ChemBark

One of the things I take pride in is the accuracy of the information posted to this blog. ChemBark has done a significant amount of original reporting on some pretty massive stories in the world of chemistry. We’ve publicly exposed scientific fraud, identified cases of ethical misconduct, shone light on peculiar hiring practices, and even reported the results of an ACS election before the ACS/C&EN.

The main purpose of this blog is to bring attention to interesting news in the world of chemical research such that, collectively, we as chemists can analyze the facts and improve ourselves. I try to pay special attention to the types of stories that—for whatever reason—C&EN chooses not to cover. There are people who consider some of these stories to be “negative” or even “gossipy”, but I will adamantly maintain that they are also interesting and important.

When stories may cast a member of our field in a negative light, I work especially hard to be fair and get the facts right. I work hard to maintain your trust, and ChemBark has a sterling—if not pristine—record of accuracy. The information posted here over the years rests on a foundation of hundreds of sources. These sources are the heroes of the blog, and we (as a community) owe them an immense debt of gratitude. It takes a great deal of guts to approach an outspoken blogger and share sensitive information, but the result is wonderfully democratic: thanks to the Internet, anybody in our field—not just those privy to private conversations—can participate in the discussion.

So, thanks again to all of you who have passed along or verified information for the blog. Your contribution is greatly valued.

The academic hires thread from yesterday was a good example of the importance of having a variety of sources. I was able to start from a decent base of knowledge, but the bulk of information arrived later, pouring in via hallway chats, e-mails, tweets, and blog comments. Having personally applied to many of the positions on the list, I am fascinated by all of these data. Whom did each school end up hiring? Was each successful candidate more organic/inorganic/biological? What research do they work on? Are there any trends/patterns? How many schools advertised openings but elected not to hire?

There is a wealth of information in that thread, but I am also a little disturbed by some of the comments. I really don’t like when people write about something as if they are certain when they are not. The statement:

“Professor A was granted/denied tenure.”

is very different from:

“I think/heard Professor A was granted/denied tenure, but I’m not sure.”

Please try to avoid playing fast and loose with the facts, because it sidetracks and erodes the validity of the discussion. Also keep in mind that we are talking about real people’s lives. If you are going to talk about whether someone was denied tenure or is leaving a school, you had better be right, because this info has the potential to do things like scare away prospective students.

I sign my name to all of the information I post to the blog. If I am uncertain about the validity of a piece of information, I will say so (but, usually, I’ll just avoid writing it). And you can probably tell that I am not too shy of a person, but whenever I am uncomfortable sharing my opinions about a subject, I will keep the opinion to myself. While I don’t comment or post anonymously, maintaining the ability for readers to comment anonymously is important because it represents a completely open system for keeping me in check (i.e., anyone is free to attack what I post). It also helps foster discussion (because I know some of you fear that your opinions may be held against you). Please do not abuse the system by asserting uncertain information as hard fact. Also, I encourage all readers to treat the facts reported in anonymous comments with a healthy amount of skepticism.

The same goes for all of the comments regarding Stoltz. I have heard all sorts of rumors and have attempted to figure out what, if anything, is going on. I don’t have anything useful to report, other than to say that most of what people are saying is pure speculation or incomplete fact. I suppose anyone is free to speculate, but as I said above, you should remember that real people are involved. When I write stuff, I sign my name to it. If you are not so confident of your facts as to be comfortable enough to do the same, perhaps you should hold off on grinding someone through the rumor mill? Just a thought.

I have immense respect for journalists and all the effort it takes to do a solid job of reporting. It pains me greatly to see the dissemination of crappy information, especially in a comments thread here.

First they ignore you,
then they laugh at you,
then they fight you,
then they join you,
then everybody wins.

Mahatma Gandhi posted that piece of advice on his blog shortly before his death in 1948, and it still holds true today.

After admitting that chemistry faculty typically roll their eyes at blogs and that he personally doesn’t have time for them, Phil Baran—or, more precisely, the Baran Lab at Scripps—has established the newest chemistry blog on the Internet. Baran and his lab are at the top of the game of organic synthesis, so this is a major development for academic chemistry. Their participation can do nothing but lend legitimacy to an activity that has been robustly and repeatedly poo-pooed by the respected Old School of our field.

