Category Archives: Lies, Errors, and Omissions

Amended Complaint in Case of Cop Shot by Sig P320

I apologize for a lack of updates to the blog. I have been working feverishly for Omaha Outdoors writing product descriptions and creating video reviews.

As a result of one of those reviews, we discovered that the Sig P320 would fire when dropped at certain angles on the rear of the slide. At almost exactly the same time, a lawsuit was filed against Sig Sauer by a police officer who was injured when his holstered Sig P320 fell from the rear of his vehicle and discharged a round upon impact with the ground.

News of that lawsuit was spread far and wide in the gun community with some people blaming the officer or saying it was much ado about nothing and some questioning Sig’s contradictory statements on the matter.

I fall firmly in the latter camp, as Sig marketed the P320 as being drop safe without a tabbed trigger safety.

Unbelievably, this false claim is still present on Sig’s website for the P320 as of September 5, 2017, almost a month after they announced a “voluntary upgrade” for the pistol relating to drop fires.

On August 31, Sheperis – the Connecticut police officer – filed an amended complaint. This complaint contains more of the “drop safe” claims from Sig Sauer as well as some very interesting allegations, and some pretty clear logic.

Let’s start with the logic. First, on August 4, 2017, Sig claimed that “there have been zero (0) reported drop-related P320 incidents in the U.S. Commercial market…” As Sheperis’ amended complaint clearly states, his police department purchased the commercial version of the P320 handgun, not the military XM17/M17.  Sig was made aware of the injury to Sheperis, which occurred in January of 2017, within days of the incident.

Therefore, Sig was undeniably aware of at least one (1) drop-related P320 incident in the US Commercial Market prior to August 4, 2017.

As a followup to this note, the amended complaint states that Sig never drop tested the P320 which injured Officer Sheperis – that their only testing of the gun was to fire approximately 50 rounds through it and call it good. Despite attempts by the Stamford Police Department to assist Sig in investigating and testing the P320 for drop safety, “…Sig ceased communications with Officer Sheperis and the Stamford Police Department thereafter.

This is in line with what I observed when I attempted to contact Sig with the results of our drop testing. Rather than proceed in good faith and treat the issue like the serious matter that it was, they chose not to respond before news of the testing broke elsewhere. This crisis was entirely created by, and fueled by, the actions of Sig Sauer.

Sheperis’ amended complaint also alleges that “the P320 failed German drop tests in April 2017, specifically the Ulm Proof House tests.

If this is false, it will be very easy for Sig to simply produce results or statements from the Ulm Proof House to the contrary. However, given the events of the past month, my money is on Sheperis’ amended complaint being far more accurate than not on this issue.

I’ll leave you with this bit of humor from the amended complaint:

The safety standards SIG claims the weapon passed all require a pistol to be dropped on a one-inch thick rubber mat, and land on the same rubber mat after being dropped, a testing criterion which is plainly outdated and absurd given that end users of the weapon do not walk around on rubber mats when carrying the weapon.

AMENDMENT: The amended complaint adds a fourth count at the end, one of “Intentional infliction of emotional distress.” This is based upon the claim that “…defendant had knowledge of the drop safety defect with the commercial version of the P320 before Officer Sheperis was shot in January 2017.

As I see it from my layperson’s perspective, Sig can either try to settle this or allow the case to proceed to discovery (there’s no way a motion to dismiss will be successful, at least not in full) and hope the fact that they knew the pistol had problems before 2017 doesn’t come out. I know they knew it had problems. They know they knew. Allowing the case to proceed would be foolish on Sig’s part – then again, so would selling a firearm as drop safe when it wasn’t.

I found it interesting that among the requests for relief made to the court was that Sig would have to “issue a recall notice or other enhanced, unambiguous warning to all purchasers of the P320 stating that the weapon is not drop safe with a chambered round, and can fire without a trigger pull.” This would be a far cry from the “voluntary upgrade” of August 8.

Fireclean’s Formula Changed in September 2015

As with my previous articles discussing what’s missing from the latest Fireclean lawsuit, this one draws entirely upon Fireclean’s motions and other court filings in their lawsuit against George Fennell, as well as their lawsuits against me.

In other words, don’t take my word for it – take theirs. Please download the linked documents and draw your own conclusions based on Fireclean’s statements. At the end of this article, I will leave you with a few questions.

