Blogger Doing Investigative Research Defeats Personal Jurisdiction–FireClean v. Tuohy

FireClean sells an eponymous cleaning oil, FIREClean, “advertised to reduce carbon residue buildup in firearms.” Andrew Tuohy blogs about firearms at the Vuurwapen blog (Dutch for “firearms”). Allegations swirled that FIREClean was just Crisco. Tuohy worked with a University of Arizona chemistry professor to test those allegations using an “Infrared Spectroscopy to compare the chemical structures of FIREClean, canola oil, and soybean oil.” The conclusion: “[FIREClean] was probably a modern unsaturated vegetable oil virtually the same as many oils used for cooking.”

Tuohy blogged the research results and that conclusion. He followed up with another post accusing FireClean of rigging test results in one of their videos. Working with a co-defendant, Baker, they arranged for additional scientific tests that led to a third Tuohy blog post, which summarizes: “According to every PhD who looked at the NMR results, FireClean and Canola oil appear to be ‘effectively’ or ‘nearly’ identical.” The post concludes that the oil works as a gun lubricant but implies consumers could get the same results and save money with off-the-shelf vegetable oil. Tuohy also posted some of these and other possibly derogatory remarks to his Facebook page.

FireClean sued Tuohy and Baker in its home court of Virginia. Tuohy lives in Arizona, and Baker lives in Massachusetts. Applying ALS Scan, Inc. v. DigitalServ. Consultants, Inc., 293 F.3d 708, 712 (4th Cir. 2002) (a case I still discuss in my Internet Law course) and especially Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), the court dismisses FireClean’s claims for lack of personal jurisdiction.

I’ll focus on the court’s discussion of Tuohy’s situation. The court first explains Tuohy’s lack of traditional contacts with Virginia:

Tuohy has no home, office, or property in Virginia. He did not write any of the allegedly defamatory statements in Virginia. Nor did he travel to Virginia to investigate the allegedly defamatory articles and comments. He has no on-going business in Virginia and has visited the Commonwealth only twice for reasons unrelated to this lawsuit. His only communications into Virginia when preparing these articles were “several” phone calls, texts, or emails to Ed Sugg regarding FIREClean’s formula on August 29, and again on September 11, 2015. From a due process perspective, those contacts are minimal in quantity….Furthermore, the quality of those communications is negligible because they account for only passing references in the September 12, 2015 article and do not form the basis of Plaintiff’s defamation claims.

FireClean tries to manufacture jurisdiction out of Tuohy’s online activities, to no avail:

Tuohy’s blog is hosted in Arizona by an Arizona company. To the extent a hosting company transmits Tuohy’s online content through servers located in Virginia, those unilateral actions by the hosting companies are not evidence of Tuohy’s purposeful targeting of Virginia….

Plaintiff identifies nothing to indicate [the Vuurwapen Blog and accompanying Facebook page] are specifically directed to Virginia readers. All relevant exhibits and allegations indicate the websites aim to distribute Tuohy’s opinions to the nationwide marketplace of consumers of firearms and associated equipment. The fact that at least ninety of the nine thousand people who have “liked” Vuurwapen’s Facebook page live in Virginia is not to the contrary. It appears completely “random, fortuitous, or attenuated” that roughly one percent of Tuohy’s readers reside in Virginia. Contacts of that kind do not indicate purposeful targeting of a Virginia audience….

Tuohy’s articles and comments never reference Virginia and do not focus on FIREClean’s Virginia origin or affiliations. Instead, the articles and comments plainly focus on FIREClean’s chemical composition, recommended uses for FIREClean, and product testing performed outside Virginia. Those topics were addressed to a nationwide audience of firearms enthusiasts and had no special appeal for Virginia readers. The mere fact that Tuohy referenced a Virginia company, its product, and its owners without mentioning Virginia does not demonstrate an intent to target Virginia, as even overt references to a State may be jurisdictionally insufficient if the focus of the article is elsewhere.

This is a satisfying win for Tuohy, as he acknowledges. Still, imagine if a robust anti-SLAPP law had been available for this lawsuit (Virginia doesn’t have a anti-SLAPP law). Then, rather than leaving open the possibility that FireClean will continue its litigation efforts against Tuohy in Arizona, the court might have permanently ended this lawsuit on an anti-SLAPP motion to strike with an attorneys’ fee shift to Tuohy (who used a GoFundMe page to help defray legal defense costs).

For folks worried about the loss of “investigative journalism,” it’s no longer only the provence of major media enterprises. Tuohy’s and Baker’s posts demonstrate that independent bloggers will devote time and money to investigative research in an effort to try to help consumers make better choices in the marketplace. Those independent research efforts are already tenuous enough that they often cannot survive the chill of potentially retributive litigation. A federal anti-SLAPP law would reduce that chill.

Case citation: FireClean LLC v. Tuohy, 2016 WL 3952093 (E.D. Va. July 21, 2016)

Prior posts on blogs/social media and personal jurisdiction:

* No Personal Jurisdiction Over Nasty Facebook Post–Burdick v. Superior Court
* Having a Facebook or Twitter Account Shouldn’t Mean Mandatory California Vacations if You Get Sued
* Consumer Reviews at “Local” Review Sites Don’t Support Jurisdiction–Wilkerson v. RSL
* The 9th Circuit Tackles a Pair of Internet Jurisdiction Cases
* Two Recent Social Media Defendants Avoid Personal Jurisdiction
* Creation of False Blog and LinkedIn Account Targeting Utah Resident Supports Personal Jurisdiction in Utah — Buckles v. Brides Club, Inc.
* Ripoff Report Sues Blogger, Loses on Jurisdictional Grounds–Xcentric Ventures v. Bird
* Defamation Lawsuit Against Blogger Dismissed on Jurisdictional Grounds–Fahmy v. Hogge
* Connecticut Blogger Not Subject to Texas Jurisdiction–Healix Infusion v. Helix Health
* Blog Defamation Lawsuit Lacks Jurisdiction– v.