Harris v. Am. Accounting Ass'n

1

DAVID HARRIS, Plaintiff, v. AMERICAN ACCOUNTING ASSOCIATION, LISA DE SIMONE, MATHEW EGE, and BRIDGET STROMBERG, Defendants.

No. 5:20-CV-01057 (MAD/ATB)

United States District Court, N.D. New York

November 24, 2021

APPEARANCES:

DAVID HARRIS Plaintiff, Pro Se

WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP Attorneys for Defendant American Accounting Association

WARD GREENBERG HELLER & REIDY LLP Attorney for Defendant American Accounting Association

OFFICE OF THE TEXAS ATTORNEY GENERAL Attorney for Defendants De Simone, Ege, and Stromberg

OF COUNSEL:

ANDREW S. HOLLAND, ESQ. PETER A. LAURICELLA, ESQ. OLIVIA ORLANDO ESQ.

THOMAS S. D'ANTONIO, ESQ.

H MELISSA MATHER, AAG

MEMORANDUM-DECISION AND ORDER

Mae A D'Agostino, U.S. District Judge.

I. INTRODUCTION

Plaintiff David Harris commenced this action on September 8, 2020, alleging a claim of unfair competition under New York's common law against Defendants Matthew Edge, Bridget Stromberg, and Lisa De Simone (hereinafter "the Defendant Authors") and the American Accounting Association (hereinafter "Defendant AAA"). See Dkt. No. 1. In March 2021, the Defendant Authors and Defendant AAA each separately moved to dismiss the complaint. See Dkt. Nos. 34, 35. In response, Plaintiff filed an amended complaint, see Dkt. No. 37, as well as responses to Defendants' motions, see Dkt. Nos. 38, 39. The Court thereafter issued a text order permitting Defendants to supplement their pending motions, see Dkt. No. 42, which Defendants did, see Dkt. Nos. 43, 44. While Defendants' motions were pending, Plaintiff filed a letter motion requesting permission to file a motion for sanctions. See Dkt. No. 49. The Court denied Plaintiff's request in a text order. See Dkt. No. 54.

Currently before the Court are Defendants' respective motions to dismiss the amended complaint. For the reasons that follow, Defendants' motions to dismiss the amended complaint are granted and Defendants are awarded costs and reasonable attorney's fees.

II. BACKGROUND^[1]

Plaintiff is a professor at Syracuse University and resides in the State of New York. See Dkt. No. 37 at ¶ 9. According to the amended complaint, in 2007, Plaintiff and several other professors "unofficially published a working paper" on the website of nonparty SSRN, ^[2] id. at ¶ 143, "on the topic of how a firm employing its auditor for non-audit tax consulting services affected the quality of the firm's financial statements," id. at ¶ 117. The paper was updated in 2008. See Id. at ¶ 120. Plaintiff claims that this paper asserted two unique and novel hypotheses; namely, that (1) "[t]here is no association between auditor tax consulting and the likelihood of tax-related [internal control weaknesses ('ICWs')]"; and (2) "[t]here is no association between auditor tax consulting and the likelihood of non-tax-related ICWs." Id. at ¶¶ 121, 126. Plaintiff's paper ultimately found that auditor tax consulting was significantly associated with a reduced likelihood of receiving any type of ICW. See Id. at ¶ 129

The amended complaint next asserts that, in January 2012, the Defendant Authors submitted a paper to Defendant AAA for a presentation at Defendant AAA's upcoming national meeting. See Id. at ¶ 163. At this time, the Defendant Authors appear to have been serving as either teaching assistants or research assistants at the University of Texas at Austin. The January 2012 paper asserted a hypothesis and result identical to Plaintiff's first hypothesis and result, but did not cite or make reference to Plaintiff's paper. See Id. at ¶ 163, 181. The Defendant Authors' January 2012 paper did cite to an unrelated research paper published in 2011 that, in turn, cited to Plaintiff's paper. See Id. at ¶¶ 174, 175. In their January 2012 paper, the Defendant Authors claimed to "extend prior literature" and stated that, "to [their] knowledge, no study has examined the link between" auditor tax consulting and the likelihood of tax related ICWs. See Id. at ¶¶ 190, 193. The Defendant Authors' paper was accepted for presentation at Defendant AAA's national meeting and, in August 2012, the Defendant Authors presented the paper. See Id. at ¶¶ 202, 203.

In July 2012, the Defendant Authors published their paper on SSRN's website. See Id. at ¶ 209. In this version of the paper, the Defendant Authors removed their prior statement that no study had examined this topic, and replaced it with a brief reference to Plaintiff's paper:

[T]o our knowledge, no published paper addresses the relation between tax NAS and tax internal control quality, which is a significant determinant of financial reporting quality. In unpublished work, Elder, Harris and Zhou (2008) examine the relation between tax NAS and reported material weaknesses in internal controls from 2004-2005. The authors find that tax NAS are associated with fewer reported tax and non-tax material weaknesses, and attribute the result to a lack of auditor independence.

