Fireclean LLC Sues Andrew Tuohy and Everett Baker for Defamation in Federal Court

[UWone77]

And.... it's getting ugly. From Solider Systems: http://soldiersystems.net/2016/03/31/fireclean-llc-sues-andrew-tuohy-and-everett-baker-in-federal-court/


Last September, social media was ablaze with multiple versions of a common theme, “Fireclean lubricant is Crisco”. The source of this buzz was an article on Vuurwapen blog by Andrew Tuohy, entitled “INFRARED SPECTROSCOPY OF FIRECLEAN AND CRISCO OILS” where he claimed to have had samples of Fireclean tested in order to determine if it was Crisco. At the time of the article, I was publicly critical of Tuohy’s methodology, relying on anonymous sources for lab tests.



The content was so popular it even spawned a second round of articles by Tuohy as well as blogger Everett Baker who claims to have conducted testing of his own that verified Tuohy’s assertions. To double down, Tuohy wrote an article where he claimed that a demonstration video of Fireclean by tactical trainer Larry Vickers was fraudulent. Interestingly, Tuohy initially published this article as “WHERE THERE’S SMOKE, THERE’S LIAR” but later changed it to “SEVERE PROBLEMS WITH VICKERS TACTICAL FIRECLEAN VIDEO”.

At the time, lots of people were quite entertained by the shenanigans. But not everyone was laughing. While most have moved on from the incident, Fireclean has not. In fact, last week they filed the first, in what we understand will be series of federal lawsuits, against Andrew Tuohy and Everett Baker. Suits against others are said to follow. According to this suit, Fireclean has suffered losses of $25,000 per month in sales since the round of articles. Seeing how they are in Northern Virginia, Fireclean has turned to Federal Court for the Eastern District of Virginia, the original ‘Rocket Docket’, for relief. Andrew Tuohy hails from Arizona and Everett Baker is from New Hampshire, according to his blog but Fireclean makes their case early on in the suit for a Virginia venue.

At the heart of this issue is whether the bloggers’ posts are protected by the First Amendment or if their actions were intentionally misleading. Fireclean alleges multiple counts of defamation against Tuohy and a single count against Baker as well as violation of the Virginia Business Conspiracy Act and Common Law Conspiracy. They are demanding a jury trial and compensatory damages, presumed damages for defamation, punitive damages in addition to court costs and attorney’s fees.

You can read the entire, 209 page suit here: Fireclean LLC v Tuohy and Baker. It’s quite extensive and in the document you can see that Fireclean does exactly what Tuohy and Baker didn’t, which was use a well known laboratory to analyze the product. Rather than rely on anonymous testing or tests performed by a college student, Fireclean obtained the services of Petro-Lubricant Testing Laboratories. Their testing is part of the suit, in exhibit R.

Whichever way this suit goes, it is one to watch because it is not only an attempt to hold firearms bloggers responsible for their content, but that it could have far reaching effects for blogging writ large as well as other social media content.

In closing, I would like to disclose that Vickers Tactical, who is not a party to this suit, but is mentioned, is an advertiser on SSD. While, Larry Vickers has endorsed Fireclean in the past, Fireclean is in no way associated with SSD.

Lawsuit can be read here: http://soldiersystems.net/blog1/wp-content/uploads/2016/03/merged_document.pdf

[JGifford]

Wow.

It looks like FIREClean's "Stand by for response" type responses were not pantywaist begrudging admissions of being unable to defend their product. I read the .pdf, and it looks rather...comprehensive.

[DUX]

Absolute Madness. What people fight over boggles my mind. There are a million different lubes out there that work great. Is the market so huge that fighting over this stuff is truly profitable, or is it really about cult of personality brand supremacy? Btw, WD-40 or 3 in One oil works great in a pinch. Heck, you can reduce onions in a pan and use that as great lube. "My onion residue is better than yours!" LOL!

Errata: I personally have decided to "run" straight CRISCO in my AR's now, because "there is no ""Elite"", there are only people, and ego is deadly dangerous." [:D]

[alamo5000]

Here is my take on all this...

The people from Fireclean created some product, how long it took or whatever is out there... but more importantly they created a following which in many ways is a much harder task to do. As everyone here knows there are hundreds of options for cleaning and lubing a firearm...