The establishment of the Baran Lab’s blog fell out of the ongoing post-publication review of IBX-promoted benzylic oxidation at Blog Syn, a relatively new site that focuses on checking synthetic procedures in the vein of Organic Syntheses. Post-publication peer review is something familiar to the chemical blogopshere. Previous examples include the questioning of the science in the “Arsenic Life” paper, the exposure of duplication by Breslow in the “Space Dinosaur” saga, and the experimental investigation into the oxidation-by-NaH paper in JACS. Blog Syn takes post-publication review of synthetic procedures to the next level by coordinating replication of the procedures among a group of bloggers who compile and compare their results for all to see and discuss.

Last month, Blog Syn decided to examine a method for IBX-promoted benzylic oxidation published as part of Baran’s graduate work in K.C. Nicolaou’s lab. What started as a straightforward effort to test the (questioned) reproducibility of the reaction quickly evolved into a vigorous and thoughtful discussion of both the merits of anonymous bloggers’ questioning peer-reviewed research and of the reaction itself. Baran and the first author of the paper have participated actively in the generation of data and its analysis, and the most recent development appears to be improved mechanistic insight as to how the reaction might work.

Those interested in this specific reaction can check out the discussion for themselves, but all chemists can appreciate the value that blogs and other Web 2.0 venues offer in terms of advancing scientific knowledge and enriching our understanding of chemistry. While blogs may often engage in journalism that is a little rough at the edges, the ease of online publishing has helped to provide open venues for meaningful discussion, to give voice to important ideas, and to democratize power in a field where many grumble that power is overly centralized. What Blog Syn has started is a great service to the field of organic chemistry, and I look forward to the wealth of material that the Baran Lab can bring to the table in its own addition to the blogosphere.

Great stuff!

Edit to add: This great post by Rich Apodaca at Depth First places Blog Syn in historical context among similar experiment-based efforts in the chemical blogosphere. The post also offers an interesting analysis of the role that blogger anonymity plays.

Edit: Another (similar) great analysis and comment thread in this post by DrFreddy at C&EN‘s blog.

In today’s mailbag, an astute reader of the blog writes to bring our attention to a new post on the American Chemical Society’s Web site regarding some of the details of the ACS v. Leadscope case.

The post is written in a Q & A format that might be an homage to the “tough questions” survey that ChemBark recently sent to the candidates for ACS President. While it would appear that the ACS both asked and answered the questions found in the post, some of the questions match those posed in the presidential survey and in ChemBark‘s posts about the recent ACS v. Leadscope verdict and settlement.

First off, let me applaud the ACS for this giant leap forward in transparency. We, the members of the Society, need these details to help us function as an informed electorate. It is a pity that we’ve had to wait until the matter was almost completely resolved to get many of these basic facts.

So, what is new? Let’s start with the money. It seems that after losing the initial verdict, the ACS owed Leadscope $26.5M in damages plus another $7.9M in the defendant’s legal fees. By not immediately paying these sums as the Society pursued the appeals process, the ACS accrued another $11M in post-judgment interest. Thus, prior to the verdict in the Ohio Supreme Court, the ACS was on the hook for >$45M. After that verdict erased the defamation judgment but upheld the judgment of unfair competition, the ACS was still on the hook for >$26M. Leadscope and ACS soon settled for a $22.6M payment to end the litigation.

Now, how much of this does the ACS have to pay? Not all of it. It turns out the ACS has insured itself to reduce its financial exposure in these and similar issues, but it is unclear what is covered. From the post:

The ACS has a comprehensive suite of insurance, including primary commercial general liability and umbrella general liability coverage. As a result of this insurance, ACS has been reimbursed for over a million dollars in attorney’s fees. In light of the Supreme Court’s ruling, we are working with our legal counsel to determine the amount ACS will be responsible for paying and then we will work with our insurance providers to determine what portion, if any, may be covered by insurance.

Of course, the ACS’s legal fees far exceeded $1M…they are over $9M for the case, and the ACS does not say how much it pays for their insurance coverage.