See Id. at ¶ 223. Plaintiff contacted Defendant De Simone via email in August 2012 to notify the Defendant Authors that their paper "pretty much duplicates part of" Plaintiff's paper. Dkt. No. 37-12 at 1; Dkt. No. 37 at ¶ 240. Defendant De Simone replied that they were "aware of [Plaintiff's] paper and cite[d] [his] work," and that they had examined the topic "using a different sample, method[, ] and theory." Dkt. No. 37-12 at 1.

In September 2012, the Defendant Authors published another version of their paper on SSRN. See Dkt. No. 37 at ¶ 241. The September 2012 version of this paper had been expanded to include a hypothesis and result identical to Plaintiff's second hypothesis and result. See Id. The September 2012 paper also slightly changed the citation to Plaintiff's paper, referring to that paper as a "concurrent working paper" rather than an unpublished work. Id. at ¶ 254. The Defendant Authors published two more versions of their paper on SSRN in October and November 2012. See Id. at ¶ 275.

In November 2012, the Defendant Authors submitted a version of their paper to The Accounting Review . See Id. at ¶ 297. The Accounting Review is a publication of Defendant AAA and an "official, premier journal." Id. In April 2013, Plaintiff sent an email to the editor of The Accounting Review asserting that the Defendant Authors were "plagiarizing Plaintiff's paper, along with a complete and detailed statement of the facts, copies of Plaintiff's prior working papers and [the Defendant Authors'] prior offending papers, and an analysis of applicable rules." Id. at ¶ 298; see also Dkt. No. 37-8. Plaintiff did not receive a response from The Accounting Review's editor. See Dkt. No. 37 at ¶ 309.

In June 2013, Plaintiff submitted his own paper to The Accounting Review for publication. See Id. at ¶ 310. In August 2013, The Accounting Review notified Plaintiff that it was rejecting his paper, in large part, because it asserted the same hypotheses and results as the Defendant Authors' paper. See Id. at ¶¶ 312-19. Ultimately, Defendant AAA and The Accounting Review published the Defendant Authors' paper online in October 2014, and physically published the same paper in July 2015. See Id. at ¶ 331. The final version of the Defendant Authors' paper contained the same "extending the literature" language found previously, id. at ¶ 335, and noted that their findings were "consistent" with the findings in Plaintiff's paper, id. at ¶ 356. The final paper also contained "a full and honest citation" to Plaintiff's paper, specifically:

Elder et al. (2008) were the first to examine the association between tax NAS and internal control quality, finding that tax NAS are associated with fewer reported tax and non-tax material weaknesses from 2004-2006. In their revision, Harris and Zhou (2013) submit that tax NAS should benefit tax and non-tax internal control quality through knowledge spillover, but that there should be greater knowledge spillover benefits to tax internal control quality. Contrary to their prediction, they find a greater benefit of tax NAS on non-tax internal control quality and conclude that this is possibly because of independence impairment and/or because auditors "bring to the client's attention more non-tax internal control problems than other tax consultants" (Harris and Zhou 2013, 32).

Dkt. No. 37-15 at 10-11.

The amended complaint asserts that, "[u]nlike prior working-paper versions of [the Defendant Authors'] plagiarizing paper, this final, peer[]-reviewed and officially-published version was financially and professionally severely injurious [to] Plaintiff." Dkt. No. 37 at ¶ 397. Specifically, the amended complaint alleged that the final publication of the Defendant Authors' paper (1) "destroyed" the value of Plaintiff's paper, id. at ¶ 413; (2) "prevented Plaintiff from submitting and publishing his paper in" any "journal of similar, premier, academic repute," see Id. at ¶¶ 351-52; and (3) caused Plaintiff to lose an increase to his salary of "between 3% and 10% . . . over the balance of his professional life" that otherwise would have accrued if he had been able to publish his paper, id. at ¶ 417.

III. DISCUSSION

The Defendant Authors argue that Plaintiff's amended complaint should be dismissed as against them because (1) the Court lacks personal jurisdiction over them, (2) Plaintiff lacks standing to bring this action, (3) Plaintiff has failed to state a claim upon which relief can be granted, and (4) Plaintiff's claim is barred by the statute of limitations. See Dkt. Nos. 35, 44. The Defendant Authors also adopt the arguments made by Defendant AAA. See Dkt. No. 44 at 12. Defendant AAA argues that Plaintiff's amended complaint should be dismissed as against it because (1) Plaintiff has failed to state a claim upon which relief can be...