On January 25, 1999, the U.S. Court of Appeals for the Second Circuit unanimously affirmed the decision by U.S. District Judge Leonard B. Sand that the publication and promotional use of a survey of journal prices did not constitute false or misleading advertising. The suit had been brought by Gordon and Breach Science Publishers S.A. and affiliates ("G&B") and alleged that a survey conducted by Professor Henry Barschall and published by the American Institute of Physics ("AIP") and The American Physical Society ("APS") should be enjoined. The survey showed that G&B's physics journals were, on average, far more expensive in terms of cost per thousand characters than those of other publishers.

Following a seven-day trial, Judge Sand issued a decision in August 1997 in which he stated that "Barschall's methodology has been demonstrated to establish reliably precisely the proposition for which defendants cited it- that defendants' physics journals, as measured by cost per character and by cost per character divided by impact factor, are substantially more cost-effective than those published by plaintiffs." (The impact factor is a measure of citation frequency.) See http://barschall.stanford.edu for the decision, for background information, and for copies of the late Professor Barschall's original articles. Although G&B had raised a variety of issues in its appeal of Judge Sand's decision, the Court of Appeals found that none warranted specific mention. In an opinion that issued just two weeks after oral argument, the Court stated simply that "[w]e affirm for substantially the reasons stated by the district court in its opinion."

In setting the context for the dispute, Judge Sand had observed that "defendants introduced evidence that G&B has engaged in an aggressive corporate practice of challenging any adverse commentary upon its journals, primarily through threatened (and actual) litigation. This evidence persuasively demonstrated that the present suit is but one battle in a `global campaign by G&B to suppress all adverse comment upon its journals.'" Because the relevant statute allows the recovery of attorneys fees in "exceptional" cases, AIP/APS sought fees. Although the Court of Appeals observed that G&B's suit "may not have been strong on the merits," it affirmed Judge Sand's denial of fees.

Marc Brodsky, the Executive Director of the AIP, stated that "we are extraordinarily pleased with the outcome because it allows the free flow of information that bears on the difficult problems that libraries confront in dealing with the rising costs of journals." Tom McIlrath, the Treasurer of the APS, observed that "G&B has repeatedly attacked the societies for the publication of the Barschall survey and it is gratifying to have such sweeping vindication in the U.S. courts. Unfortunately, we are still under attack in French and Swiss courts for using exactly the same data and methodology that the U.S. courts found be completely acceptable."

The litigation was handled for the societies by Richard A. Meserve of Covington & Burling in Washington, D.C. Meserve commented that "the case is important because it shows that the full protection of the First Amendment applies to the publication of scholarly works, even in the face of alleged commercial motive." Meserve, who is both a physicist and a lawyer, is a Fellow of The American Physical Society.

For further information or questions, please contact Phil Schewe, (301) 209-3092.

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