. He speaks and writes regularly on issues related to libraries, scholarly communication, and higher education, and has served as president of NASIG and of the Society for Scholarly Publishing.

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Discussion

12 Thoughts on "Federal Trade Commission and National Institutes of Health Take Action Against Predatory Publishing Practices"

Congratulations, Rick, on posting another canny and sharply-reasoned commentary about a
major scholarly journal industry development. Your suggestion is right on the mark that OA funding agencies should be (in some more focused manner) kept up-to-date on efforts to differentiate scholarly journal publishers.

In traditional scholarly journal publishing, in my own personal experience, has included many different types of scholarly journals. Back in the last 1970’s, Haworth Press (now part of Taylor & Francis) published a series of
scholarly journal author’s guides, which were an early counterpart to Cabell’s journal guides. An example was the “Author’s Guide to Journals in Psychology, Psychiatry & Social Work” (see link below).

The survey sheets returned to us indicated that even back then, a traditional journals reported enormous variations in reviewing policies. Most were double-blind peer reviewed. Some were peer-reviewed, but not “blinded.” Some were only “editor-reviewed.” A few didn’t check the box saying “peer reviewed.” They were more in the category of professional magazines of interest to scholars and academics.

These historical notes reinforce your observation that there is nothing wrong with publishing a non-peer review outlet. The publisher should just be unambiguously transparent about what services they are providing.

Bill Cohen, Publisher & Editor-in-Chief
Harrington Park Press

PS Your graphic is priceless

https://www.amazon.com/Authors-journals-psychology-psychiatry-social/dp/B0006CP33Q/ref=sr_1_1?s=books&ie=UTF8&qid=1512389169&sr=1-1&keywords=author%27s+guide+to+journals+in+psychology%2C+psychiatry+and+social+work)

Rick, could you amplify your parenthetical remark: “(Do these sound familiar?)” I think I know what you mean, but I am not sure.

Joe Esposito

I was just referring to the fact that the list of predatory/deceptive behaviors NIH is warning its authors about is very similar to the list of charges the FTC has levied against OMICS et al.

I think it is noteworthy to observe that academic libraries seem to play no role in this process. Once, in the subscription era, libraries were the quality guardians par excellence when procuring their institutional collections. This capacity was lost as a consequence of the big deals, seemingly making quality control a useless effort. But open access publishing, making individual authors consumers of publishing services, necessitates regaining this task. So far, librarians fail, with the exception of Jeffrey Beall (performing, however, his role rather controversially). I think, libraries miss a strategic chance here to de-marginalise themselves, some of their other core tasks already substantially being taken by Google Scholar, ResearchGate, SciHub etc. How come?

Hi, Leo —

I think one reason librarians have hesitated to jump into this role is simple risk-aversion: we’ve seen what happened to Jeffrey Beall (who was both praised and villified for his work, not to mention sued) and we worry about how much institutional support we would get for taking on the task of holding scam publishers to account. We also see how much of an investment of staff time it would require, and most of us don’t have that kind of deep resourcing.

There’s another reason as well, though: librarians tend to be champions of open access, and since the publishers that engage in these kinds of practices tend overwhelmingly to publish on an OA basis, criticism of them is too often treated as if it were an attack on OA itself. (Unfortunately, Beall’s own attacks on OA have not helped to keep the two issues separate, as they should be.)

That being said, librarians are (at my institution and others) stepping up at a local level to help faculty discriminate between legitimate and scam publishers.

Hi Rick,

“We also see how much of an investment of staff time it would require, …” This certainly was the case in those bygone days where every library had a staff of reference librarians, all working for their own institution only. But today, libraries could work together and easily share their judgements. “[…] librarians are (at my institution and others) stepping up at a local level to help faculty discriminate between legitimate and scam publishers.” Do they share their findings, for example?

“[…] criticism of them (the scam publishers, L.W.) is too often treated as if it were an attack on OA itself.” In my perception, predatory publishers are not so much a consequence of the underlying open access business model, as of absent quality control. Fake subscription journals would just as easy get a chance. I know, this is unproven. But so is the claim that open access is the cause.

Cooperative ventures between libraries do spread out the staffing costs, of course — but they also add the costs of coordination. Those costs are by no means insignificant.

As for “the claim that open access is the cause” of predatory publishing: to my knowledge, no one (except possibly Beall) is making that claim.

Is the reason that the FTC could go against OMICS because they have a business presence in the US? That would explain why they’ve not taken action against so many others.

I would imagine so. It also might be that OMICS is such a big operation — I doubt that it’s worth the FTC’s time to go after every little scam publisher out there.

My understanding is that Omics is fair game because they opened offices in Nevada. I think it they had stayed in India, this would not have happened. I remember this being stated with the initial complaint.

With regard to the precedence question, the US government has an established interest and track record in preventing fraud and deception in a wide variety of marketing activities where the public interest (and significant economic activity) is concerned—nutritional labeling, drug marketing, financial investments, insurance, and more. It’s not inconsistent, then, that the government should wade into this area in order to help protect the public (and public investments in R&D).

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