The ACS still claims that shelling out $22.6M is not that big of a deal, which is incomprehensible to me for a non-profit of their size:

ACS paid the settlement using funds from the Society’s substantial cash reserves and investments. Nevertheless, ACS recognizes that paying $22.6 million to settle litigation begun over a decade ago is a very negative outcome to this litigation.

One of the reasons why large nonprofits strive to maintain financial reserves is to cover large, unexpected financial losses. Members and others should be assured that the settlement in this case will not result in higher ACS member dues or increased prices for ACS products, programs or services. The settlement in this case will neither restrict ACS staffing levels nor impair the ACS’s continued ability to achieve its mission.

In a bizarre twist, the ACS tries to make the argument that the cost of the settlement is not that big of a deal by comparing it to the much greater sum that the ACS finds itself shelling out for post-retirement benefits plans:

The decline in the Society’s unrestricted net assets from 2008 to the present has been largely driven by accounting charges related to the Society’s postretirement benefit plans.¹ The plans have become underfunded due to historically low interest rates, which have caused the discount rate to decline. The discount rate is used to calculate the postretirement benefit plan liabilities. The rate has declined from 6.5% at December 31, 2007, to 4.0% at November 30, 2012, and resulted in accounting charges of $153 million during this period. If, as most observers expect, interest rates eventually rebound to higher levels, the accounting charges related to these plans will reverse and the Society’s unrestricted net assets will increase accordingly. Other factors impacting unrestricted net assets include the Society’s net from operations, investment gains/losses and non-operating gains/losses.

How on Earth is the ACS spending this much money on benefits? This seems like yet another matter that deserves more study.

And finally…

11. This whole case seems like it was a very bad idea. If ACS had it to do all over again, would it still file suit? Will there be management changes as a result of this outcome?

In hindsight, it is very easy to second guess the 2002 recommendations made by the Society’s in-house and outside lawyers and the Governing Board for Publishing, as well as the 2002 Board’s decision to file suit.

However, given the information available to ACS management and governance at the time and the advice provided by legal counsel, ACS elected to file a suit in an effort it believed was necessary to protect valuable ACS intellectual property. ACS and its in-house and external counsel believed that its claims were valid and supported by evidence. Prior to and during the pendency of the Leadscope case, ACS management and governance engaged in a robust and thorough decision-making process. Moreover, the decision to pursue this case was not made by any one individual but rather was authorized after a careful and thoughtful analysis of the nature of the Society’s claims by internal and external legal counsel, ACS senior management, and the ACS Board of Directors.

There will be no management changes as a result of the Leadscope outcome.

This is why we have elections, my friends. The people in charge at ACS answer to nothing else. They are free to do whatever they want, however carelessly, as long as we (the electorate) allow it.

Earlier this week, I sent a questionnaire to the two current candidates for ACS President-Elect. The first candidate to respond is Tom Barton, Distinguished Professor Emeritus of Chemistry at Iowa State University. I have posted his responses below, in full.

Thank you, Professor Barton, for responding and engaging the online community of chemists on these matters of great importance to the society!

Response of Prof. Tom Barton, Candidate for ACS President-Elect

Hi Paul,

Thanks for giving me an opportunity to take a shot at these important questions.  You will see in my responses that I don’t have the complete picture on any of them.  If elected I would plan on spending a significant portion of the first year getting that picture and probing membership on their views on these and other concerns.

Tom

1. What are your thoughts on the ACS vs. Leadscope case?  Do you believe that society records pertaining to the lawsuit—including legal fees—should be made public?

For those who are not up to date on this case, as I wasn’t when first asked about it, there is an excellent summary by Marianna Bettman, an Ohio law professor to be found at http://www.legallyspeakingohio.com/2012/09/merit-decision-am-chem-soc-v-leadscope-thumbs-up-on-unfair-competition-claim-thumbs-down-on-defamation-claim/.  I found it to be an excellent discussion.  As only a candidate, I do not know the intimate details of how and why ACS got into this, nor of the situation that they face at the moment.   Thus, I must reply with the general statement that I have always believed and always have acted on the principle that openness is the best policy.  In my lifetime, the most dramatic examples of the dangers of secretiveness were perhaps in the behavior of the Atomic Energy Commission, who wrongly believed and operated under the premise of “the public doesn’t need to know”, when in fact the public had a desperate need to know.  There are many more examples where secretive behavior by parts of government ultimately created situations far worse than complete openness would have produced.  Thus, as ACS president I would want to see all the history and strive to make all that was pertinent and not legally encumbered available to the entire ACS membership.  Yes, that includes legal fees.