According to their lawsuit, Fireclean submitted samples of their product to various laboratories for testing. My first article regarding the formulation of their product was published on September 12, 2015. From what I can see, the tests Fireclean attaches to their lawsuit are all dated no earlier than September 12, 2015.

In a deposition, Ed Sugg appears to say he submitted Fireclean samples to Petro-Lube for chemical analysis in 2012, but those tests have never been released or included in any of their lawsuits or filings, to the best of my knowledge:

Ed Sugg declared to the Virginia court that the Fireclean formula had never changed on September 16, 2016:

However, less than six weeks later, the Brothers Sugg submitted another declaration to the court describing that not only had the formula changed, it had changed in September of 2015:

Now, according to the expert witness hired by Fireclean in the Fennell case, a PhD whom they paid several hundred dollars per hour, the additive differences didn’t matter and the different formulas aren’t materially different.

Unsurprisingly, Fireclean tried to get the judge to throw out the opinion of Fennell’s hired expert, who had a slightly different take on the matter:

 

I am left wondering the following:

 

Why aren’t results of the tests apparently performed by Petrolube in 2012 attached to their lawsuit(s)?

If they had results from Petrolube prior to September of 2015, why didn’t they immediately release them when the controversy first erupted – even before my first article? 

Why did the Brothers Sugg claim the formula had not changed and then later admit that it had changed? 

Why did the formula change the same month they submitted samples for the tests upon which they rely in their suit?

Fireclean No Longer Claiming Their Oil Won’t Gum Up

As voluminous as the latest Fireclean lawsuit is at 50 pages of complaint and 200 pages of exhibits, what’s most notable is not what is in the suit, but what is not in the suit. Put more precisely, what is no longer in the suit is what really caught my attention.

On March 17, 2016, Fireclean filed a lawsuit against me. On page 6 of that lawsuit was the line “The product itself is specially formulated so that it will not “gum,” or leave behind a solid residue from its use.” Elsewhere on this page, continuing to page 7, was the line “Fireclean contains at least one high-oleic oil…which is preferred…due to the non-gumming nature of high-oleic oils.” On page 14 of this lawsuit was the line “Simply put, the statement or inference that the normal and proper use of Fireclean will lead to corrosion or the formation of solid residues on firearms or weapons is false.”

On September 11, 2016, Fireclean filed another lawsuit against me. On page 31 of this complaint was the line “A non-drying oil such as Fireclean will not gum or form solid residue when exposed to air.” On page 11 of this complaint was the line “Fireclean contains at least one high-oleic oil…which is preferred…due to the non-gumming nature of high-oleic oils.”

On February 8, 2017, Fireclean amended their September complaint. While they added claims of aiding and abetting George Fennell’s tortious conduct, they also removed several lines from the complaint. All of the above lines were removed from the First Amended Complaint.

Editing mistake, you say? Well, even if we ignore that these lines appeared numerous times throughout both prior complaints, examine this Plaintiff’s Memorandum in Support of Motion In Limine Regarding Withdrawn Gumming Claims in the Fennell case, filed January 24, 2017:

Furthermore, when Fireclean provided the FBI with Fireclean in late 2012, they were receiving complaints of “tackiness” as early as March of 2013. They claimed in court that these issues resulted from the size of the bottles used by the FBI.

Fireclean has intentionally removed the words and phrases “gum” and “solid residue” from the defenses of their product in the lawsuit against me in Arizona. They have abandoned their claims that Fireclean, when used properly, will not gum up or form solid residues, and they have admitted that they were informed by the FBI of “tackiness” issues with their product in 2013.

Fireclean Files Motion to Strike Portions of My Last Filing

Fireclean has filed a motion to strike (http://www.vuurwapenblog.com/wp-content/uploads/2017/06/34-Motion-to-Strike.pdf) portions of my Reply in Support of the Motion to Dismiss (http://www.vuurwapenblog.com/wp-content/uploads/2017/06/33-Reply-ISO-MTD.pdf) their latest lawsuit against me.  Their motion is based on the claim that the Reply introduced concepts which were not introduced in the Motion to Dismiss, which they contend is unfair. To be clear, not introducing things in a motion and then introducing them in a reply is not okay under the Federal Rules of Civil Procedure, so if they had a solid basis for this motion then there would be a good chance it could be successful.

Now, I am not a lawyer, and what follows is not a legal argument but simply my interpretation of the issues at hand and the ridiculousness of their argument based on the information they have presented. 

