Last week, a district judge dismissed FireClean’s lawsuit — Fireclean v. Tuohy — against a pair of bloggers on jurisdictional grounds.
You’ll recall that FireClean sued Andrew Tuohy of the Vuurwapen Blog and Everett Baker for Granite State Guns after the two men published analyses of the company’s lubricant showing that it had similar properties to refined vegetable oils.
Tuohy, the first to conduct an experiment and publish the findings, tested the lubricant with the help of a doctor of organic chemistry at the University of Arizona. Together, the men conducted an infrared spectroscopy test with FireClean and Crisco Pure Vegetable oil and Crisco Pure Canola, concluding that, “FireClean is probably a modern unsaturated vegetable oil virtually the same as many oils used for cooking.”
Following Tuohy’s test, Baker, a student at the Worcester Polytechnic Institute, conducted his own tests using infrared spectroscopy and nuclear magnetic resonance spectroscopy. His testing yielded a similar finding.
“According to multiple tests and after analysis by several different chemists, FireClean is pure and unmodified canola oil,” wrote Baker in his report.
The results and subsequent publication of these tests negatively impacted sales at FireClean. According to its complaint, “revenues have fallen by over $25,000 per month since Tuohy’s first tortious act.” Back in April, FireClean sued the two for damages.
FireClean has maintained that the testing is misleading in that it puts the focus on the composition of the lubricant — and not its actual performance.
“We would like to address recent false or misleading allegations that range from simply misguided to false, defamatory, and libelous,” said the company on Facebook. “These attacks have been made by competitors and others that paint our product in a false or misleading light. The allegations do not focus on actual performance or relevant tests, and draw a misleading picture.”
In dismissing the case, United States District Court Judge James C. Cacheris shot down the argument made by FireClean that the two men were publishing these tests simply as a way to attract more readers to their blogs:
Plaintiff’s theory is that Baker and Tuohy conspired to publish a test that would show FIREClean is the same as Crisco or canola oil, even though they knew the test was inadequate to reach that conclusion, so as to attract more viewers to their blogs. Although such a conspiracy is logically possible, it is not plausible based on the facts in this record. The foundation of Plaintiff’s theory is that a critical review of FIREClean would attract more readers to the blogs. Criticisms of FIREClean being Crisco, however, were already commonplace online due to earlier published statements in the Vuurwapen blog, the Firearm blog, and George Fennell’s publications, among others. The Court finds no reason to conclude that an article affirming the prior tests would attract more readers than results disputing the prior test results.
Furthermore, the record is replete with facts providing non-conspiratorial explanations for why Baker chose the Infrared Spectroscopy and NMR Spectroscopy to analyze FIREClean, including the advice of his professors, his personal research on the best testing methods, his available equipment, and the methods that two individuals with doctorates in chemistry used to test FIREClean. In sum, it does not plausibly or fairly follow from the facts alleged that Baker and Tuohy had a preconceived plan to conduct a fraudulent test so as attract more readers to their blogs by declaring FIREclean to be Crisco.
As it relates to the judge’s decision, FireClean said on Facebook, “We are disappointed at the Dismissal on Personal Jurisdiction- we are not shocked but strongly disagree. ‘Without Prejudice’ means that we can and will continue the pursuit of justice.”
As it relates to most gun owners, the issue here is not the performance of FireClean. As Tuohy said himself, “I have zero complaints.” Rather the issue appears to be the high cost of FireClean compared to other popular oils and lubricants on the market. With that in mind, where do you stand?