Main Index: Gordon & Breach Press Release (8/28/97)
Gordon & Breach Press Release
FOR IMMEDIATE RELEASE -- August 28, 1997
Gordon and Breach Science Publishers To Appeal Decision By U.S. District Court
A decision has been rendered (8/26/97) by the United States District Court: Southern District of New York in the matter of Gordon and Breach Science Publishers v. The American Institute of Physics and The American Physical Society (AIP/APS). Gordon and Breach (G&B) is appealing this decision, denying its application for an injunction prohibiting AIP/APS from promoting their journals as being more cost-effective based on Henry H. Barschall's methodology.
The issue at hand was the publishing and use of a survey by Barschall that compared prices of science journals, and which ranked commercially published journals (as opposed to non-profit society journals) at the bottom of a purportedly unbiased survey.
The Court acknowledged that Gordon and Breach presented evidence that there are superior procedures for determining a journal's cost-effectiveness. However, it ruled that Barschall had accurately calculated the components of his ratio and that his test was therefore reliable. In so doing, the Court believed that G&B did not meet the standard for obtaining an injunction. Yet in a parallel case in France, the court there ruled in G&B's favor, stating 'the defendants, by publishing in their journals articles which, in scientific guise, have as their goal the denigration of competing journals by presenting them as more expensive and less influential than those published by themselves, committed acts of unfair competition by illegal comparative advertising, for which they must make reparation." That ruling has been appealed by AIP/APS.
G&B and its counsel continue to believe that G&B is entitled to be granted relief from any such false claims by AIP/APS under the Lanham Act's protection against unfair competition. Gordon and Breach is appealing this decision to the United States Court of Appeals for the Second Circuit.
We appreciate the Court's conclusion that Gordon and Breach has proved that librarians would be "ill- advised to rely on Barschall's study to the exclusion of all other considerations in making purchasing decisions."
Likewise, we are heartened that the Court stated that if the AIP/APS were to assert that Barschall's methodology proves that their product is superior in value and quality to that of Gordon and Breach, then serious concerns would be present. Nevertheless, reasoning that the AIP/APS' present acknowledgment that Barschall's analysis does not demonstrate product superiority or quality, and considering that they were effectively stopped from making such claims in the past and are not threatening to make such claims in the future, the Court has decided not to bar or enjoin the AIP/APS from making any such claims.
We are concerned, however, that the Court, in rendering its decision, chose to highlight its displeasure with the AIP/APS's claims that G&B sought through litigious venues to suppress adverse comment upon its journals. We believe that all businesses need to be able to protect their employees, whether scientists, researchers or professionals, from the threat of grave harm to their enterprises. It should be noted that these 'comments' were not merely isolated price complaints. In most of these instances, G&B faced threats and aggressive actions in the form of circulated and published articles that used erroneous information to foster boycotts and cancellations of its journals. We believe that our course of action is the least that should be expected from any business so threatened, and further, that all actions pursued by us were wholly within our rights and, especially, our duties as a duly formed and operating corporation.