2. What is your stance on the ACS’s executive compensation packages?

I have received a number of enquiries as to my views in this arena, and conclude that a lot of people feel rather strongly about this issue.   In tracking down the actual numbers I found different ones in different sources but they are all awe-inspiring.  It is important to remember that executive compensation operates within a market.  If your compensation is not competitive, there is real risk that you can lose the type of talent that you need for the organization to succeed.  That said, the membership of ACS has every right to request and get an explanation for the magnitude of these salaries.  There is an annual process by which the salaries are set and thus, the ACS can provide the rationale(s) involved and report to membership (via C&EN) why the salaries are what they are.  Said report should provide examples from similar societies, keeping in mind that ACS is not only the world’s largest scientific society, but certainly the most complex (and D.C. is hardly the least expensive place to live).  I would support a policy that in the future, salary histories of all employees making over some minimal level would be annually reported to the membership in C&EN.  Again, this is a simple matter of openness.  If one is not prepared to justify how one is spending someone else’s money, one should not spend it in that fashion.

I would add that where I have worked for the past 45 years, Iowa State University, all faculty and staff salaries are published annually in the newspaper (now on paper’s website).  The only time this has bothered me is when I was not included because my salary did not reach the minimum!

Lastly I would note that I do not see the logic in giving everyone a bonus every year.  The only reasonable justification for a bonus is that the employee exceeded your expectations.  If you are giving bonuses every year, you need to rethink your expectations.  Once again, if there are good reasons, all that is needed is to inform membership of them

3. What is your stance regarding the fees that ACS publications charges companies and universities to access journals?

I don’t have the data to take a reasoned stance on this at this time.  I’ll have to get it, however, as I have had a couple of interesting emails about this in the past few days, which have caused me to have some potential concerns.  It is hardly unreasonable for users to be concerned about the costs of necessary materials, and ACS needs to be sensitive to the real fiscal constraints in the budgets of their members/subscribers.  Using profits resulting from ACS publications to fund other parts of the operations, considered to be of significant value, up to a point seems reasonable to me.  I can see no reason not to inform membership of the details, specifics and magnitudes, and then try to get feedback via the local sections.  Once again it is a simple matter of openness.  If you are not proud to tell people what you are doing with the money, you need to rethink what you are doing with the money.  Actually I imagine that ACS has an admirable story to tell here.  As I said, I don’t have enough information to provide a detailed answer at this time, and that is largely because such information is difficult to obtain.  There clearly is considerable concern about pricing out there (e.g. www.attemptingelegance.com and www.insidehighered.com/news/2010/12/02/acs ) but “tiered pricing”, “value-based pricing” and confidential negotiations with individual institutions have made it difficult to see a clearly defined pricing picture.  One group truly stands out as having serious problems and that is small liberal-arts colleges with quite small chemistry departments, who have to pay what to them are very large sums of money to subscribe to the number of credible chemistry journals required for ACS accreditation.  With the fiscal situations of these institutions being often dire, it has become difficult if not impossible for them to comply.  I strongly believe that we need to work on a solution to this problem.  I also believe that there must be solutions, as our reason for existence is to serve our members.

A question I have, and have not yet found an answer, is has there been an accounting of the actual costs of publication now versus the pre”technology-revolutionized” costs.  Surely the costs have been lowered by electronic publishing, and one might have expected that to be reflected in subscription costs.  Maybe it has been, or perhaps the loss of revenue from individual subscriptions has more than offset any savings.  I don’t know, and I’m sure many members would like to see a C&EN article addressing this situation.

4. What one specific item would you, as ACS President, make your first priority to improve the public perception of chemistry?

