Hope for Planet Rossi

On E-Catworld, Chapman wrote a post about the Quark-X, put up by Frank Acland, which looked at some of the same facts and ideas as I just covered on my consideration of the Gullstrom report, part of Rossi’s blog: Fact, Flabber, Flim-Flam, or Fun?

Chapman definitely lives on Planet Rossi, but here shows a willingness to recognize that something is missing. That is a cause for hope (when this happens on any “side.”) It’s worth looking at. So his report and my comments are below. I’d much rather respond here than there, though I will probably toss a nickel or two in that pond. Continue reading “Hope for Planet Rossi”

Rossi’s blog: Fact, Flabber, Flim-Flam, or Fun?

Whatever, it begins with F. If a reader knows me, the reader will expect that, every time, I’ll vote for Fun. Yay, Rossi! Endless generation of excess fun!

Okay, was it fun for IH? I recommend they declare that. Otherwise, $20 million down the tubes, a stupid mistake, start to finish. But fun is irrevocable, if we say so. Life is fun, and then we die. Does that change “life is fun”? I say not.

Onward with FFFF: Continue reading “Rossi’s blog: Fact, Flabber, Flim-Flam, or Fun?”

How to drastically overvalue a company

To pull off this trick, the company must have both ordinary and preferred stock. From this page from the Journal of Accountancy:

To value a business having both common and preferred shares, CPAs should value the preferred shares first and deduct that value from the entire equity of the entity.

The trick? Ignore the difference between preferred stock and ordinary stock, and then use the price paid for preferred stock and multiply it by the total number of shares. Presto! Massive overvaluation, it can be! Continue reading “How to drastically overvalue a company”

OMG! Good news!

This LENR Forum development gives me hope for humanity. Arguments have been raging about the alleged flow limitation raised by Pace in his opening arguments on Day 3 of the trial, Rossi v. Darden.

This was based on the Smith Supplemental Report.

Planet Rossi has been loudly claiming that this was the height of stupidity, so bad that when Lukacs pointed it out to Pace and Bell, IH attorneys, before the evidentiary phase of the trial was to begin on Day 4, realized that their entire case was utterly hopeless and laid down and played dead.

Then Rossi went at it hammer and tongs in his Mats Lewan interview. Utter ridiculous stupidity!

There is some discussion of this issue on Pumped Up or Stupid Mistake.

Those folks on LENR forum decided to actually obtain one of these pumps and actually measure the flow rate. What? And give up all the fun of arguing endlessly and firmly proclaiming that the “other side” is not just wrong, but insanely-stupid-wrong and someone-must-be-paying-them?

Apparently, yes. Giving that up, we can hope. So I’m applauding, and commenting on this test idea and implications. Continue reading “OMG! Good news!”

Settlement Agreement?

Rossi has granted an interview to Mats Lewan. 

[I have written an extensive review of the interview on a page here. I’m saddened to find it necessary to write this.]

The interview includes a link to a “settlement agreement” between all parties to Rossi v. Darden, stating “undisclosed source.” The agreement is unsigned and undated, it’s a draft, then. I have made inquiries to determine if this is legitimate and accurate. But here is the settlement-agreement-draft.

In the Lewan interview, Rossi makes many statements that, from the clear evidence in the case, are, at the very least, misleading. Lewan’s summaries are, themselves, misleading. (Lewan has often shown that he didn’t understand the case, and is continuing that.) I will cover that interview in detail. There are two other documents hosted on the Lewan blog linked from the interview, they are Rossi handwritten notes, full of words like “stupidities” and “middle school math.” Classic Rossi.

Some of what Rossi ridicules is actually rather well-established. Rossi, for example, attacks the idea that the warehouse would have been deadly hot without a heat exchanger. What Rossi says there is utterly preposterous. From the interview:

Rossi also addressed the claim made by IH that producing one megawatt of heat inside the building where the test was run would have made it so hot that you couldn’t have stayed there. First, he noted that the sun on a sunny day radiates about 1 kW per m2 and that the building, having a roof of about 1,000 m2 normally would have received about 1 MW of heat from the sun, without making it too hot in the building, even though the roof was barely insulated. Furthermore, it had large openings with exhausts for venting air out of the building. Then the JM plant consumed on average 20 to 40 percent of the produced heat, and the rest was vented out with the heat exchanger.

Lewan shows no sign of any skepticism or critical reserve. That argument resembles what Rossi eventually said last year when questioned about the dissipation problem. What we know about the JM plant is that there was no product being moved in and out, and an endothermic reaction would require massive amounts of product to do what Rossi claims. Instead, there was at one point a few grams of platinum sponge and at another, a little graphene, nothing that could make a dent in that power. Some chemical process “consuming” so much power would become very dangerous (because of the stored chemical energy). Last year, Rossi did not mention a heat exchanger.

Rossi’s own expert, Wong, agreed that without a heat exchanger, the temperature inside would have been deadly.

Lewan has, at the end:

I am confident that if Rossi were really involved in fraud, evidence for that would have been found during the time—a year and a half—since IH claimed to have started to be suspicious about Rossi. Looking back and noting that no such evidence was found, while hollow arguments have been shouted out loud, I have very little doubt that the E-Cat technology is real and that the one-year test was a clear success of a world changing technology, producing 1 MW of heat without emissions, from small amounts of harmless fuel at a COP of about 80 for a whole year!

Now I know what I’d suspected, Lewan did not become familiar with the issues in the lawsuit and the evidence in the case. There is a focus in Lewan on alleged claims of fraudulent data. IH did question the data, but that is not the core of the case they presented, where evidence of fraud was completely clear: it was in “fraudulent representation” of the customer and other issues. The test was far, far from independent, the “customer” was Rossi all the way down, but he lied about it, and that became completely clear.

