United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is the Motion for Summary Judgment, (ECF No.
86), filed by Plaintiff Federal Trade Commission (“the
FTC”). Defendants OMICS Group Inc.
(“OMICS”), iMedPub LLC (“iMedPub”),
Conference Series LLC (“Conference Series”), and
Srinubabu Gedela (“Gedela”) (collectively
“Defendants”) filed a Response, (ECF No. 110),
and the FTC filed a Reply, (ECF No. 115). Also, before the
Court is the Motion for Summary Judgment, (ECF No. 89), filed
by Defendants. The FTC filed a Response, (ECF No. 97),
Defendants filed a Reply, (ECF No. 107). For the reasons
discussed herein, the FTC's Motion for Summary Judgment
is GRANTED, and Defendants' Motion for
Summary Judgment is DENIED.
brings this action pursuant to Section 5(a) of the FTC Act,
15 U.S.C. § 45(a), alleging that Defendants engaged in
unfair and deceptive practices with respect to the
publication of online academic journals and organization of
scientific conferences. (See Compl., ECF No. 1).
Defendants claim to operate hundreds of online academic
journals on a wide variety of topics, including medicine,
chemistry, nursing, engineering, and genetics. (Id.
¶ 20); (Gedela Decl. ¶¶ 14-15, Ex. 1 to
Defs.' MSJ, ECF No. 89-1). In order to persuade consumers
to submit articles, the FTC alleges that Defendants make
numerous misrepresentations regarding the nature and
reputation of their journals. (Compl. ¶¶ 11, 12).
The FTC also alleges that Defendants fail to disclose the
significant fees associated with their publishing services.
(Id. ¶ 13). Finally, the FTC alleges that
Defendants make numerous misrepresentations in connection
with the marketing of their scientific conferences.
(Id. ¶ 14).
asserts that Defendants OMICS, iMedPub, and Conference Series
(collectively “Corporate Defendants”) have
operated as a common enterprise in violating Section 5(a) and
therefore are jointly and severally liable. (Id.
¶ 10). The FTC further asserts that Gedela has
“formulated, directed, controlled, had the authority to
control, or participated in the acts and practices of the
Corporate Defendants that constitute the common
enterprise.” (Id.). Based on these
allegations, the FTC initiated this action against Defendants
on August 25, 2016. On September 29, 2017, the Court granted
the FTC's request for a preliminary injunction, requiring
Defendants to preserve records, provide financial accounting
to the FTC, and refrain from engaging in deceptive practices.
(Prelim. Inj. Order, ECF No. 46). The parties now submit
their respective motions for summary judgment on the
FTC's unfair and deceptive practices claim.
Background on Academic Publishing
Traditional Model vs. Open Access
or scholarly journals are peer-reviewed publications that
focus on a particular academic or scientific discipline.
(See SJX18 Backus Decl. ¶ 5, Ex. 18 to
FTC's MSJ, ECF No. 86-18). These publications are comprised
of articles, which typically take the form of “original
research, review articles, commentaries, or clinical case
the traditional model, publishers charge libraries and
individuals “user subscription fees” to gain
access to the published material. (Id. ¶ 6).
The articles remain accessible to the extent users remain
subscribed to the journal. (See id.). In contrast,
under the newer “open access” model, journals
make their content available to the public at no cost,
subsidizing their operations primarily through author-funded
publication fees. (Id. ¶ 7); (Gedela Decl.
¶ 9, Ex. 1 to Defs.' MSJ). By removing price and
permission barriers, this model increases access to a broader
community. (SJX18 Backus Decl. ¶ 9); (Gedela Decl.
is the process of subjecting an author's scholarly work,
research, or ideas to the scrutiny of qualified experts in
the same field prior to publishing in a journal. (SJX18
Backus Decl. ¶ 12). When an author submits their work,
the journal makes an initial determination regarding whether
to accept the article for peer review or reject it outright.
(Id.). If accepted, authors are expected to respond
to peer reviewer commentary, implement recommendations, and,
if necessary, justify the rejection of any proposed
revisions. (See Id. ¶¶ 14-15). The
peer-review process typically takes several months.
