Bloggers at the center of a gun lube maker’s defamation case filed a response last week describing the lawsuit as “a classic example of a business using litigation to suppress negative consumer reports.”
Andrew Tuohy filed a motion to dismiss on May 19 that refutes accusations that he conspired with Everett Baker to defame FireClean when they published results of scientific tests that found the lube’s chemical makeup akin to cooking oil.
“(The lawsuit) ultimately boils down to a scientific dispute over what testing is adequate to declare two substances chemically ‘similar,’” the motion says, responding to claims that the tests they performed were inadequate for identifying the lubricant’s chemical composition.
Last year, Tuohy explored a rumor that FireClean was Crisco by submitting samples of both products to a professor at the University of Arizona for an infrared spectroscopy test, which is commonly used to identify chemicals. The test showed relatively similar results for both products and Tuohy concluded: “FireClean is probably a modern unsaturated vegetable oil virtually the same as many oils used for cooking.”
After FireClean disputed the results, Baker, a chemistry student at the Worcester Polytechnic Institute who operates the website Granite State Guns, took interest and performed tests of his own under the guidance of his instructors. His tests were more expansive than Tuohy’s, but showed similar results. He concluded: “I feel confident when I say that the FireClean I tested is canola oil without the addition of any corrosion inhibitors, stabilizers, or other enhancement materials.”
Tuohy’s motion challenges the lawsuit on jurisdictional and legal grounds by arguing the Virginia federal court lacks personal jurisdiction over Tuohy, who lives in Arizona and publishes on an online platform, Vuurwapen Blog.
“[I]t is well-settled that mere publication of an allegedly defamatory statement on the Internet is insufficient to confer personal jurisdiction in the forum where the plaintiff resides or those who know the plaintiff can access it,” the motion says, citing a case from 2002.
As for legal grounds, the motion defends Tuohy’s published materials by arguing that he expressed an opinion derived from scientific findings.
“An expression of opinion, however, may constitute actionable defamation, but ‘only if the opinion can reasonably be interpreted to declare or imply untrue facts,’” the motion says, citing a case from 2011.
Also, the motion adds FireClean failed to prove Tuohy knowingly published false material with the intention of a causing harm.
“Completely missing from the complaint are any allegations of facts (much less clear and convincing facts) from which a reasonable jury could conclude that Tuohy knew what he published was false or seriously doubted its truth at the time of publication,” the motion says, adding Tuohy had also credited FireClean as being an effective firearm lubricant.
Baker, who lives in New Hampshire and has his own counsel, also filed a motion to dismiss on May 19 arguing FireClean failed to state a claim.
“Clearly, the single comment to which (FireClean) points as being allegedly defamatory simply conveys Mr. Baker’s interpretation of scientific experiments he conducted,” the motion says. “Further, (FireClean) has not and cannot demonstrate that Mr. Baker’s comments were made with the requisite intent to harm.”
Both defendants will present arguments for dismissal at a hearing scheduled June 16 in an Alexandria federal court.
Last week, Fennell also filed a motion to dismiss for failure to make a claim and a motion to transfer the case to another court.
FireClean, owned by David Sugg and Edward Sugg, is headquartered in Virginia. The company filed the lawsuits in March.