And then Rossi destroyed the evidence that could have been used to confirm or disconfirm the data. This was all clear.

As I mention, I have not confirmed the settlement agreement, but if what is shown is real, it would confirm that IH had become certain that Rossi technology was completely worthless. Otherwise they would simply have refused to come to a settlement, they would have left the conditions with the status quo after the dismissal. So starry-eyed optimism here requires ignoring the obvious: IH spent about $20 million to confirm the technology, and walked away empty-handed. The formula and IP, if they agreed to surrender all that for nothing, is worthless to them.

And nobody else has seen it so closely and so thoroughly.

Rossi had no chance of gaining the $89 million payout, because of the clear contractual situation, and even less chance (hey, less than zero? ah, don’t quibble!) of piercing the corporate veil and hitting up Darden and Vaughn personally — and Cherokee.

Lewan, you are ignoring the obvious in favor of starry-eyed optimism that trusts a man who has been shown, beyond doubt, to have lied to Hydro Fusion, to Industrial Heat, and to the public, again and again. Nice face, though.

Good luck with your Symposium. Be careful of putting down a big deposit. Maybe Hoistad et al will show their faces.

Meanwhile, I will continue to organize the documentation from the case to make it more accessible. I will collect analyses and generate study documents for genuine research.

Update: Stipulation of Dismissal and a possible hedge.

July 19, a joint stipulation of dismissal appeared. This does not refer to any settlement agreement. This is what was stated in court, July 5:

MR. LUKACS: Your Honor, on behalf of the Plaintiffs, I am pleased to announce that the parties have resolved this matter, the terms of which have been agreed to, will be memorialized in writing. The most significant term, of course, would immediately affect these proceedings in that the parties have agreed as part of the settlement to jointly dismiss this
case, and I mean all claims with prejudice. This includes claims against the Third-Party Defendants as well, with each party to bear its own fees and costs. We expect to have the final written document drafted within the next 24 to 48 hours. Thank you.
THE COURT: All right. Did you want the Court to retain jurisdiction to enforce it? Because if that’s the case, it needs to be filed publicly.
MR. PACE: Yes — no, no, Your Honor, we are not going
to ask the Court to retain jurisdiction.

The devil is in the details. While they state that the “terms” have been “agreed to,” the “final written document” was not yet drafted. We have seen a copy of a draft signed and dated by Rossi on July 14 (it showed up in a LENR-forum post by Ahlfors, with, as is usual for Ahlfors, no attribution.) So it is not impossible that something wasn’t completed, and it is not impossible that it will never be completed.

Rossi is claiming that he now has full access to the Doral Plant, i.e., the padlocks have been removed. The stipulation of dismissal was filed, though rather late for such a simple document. At this point, I think it likely that IH did, in fact, relinquish the License, thus giving up what I’d called their “hedge,” the safety catch. They were giving up on Rossi technology entirely, but … what if this was all a ploy by Rossi to eject them (as some have claimed)?

They spent about $20 million to find out if Rossi had a technology, but they still don’t know for sure if he has anything, because he may have deliberately set it all up to fail, in a more complex version of what he claimed to do with Hydro Fusion in 2012.

They may still have their hedge. Indeed, they paid for it, but not to Rossi, rather to Ampenergo (AEG). The draft Settlement Agreement explicitly excludes AEG and, technically, the License Agreement still stands as far as AEG rights are concerned, because Rossi and IH together could not amend it without AEG consent. The dismissal prohibits Rossi and IH from enforcing the License Agreement, and IH has relinquished their rights, but not AEG’s rights, and has not relinquished claims against AEG, and they had a separate agreement with AEG.

If IH truly considers the possibility of an October surprise from Rossi (followed by a mass impact on the market) as being zero, they might not bother, but it could be simple to agree with AEG to share licensing revenue if that ever becomes an issue. They don’t need the many billions of revenue that could arrive in that contingency, just enough to recover their investments in LENR so that those investments are protected.

They might have their hedge through AEG, which was cooperative with IH throughout the whole Rossi affair, and AEG is a shareholder in IH. It held a license for Rossi technology in the Americas, and IH already compensated AEG extensively.

I have not seen the Rossi/AEG license agreement. Unless there is some kicker there, at the very least I’d expect the license to revert to AEG.

 

 

The drama continues

Unfortunately. The flow of libelous posts on JONP had stopped but, sad to say, it seems to have started up again. Sifferkoll is echoed on JONP.

This is long and detailed. Unless a reader is interested in the massive flabber generated on Sifferkoll’s blog, and implications, including evidence that Sifferkoll is being directly deceptive, I suggest skipping this. Continue reading “The drama continues”

Zoology

We have come across various animals in our wanderings, and humans and groups of humans often have totems.

Some time back, I proposed the Macaw as the official animal of Planet Rossi (photo credit is on that page):

Aren’t they beautiful? If you think of “Planet Rossi” as an insult, I suggest reconsidering this. As I say on that page, “Be Proud,” which I recommend to nearly everyone. “Planet Rossi” is not an insult in itself, it simply means the collection of people who share some coherence around Andrea Rossi and his work. While there are some common characteristics, which I go over in that post, people are diverse on Planet Rossi just as they are elsewhere. If someone identified or identifying as Planet Rossi is Stupid, that doesn’t make you Stupid. Really, it’s up to you.