I would prepare a series of profound video vignettes of the great successes of chemistry which have benefitted the world (and the U.S. economy) to be shown via every possible media outlet, and to be used for workshops for Congressional legislative staffs.   The purpose is to help the general public, and quite importantly, lawmakers understand that support of chemistry is an investment with a long history of success.  This is of course not a new idea, but is the best one of which I know.  A key will be how to find affordable ways to get the message out.  Purchasing commercial broadcast time is very expensive, so leveraging new media like social media and the blogosphere would have to part of the answer.  While I don’t consider the public’s perception of chemistry to be quite the problem that once was the case, this effort to get the word out that ours is an enabling science will always be with us.

5. What one specific item would you, as ACS President, make your first priority to improve the employment situation for chemists?

I realize that it is comforting to hope that there is one silver bullet or some magic pill that will make everything alright again, but it just isn’t going to happen.  In recent months I have spoken and written about my belief that it is entrepreneurship which has the best chance of building a new employment base for chemistry in America.  However, for this narrowly focused question I would try to address the issues that have caused and are still causing our jobs to depart our country.  Although I am usually loath to address a problem with a meeting, I would propose a summit meeting of the industrial leaders of chemistry to develop a list of factors that make leaving America attractive; kiss off the ones we really can’t deal with (e.g. lower wages elsewhere) and get to work on the ones we can.  Understand that lower labor costs are not the only issues in this game.  As I discussed a bit on my website, there is no surer route to moving jobs out of America than to impose unreasonable regulations on American industry.  This may be an unpopular subject to raise, and I am sure will engender some cries of anguish, but if there is anything within the bounds of ethical behavior that can be done to produce and protect jobs for American chemists, we must do it.  The health of the American chemical industry is of utmost importance to us and we must not forget this.

6. What is your favorite element and why? 

Hey! I thought the softball question is supposed to come at the beginning of an interview.  That having been said, I’ll answer it.  Silicon.  Why?  Because it is so close to carbon, yet so far away in its behavior.  I am particularly enchanted by the richness of its thermochemistry as compared to that of carbon.  For example, the isomerization of the carbene analog, R₂Si:, to a silene analog of an olefin, RHSi=C<_, is essentially isothermal!  Or that SiH₄ thermally decomposes to H₂  +  :SiH₂  in a single concerted step.  Compare these observations with the drastically different cases in organic chemistry.

Note: Any response provided by Prof. Barton’s opponent in this election, Prof. Luis Echegoyen, will be posted within a day of its receipt.

Derek Lowe just called attention to this item in today’s Chronicle of Higher Education. Here’s the snippet that reeled me in:

“The built-in inequity in the pricing model that ACS has come up with makes it very difficult to act in collegial, supportive ways while we look out for our own interest,” she said.

According to Ms. Rogers, she’s not alone in her gloomy assessment of the situation. “I may be saying this publicly, but there’s a lot of people saying it quietly,” she told The Chronicle.

(Observers, including some commenters on Ms. Rogers’s call-to-action blog post, have noted a potential conflict of interest for the chemical society, which serves as an accreditor of chemistry programs as well as a publisher of chemistry journals. A certain number of high-quality journals is required for accreditation. They don’t necessarily have to be ACS journals, though, and losing accreditation as a result of canceling ACS subscriptions does not appear to be a worry for SUNY-Potsdam’s chemistry program.)

A spokesman for the American Chemical Society said that the group would not offer a response to Ms. Rogers’s blog post or the conversation that’s sprung up around it. “We find little constructive dialogue can be had on blogs and other listservs where logic, balance, and common courtesy are not practiced and observed,” Glenn S. Ruskin, the group’s director of public affairs, said in an e-mail message. “As a matter of practice, ACS finds that direct engagement via telephone or face-to-face with individuals expressing concern over pricing or other related matters is the most productive means to finding common ground and resolution.”

Wow. I’ve got too much to do to comment now, but you’d better believe I’ll have more later.

Edit: I received the following e-mail message from Glenn Ruskin at 1:00PM (PDT):

Paul:

Good afternoon.  We have not yet met, but I hope to do so at some point in the future.

I noted your ChemBark posting regarding my comment in the Chronicle of Higher Education (CHE) and I wanted to provide a bit more context.