The amount of marketing, including man hours of effort up to that point had been paying off quite well. Whether or not you use Fireclean or not, you're talking about someone's livelihood and something they probably spent substantial amounts of effort building up.

If they can (and I am pretty sure they certainly can) show material harm to their sales because of this internet claim thing going all over the place.... IE last year we sold X and this year we decreased 40%... I think they will clean the floor with the people who started the whole thing online.

That's just my opinion but I think a jury will eventually see it and the Fireclean people will prevail. Whether or not they get money out of it or not is a whole different subject.

[DUX]

@alamo5000: I agree with your assessment from a marketing perspective. That said, this is coming off like a David & Goliath story in the court of Public Opinion. Vickers and crew will probably win the battle, but they will lose the war. I know I'll never buy anything he's associated with out of pure principle. Between this and the "Don't you know who I am" deal with Ruger, it's just total brand armageddon in my opinion. The entire industry is blown-out as I see it. For every "Special Forces Legend" out there hawking products and theories about winning knife-fights-in-telephone-booths, there are a lot of giant shoulders they're standing on that remain professionally quiet and humble. I'm absolutely sick of it all, and a great number of others out there are as well. There was a better way to handle this in my opinion, but what I think doesn't matter. What I spend my money on does and I know who I'm not going to do business with.

[JGifford]

All this said...has ANYONE seen a forum this was posted on where Fireclean seemed to improve their reputation and brand integrity due to it? I have not. I honestly feel like they have shot themselves in the dick by doing this, unless Andrew Touhy has a ton more "ability to pay" than he appears.

[DUX]

Larry Vickers was a wet-behind-the-ears young buck once upon a time. The people who taught him everything he knows are still alive. I don't hear about them engaging in law suits. Just sayin'.

[rob_s]

Here is my take on all this...

The people from Fireclean created some product, how long it took or whatever is out there... but more importantly they created a following which in many ways is a much harder task to do. As everyone here knows there are hundreds of options for cleaning and lubing a firearm...

The amount of marketing, including man hours of effort up to that point had been paying off quite well. Whether or not you use Fireclean or not, you're talking about someone's livelihood and something they probably spent substantial amounts of effort building up.

If they can (and I am pretty sure they certainly can) show material harm to their sales because of this internet claim thing going all over the place.... IE last year we sold X and this year we decreased 40%... I think they will clean the floor with the people who started the whole thing online.

That's just my opinion but I think a jury will eventually see it and the Fireclean people will prevail. Whether or not they get money out of it or not is a whole different subject.

I don't think it works exactly like that.

I think they first will have to identify the claims that Andrew made that they say are un-true, and then PROVE that they are untrue. Once that's all proved, it will then turn into proving that there was material damage, and assessing who is responsible for what percentage of said damage. Then, if they get a judgment, they'll have to actually collect. which is usually the hardest part.

[rob_s]

All this said...has ANYONE seen a forum this was posted on where Fireclean seemed to improve their reputation and brand integrity due to it? I have not. I honestly feel like they have shot themselves in the dick by doing this, unless Andrew Touhy has a ton more "ability to pay" than he appears.

The comments on SSD in the first link appear to be largely anti-Andrew.

That said, there are a LOT of people in the shooting world that carry around a LOT of butthurt about "bloggers" and "youtubers" and "self-proclaimed SMEs" and "internet celebrities" etc. This is as much a chance for them to air their achy asses as it has anything to do with the topic at hand.

[JGifford]

The comments on SSD in the first link appear to be largely anti-Andrew.

That said, there are a LOT of people in the shooting world that carry around a LOT of butthurt about "bloggers" and "youtubers" and "self-proclaimed SMEs" and "internet celebrities" etc. This is as much a chance for them to air their achy asses as it has anything to do with the topic at hand.

I think in the end, Fireclean has shot themselves in the dick. I doubt they GAIN any customers from this, and I doubt Andrew gets 3.37M USD via GoFundMe.com. They aren't going to increase revenue or gain compensation for damages of any import. However, they may well have roped themselves into providing a lot more data to public purview than they ever wanted to.