I have no doubt that Frank Acland has a residence on Planet Rossi. Yet I’m happy to consider him a friend, though I’ve never met him. Which Macaw is he? The middle one? He gets to choose and he can choose a different totem if he wants. I’m just making some suggestions. In a list of Native American Totems, the Parrot has the qualities: Communication, beauty, guide for wisdom, mockery, language, prophecy, verbosity, promise.

As some know, I was very active on WikiMedia Foundation sites for quite some time, often defending users under attack by factions, and at one point, some bully called me a “Rat.” I love rats, my daughter had five at one point, and one is still alive and lives in my office, near my desk. So I grabbed an image for my user page on Beta Wikiversity.


https://commons.wikimedia.org/wiki/File:Alby_the_white_rat_holds_irish_cream.jpg

I’m a Muslim and don’t drink alcohol, but dreaming about anything is lawful, and Alby looks like he’s having fun. The rat totem qualities: Fertility, stealth, scavenging, intelligence, enjoys luxury, intelligent, wealth, success, drive. Hey, I have seven children. No wonder.

Now, there are other creatures in our neighborhood. Here is one. Guess whom I’m recommending adopt this totem:

From https://www.flickr.com/photos/cecilsanders/2978331541/

Are we having fun yet?

And this one is no longer found in Italy:

Science, pseudoscience, and legal decisions

On my bus trip home from Washington, DC (where I went from Miami), I had plenty of time to read and write comments on E-cat World, where there are many claiming the settlement of the case means that Rossi technology is real. On the other side, here and elsewhere, some are complaining that it is tragic that Rossi v. Darden did not go to trial, because then Rossi would be prevented from “fleecing more sheep,” or the like. Yet all a verdict in that case would have established, almost certainly, was some kind of fraud, on someone’s part, and fraud may have nothing to do with underlying reality. It shows that a judge and/or jury was convinced, which can be a matter of truth, or a matter or skill or lack of skill on the part of attorneys. And then arguments may continue forever.

This is an ECW post that refers to Stanley Meyer. Analogies prove nothing, but provide indications, and there are analogies between Meyer and Rossi. There are also massive signs of pseudoskepticism in the critique of Meyer, and pseudoskepticism is belief, often masquerading as science. Genuine skepticism is essential to science, pseudoskepticism avoids the scientific method. Continue reading “Science, pseudoscience, and legal decisions”

RvD trial day 4: settled!

All claims and counterclaims withdrawn. Jury dismissed. Here is my account of what happened in court today. These notes are not much edited.

I arrived at 9:10 AM. There was the appearance of a hearing with something missing, two plaintiff attorneys (probably), one woman sitting on the defendant side, nobody saying anything. Altonaga  sitting on the bench, waiting.

Eventually a man walks in and sits down next to the woman. Altonaga has a brief exchange with him and sets a hearing for Friday and they leave.

In the Gallery: Lukacs, Bernstein, Nunez. De la Barra and Johnson walked in at 9:15.

Then Altonaga called Rossi v Darden and told the attorneys they could set up. Altonaga left the courtroom, then it was “all rise” at 9:20 and she came back. Darden walked in with Erika Handelson., Lomax and Pace.

Lukacs asked the Judge for fifteen minutes to confer with Pace. She said, “brief, please,”  as I recall. They went out together.

Chaiken and Lomax walked out. Rossi came in. Annesser came in at 9:25. Chaiken came back in, started setting up four display boards, for the timeline again. Bernstein walked in with a box of sticky tags to use as markers on the timeline, as before.

If that timeline is used during testimony, I’d think of objecting to it. It is a form of argument. But I don’t know precedent.

Rise for the jury at 9:30.

Lukacs and  Pace came in, Lukacs started to say something, and Altonaga shushed him, the jury was coming in. Lukacs and Pace walk back to the Judge and go into her chambers, and she joins them. She comes out and sends the jury out for 15 minutes.

Lukacs was whispering to Rossi and other counsel. The entire Rossi team walked out. (There are two attorney conference rooms off the courtroom entry way.) Bell and Pace walk out. Chaiken stood in extended friendly conversation with Lomax. Bernstein walked up and shook Lomax’s hand. They are smiling. Darden remained sitting, not interacting with anyone. Serious face. The 3rd party counsel remain seated. Chaiken and Lomax continue to whisper and smile. Chaiken walks out, Bell walks in for a moment. Then Nunez and Bernstein whisper. Nunez appears bemused.

Whatever is going on, it doesn’t look like Bad News. The timeline was better lined up this time. Bell walks in, whispers to Lomax, smiling. Lukacs comes in an calls on Nunex and de la Barra to come out.

This was high drama, while being very quiet. It’s obvious what is happening. They are discussing settlement, at least of some issues. They have made enough progress to pull in the 3rd party attorneys.

Erica and Lomax chat, Nunez walks in smiling. All return. Lukacks asks me to leave (apparently by name, because Pace asked “which Lomax, both are named Lomax.”) But I’d immediately risen to go, because I knew what was happening. This was to be a brief closed hearing. Pace said to me, “Ill talk with you later.” I sat on the comfortable foam cushions in the central area of the 12th floor, looking at the view, completely pleased. Sure, we want the truth, but at what cost? We already, speaking for the public, know enough to have a good sense of what happened, of the reality of this history, if anyone wants to know, the information is there. If people don’t want to know, even a jury decision won’t convince them. “Punishment” has low value.

I noticed that a man who had been there, off and on, was sitting outside also. I walked over to him and ask him his connection with the case. This was Darden’s son, also named Tom. We chatted about the case and the appearance that it was settling. Darden came out and I mentioned I’d like to talk with him or part of the IH team before I left Miami. He had me give my phone number to his son. Then the jury walked out, obviously dismissed.