However, they do not have a solid basis for this motion. Most importantly, these issues were raised in the Motion to Dismiss. Which issues, you ask? The issues they claim were not properly raised are closely related: that their speech was a matter of public opinion and, as a result, that I was acting as a consumer advocate. In claiming this, they appear to have missed the following quotes from the Motion to Dismiss, the latter of which was in fact the concluding paragraph of the whole shebang:

“FireClean’s Complaint repeatedly (but summarily) alleges that Mr. Tuohy published all of the 21 different challenged statements with “actual malice”. In doing so,
FireClean appears to correctly concede the statements at issue involve matters of public interest or concern. As such, to state a valid claim, FireClean must plead facts sufficient to establish actual malice; “If a defamation action involves a matter of public concern, a plaintiff must establish the presence of actual malice.””

And…

“What FireClean may not do is unlawfully abuse the legal system in an effort to suppress and conceal honest, legitimate expressions of opinion; “[The Lanham Act] has never been applied to stifle criticism of the goods or services of another by one, such as a consumer advocate, who is not engaged in marketing or promoting a competitive product or service.” Goodman, 2014 WL 1310310, *5. The conclusion is precisely applicable here.”

Fireclean cites a case which they seem to imply supports their argument, selectively quoting snippets of sentences to seemingly imply that the issue needs to be raised in such a manner as to be considered “fully explored” in order to be allowed in a reply brief. Here’s their argument, which you should read in its entirety by following the link at the beginning of the article:

However, if we look at the complete sentences nearby in the case they cite (Eberle v. City of Anaheim) , we see that this case is not only inapplicable in the way Fireclean implies, but it actually supports including the arguments they wish to toss out (emphasis mine, and I’ve removed case citations for simplicity’s sake):

“Kiser did not raise the argument in his opening brief. Indeed, in his opening brief he neither mentions the pretrial order nor the district court’s denial of his motion to amend it. The first time the argument pops up is in Kiser’s reply brief…  We could consider the issue had appellees raised it in their brief… But appellees merely noted that Kiser had failed to raise the issue. Such an observation does not constitute raising the issue.  We could also “consider the issue [if] the appellee has not been misled and the issue has been fully explored.” This, however, is not the case. The issue has not been fully explored.”

The case they cite does not require an issue to be fully explored and indeed it clearly states that an issue can be considered if raised in the brief. The “observation” they refer to in the other case was an admission that the issue had in fact not been raised in that case. The concepts of consumer advocates and whether or not their speech was a matter of public opinion were indisputably “raised” in the Motion to Dismiss. Therefore, this motion to strike is another ill-advised and extraneous attempt to distract from their complete lack of a case, much like their earlier motion to prevent me from filing seven extra pages in response to their phone-book-sized lawsuit, which failed.

Judge to Decide on Motion to Dismiss Fireclean Lawsuit #2

Having received Fireclean’s complaint, my motion to dismiss, Fireclean’s response to my motion to dismiss, and my reply in support of my motion to dismiss, the judge now has all the information he needs to make a ruling.

My reply in support of the motion to dismiss was just filed yesterday and it’s a fairly quick (and excellent, in my opinion) read compared to some other documents in this case, if you have the time and inclination to peruse such things.

An excerpt from my attorney, David Gingras’, excellent writing:

“Rather than accepting FireClean’s allegation as true, this Court can and should review Mr. Tuohy’s actual statements set forth in the exhibits to the Complaint (cleaner copies were also attached to Mr. Tuohy motion). Upon review, the Court will quickly discover a disturbing fact – FireClean’s table of false assertions is flatly contradicted by the actual text of Mr. Tuohy’s article. In short, Mr. Tuohy either did not say what FireClean claims, or FireClean has grossly misrepresented the context of each statement. This Court need not accept FireClean’s allegations which contradict these exhibits.”

Fireclean Misquotes Larry Vickers in New Lawsuit

As you may be aware, part of Fireclean’s new lawsuit has to do with my article regarding the Fireclean Lube Test video they made with Larry Vickers about nine months before the controversy began.

In the original version of their Arizona lawsuit, they included the line “After the comparison, David Sugg and Edward Sugg observe and comment on the testing.”

In their amended complaint, however, they added something to this sentence in addition to changing “David Sugg and Edward Sugg” to “The Sugg Brothers” – it now reads “…and Vickers concludes there was ‘not much difference’ between the dry gun, CLP, and Fireclean.”

