In the District of Nevada, gambling is commonplace. OMICS was gambling that it could continue to operate in a dishonest manner. Last week, it lost.
In an order released yesterday and filed March 29, 2019, the US Federal Trade Commission won a motion for summary judgment against OMICS and its founder and CEO, Srinubabu Gedela. The FTC brought the action under Section 5 of the FTC Act, deceptive practices, back in May 2018. I covered this, along with a raft of exposés that emerged around that time. The FTC levied its first charges against OMICS in 2016.
The summary judgment indicates OMICS’ practices were egregious enough to not require a trial. The defendants failed spectacularly in their attempt to improve OMICS’ position — in fact, the section responding to their defense is withering and fun to read, ending with:
To the extent any affirmative defenses remain, Defendants have failed to support them in response to the FTC’s Motion and therefore the Court finds these defenses abandoned.
Their lack of a viable defense led US District of Nevada Judge Gloria M. Navarro to conclude:
As Defendants have failed to raise any genuine issues of material fact, the Court grants the FTC summary judgment.
Everyone involved with OMICS has been issued permanent injunctions that prevent them from engaging in any of these practices in the future, primarily because there was such a consistent pattern of deception:
Defendants did not participate in an isolated, discrete incident of deceptive publishing, but rather sustained and continuous conduct over the course of years. An injunction is therefore necessary to prevent future misconduct and protect the public interest.
To determine the fine, the FTC calculated the total revenue of the companies during the time the infractions were documented, subtracted any refunds to customers, and determined the total to be just north of $50 million.
. . . the FTC requests an amount of $50,130,811.00 in consumer loss between August 25, 2011, through July 31, 2017. . . . The FTC reaches this amount by calculating Defendants’ gross revenue during the at-issue period and subtracting the $609,289.13 that Defendants paid out in chargebacks and refunds. . . . The FTC’s calculations are consistent with the consumer loss formula, and the Court finds this approximation reasonable.
Journalists were a part uncovering the “sham” peer review and bogus business practices of OMICS, including John Bohannon (Science) and Tom Spears (Ottawa Citizen, interviewed here recently about evolving predatory practices). Their stings involving fake papers were cited in the filing. Joyce Backus of the NLM was one of the experts the FTC consulted on these matters.
You may recall that Gedela, who founded OMICS, at one point last year in an interview said the FTC is made up of “illiterates” who “don’t know what peer review is” and “don’t know the definition of [a] journal.” The guy does not lack gall.
The in-house Impact Score OMICS invented when its journals were not granted impact factors was also called out as deceptive and misleading.
OMICS’ conferences business was also taken to task for listing expert speakers who never agreed to speak and had to threaten to sue to have their names removed. The FTC reviewed 100 conferences, and found that 60% advertised organizers or participants who had not agreed to participate.
I’m including the portion of the order enjoining the defendants from further predatory publishing, because it is interesting and informative to read:
IT IS THEREFORE ORDERED that Defendants, Defendants’ officers, agents, employees, and attorneys, and all other Persons in active concert or participation with any of them, who receive actual notice of this Order, whether acting directly or indirectly, in connection with any Publishing Activities, are hereby permanently restrained and enjoined from:
A. misrepresenting or assisting others in misrepresenting, expressly or by implication:
- the nature, credibility, legitimacy, or reputation of any journal or other publication;
- that any journal or other publication follows or otherwise engages in peer- review or any other process by which work submitted to that journal or publication is reviewed;
- that any Person is an editor of, a member of an editorial board for, or otherwise associated or affiliated with any journal or other publication;
- that any Person is involved in the selection or review of any article, manuscript, or other work submitted for publishing in any journal or other publication;
- the Impact Factor or Impact Score of any journal or other publication, or that any journal or other publication has a high Impact Factor or Impact Score;
- the inclusion of any journal or other publication in any academic journal indexing service, including but not limited to PubMed, PubMed Central, or MEDLINE;
- any costs or fees associated with publishing an article, manuscript, or other work;
- any material restrictions, limitations, or conditions on publishing an article, manuscript, or other work; or
- any other fact material to a consumer’s decision to submit an article, manuscript, or other work for publishing in any journal or other publication;B. making any representation, or assisting others in making any representation, expressly or by implication, that any journal or other publication is peer-reviewed unless any work submitted to that journal or publication is reviewed by peers who are subject matter experts, who are not journal employees, and who evaluate the quality and credibility of the work, and the representation is otherwise non-misleading;
C. making, or assisting others in making, expressly or by implication, any representation covered by this Section I, unless the representation is non-misleading and, at the time such representation is made, Defendants possess and rely upon competent and reliable evidence that is sufficient to substantiate that the representation is true.
Last year, we saw that the Indian and German governments are taking notice of predatory publishing, and more actions may be forthcoming against predatory publishers.
The sad part of this to me is that once again we see how OA has invited regulators into our market — either because it gives them political opportunity or because we are unable to regulate ourselves. So, while this may be a “win” in some ways, in the grand scheme — and because predatory publishers continue to thrive and evolve without many effective checks on their behavior — we still have a problem that indicates we can’t keep our own economy in order, and require outside regulation.