Lukacs came out and I asked him if he could make any statement about  what is going on. “I’m not at liberty to say” Rossi walked out and I shook his hand and he warmly returned it. Pace chatted with me for a minute. He wanted to be very careful, but he said that the obvious was happening. He said that he would be releasing a statement later. My sense was that there were no conditions to the settlement, the complaint was dropped and likewise the countercomplaints. Over. Finished.

Darden was philosophical. He was, here, accepting a loss of about $20 million, but Darden, with Cherokee, certainly risks that level of investment commonly, and risk implies that sometimes one will lose. In fact, though, LENR won, because the bold move to invest about  $20 million in Rossi technology created a movement that raised, for that purpose, through IHHI, $50 million. Their goal was to find out about Rossi’s claims. Reasonably enough, they found out.

Until I see it officially announced, I cannot be 100% sure that Rossi v. Darden settled on day 4 of the trial, returning to status quo ante. I don’t know if the dismissal was with or without prejudice, by my sense is that it would be with prejudice. However, I’d assign a probability of full dismissal at 99.9%. Good enough for folk music.

Okay, it’s now in the docket as 332. The “case settled.” We have no official details other than that.  I expect to see a joint stipulation in short order that will give a little more detail. Probably ”

What does this mean?

It means a lot and it means less than many are saying. My report,  above, is being repeated with what is standard: it is interpreted favorably to existing opinions. There is good legal analysis on LENR Forum  by woodworker and Mike Dunford (both lawyers, IANAL). I wrote that Darden was pensive. I will emphasize that this was the appearance: both sides were ready to start with the evidentiary phase of the trial. Chaiken was setting up his timeline (which might have been shot down as argumentative, but the trial never got to that point). It was all business. Darden looked pensive.. He might look that way if he had mild indigestion, and this could be totally meaningless. Frankly, I wasn’t looking forward to what would come next: a series of useless evidences that even if completely true would be irrelevant except within a highly misleading context.

I.e., say, Rossi had proof!, proof, I tell you, that someone in Cherokee was happy about the Agreement with Rossi, in a private memo. Darden is the CEO of Cherokee, and IH’s business was consistent with the long-term goals of Cherokee, but Cherokee never starts risky ventures directly, it always does it through liability-limited companies, otherwise the entire $2.2 billion entity could be pulled down by a single error. Instead, CIP, with true Cherokee LLCs, invests maybe $25 million, which is what they have at risk. These LLCs are independent, attract their own investors, may take out loans, all normal business. Some — a few — ultimately fail,  but Cherokee never is itself at risk beyond their investment. That is absolutely necessary and normal for the kind of business they do.

So Chaiken would be taking a document out of context. He’d combine it with another alleged fact he had. Half of the original $1.5 million was paid from Cherokee. If Cherokee were the full owner, as Rossi claims to have believed, they wouldn’t have paid half, they would have paid the full amount. Rather, this was almost certainly a loan to Darden, personally guaranteed, and I’d bet he paid interest at the statutory rate. These guys are not stupid!  None of this would be legally adequate to overcome the standard Entire Agreement clause of the Agreement and the Statute of Frauds, all of which is intended to prevent legal disputes like this.

I am trained to create excitement and connection. I noticed my reaction to what was coming and deliberately dropped it. In that process, for a short time, my face may have shown something like an upset stomach.

Darden’s countenance did not telegraph that he thought they were going to lose, which is a claim being made on ECW.

The appearance was that Lukacs initiated the out-of-the-courtroom  discussion with Pace. That could be misleading. I have no strong evidence that Pace did not privately say something to Lukacs, with then Lukacs merely being the one to ask the Judge for delay in starting the presentation of evidence to the jury. That was initially delaying the jury entry. Altonaga wasn’t eager for delay, she asked Lukacs to be quick. It is very clear, though, that this was not pre-arranged. There was no sudden shift in mood, not immediately. Altonaga waited about 15 minutes, then told us to rise for the jury. Lukacs and Pace came back in and Lukacs addressed the court. His comment was not intelligible to me. Altonaga told him to wait, the jury was coming in. Then, when the jury was seated, Lukacs and Pace approached the bench,  then went back into the judge’s chambers, and she went there as well. She came back and sent the jury into a 15 minute recess. Then came much scurrying in and out of lawyers and parties. The courtroom was very quiet, if I was close to attorneys whispering, mostly I still couldn’t hear anything. But the mood brightened quite visibly and attorneys from opposing sides were smiling at each other, sharing what, I noted at the time,  did not “look like Bad News.” To anyone.

(Some have claimed that this was based on lawyers gleefully anticipating  being paid. See below about anti-lawyer bias. If what they wanted was more money, this wouldn’t be good news. If what they want is client benefit — which is what their ethical standards require — this was good news for everyone, assuming that there were no poison pills included. Good News compared to fighting to the bitter end. Far less stressful.)

When the 3p attorneys were called out, it had gone beyond obvious without anything being said. A settlement was being negotiated. From the context, I knew it had to be simple and decisive. Altonaga would not tolerate less, I’m sure. It would leave the parties free to negotiate anything they wanted that they could agree upon without legal coercion. It could not seriously damage any party, because they would otherwise prefer to finish what had been started — at great expense!. But it would almost certainly not involve any payment, meaning that all parties would bear their own expenses. As soon as significant compensation or other changes would enter the picture, it would get complicated. They could have asked the Judge to delay the trial a day so they could work out a more complex agreement. My sense of Alttonaga is that she would not have accepted that. So it had to be simple, something that both Rossi and IH could accept, and the 3p attorneys would accept (though I’m not sure they would have had the power to stop it.)