(Id.). Prior to publishing, authors are usually
required to sign a publication agreement that gives the
journal the right to publish the submitted article.
(Id. ¶ 14).
academic publishing industry, a journal's “impact
factor” is often used as an objective measure of the
prestige or relative importance of a journal in its field.
(Id. ¶ 15). “Impact factor”
typically measures the average number of scholarly citations
that articles receive in a published journal. (See
Id. ¶ 16). A higher impact factor indicates a more
reputable journal. (Id. ¶ 15). Amongst those in
the industry, the term is specifically understood to mean the
proprietary citation measure calculated and published by
Thomson Reuters in its Journal Citation Reports.
(Id. ¶ 16). A journal must be indexed by Thomson
Reuters in either its Science Citation Index Expanded or its
Social Sciences Citation Index to receive an impact factor.
from impact factors, “indexing” also serves as an
indicator of a journal's reputation. (Id.
¶¶ 17-22). The United States National Library of
Medicine (“NLM”) produces and manages three
freely accessible bibliographical resources: PubMed, Medline,
and PubMed Central. (SJX11 Admissions Nos. 42, 43). Journals
must apply for inclusion in Medline and PubMed Central, upon
which time an NIH-chartered advisory committee reviews the
submission. (See id.). Due to the selective nature
of these indexes, a journal's inclusion is considered
indicative of a journal's quality. (See id.).
Gedela and the Corporate Defendants
OMICS, iMedPub, and Conference Series are corporate entities
registered in the United States with a principle place of
business located in Hyderabad, India. (SJX02 Answer
¶¶ 6-8); (Gedela Decl. ¶ 6). Each entity
shares the same principal address at SEZ Unit, Building No.
20, 9th Floor, APIIC Layout, HITEC City,
Hyderabad, AP 500081. (Id.). Furthermore, each
entity at various points has utilized common addresses for
their United States locations and business registrations.
(Id.); (See, e.g., PX12 Att. D at 116, Att.
I at 257, Att. K at 367, Att. L at 667, Att. M at 945);
(SJX26 Att. J at 284, 290, 296, 299, Att. K at 323, Att. L at
328, Att. M at 338); (Internet Archives at 10, 17, 96, ECF
No. 84). In general, these entities operate as a
group with comingled assets. (See generally
FTC's MSJ 6:10-7:27, ECF No. 86).
is the sole owner and founding director of the three
Corporate Defendants. (SJX02 Answer ¶ 9); (SJX03 OMICS
Int. Resp. 2); (SJX04 iMedPub Int. Resp. 2); (SJX05
Conference Series Int. Resp. 2); (Defs.' MSJ 5:3-4, ECF
No. 89). Gedela first began using the fictitious business
name “OMICS Publishing Group” for his publishing
and conference services in 2009. (SJX23 Gedela Dep. 23:1-18,
30:1-25); (Defs.' MSJ 5:3-11). Until at least 2015,
Gedela held revenue from the Corporate Defendants in a
Citibank account set up in Palo Alto for OMICS Publishing
Group. (See SJX23 Gedela Dep. 27:1-30:25). As
founding director, Gedela has authority and control over
Defendants' conference and publishing practices. (SJX10
Admission Nos. 1-4, 20); (See FTC's MSJ
4:26-5:22). Furthermore, Gedela has signatory authority over
OMICS and iMedPub's financial accounts. (SJX02 Answer
¶ 9); (SJX10 Admission No. 22). Gedela operates as the
main contact for the Corporate Defendants' servicers,
including their payment processor. (PX12 Att. P at 1007; Att.
O at 997, 999; Att. D at 109).
Defendants' Peer Review Practices
advertise throughout their websites and email solicitations
that they strictly adhere to standard peer-review practices.
(See SJX11 Admission No. 60); (SJX12 Admission Nos.
61-64); (SJX13 at 6-14); (SJX 15 at 4-8, 11-14);
(See SJX1 Solicitation Email at 8); (SJX26 Att. Q at
576, 585, 588, 630, 698); (See PX12 Att. L at 657).