Carrying around and giving vent to butthurt is one thing, but once you drag a federal court into it, you're no longer playing for pogs and marbles. This case is going to set some legal precetence, imo

[SINNER]

No legal precedence will be set. If the guy made unsubstantiated claims on his blog that are proven to be incorrect ( which sounds very likely considering he is basing his comments off some free college lab "testing") he will lose. The court of public opinion has no bearing on the legality of the case.

The legal precedence for this case was established decades ago when Bose sued Consumer reports for saying their loudspeakers performed poorly. CR got trounced in court by Bose's experts and it changed the face of reviewing products.

[DeviantLogic]

One side has a guy who thinks frog lube is the same as grease used for roller coasters. The other side is trying to prove to the world their product isn't crisco. I'd love to bitch slap both of em.

[JGifford]

One side has a guy who thinks frog lube is the same as grease used for roller coasters. The other side is trying to prove to the world their product isn't crisco. I'd love to bitch slap both of em.

I'd rather my tax dollars go to this than welfare, personally.

[fledge]

The funny thing to me is that now my tax dollars pay the fed to endure the same pain the gun community has endured for years: a lube thread.

[JGifford]

The funny thing to me is that now my tax dollars pay the fed to endure the same pain the gun community has endured for years: a lube thread.

Hah!

[alamo5000]

I think they first will have to identify the claims that Andrew made that they say are un-true, and then PROVE that they are untrue.

I could be wrong but that seems rather backwards. The people that made the claim are the ones that have the burden to prove that 'it's the same as crisco' or whatever.

If some old lady said she saw you driving the get away car after a robbery from the first national bank would you be considered guilty until proven innocent? Or do they have to find 3 or 4 witnesses, get your dna out of the car, find the video of it and build a case first to say 'hey, maybe he was driving the car'...

In this case they basically accused the Fireclean people of fraud. OK fine, now what do they have to back that up?

The burden of proof lies with the accuser not with the defendant. Unless the accuser has something pretty solid to back their stuff up it's going to be a hard time for them. If they can't prove that it's the same as Crisco then their claims become equivalent of 'I feel like' or just a whisper campaign, which is basically a baseless accusation with no merit.

[DUX]

@alamo5000: I can see it now; all blogger product reviews will be done in a satirical manner from now on so they can be protected as free speech. Rip something apart and at the end put a disclaimer: "Just kidding." And of course everyone knows it's just there to protect the writer. :) I think Fireclean will win. I also thing the market will adapt to the ruling and walk right around their intent and keep on trucking. There is no way where Fireclean truly wins here. They will be made the butt end of jokes in the industry and way will be found to circumvent the ruling. That's what societies and groups of people do.

[alamo5000]

@alamo5000: I can see it now; all blogger product reviews will be done in a satirical manner from now on so they can be protected as free speech. Rip something apart and at the end put a disclaimer: "Just kidding." And of course everyone knows it's just there to protect the writer. :) I think Fireclean will win. I also thing the market will adapt to the ruling and walk right around their intent and keep on trucking. There is no way where Fireclean truly wins here. They will be made the butt end of jokes in the industry and way will be found to circumvent the ruling. That's what societies and groups of people do.

Even if they do 'win' they lose. The gun community ain't stupid.

As for people doing reviews online or wherever that to me isn't the same thing. Then again I could be completely wrong in figuring out where this whole thing originated. I don't know if it started in the format of a review or not.

I am not trying to defend Fireclean by any means. I have never even touched their products.

My take on formal reviews are that if you make something it needs to stand up to the tests. Especially anything gun related. And no bitchin' about it if the reviewer thinks it sucks.

What I don't know about this particular case is...was it a case of a review gone bad or the case of competition throwing someone under the bus. I don't know.

[DUX]

https://youtu.be/8lIFItbwqVA

For Example: "I don't want to get Firecleaned out here in the middle of nowhere." :)

[DUX]

http://www.vuurwapenblog.com/

Here is the blog of one of the guys being sued if you want to follow along. It looks like he's setup a go-fund me for legal expenses and has quite a bit of support so far. Popcorn up! Que the Benny Hill music folks!

[alamo5000]

If they are trying to sue over a simple product test that they didn't like the results of then I say screw them. That changes everything if you ask me.

[DUX]

If they are trying to sue over a simple product test that they didn't like the results of then I say screw them. That changes everything if you ask me.