I doubt if there was any specific agreement regarding paying legal costs (other than something very simple like “parties to bear their own costs.”) I had a few words with IH counsel before this was complete. Somehow in that, I don’t remember who said it, I got that what was being proposed was total, mutual, dropping of legal claims, very simple, with everything else being subject to direct agreement of the parties outside of court (which would be, essentially, return to status quo ante). Lukacs was able to convince Rossi probably on the strength of his personal reputation and an assurance that there would be good-faith negotiations. (This is radically different from what Annesser had done in December 2015, when he threatened IH with suit for “anticipatory breach of contract.” Pugnacious, what some people think attorneys should be.)

As soon as Rossi wrapped his head around the possibility, I’m sure he’d feel an immediate sense of impending relief.

Lukacs and Pace returned and prepared to address the court. At that point, Lukacs asked that I be sent out, apparently by name (because of a question by Pace about “which Lomax”)?

Getting up to go (I did not wait until the Judge ordered me out, I knew she would grant the request to close the court), I was close to Pace and he said to me, “I’ll talk with you later.”

Outside, I eventually asked who the other man sitting out was, and he, (Darden’s son) told me. We talked about the case and the apparent settlement. There were mixed feelings. He — and I — were looking forward to resolution, and this was a bit like charging out into a battlefield, ready to fight, some believing the enemy was evil and had fangs, and someone blows the whistle and says, “Game over, shake hands and go home!” What? Shake hands with Satan?

Yes. Shake hands with that other human being, now, either work together to build a better future for all of us, or stand back and allow others to do  that. Don’t keep fighting, it is the fighting and hatred that is Satan’s work. This is all long-term ontology for me, and training.

At some point Darden came out and was talking with us. I said some things about the settlement and about IH future. He said, “Smart man.” Darden does not say a lot, is not chatty, but conveys confidence. If you don’t trust him, don’t invest with him! He’s not going to argue. If needed, he has others to do that for him, called lawyers. Try to go and tell Bill Gates he’s stupid for supporting LENR research. See if you can even get those words to his ears. He has experts to filter information flow. He is not Donald Trump, even though he’s richer. Heh! Sorry, Trump fans, but I think you could agree that Trump is not Gates. If not, my condolences, it takes all kinds.

When the jury walked out we knew that it was over. There was no way  that Altonaga was going to allow any delay in the trial, she was already fried and wanted to clear her docket ASAP. If they wanted to dicker over terms, fine. Let them dicker, out of court, but not delay the trial.

Then Pace came out and came up to me. Man of his word. We talked a little. Lukacs came out and I asked if he could comment. That is when he said he was not at liberty to comment  Now, here is where I can see a strong difference between Pace and Lukacs. Lukacs was blunt, pure business. I knew that what he was saying was probably legally necessary. I did not resent it, and, in fact, I smiled and thanked him. He was not smiling. He was like a surgeon who had just extracted a life-threatening tumor in an operation painful to the patient, who is totally focused on  being a doctor and dealing with the physical. I see Lukacs as highly professional, but not necessarily a people person. Whatever people skill he has — and they must be considerable in some ways — he wasn’t using them with me. Just saying. He did nothing wrong.

Pace essentially told me the same thing, but in a way that would normally generate positive feelings. He showed by his affect that he was friendly and would like to tell me what was happening, but he said that he needed to wait to be sure, “as a caution.” At some point Lomax told me that he was intending to provide me the daily court transcripts. I asked him to send them to me anyway, please. And he said he would. This would be a neutral contribution that he and Jones Day could provide my work. I was planning to also ask Rossi counsel for that.

When the jury walked out, it was completely obvious that the case was over, even though Altonaga did not have a marshal tell those outside that they could come back in. I went back in, and the courtroom was almost empty. Rossi’s counsel had all walked out carrying boxes of stuff.

Now, on LENR Forum, to some degree, in comments here, to some degree, and more on e-catworld.com, there are those creating fantasies of what the “settlement” was, and then, generally, declaring a huge victory for Rossi, assuming that the License cancellation would stand (neglecting that this unilateral action had been ignored by IH and correcting this had not been a dismissed claim of theirs. Why waste legal time and money over a nullity? It’s moot unless IH attempts to rely on the License, which is very unlikely, unless Rossi actually does hit the market, then it could be worth billions, so … worth even huge legal expenses, and with a slam-dunk case (which we have seen, even slam-dunks sometimes don’t go through the basket, but people at this level are constantly playing the odds as they read them. Relatively disempowered people look for certainties and even prefer to pretend them, and the dysfunction behind this is common and training to overcome that is rare. There is very little genuine certainty in life, but some of us are afraid of that and attempt to deny it.)

Mary Yugo actually made a decent comment on why this is. “She,” however, is probably operating with the instinctive responses being “wrong.” Rather, they are, as pointed out, functional in emergencies but then can disempower us if maintained beyond emergency conditions. In my training, the emergency response is called an “amygdala hijack,” and it is quite visible and recognizable, and also easily handled, but not by declaring it “wrong,” which then sets up an internal power struggle, and the amygdala is designed to always win this struggle, it literally hijacks the entire structure of the mind. Rather, the amygdala is a primitive machine, but it understands language and is programmable. Actually doing this, programming the amygdala, can look like a miracle. When the amygdala is active, the entire and vast associative engine of the cerebral cortex is turned to the service of the emergency response. It will find “proof” that it is “right,” and may go to extreme lengths to preserve identity, faced with what it sees as a challenge. The simplest solutions can be practically invisible, because of this activity.  In a word, reactivity can make us stupid.