For example, in 2014, Defendants published web pages stating
that OMICS had 25, 000 experts serving as editorial board
members and reviewers, and that “[a]ll articles
submitted are subjected to a blind peer review.” (SJX15
¶¶ 182-186). Over the years, this number has grown
to over 50, 000 purported experts serving as board members
and reviewers for over 700 “leading-edge peer
reviewed” journals. (SJX26 Att. Q at 576, 586); (Gedela
Decl. ¶¶ 14-15, Ex. 1 to Defs.' MSJ).
Consistently, Defendants have represented their peer review
policies as “highly appreciated, accepted and
adaptable” to the criteria set forth by agencies such
as PubMed. (PX12 Att. L at 773).
contradiction to these assertions, however, the FTC submits
evidence indicating that Defendants' peer review
practices are a “sham.” (FTC's MSJ 24:4-5).
For example, in certain instances, consumers who submitted
articles were approved within just several days of
submission. (SJX 26 Att. A at 20, 53, 69, 84, 86, 114). In
others, consumers reported receiving no comments or proposed
revisions from peer reviewers. (See id. at 37, 53,
73, 93, 114, 124). The consumers who did receive feedback
from reviewers have noted that it was not substantive.
(Id. at 53); (PX09 Hoevet Decl. ¶ 4); (PX10
Davidson Decl. ¶¶ 6, 10).
2012, John Bohannon-a scientist and writer for
Science magazine-submitted two articles to
Defendants' journals with intentionally
“egregious” scientific flaws. (PX14 Bohannon
Decl. ¶ 3). Defendants' journals accepted the
flawed papers without any substantive comments or review.
(See Id. ¶¶ 5, 7). Similarly, in 2016, a
journalist for the Ottawa Citizen submitted an
“unintelligible” article containing ungrammatical
sentences and invented words. (SJX01 Spears Decl. ¶ 2).
Defendants' journal published the article without any
edits and without contacting the author prior to publication.
(Id. ¶ 3). After reviewing these cases, the
FTC's expert Joyce Backus concluded that the papers were
not subjected to peer review “as that term is
understood in the academic publishing industry.” (SJX18
Backus Decl. ¶¶ 29, 31).
addition to consumer commentary, the FTC also submits
statements from multiple of Defendants' journal editors.
(FTC's MSJ 25:15-25). In these statements, the editors
indicate that they never received any manuscripts to review.
(PX01 Woods Decl. ¶¶ 3-4, 9); (PX03 Everett Decl.
¶¶ 3-4). Based on documents received through
discovery, the FTC asserts that out of 69, 000 published
articles, only 49% indicate that some form of review was
conducted. (See FTC's MSJ 26:8-14).
Defendants' Expert Reviewers
advertise that their publications are reviewed and edited by
as many as 50, 000 experts. (SJX26 Att. Q at 576, 586);
(Gedela Decl. ¶¶ 14-15, Ex. 1 to Defs.'
MSJ). In support of this claim, Defendants'
websites include hundreds of names, pictures, and biographies
of scientists and researchers allegedly serving on editorial
boards. (PX12 Att. L at 669-82, 734-37, 808-815). Upon the
FTC contacting several listed editors, however, many
indicated that they had never agreed to be affiliated with
OMICS. (PX02 Grace Decl. ¶¶ 4-7); (PX08 Howland
Decl. ¶ 7); (PX11 Rusu Decl. ¶ 11). Furthermore, in
some instances, Defendants continued to use the
researchers' names even after they requested removal.
(PX08 Howland Decl. ¶ 7); (PX11 Rusu Decl. ¶ 11);
(SJX26 Att. A at 35, 63). More generally, the FTC notes that
Defendants have only been able to produce a list of 14, 598
unique editors and evidence of an agreement to serve as an
editor for only 380 individuals. (SJX24 Wilson Decl. ¶
3); (SJX26 Freeman Decl. ¶ 15).
Defendants' Use of Impact Factors
advertise throughout their websites and solicitation emails
that their publications have high “impact
factors.” (SJX26 Att. Q at 741-768); (PX12 Att. L 657,
691, 762, 766, 768-769, 881-935); (SJX15 Admissions Nos. 196,
197). These advertisements include express representations,
such as “OMICS International journals are among the top
high impact factor academic journals which are publishing
scholarly articles constantly.” (SJX26 Att. Q. 820).
