Editor’s Note: Today’s post is by Stewart Manley. Stewart is a lecturer at the Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia. His work in the scholarly communications area focuses on high-profile litigation involving publishers and publishing ethics.

At 9 a.m. (PST, GMT-8) on Wednesday, June 10, 2020, the U.S. Court of Appeals for the Ninth Circuit is scheduled to stream live video of the oral arguments in Federal Trade Commission v. OMICS Group Inc., et al., from its website and YouTube channel. Members of the scholarly publishing community may enjoy watching judges and lawyers argue over the finer points of predatory journals, peer review, the impact factor, journal indexing, and article processing charges. Sessions generally last between 30 minutes and an hour. This blog post provides a preview of some of the arguments that will be presented.

As promised, OMICS – called “the evil empire” by retired librarian Jeffrey Beall – appealed last year’s $50.1 million judgment against it. Followers of the case may recall that the FTC accused OMICS of deceiving researchers about the nature of their publications and conferences. Article processing fees were often hidden in footnotes, the FTC alleged, and many editorial members, whose names, affiliations, and photos were prominently displayed on the OMICS website, had never agreed to be on the OMICS journal boards. U.S. law – specifically 15 U.S.C. Section 45(a)(1) – prohibits these types of “deceptive acts or practices in or affecting commerce.”

On March 29, 2019, Judge Gloria Navarro of the U.S. District Court in Nevada ruled in favor of the FTC on summary judgment – a legal process that allows a judge to forego a trial when there are no material facts in dispute. This was a big victory for the FTC because the deck is stacked in favor of the non-moving party (here, OMICS) during a hearing on a motion for summary judgment. Judge Navarro was required by law to view the facts in the light most favorable to OMICS and to draw all reasonable inferences in favor of OMICS. The judges on the Court of Appeals, therefore, will hear OMICS argue, for the most part, not that it does not deceive but instead that there are “genuine issues of material fact in dispute” and that Judge Navarro incorrectly applied the law. (OMICS Group Inc. was incorporated in Nevada in 2012. All appeals from federal courts in Nevada, which falls within the Ninth Circuit, are heard by the Court of Appeals located in San Francisco.)

After going through the court filings, I think it’s fair to say that the arguments boil down to disputes over evidence – its amount and its quality. OMICS argues, as just one example, that if the FTC provides 50 consumer complaints, it is only 0.08% of the over 65,000 manuscripts submitted during the time period at issue. In another instance, OMICS says that the FTC only supplied evidence of a single conference where attendees were disappointed, which is far below the evidence needed to justify an order of summary judgment.

After claiming that it provided “voluminous exhibits” of evidence, the FTC in similar fashion attacks the evidence from OMICS. It argues, for instance, that much of the publisher’s evidence comes from the self-interested statements of its CEO, Srinubabu Gedela. On other occasions, the FTC points out that OMICS provided no evidence to support its claim that it had 50,000 editors, no evidence that researchers understand “impact factor” to mean something other than the Clarivate Analytics Journal Impact Factor, and no evidence that some of its journals are included in “reputable indices.”

These arguments about the quantity and quality of evidence will likely dominate the oral submissions before the Court of Appeals on June 10 and will almost certainly revolve around three major areas of contention raised by the parties. First, was the evidence of OMICS’ alleged deceptive practices presented by the FTC at the Nevada District Court strong enough to satisfy the “no genuine issues of material fact in dispute” standard of summary judgment? Second, was Gedela’s position at the top of management and involvement in OMICS’ operations sufficient to make him personally liable for the $50.1 million because he knew about, participated in, or at least recklessly disregarded the allegedly deceptive practices? Third, was it proper to base the amount of $50.1 million on OMICS’ net revenues (less chargebacks and refunds)?

Researchers might be amused that several of the arguments raised by OMICS and the FTC are about what academics think when submitting manuscripts to journals.

• When you see the term “impact factor” on a journal’s website, do you think only of Clarivate’s Journal Impact Factor? (The FTC says you do; OMICS says you don’t.)
• When you read that a journal is “open access,” do you assume that the journal charges a fee? (OMICS says you do; the FTC says you don’t.)
• Do you think standard peer review takes at least weeks or months? (The FTC says it does; OMICS says it doesn’t.)
• Should we presume that researchers who publish in OMICS journals more than once cannot claim to have been deceived? (OMICS says we should; the FTC says we shouldn’t. OMICS argues, “Fool me once, shame on you. Fool me twice, shame on me.” There is evidence that some researchers are not fooled when they submit to predatory publishers.)

My personal answers are yes (although this has changed since doing research on predatory publishers); no (some open access journals do not have fees because they are funded by organizations or institutions); yes (desk rejections can be quick but I cannot recall ever having received peer review comments in under a month from the date of submission); and no (a blanket presumption is probably unfair but, in OMICS’ defense, I cannot believe that all researchers who submit to OMICS journals are unaware of its publishing practices). On my scorecard, that’s three for the FTC and one in between.

If OMICS loses on appeal, it can still petition for a hearing from the U.S. Supreme Court (the Supreme Court generally only accepts around 2% of the approximately 7,000 annual requests for appeal; in contrast, requests to the U.S. Courts of Appeal are generally guaranteed).

If OMICS wins, what happens next will depend on what the Court of Appeals orders Judge Navarro to do. It could, for instance, order her to reconsider the facts or take additional evidence (after which she could still affirm her original decision). It could order her to merely recalculate the monetary award. More drastically, the Court of Appeals could reverse Judge Navarro’s decision and order a trial in the Nevada courtroom if it determines that, for example, she failed to take into account material facts raised by OMICS.

Regardless of what happens in this case, it seems that predatory journals will continue to be a hot topic in scholarly publishing for some time. Even OMICS has a view:

Since the last decade or recent years, a specific term has been introduced to describe certain spirited players in the market, and one of these is the use of predatory description, specifically for an online business on account of inadvertent communication gap in payment mode or time-frame, giving rise to conflicts of interest. However, there is a very thin line between the good and bad practices. One needs a very careful investigation and development of a broader sight with an independent approach.

The legal case against it will help determine whether OMICS is merely a “spirited player” or something worse and on which side OMICS stands on that “very thin line” between good and bad practices.

I hope this brief overview encourages you to watch the oral arguments. Video and audio recordings will be available a day later.

I thank the United States Court of Appeals for the Ninth Circuit for approving my application for an exemption from the Electronic Public Access Fees associated with accessing the filings in Federal Trade Commission v. OMICS Group Inc., et al., Case No. 19-15738.