To accept what I think was the actual “settlement,” something very simple was necessary,  that Rossi had in his power, in theory, even before he filed the suit in April, 2016. Rossi had to give up his attachment to “being right.” He had to let go. There is a predictable result from this, I’ve seen it hundreds of times: an enormous relief and a transformative increase in joy and power. You can see this in JONP. Someone has also reported that Rossi is “Happy, happy.” (An unattributed rumor passed on by someone who is sometimes accurate, on LF.) From that, conclusions are being drawn that Rossi must have gotten what he wanted.

While we cannot at this time know if there were any stated conditions, they were not, I’m sure, stated in court and would not be legally binding. The most I expect was actually agreed in court was the withdrawal of the claims and counterclaims, the dismissal of the case, with prejudice. If you were worried for a year that you might not only not get what you wanted, but might end up essentially screwed, bankrupt, and then it all goes away, because you are willing to let go of what was driving it, being very happy would be normal. Even if you aren’t getting what you wanted.  Manic attachment to declared purpose is not a formula for happiness, it’s the opposite. Even if one “wins,” sometimes. Happiness, genuine happiness, comes from a realm that is not the realm of right and wrong, good and bad, but that is simply present to life. Rossi can now enjoy playing tennis with his wife. And his wig looked nice. Life is good. His work is fun.

Planet Rossi has expressed some amazement that I didn’t attack or lash out at Rossi. That is because they largely bought a world-view that I was a paid FUD-er. Some of them still repeat that charge as if it was proven and admitted. But it has been continually denied, ever since the issue was first raised, and all this means is that people will often believe what makes them feel most secure. I do not allow my security to depend on fact and conditions. It depends on trust in reality, only,  independent of conditions. That, again, is training, though it is also connected with what I’ve been studying since my twenties. I recommend, highly, declaring and standing for a full and complete trust in reality itself. It’s not necessarily easy, even though it is obviously necessary for true security. I’m going to die. That’s not bad news! I might be wrong about this or that, various ideas about reality, but what I trust is not my ideas, but reality itself.

I am also human and become afraid, but when I remember the commitment, the fear vanishes.

My impressions of the settlement are informed, I was a few feet away when it happened, and talked with some of the players. That impression includes that there might be additional voluntary agreements.  There are some simple ones that might either have been negotiated, involving claims in the lawsuit that a good mediator may have been able to turn quickly into agreement. Most likely, though, any complications would have prevented full and complete agreement in the short time available.

The fact of withdrawal of claims cannot be used to show anything that was not already obvious from the known evidence and I see no way to assume what was in any binding agreements, other than an assumption that if these were seen as harmful to any side, the settlement would have failed.

I intend to continue organization of case evidence, including presenting opinion, but “attacking” Rossi has never been my agenda, rather, it has been to share evidence and my sense of implications. There are those in the various communities involved who are still fighting the war. They will continue to make themselves unhappy and will not contribute to the future of LENR. They will not help Rossi nor IH. IH never wanted this fight. Dewey Weaver’s opinion — and I like Dewey — was never more than his informed opinion plus his own personal reactions.

When I wrote the first draft of this page, I mentioned expanding it “when I got home” That meant when I was back at the apartment where I am staying. I intend to continue organizing the case material when I am back in Northampton, probably next week.

Update, July 20, 2017

I have the Day 4 transcript.

It generally confirms my impressions. There are two minor differences:

When Lukacs asked to speak with defense counsel, it was not just Pace, it was also Bell. I’m not surprised, but apparently I didn’t notice it at the time. Why Bell? Probably for the same reason as was behind Lukacs making the request. A less involved attorney, less committed to the fray. I had some brief, pleasant conversation with Bell. Very nice guy. Same with Pace, by the way.

Then there is this interchange, when Altonaga had sent the jury out for a recess because of the request by Lukacs and Pace.

(A recess was taken from 9:30 a.m. to 9:55 a.m.)
MR. LUKACS: Sir, would you mind excusing yourself?
GALLERY SPECTATOR: Yes.
MR. LUKACS: I was just asking him to leave for a
moment.

I think the recorder missed something. This wasn’t me, this was probably Tom Darden, the son. Just before this, Lukacs asked for Mr. Lomax to leave, by name. Pace said “There are two Lomaxes.” I did not reply, I just left, because, obviously, Lukacs was referring to me.

 

RvD trial day 3 (Jury selection and Opening Statements)

Official Transcript of Day 3.

Two cases, sentencing hearings, were heard by Altonaga before turning to Rossi v Darden:

  • An elderly defendant had pled guilty to possession of child pornography. “I was curious,” he said in his statement. He had, however, downloaded multiple files from a Tor directory. Altonaga read the filenames and described the videos. Sex between adults and prepubescent children. The man had previously been convicted of sexual conduct with minors, was registered as a sex offender, was on probation. Curiosity killed the cat. Sex addict, I’ve seen and known many. We had a President who was a sex addict, willing to risk his entire career because an intern offered him some candy. Addictions can kill you. Altonaga sentenced him to 20 years. She read the descriptions of the videos without showing any emotion. He will almost certainly die in prison, and his life would be at risk there from other prisoners.
  • A relatively young man, perhaps  approaching  middle age, pled guilty to distributing marijuana. He had been a mule, transporting, as I recall, roughly 500 kg from Canada 0ver a period  of time. There was a plea agreement. Probation. The man turned around, looking at someone in the gallery, and flashed a smile, which I read, perhaps unfairly, as “I got away with it!” For his sake, I would hope that this didn’t translate to “I can do it again.” On the other hand, this is a mostly victimless crime — my opinion, though I have extensive knowledge of the topic.

So then RvD jury selection began again. This time, almost the entire Gallery was devoted to  additional prospective juror seating. Others were allowed one row, six rows for possible jurors, and one empty row in between, to buffer the jurors from the public.