OMG! LMFAO! This guy on the blog is a Marine Corpsman with two combat tours under his belt. BWAHAHAHAHAHAHA! It's done! LOL! Fireclean sues Marine Combat Vet: FILM AT 11!!!


https://youtu.be/MK6TXMsvgQg

Navy, sorry, you know what I meant. His Marine buddies will come to his aid. Messing with "the Doc." LOL!

[alamo5000]

Based on what I read on the blog there it sounds like the guy tried to be on the up and up about it but the people who were publishing stuff kind of screwed him over making it look like he said something that he didn't really say.

This is for sure going to be popcorn worthy.

[DUX]

I have to go to Home Depot for some leaf bags, and an industrial grade popcorn popper. :)

[Joelski]

Frankly, its amazing anybody gives that much of crap. They deserve to be sued. It's not like it takes unicorn tears to properly lubricate a rifle. Be as meticulous or as carefree as you want. That's the point of living in a free country, isn't it?

[gatordev]

It sounds like a lot of you aren't regular Vuurwapen readers. His site was always a breath of fresh air. Very little emotion, just a guy trying to give quantitative feedback. Some of it's anecdotal, but even in his anecdotal tests, he tries to be as scientific about the process as he can afford to be.

And for the record, he never, ever did say that FC was Crisco. He was actually very clear about that from the beginning.

[Aragorn]

^^this

I've swung through there multiple times in the past, and Gatordev sums it all up well.

[DUX]

A little humorous parody on my part. I'm almost certain this is still protected 1st Amendment expression. God Bless America!
957

[Stone]

Fireclean is Crisco, the real problem is that a lot of folks have been cooking with the same crap that they are lubing their rifles with.

[JGifford]

Now Weapon Shield is involved.
http://soldiersystems.net/2016/04/01/fireclean-llc-sues-george-fennell-and-steel-shield-technologies-in-federal-court-alleging-false-advertising/

[DUX]

@JGifford: It's gone FULL-ON COL. KURTZ! :) "It is my dream. It is my nightmare."

[JGifford]

Reading the .pdf, at least we now get wear scar and coefficient of friction data...and interesting enough, fireclean destroyed weaponshield.

[DUX]

The AR platform has reached full maturity and the civilian weapons industry is winding down from the hype frenzy of several years ago. Even if Fireclean was the best thing since sliced bread it's all minor improvements on what is already out there. In the end, so few actually care that the impact is non-existent. This is the way all industries ebb. As the pool of money recedes the insiders feed upon one another. The entire thing reeks of desperation and sadness. Time for lazer beams boys, the throwing rocks at high speed is passe. :)

It got too gucci and jumped the shark IMO. All of it. This will--in my opinion of course--be seen as the final death nail in the explosion of weapons related industry that followed on the heels of our longest war and the sunset of the Assault Weapons Bill. It's an implosion; so much more than just a beef between ego's over a lube. In my opinion, again; got to make sure that's stated.

[rob_s]

The burden of proof lies with the accuser not with the defendant.

Exactly.

Fireclean is the accuser, Andrew is the defendant.

[FortTom]

So, 35 posts, and I still don't have a clear answer. I'm hungry, and I want to know, can I fry an egg and baloney sandwich in fire clean or not? If not, I still have some froglube left. What's it take to get a straight answer around here?

[bash]

[SINNER]

Considering the testing methods used by the blogger I'd say no. But as always I will encourage you to test the theory. Please post results. LMFAO

[alamo5000]

So, 35 posts, and I still don't have a clear answer. I'm hungry, and I want to know, can I fry an egg and baloney sandwich in fire clean or not?

Try it and tell us if you feel funny afterwards... [:D]

[DUX]

I'd advise against going to an internet forum about guns for a clear answer about anything. :)

[Battle Cock]

Considering the testing methods used by the blogger I'd say no. But as always I will encourage you to test the theory. Please post results. LMFAO

Yes FT, be scientific! Test the theory. Make sure you film the whole process. You know... For science.

[DUX]

How about reducing wild onions in a pan, skimming off the oil that it produces, putting that on one rifle, and Fireclean on another? You can darn well eat the onion residue. I'd be interested in seeing 500 rounds shot out of two DI AR-15's close in build quality, and what the carrier group looks like for each afterward. It wouldn't say much about Fireclean, but it would say alot about wild onion residue, and let people make up their minds which they want to pay for. Fireclean, or Free onions?