Defendants admit that their journals do not have Thomson
Reuters impact factors. (SJX04 iMedPub Int. Resp. 8); (SJX07
OMICS Int. Resp. 15). Rather, Defendants' impact factors
are self-calculated ratios based on the number of citations
found through a Google Scholar search. (See PX12
Att. L at 770); (SJX14 Admission No. 103); (SJX26 Att. P at
websites contain inconsistent descriptions of how their
impact factors are calculated. In some places, the impact
factors are described as based on Journal Citation Reports,
which is consistent with the Thomson Reuters Impact Factor.
(SJX15 Admissions 198-211). In other places, Defendants
describe them as an “unofficial impact factor”
based on Google Scholar Citations. (See, e.g., SJX14
Admission No. 103); (Internet Archives at 93, ECF No. 84).
Although Defendants provide their alternate definition in
disclosures, such explanations often appear buried underneath
their journal marketing. (See PX12 Att. L at 881-
931); (SJX26 Att. P at 450-467). In some instances,
Defendants' websites make the general claim that their
journals have “high impact factors” without any
qualification. (See PX12 Att. L at 657, 762); (SJX26
Att. Q at 820). Similarly, Defendants have sent solicitation
emails referring to their journals' impact factors
without qualification. (See SJX27 Email at 3).
Defendants' Indexing Representations
represent that their publications are indexed in reputable
indexing services. (See PX12 Att. L at 643, 657,
694). For example, Defendants repeatedly indicate that their
journals are indexed in Medline and PubMed Central. (PX10
Att. D at 16); (SJX26 Att. Q at 589, 820, 916, 923). At
various points, Defendants have even utilized PubMed and
Medline's logos on their websites. (Internet Archives at
8, 11, 14, 17, 20, 24).
these representations, Defendants admit that none of their
journals are indexed in PubMed Central or Medline.
(See SJX07 Admission Nos. 13, 14); (SJX08 Admission
Nos. 13, 14). Instead, Defendants claim that more than 900
well-respected scientists have recommended
OMICS' journals to be published in PubMed central.
(Gedela Decl. ¶ 17, Ex. 1 to Defs.' MSJ).
Nonetheless, NLM has explicitly refused to index
Defendants' publications due to questionable publishing
practices and requested that Defendants cease indicating any
affiliation. (SJX18 ¶¶ 32-36, Att. B at 25, Att. C
at 28, Att. D at 31, Att. E at 33-34). Despite NLM's
requests, Defendants have continued to indicate their
journals' inclusion in Medline and PubMed Central.
(See PX10 Att. D at 16); (SJX26 Att. Q at 589).
Defendants' Publishing Fees
frequently send out solicitation emails inviting individuals
to submit articles to Defendants' online publications.
(See PX04 Att. A at 6); (PX09 Att. A at 4); (PX10
Att. D at 16, Att. G at 37); (PX11 Att. D at 11). In numerous
instances, these email solicitations contain no mention of
any fees associated with Defendants' publication service.
(Id.). Defendants have continued this practice even
after the Court's entry of its preliminary injunction.
(See SJX01 at 6); (SJX26 Att. A at 65); (SJX27 Att.
A at 3-7). Defendants' solicitation emails invite
consumers to submit articles by responding directly to the
email. (Id.). Additionally, Defendants solicit
article submissions through their online portals.
(See SJX15 at 25-26). In many instances,
Defendants' article homepages do not contain clear
reference to fees associated with submitting articles.
(See, e.g., PX12 Att. L at 652-654, 734-738); (SJX26
Att. Q at 631-640). In other instances, Defendants' fee
disclosures are contained on secondary webpages but lack
specificity. (PX12 Att. K at 375-381). Notably, consumers
going to a journal's homepage can submit a manuscript
without ever seeing any fee disclosures. (See, e.g.