With the Vickers video having been taken down by the LAV himself, a mistake appears to have been made in describing the video in its absence.

Fortunately, a copy of the video was preserved and re-uploaded to YouTube by a third party the very same day I wrote my article about the video. It is now cited in my Motion to Dismiss, and you can watch it here.

In the video, Vickers makes the following statement before testing:

4:55 “Fireclean will be properly applied by the Fireclean brothers, and then we’ll see what kind of fouling we get coming out the ejection port and the muzzle. Hopefully, we think you’ll be able to see this on high speed camera and you’ll be able to see the amount of fouling that’s jettisoned out of the gun and therefore keeps the gun cleaner.”

During testing, he says:

9:00 “My gut is, not a lot more than the CLP, but a bit more.”

9:15 “Last up, Bravo Company carbine with Fireclean applied. Going to check out the ejection port and the muzzle and I think we’re going to see some extra debris blowing downrange.”

After testing, Vickers says:

9:47 “Dramatic. That was much more noticeable. A lot more vented out. Compare that to the dry” 

10:25 “With CLP or certainly Fireclean, there is more debris coming out of the gun… From what I saw, to summarize, more debris comes out of the gun with Fireclean in a handgun, but dramatically more with a carbine. That’s what I saw, and I think it’s 100% due to the pressures involved.”

At no time does Vickers say that there was “‘not much difference’ between the dry gun, CLP, and Fireclean” as claimed in in their First Amended Complaint.

On page 13 of their response to my motion to dismiss, Fireclean claims they can “provide evidence, such as the results of scientifically sound lab tests, eyewitness testimony, and expert testimony, to prove the FAC’s allegations that they did not falsify any video test results or mislead the public” – but if you follow the reference they make to the original document, it’s just the IR testing comparing Fireclean to various types of Crisco – it doesn’t have anything to do with the video. None of their 200 pages of exhibits contains a reproduction or re-verification of the Fireclean Lube Test video.

Elsewhere in their complaint, Fireclean accuses me of ruining their business relationship with Larry Vickers. In their case against George Fennell they did not put Larry Vickers on their witness list even though they did include another industry personality. They also fought hard to have themselves defined as expert witnesses.

I encourage you to read these items, watch the video, and come to your own conclusions about what this means.

Fireclean’s Latest Patent Appeal is 100% Interesting

As they have often mentioned, Fireclean has applied for a patent (see exhibit A of this lawsuit for the complete application) regarding two topics: an oil composition and a method for cleaning firearms. Several years ago, they described their product in various ways as containing “at least” 25% vegetable oil by volume.

Elsewhere:

Their patent was rejected in June of 2016 and again in October of 2016, for being both too close to prior art and not being specific enough about the formula.

In April of 2017, they filed a last-ditch appeal which abandoned most of their previous claims, including all composition claims:

Instead they focused on the method portion of the patent claims, which included this line:

So Fireclean is now applying for a patent which describes a method for cleaning firearms requiring an oil composition that is a) “about 100% vegetable oil” and b) does not contain a compound which is not a vegetable oil, otherwise it would continue to conflict with the mentioned Legros patent.

Fireclean has not attached this latest 2017 patent appeal to their lawsuit against me in Arizona, or any of their previous appeals which further clarified the composition of Fireclean. Instead they present the court with, and rely upon the wording of, the original patent application from 2013, which describes “at least” 25% vegetable oil.

Just a few days ago, there was a USPTO Office Action which tentatively identified some allowable subject matter in their patent application – claims 16 and 18. Claims 16 and 18 relate to the method of treating the metal with Fireclean, either by “drying the deposited oil composition by heating at a temperature of about 100 to 400 degrees fahrenheit” (Claim 16) or “immers(ing) at a temperature of about 100 to 400 degrees fahrenheit for a period between about 10 minutes to 24 hours.” These actions require an “about 100%” vegetable oil composition.

Dropping all prior pretenses of it being “above 25% vegetable oil,” Fireclean’s latest patent application describes the product only as “about 100% vegetable oil,” – yet they continue to claim the sentence “Fireclean is probably a modern unsaturated vegetable oil virtually the same as many oils used for cooking” is something worth suing over.

Dances with Words: What’s Missing from Fireclean’s Latest Lawsuit?

As voluminous as the Fireclean lawsuit is at 50 pages of complaint and 200 pages of exhibits, what’s most notable is not what is in the suit, but what is not in the suit. Put more precisely, what is no longer in the suit is what really caught my attention.