They started with sixty candidates, but one was excused before being brought in. In reading the list of witnesses, I noticed that Rossi was read with the honorific, “Doctor,” but the actual PhD (his expert witness Wong) was not. Nor were Bo Hoistad or Levi, who may have equivalent degrees.

The  Judge explained the burden of proof for decision in a civil case as “preponderance of the evidence,” there is no prejudice for the defense as in criminal cases. However, with an “affirmative defense,” the defense has the burden of proof that the defense applies.

The case overview was read by the Judge.

The prospective jurors were told that the trial  was to end the week of July 24.

One of the questions asked of the jury: “Have you ever been reprimanded by a third party for doing something your boss told you to do?”

There was a lunch break from 12:30 to 1:30.

With the panel still out of the room, the way that boiling down the jury occurred was that the judge made some recommendations to excuse certain jurors, and then the parties objected or didn’t. Almost entirely, or entirely, I’m not sure, they didn’t. This was very fast and I didn’t understand the language at first. I tried to keep track of jurors “struck,” but I think I missed the first ones. What I recorded, probably, was the ones struck on unprompted motion by the parties. That was 32.

The lawyer would say the juror number and something like strike for cause,” or just plain “strike.” if the latter, it was discretionary, and each party had only so many discretionary dismissals. Rossi and IH used them all. I’m not sure if the 3rd party lawyers used any. When this was all done, they were down to 13 jurors. There was no objection and Altonaga mentioned that if necessary, they could deal with the possible extra juror later. (The federal rules have 6-12 jurors, but apparently it is possible to have more if the parties consent, and if it is necessary to dismiss a juror later, they would still have 12.)

The last thing anyone wants is another mistrial. If that was going to happen, the morning of the second day was much better than later!

Then the jurors were brought in and the names of those chosen were read, and the rest were allowed to leave (with the same joke about locking down the courthouse. — it is probably also what they would do. Altonaga did not repeat her joke about “who is enjoying being here?”)

So, then, opening statements.

Plaintiff (Rossi, delivered by Chaiken again)

Quotations here are generally from the Law360 article, which was good coverage of the arguments presented. My comments are then in italics.

Chaiken told the jury that Cherokee boasted about the technology.

My recollection is that this was an internal memo, where distinction may have been lost between Cherokee qua Cherokee and Darden and Vaughn and the new LLC. The point would be that Cherokee considered itself the active party, supporting the Rossi narrative.

When it came time to pay, they refused.

This, again is familiar story. This doesn’t match the evidence, i.e., as to timing. IH protested that Doral was not the GPT and Penon not the ERV (for a GPT) no later than December of 2015, after Rossi had excluded the IH engineer, Murray, and the demand for payment was not issued by Rossi until toward the end of March, 2016. Annesser threatened IH with suit for anticipatory breach in December. It was not some sudden surprise, as implied.

Chaiken quoted a “Leader in LENR,” praising Rossi and the  technology. Then at the end of those quotations  he revealed that the “leader” was Darden.

As if Darden being initially enthusiastic proves anything about what happened later. It is quite clear that Darden was enthusiastic, but if one reads the statements to investors there were also caveats and concerns. Chaiken is presenting cherry-picked pieces of the story, which may well be normal for attorneys, but … this factoid demonstrates nothing of relevance, as far as I can  see, other than what is obvious: Darden hoped for success. In order to maintain the full Rossi narrative though, Chaiken will need to show that Darden was lying to his own investors, which  is about  the most personally dangerous thing for an investment manager to do. Doing that, one can end up bankrupt and even in jail.

Chaiken claimed that if Rossi had known that IH wasn’t fully owned and backed by Cherokee, he would not have agreed.

As Pace will point out in his opening, the License Agreement contained an Entire Agreement clause, makin it a clear matter of written agreement that was no dependence on prior representations (oral or drafts or whatever). As well, Rossi had the better part of a year to change his mind with no loss (and even some gain, i.e., perhaps interest on $1.5 million. All he had to do was cancel by returning the $1.5 million.)

Chaiken created a “timeline,” this day (unlike Wednesday).  It was a set of charts with a horizontal line with years labelled, set up on a  series of easels. Three, I think. The lines did not line up and the charts were tilted.

Small thing, it might seem. However, my communications training would suggest avoiding that, it looked messy, and it got worse when Chaiken wrote on the chart. These things create subtle impressions.

Then, Chaiken wrote on the chart.

His writing was small and messy and mostly unreadable. It was surprisingly unprofessional. Chaiken is not the most experienced lawyer on the Rossi team, I’d bet that this would be Lukacs, but Lukacs is new to the case. Nevertheless, Chaiken does have substantial experience. He speaks in bursts, it was quite noticeable. The effect on me was that I didn’t trust what he was saying,  but I know too much, I know many of the half-truths and misrepresentations already,  so it is difficult for me to  assess the effect on the jury. I’ll be watching for clues.

As I write this, I’m sitting in an apartment with a view of the Miami skyline to the west from a point a few blocks north of the Court. There are fireworks. Yay freedom!

As Chaiken described some  bit of evidence, he would place a marker on the chart for when this was said. It took me some time to figure out what he was doing. My guess is that some jurors would be similarly confused.

He placed almost all the markers above the line, as “positive.”And then he claimed that in May, 2015, Darden changed his tune. What happened in May, 2015? “IH sold 4% of the company for $50 million, to Woodford Fund.