PX12 Att. K at 340-341).
consumers only learn of Defendants' fees after Defendants
have accepted their articles . (See, e.g., PX04
¶ 5); (SJX26 Att. A at 20, 26, 33, 45, 59). Furthermore,
when consumers contest Defendants' publication fees and
ask their articles to be withdrawn, Defendants have ignored
the requests and continued demanding payment. (See,
e.g., PX04 ¶¶ 6-8); (PX06 ¶¶ 6, 8);
(PX07 ¶¶ 5, 8). In some instances, Defendants only
removed the articles after the threat of legal action.
(See, e.g., PX07 ¶¶ 9-10). In addition to
economic harm, this conduct prevents authors from submitting
their work to other journals. (See SJX18 Backus
Decl. ¶ 11). The Court notes, however, that at least one
consumer has found the publication fees to be clearly
disclosed. (See Orser Decl. ¶ 14, Ex. B to
Defs.' Resp., ECF No. 110-4).
Defendants' Conference Practices
addition to online publishing, Defendants also organize
conferences on various scientific topics. (See SJX16
Gedela Decl. ¶¶ 6, 8); (SJX26 Att. B at 170, 185,
188). Defendants note that they have received
“appreciation and invitation letters for hosting
[their] conferences in many major cities.” (Defs.'
MSJ 8:15-16); (Letters, Ex. 3 to Defs.' MTD, ECF No. 31).
Many of these conferences occur in the United States. (SJX26
order to attract consumers, Defendants advertise the
attendance and participation of prominent academics and
researchers. (See PX05 ¶¶ 3, 5); (PX12
Att. U at 1045); (SJX26 Att. A at 22, 56, 170). The FTC has
provided evidence, however, that Defendants advertise the
attendance and participation of these individuals without
their permission or actual affiliation. (See PX05
¶¶ 3, 5); (PX12 Att. U at 1045). In numerous
instances, individuals have requested unsuccessfully to have
their names removed from Defendants' conference
advertising materials. (See, e.g., PX03 ¶¶
6-12); (SJX26 Att. N at 370). In some instances, Defendants
did not remove an individuals' name until the threat of
legal action. (See, e.g., PX05 ¶ 7). According
to the FTC's sampling of 100 conferences, approximately
60% advertised organizers or participants who had not agreed
to serve in such capacity. (SJX25 McAlvanah Decl. ¶ 7).
Federal Rules of Civil Procedure provide for summary
adjudication when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those that may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See Id.
“Summary judgment is inappropriate if reasonable
jurors, drawing all inferences in favor of the nonmoving
party, could return a verdict in the nonmoving party's
favor.” Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States
v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A
principal purpose of summary judgment is “to isolate
and dispose of factually unsupported claims.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
determining summary judgment, a court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted). In contrast, when the
nonmoving party bears the burden of proving the claim or
defense, the moving party can meet its burden in two ways:
(1) by presenting evidence to negate an essential element of
the nonmoving party's case; or (2) by demonstrating that
the nonmoving party failed to make a showing sufficient to
establish an element essential to that party's case on
which that party will bear the burden of proof at trial.
See Celotex Corp., 477 U.S. at 323- 24. If the
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144, 159-60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987). In other words, the nonmoving party cannot avoid
summary judgment by relying solely on conclusory allegations
that are unsupported by factual data. See Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the
opposition must go beyond the assertions and allegations of
the pleadings and set forth specific facts by producing
competent evidence that shows a genuine issue for trial.
See Celotex Corp., 477 U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth but to determine whether
there is a genuine issue for trial. See Anderson,
477 U.S. at 249. The evidence of the nonmovant is “to
be believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255. But if the evidence
of the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted.
See Id. at 249-50.
FTC's Motion to Strike Declaration
moves to strike the declaration of Defendants' Indian
counsel, Kishore Vattikoti (“Vattikoti”), which
is attached to Defendants' Motion for Summary Judgment.
(FTC Mot. to Strike 1:22-24, ECF No. 96). In the declaration,
Koshore Vattikoti makes numerous broad assertions regarding
the validity of Defendants' conference and publishing
practices. (Vattikoti Decl. ¶¶ 6-9, Ex. 3 to
Defs.' MSJ, ECF No. 89-3). Additionally, Vattikoti
testifies that “all consumer complaints [against
Defendants] have been resolved.” (Id. ¶
10). Attached to the declaration is what appears to be a
summary exhibit of consumer complaints. (Id. at Ex.