On September 13, 2015, Fireclean released a statement which included the line “(Fireclean) is… not a re-labeled or re-packaged product.”

On March 17, 2016, Fireclean filed a lawsuit against me. On page 7 of that lawsuit was the line “Fireclean is not otherwise a re-labeled or re-packaged pre-existing consumer or retail product.”

On September 11, 2016, Fireclean filed another lawsuit against me. On page 11 of this complaint was the line “Fireclean is not a re-labeled or repackaged pre-existing consumer or retail product.”

On February 8, 2017, Fireclean amended their September complaint. While they added claims of aiding and abetting George Fennell’s tortious conduct, they also removed several lines from the complaint. One of those missing lines was that which is referenced above in triplicate.

Editing mistake, you say? Well, even if we ignore that this line has been central to the defense of their product since their very first response to my first article, examine this footnote from a Fireclean opposition to a defense motion in the Fennell case, filed February 7, 2016:

The same brand and quantity of oils sold by this “non consumer or retail” wholesaler are also available for sale on Amazon.com, which you may know as a source of consumer or retail products.

The day after the document containing that footnote was filed, Fireclean removed the line “Fireclean is not a re-labeled or repackaged pre-existing consumer or retail product” from their lawsuit against me in Arizona.

Fireclean Sues Again

Spring has sprung in America; migratory birds begun their journey north to rapidly thawing lakes as the south experiences triple digit temperatures and lawsuits with triple digit page counts.

Yes, it’s that time of the year when Fireclean decides to pursue a 250 page lawsuit against me alleging dozens of counts of wrongdoing – ranging from false advertising to defamation to aiding and abetting tortious conduct.

This is, of course, relating to the series of articles I wrote reporting the results of tests conducted by third parties in the fall of 2015. Many of you may have forgotten these articles or the lawsuit last year in which Fireclean’s arguments were rejected by a federal judge in the Eastern District of Virginia. They’ve now filed a complaint in Arizona, apparently believing that reminding everyone of the articles before they lose again is the best course of action.

I am represented in this case by David Gingras, who has extensive experience with defamation law in the state of Arizona. You may read the excellent motion to dismiss the case he has written here.

At this time I am not requesting donations to the GoFundMe legal defense account.

Donald Trump’s Second Amendment Comments Are Bad

“Hillary wants to abolish — essentially abolish the Second Amendment. By the way, if she gets to pick, if she gets to pick her judges, nothing you can do, folks. Although the Second Amendment people, maybe there is, I don’t know. But I tell you what, that will be a horrible day, if Hillary gets to put her judges in, right now we’re tied.” – Donald Trump, August 9, 2016

This is bad.

Yes, it was a joke.

That’s why it’s bad. Not just because it was a bad joke (it was), but because Donald Trump sees nothing as sacred. This was a calculated comment made like so many others he has made since announcing his campaign – something to manufacture controversy and keep himself in the headlines.

At what cost, though? It’s not like gun owners really need more heat from the left or implications that we’re crazy people who will react with violence at the slightest provocation.

In making this comment, Donald Trump chose to advance his personal brand at the expense of “Second Amendment people.” Does he really care about the individual rights of gun owners? I’m not convinced he does. He doesn’t care about individual property rights and he doesn’t care about free speech. In the recent past he hasn’t cared about gun ownership, going so far as to oppose hunting safety classes in schools (Marines: He also thinks the tattoo ban was a good idea).

Now that he’s running for President as a Republican, he’s all about “saving the Second Amendment.” Call me a cynic, but I could easily see a President Trump “making a deal” that would involve restrictions on gun ownership.

And if he doesn’t win (I am certain he won’t, and we all know the only other person who has a chance of winning this year will be a terrible president)?

Look at his own words from this morning – 

“If at the end of 90 days I fall in short because I’m somewhat politically correct even though I’m supposed to be the smart one and even though I’m supposed to have a lot of good ideas, it’s okay.  I go back to a very good way of life. It’s not what I’m looking to do. I think we’re going to have a victory, but we’ll see.”

He gets to go back to his comfortable life, but we have to deal with the consequences of his disastrous campaign. And those consequences, which will also most likely involve the Democrats picking up Senate seats, will be impactful for America in many ways, not the least of which will be overturning recent Supreme Court decisions by amending the Constitution.

Trump supporters: Do you really think it’s going to be “okay” if Hillary Clinton becomes President?