It was not my intention, nor the intention of ACS, to denigrate blogs or users/contributors of blogs.   My comment was directed toward the blog that was the subject of the CHE story.  Unfortunately, CHE did not use the totality of my comment as I think it would have been clear that I was speaking specifically to the blog that was the point of the story.  Here is the totality of my statement (bolded section was omitted by CHE):

“We find little constructive dialogue can be had on blogs and other listservs where logic, balance and common courtesy are not practiced and observed.  As a matter of practice, ACS finds that direct engagement via telephone or face-to-face with individuals expressing concern over pricing or other related matters is the most productive means to finding common ground and resolution.  Therefore, we will not be offering any response  to this blog posting or the conversation that has ensued.

I respect and appreciate responsible bloggers, those that thoughtfully engage on those blogs as well as those that utilize listservs.  No insult was intended, and apologies to those that interpreted the comment that way.  These outlets provide important avenues to further dialogue and collaboration and are valuable assets in the ever evolving digital age.

The individual responsible for the above cited blog certainly has the right to her opinion, but that does not excuse rude behavior or her use of profanity and vulgarity in addressing ACS or its employees. While not evident in the most recent postings, I won’t repeat what she has posted in the past.  But I think you would agree that vulgarity and profanity postings do not lend themselves to meaningful, productive and civil discourse, thus our decision not to engage any further with her on this topic.

Glenn Ruskin

So, it would appear that the absence of a comma after the word “listservs” in the original statement was intentional, such that the subsequent clause of the sentence was restrictive (consult Strunk & White, rule #3). I am not that familiar with the blog in question, so I cannot speak to the blogger’s rudeness, but I sincerely hope that the ACS does engage in a public dialogue about the pricing of its journals. I am outraged, as a chemist and a human being, that there are some schools that are being forced to encourage their students to curtail their exploration of the chemical literature because the ACS is charging enough “per click” to bust these schools’ budgets.

The efficient operation of any democracy depends on the participation of an informed electorate. The Founding Fathers of our country believed so strongly in this point that they felt compelled to begin the Bill of Rights by protecting the freedom of the press. A few citizens in power must never be allowed to control the flow of information to the greater citizenry.

The American Chemical Society is a democratic organization: its members elect a Board of Directors that, in turn, operates the society on behalf of the membership. Unfortunately, members of the ACS are woefully uninformed regarding even the most simple matters of society governance. A big part of this problem is that the pool of journalists who cover the ACS is either incapable or unwilling to provide anything more than superficial coverage of matters relating to the administration of our professional society.

You can start by blaming me. I am one of the few journalists outside of the ACS to cover the society, but I write stories sporadically and do not have time to cover issues in as much depth as I’d like to. I am one person; blogging is not my primary occupation; I don’t get paid a dime for it; and I’ve got a ton of other things on my plate. I wish I could do more, but I can’t. Sorry.

For better or for worse, most of the reporting associated with the ACS is paid for by the organization itself. The journalists at Chemical & Engineering News are employees of the society, and C&EN is the “official organ” of the ACS. Part and parcel with this relationship is that the bylaws and policies of the ACS limit what the magazine can cover. That is why coverage of the ACS elections is so superficial. Wouldn’t you like to see more than those vapid statements written by each candidate and published as a wall of text in the magazine? Where is the reporting? Where is the analysis? Where is the monitoring of accountability for campaign promises? It’s nowhere to be found. The result is that members of the ACS are uninformed about important issues that should be central to each ACS election, and voter participation is consistently atrocious (~15%). That’s right, only 15% of eligible members bother voting!!

Unfortunately, the coverage of ACS elections is not the only thing that has suffered from neglect by chemical journalists. One of the reasons behind the birth of ChemBark was the media’s dreadful lack of coverage of the Sames-Sezen misconduct scandal. You will recall that I began reporting the story three months prior to the first set of retractions in JACS, and that C&EN did not issue its first story until two weeks after the retractions—only a few hours before the New York Times was set to publish a story. I was forced to conclude that the decision to avoid coverage of the scandal was intentional—not simply an oversight—because JACS and C&EN are managed by the same division of the society, and C&EN reporters read JACS (so someone at the magazine had to have seen the retractions when they were published).