C). The summary exhibit contains notations regarding the
manner in which Defendants purportedly resolved the
asserts that this declaration violates Federal Rule of Civil
Procedure (“FRCP”) 56(c)(4) because it fails to
include “specific facts” of which the declarant
has personal knowledge. (FTC Mot. to Strike 2:7-9).
Specifically, the FTC notes that Gedela has previously
testified that Vattikoti's responsibilities are limited
to helping Defendants with this specific action, and he is
not involved in the business. (Id. 2:24-3:4). In
response, Defendants claim that Vattikoti has sufficient
personal knowledge as Defendants' legal counsel and
through assisting in Defendants' prior transactional and
marketing matters. (See Defs.' Resp. 2:25-
56(c)(4) states that an affidavit or declaration used to
support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated. Fed.R.Civ.P. 56(c)(4).
Here, Defendants fail to articulate how Vattikoti's role
as Defendants' legal counsel gives him personal knowledge
of whether 74 specific consumer complaints have been
resolved. Defendants also fail to identify the source of the
notations on Vattikoti's summary exhibit, thus giving no
basis to the evidence he is relying upon. The Court therefore
strikes these portions as violating Rule 56. With respect to
the remaining portions, the Court finds Defendants have
sufficiently demonstrated Vattikoti's personal knowledge
and therefore will not strike them. Nonetheless, the Court
notes that these vague and conclusory assertions do not raise
a genuine issue of material fact. See Casey v.
Lewis, 4 F.3d 1516, 1527 (9th Cir. 1993); F.T.C. v.
Publ'g Clearing House, Inc., 104 F.3d 1168, 1171
(9th Cir. 1997).
Violations of Section 5 of the FTC Act
asserts that Defendants engaged in deceptive practices in
violation of Section 5 by: (1) misrepresenting the nature of
their academic journals; (2) misrepresenting their scientific
conferences; and (3) failing to adequately disclose that
consumers must pay publishing fees. (See FTC's
MSJ 32:2-6). The Court addresses each contention below.
Deceptive Practices Legal Standard
5 of the FTC Act prohibits “unfair or deceptive
practices in or affecting commerce.” 15 U.S.C. §
45. An act or practice is deceptive under Section 5 if it
involves a material misrepresentation or omission that is
likely to mislead consumers acting reasonably under the
circumstances. FTC v. Stefanchik, 559 F.3d 924, 928
(9th Cir. 2009). A misrepresentation is material if it
involves facts that a reasonable person would consider
important in choosing a course of action. See FTC v.
Cyberspace.com LLC, 453 F.3d 1196, 1201 (9th Cir. 2006).
Express claims are presumed material, so consumers are not
required to question their veracity to be deemed reasonable.
See Pantron I, 33 F.3d 1088, 1095-96 (9th Cir.
1994). Furthermore, the FTC need not prove reliance by each
consumer misled by Defendants. See FTC v. SlimAmerica,
Inc., 77 F.Supp.2d 1263, 1275 (S.D. Fla. 1999); FTC
v. Figgie Int'l, Inc., 994 F.2d 595, 605 (9th Cir.
considering whether a claim is deceptive, the Court must
consider the “net impression” created by the
representation, even when the solicitation contains some
truthful disclosures. See Cyberspace, 453 F.3d at
1200. The FTC need not prove that Defendants'
misrepresentations were made with an intent to defraud or
deceive or in bad faith. See, e.g., Removatron Int'l
Corp. v. FTC, 884 F.2d 1489, 1495 (1st Cir. 1989);
FTC v. World Travel Vacation Brokers, 861 F.2d 1020,
1029 (7th Cir. 1988). A representation is also deceptive if
the maker of the representation lacks a reasonable basis for
the claim. See FTC v. Direct Mktg. Concepts, Inc.,
624 F.3d 1, 8 (1st Cir. 2010). Where the maker lacks adequate
substantiation evidence, they necessarily lack any reasonable
basis for the claims. Id. Furthermore, any
disclaimers must be prominent and unambiguous to change the
apparent meaning and leave an accurate impression. See
Kraft, Inc. v. FTC, 970 F.2d 311, 325 (7th Cir. 1992).