[JGifford]

How about reducing wild onions in a pan, skimming off the oil that it produces, putting that on one rifle, and Fireclean on another? You can darn well eat the onion residue. I'd be interested in seeing 500 rounds shot out of two DI AR-15's close in build quality, and what the carrier group looks like for each afterward. It wouldn't say much about Fireclean, but it would say alot about wild onion residue, and let people make up their minds which they want to pay for. Fireclean, or Free onions?

On a serious note, I was using a Vltor A5H2 buffer in my DDM4 mid-length, but with a 0.073" gas port, it's way over-gassed, so I moved to a A5H4 buffer. Fouling is MUCH LESS. This is why I think rifle-to-rifle comparisons of fouling are bunk.

[DUX]

I'd just like to point out that you can go ask Tim Bax about the onion residue thing. It's real. He runs a jungle school in the US. Vickers has attended I'm sure.

[JGifford]

I'd just like to point out that you can go ask Tim Bax about the onion residue thing. It's real. He runs a jungle school in the US. Vickers has attended I'm sure.

Maybe I'm warped, but I'm not very happy right now. You made me Google this Tim Bax character, which led me to his jungle training website, which caused me to notice that civilian courses were available, which may well have sabotaged my chance at a "normal" vacation in the Caribbean in the future.

But I'll be smarter for it.

[UWone77]

Fireclean Responds:



FireClean LLC has recently filed a lawsuit against Andrew Tuohy and Everett Baker, asserting defamation and Virginia Business Conspiracy Act claims against these defendants, who with the specific purpose of harming FireClean, initiated a protracted and intentional smear campaign against the company.

FIREClean’s patent application was publicly accessible online two years before Tuohy wrote about FIREClean®. The patent application, on the very first page, describes a product that is composed of at least three substances, which may be plant or vegetable-based oils, and which make up between 25 and 100 percent of the formulation. Tuohy never undertook to test this statement. He chose a test that would give him the result he wanted so that he could publish sensational headlines. An infrared spectroscopy analysis was not sufficient to distinguish FIREClean® from Crisco vegetable or canola oil, and Tuohy knew this. Moreover, even after publishing his articles, Tuohy was alerted to this fact by other readers of his blog, and he never undertook to correct his analysis or conclusions.

When Tuohy told us that he intended to publish his first article- the night before he published it- and told us what his conclusions would be, we asked him for a chance to read it first, so we could provide a proper response. He refused. In his blog post he stated, “That is not how this blog works.”

Clearly, Tuohy wanted to turn a blind eye to anything that might tamper down his eye-grabbing headlines. He wanted readership, not the truth.

Some recent public social media comments have compared our suit against Tuohy to a David-versus-Goliath First Amendment case. It is anything but that. In fact, Tuohy has as many aircraft registered in his name as FireClean has employees (two). FireClean is a small business that has been subject to an unprovoked and unfair attack.

FIREClean® is not Crisco Vegetable nor Canola oil – nor otherwise common vegetable oil. FIREClean® is a proprietary, high-efficiency formulation that yielded unprecedented results in Tuohy’s own live-fire use. Tuohy’s separate statements that are the subject of our lawsuit were false, continuous, persistent, and maliciously made. FireClean has no choice but self defense. Anyone who thinks the company is wrong for doing so has clearly never had their livelihood attacked by someone engaged in a protracted smear campaign.

The Citizens of the United States of America certainly enjoy the freedom of speech provided in the First Amendment. But just as it is illegal to run into a crowded theater and yell “fire” when there is no fire, there are limits on—and repercussions to—speech that is intentionally or negligently false, that causes harm to another. These are the rights that we seek to vindicate.

[WHSmithIV]

This is direct from the first page of the Fireclean patent application:

.... a product that is composed of at least three substances, which may be plant or vegetable-based oils, and which make up between 25 and 100 percent of the formulation.

So, if some random bottle of the stuff is made up of canola oil, vegetable oil and corn oil, - 3 substances and making up the 100% of what's in the bottle, by all means, go ahead and fry an egg in it [:)]