The latest important story to suffer consistent neglect from the chemical media is the ACS v. Leadscope legal case. My guess is that the vast majority of you have no idea what this case is about, because it has received only perfunctory coverage from C&EN. Unlike the Sheri Sangji story, which has been the focus of several detailed articles (1 2 3 all), the Leadscope case has received little attention in comparison. C&EN‘s reporting has been limited to short news stories announcing milestone events in the case (1 2 3 4 5).

The latest milestone event occurred yesterday—the Supreme Court of the State of Ohio issued a decision on the latest appeal by the ACS—but C&EN did not post a single item on its site or in its Twitter feed. The slip opinion weighed in at a whopping 75 pages of densely written legalese. Chemists cannot be expected to wade through such a document; we need the services of an informed journalist to provide us with the bottom line, paying special attention to the decision’s impact on the operations of the ACS.

Enter the blogosphere! Rich Apodaca has written several good primers on the case, including a summary of the IP at the heart of the dispute and a rough sketch of the history of litigation. Another good place for a concise summary of the case can be found in a news story written by the Office of Public Information for the Ohio Supreme Court:

The case involved a lawsuit filed by ACS in the Franklin County Court of Common Pleas alleging that the former employees who helped start Leadscope had breached employee agreements and misappropriated ACS’s intellectual property by using proprietary information they obtained while employed at ACS to develop a new software product for Leadscope that would compete with products marketed by ACS.

Leadscope and its principals denied all of ACS’s claims, and filed counterclaims seeking damages from ACS for unfair competition, tortious interference with business relations and defamation.  As the basis for its unfair competition counterclaim, Leadscope alleged that ACS knew that it had no valid legal basis for its intellectual property claims, and had filed its lawsuit for the purpose of impairing or eliminating Leadscope as a competitor by scaring away venture capital investors the new company needed to successfully launch its business.

Following an eight-week jury trial, the jury returned verdicts against ACS on all of its claims against Leadscope. The jury also returned verdicts in favor of Leadscope on its counterclaims against ACS for unfair competition and defamation. The jury awarded Leadscope and its principals compensatory and punitive damages totaling more than $26 million. ACS appealed. On review, the Tenth District Court of Appeals affirmed the trial court’s judgment and damage awards. ACS sought and was granted Supreme Court review of the case, asserting in its briefs and oral argument that the Tenth District made multiple incorrect rulings in affirming the trial court’s decision.

A summary of some of the (heavy) costs associated with the case, including the damages, the legal fees for Leadscope, and the interest ACS is/was being charged on the damages and legal fees, can be found in a recent ACS financial statement (pointed out by Apodaca and a Nature News blog post):

In 2002, ACS brought suit against three former employees and the company they founded in a case styled, American Chemical Society v. Leadscope, Inc., et al., Case No. 02-CVC-07-7653 (Franklin County, Ohio Court of Common Pleas). Leadscope, Inc., and the individual defendants counterclaimed, seeking damages in excess of $50 million. Trial in this matter commenced on February 4, 2008. The jury rendered its verdict on March 27, 2008, rejecting the Society’s claims of breach of employment agreements and misappropriation of trade secrets, and finding against the Society on three separate counts: defamation, tortious interference with business relations, and unfair competition. The jury’s award to Leadscope, Inc. and the three individual defendants/counterclaim plaintiffs (referred to collectively as “Leadscope”) totaled $26.5 million.

Following the jury verdict, Leadscope filed motions seeking prejudgment interest, attorneys’ fees, and expenses. Subsequently, Leadscope withdrew the motion for prejudgment interest. Through the attorneys’ fees motion, Leadscope sought an additional $11 million. On February 6, 2009, the Trial Court awarded Leadscope fees and expenses of $7.9 million. Post-judgment interest on the $26.5 million judgment accrues at the rate of 8%. Postjudgment interest on the $7.9 million award of fees and expenses accrues at the rate of 5%. Both rates are “simple interest” and cumulatively, total approximately $ 9.0 million as of December 31, 2011.