The FTC Act is violated if a seller “induces the first
contact through deception, even if the buyer later becomes
fully informed before entering the contract.”
Resort Car Rental Sys., Inc. v. FTC, 518 F.2d 962,
964 (9th Cir. 1975).
Misrepresentations Regarding Journal Publishing
moves for summary judgment on the basis that no genuine
dispute exists as to Defendants' deceptive journal
publishing practices. (FTC's MSJ 43:7-44:10). The Court
agrees. In their websites and email solicitations, Defendants
represent that their journals follow standard peer review
processes in the academic journal industry. (See
SJX11 Admission No. 60); (SJX12 Admission Nos. 61-64); (SJX13
at 6-14); (SJX 15 at 4-8, 11-14); (See SJX1
Solicitation Email at 8); (SJX26 Att. Q at 576, 585, 588,
630, 698); (See PX12 Att. L at 657). Under standard
industry practice, however, the peer review process takes
several weeks/months and involves multiple rounds of
substantive feedback from experts in that field. (SJX18
Backus Decl. ¶¶ 14-15). In this case, the FTC has
submitted uncontroverted evidence showing that
Defendants' peer review practices often took a matter of
days and contained no comments or substantive feedback.
(See SJX 26 Att. A at 20, 53, 69, 84, 86, 114).
Although Defendants challenge the length of time required for
peer review, Defendants fail to provide any evidence to
support such a short review time. Furthermore, the FTC has
submitted uncontroverted statements from purported
“editors” indicating that they never even
received manuscripts to review or else even agreed to be
listed as an editor. (See PX02 Grace Decl.
¶¶ 4-7); (PX08 Howland Decl. ¶ 7); (PX11 Rusu
Decl. ¶ 11).
also expressly represent that their publications have high
impact factors. (SJX26 Att. Q at 741-768); (PX12 Att. L 657,
691, 762, 766, 768-769, 881-935); (SJX15 Admissions Nos. 196,
197). The term impact factor is understood in the community
to mean the annual calculation released by Thomson Reuters.
(SJX18 Backus Decl. ¶ 16). In contrast, Defendants base
their impact factor off a Google Scholar search.
(See PX12 Att. L at 770); (SJX14 Admission No. 103);
(SJX26 Att. P at 467, 763). Despite this deviation,
Defendants repeatedly make misleading representations
regarding their journals' impact factors without any
qualification. (See SJX27 Email at 3); (See
PX12 Att. L at 657, 762); (SJX26 Att. Q at 820). Furthermore,
even when Defendants do provide a qualification, such
statements are not prominently displayed. The mere fact that
Defendants have some form of disclaimer does not alter the
deceptive net impression. F.T.C. v. Johnson, 96
F.Supp.3d 1110, 1146 (D. Nev. 2015); See Kraft, 970
F.2d at 325.
further represent that their publications are included in
reputable indexing services, such as Medline and PubMed
Central. (See PX10 Att. D at 16); (SJX26 Att. Q at
589, 820, 916, 923). These representations are rendered false
by Defendants' own admissions. (See SJX07
Admission Nos. 13, 14); (SJX08 Admission Nos. 13, 14).
Moreover, NLM itself refuses to index Defendants'
publications due to questionable publishing practices.
(See SJX18 ¶¶ 32-36, Att. B at 25, Att. C
at 28, Att. D at 31, Att. E at 33-34). Despite NLM's
requests to disassociate with Defendants, Defendants continue
to misrepresent their inclusion in Medline and PubMed
Central. (See PX10 Att. D at 16); (SJX26 Att. Q at
589). The uncontroverted evidence in the record therefore
demonstrates that Defendants have made numerous express and
material misrepresentations regarding their journal
publishing practices. As Defendants have failed to raise any
genuine issues of material fact, the Court grants the FTC
summary judgment on this count.
Misrepresentations Regarding ...