The Society filed an appeal on November 20, 2008 to the Ohio Court of Appeals, Tenth District (the “Appeals Court”). On June 15, 2010, the Appeals Court issued its opinion affirming the trial court’s judgment, i.e., the Court did not grant any of the relief ACS had sought in its appeal. See American Chemical Society v. Leadscope, Inc., Slip Op., 2010 WL 2396544 (Ohio. App, June 15, 2010). ACS filed a Notice of Appeal and Memorandum in Support of Jurisdiction with the Ohio Supreme Court on July 30, 2010. On October 27, 2010, the Ohio Supreme Court, exercising its discretion as to whether to hear the appeal, granted the Society’s request to hear the case. See American Chemical Society v. Leadscope, Inc., 126 Ohio St. 3d 1615, 935 N.E. 2d 854 (2010) (Table). Accordingly, the full seven-member Ohio Supreme Court is reviewing all of the issues raised by ACS. All of the briefing has been completed and the Court conducted oral arguments on September 7, 2011. It is not known when the Court will render its decision.

In yesterday’s decision, the Ohio Supreme Court overturned the verdict against the ACS for defamation, but upheld the ruling against the ACS for unfair competition against Leadscope. The bottom line is that the ACS is still on the hook for $26.5 million in civil damages.

That’s MILLIONS, folks, and it doesn’t include the legal fees, either.

So, here is your American Chemical Society at work: some underappreciated employees from the Chemical Abstracts division go off and start a successful company, someone at the ACS haphazardly launches an overreaching lawsuit to vigorously defend the society’s intellectual property, the company countersues and wins a multi-million-dollar judgment, ACS loses two appeals in a row and half of the latest appeal and is now on the hook for $26.5M. Great =/

Of course, we know where this money comes from: the fees our schools and companies pay ACS Publications in exorbitant subscription rates to access the journal articles that we write, fund, and referee for free. Don’t get me wrong…I’m not one of those open-access crusaders that C&EN hates—I believe the ACS should make a profit off of its journals—but the situation has gotten ridiculous.

A Tweet yesterday by Apodaca puts the money issue in perspective. (See also: “Why ACS Must Come Clean on Journal Publication Costs”)

$26.5 million + interest as settlement to Leadscope would be ~6% of ACS sales of e-services, 200% of dues in 2011: bit.ly/Pwoew1

— Rich Apodaca (@rapodaca) September 18, 2012

For the record, the Chairman of the Board of Directors of the ACS issued a statement on the matter, including a note that:

Today’s ruling will not impact ACS member dues; ACS products, programs or services; ACS staffing levels; or the ability of ACS to achieve its mission.

The statement is posted on the ACS Web site, where few people will bother to notice it. Such placement is consistent with what we’ve already seen: due to a lack of quality journalism regarding the Leadscope trial, ACS members are not informed sufficiently to appreciate the implications of this case, which would seem to have important financial repercussions for the society.

Beyond a detailed, multi-page story on the events that transpired to precipitate this case, I would like to see the following questions answered:

1. What is the total cost of this case to the society? Beyond the civil damages awarded to Leadscope, how much has the ACS paid in legal fees?

2. What are the costs associated with continued litigation of this case? What information went into the decision of making continued appeals versus simply paying the Leadscope people after each verdict?

3. Does the board of directors consider $26M (+ legal fees) to be a significant sum of money? Where does this money come from? How can this much money not “impact ACS member dues; ACS products, programs or services; ACS staffing levels; or the ability of ACS to achieve its mission”?

4. Has the person responsible for pursuing the malicious litigation been disciplined by the ACS? Who made this decision and what is his/her annual compensation from the society?

5. Has the ACS changed any internal policies regarding the public dissemination of potentially defamatory statements? What is preventing the ACS and its employees from making similar costly errors in the future?

6. Does the Board of Directors believe it is appropriate for a non-profit, scientific organization to protect its intellectual property this aggressively/haphazardly? Isn’t part of our society’s charted mission the “promotion of research in…industry”, increasing the “diffusion of chemical knowledge”, and “aiding the development of our country’s industries”?

While I love C&EN dearly, in matters like Leadscope and ACS elections, the magazine appears hamstrung. If any of you want to don a reporter’s hat and tackle some of these items, I will promote the hell out of you and your blog. If you want to post your efforts as original reporting here, we can do that too. But somebody has got to get to the bottom of these important issues, because sadly, we can’t count on C&EN to do it for us.