In fact, none of the company was sold, this is a misleading representation. It is in the Statement of the case this way:

“Second, in the alternative to their claim for breach of the License Agreement, Plaintiffs claim that Industrial Heat and IPH were unjustly enriched by certain benefits provided to them by Plaintiffs. Specifically, Plaintiffs claim that Industrial Heat and IPH successfully sold 4% of their
company in return for $50 million as a result of Dr. Rossi’s efforts in continuing to provide consulting services to Industrial Heat and IPH.”

There is no evidence that the Woodford investment was a result of Rossi’s continued activity, but was apparently in spite of it. When I get a chance, I’ll link to the Ampenergo Notes. The investment was planned in 2014. Woodford did visit the Plant in February, as the “test” was beginning. I’d have wanted to see it too. I would not have been impressed by an alleged 1 MW plant with the alleged steam disappearing through a hole in a wall, invisible, with no major radiant heat.

Second, 4% of IH was not sold. From whom was it bought? Who was allegedly enriched? What actually happened was that Woodford wanted to invest, but did not want to invest in the planned master LLC, IPH International, Bv. Why not? Almost certainly to avoid placing their investment at risk from Rossi behavior. IPH was on the hook for the License Agreement contingent liability, if that existed. (That is why IPH has been sued.) Instead, IH itself was sold, in toto, to IH Holdings International, Ltd., through a stock swap. So the original investors became investors in IHHI. They did not receive payments. Then Woodfford was allowed to buy preferred stock, at about $45 per share, this stock, if I understand it correctly, has the same voting power as shares worth 4500 times less.

This was a device for allowing Woodford to make a major investment, supporting the goals of IHHI (which is about research and development in LENR, definitely not quick profit), while allowing operational control to remain in the hands of Darden and other major investors. Obviously, Woodford trusted Darden and friends. This wasn’t an arms-length sale establishing a value of the company. IHHI has spent much or most of that investment, and Woodford, per Ampenergo  and IH deposition, was prepared to invest another $150 million if needed (and may still be so prepared). So if they  were convinced it was appropriate, IHHI could have paid Rossi his $89 million and had money left over for commercialization.

Nobody was “unjustly enriched.” IH was, perhaps, rewarded for taking a bold and very risky step, buying the License from Rossi.  That made the entire field of LENR research safer for investment, though still very risky. Rossi is angry, obviously, because he didn’t and couldn’t get any of this money without doing what he either couldn’t or chose not to do, teach IH how to make devices that would pass fully independent testing.

“They wasted no time telling investors and potential investors that E-Cat actually works and that they were in possession of the technology,” Chaiken said.

At one point, in an investment memorandum, International Heat [sic, Industrial Heat] said the future success of the company was dependent on one key individual: Rossi, according to Chaiken.

This is all fundamentally irrelevant to these case. It establishes, if accurate, that someone was enthusiastic about the Rossi investment. (Who is not specified in this report, and the Chaiken opening is quite vague as to who did or said what. “They” is not specific. However, this is just an opening statement and can be vague. The goal is to plant ideas in the minds of the jury, that they then may stick facts they learn on.)

“They’re telling their investors they’ve got LeBron James on their team and if they’re going to the NBA Finals, they’re going to ride him all the way there,” he said.

There is no doubt that Darden was optimistic. Had he not been optimistic, behaving consistently with that, Rossi’s long-term behavior was well-known. He’d have pulled the plug.

But International Heat changed its tune in May 2015, he said, when it successfully sold 4 percent of the company for $50 million. After that investment, Chaiken said the narrative changed, and the company began to say that Rossi was unreliable and that the test results of his E-Cat technology were unreliable.

That was a highly selective reading of the record.

The evidence that has been revealed to the public shows that Darden had always, with investors, maintained caveats, and questions about the various tests, such as the Validation Test,  and that Rossi had refused efforts by IH to gain more independent support for claimed results. IH simply did not use these to pull the plug on Rossi, continuing to hope that he would reveal what was needed to make devices that worked. Depositions show that if there was even a 1% chance that the reactors actually worked, with a transferable technology, they were willing to continue.

Chaiken is not about to mention the obvious turning point. By May, 2016, IH was realizing that they didn’t know what was actually happening in Doral. At the beginning of July ,then, Vaughn informed Rossi that he would be visiting with the new IH Director of Engineering. Rossi refused to allow it, giving no particular reason. This was a violation of the Term Sheet, and if this had actually been the GPT, would be a major offense, not allowing IH to observe the test with their own experts. (Rossi also prohibited independent experts from observing the Validation Test, claiming it would cause him “big problems.” Indeed.) At that point, all possibility of cooperation vanished. Rossi was shutting IH out. Johnson, in December, backed up Rossi, and so did Annesser.

Of course they changed their tune!

Defendants (Darden et al)

Christopher Pace of Jones Day … told jurors a different story, one in which his clients were deliberately lied to regarding the performance of the E-Cat.

That’s an easy take-away, but not the emphasis of Pace. Rather, he talked about, for  example, a “fake customer,” and various examples of fakery shown in the evidence.

… That [GPT] performance test allegedly took place in a warehouse in Doral, Florida, but Pace told jurors the whole thing was a sham.
He said his clients let Rossi take the equipment from North Carolina, where the defendants are located, to Florida because Rossi said he had found a customer that wanted to use the E-Cat and could test it in a real-world scenario. Rossi told them the customer, JM Products, was an affiliate of Johnson Matthey, a U.K.-based multinational chemical company.

This gets really interesting. Rossi denies, under oath, that he told IH that about JM. Rossi has claimed that Darden has perjured himself, yet the documentary shows that IH believed that JM (notice the initials!) was the real customer. Rossi did not deny that to them, but affirmed that “their customer” was JMP, a newly formed corporation, formed by Johnson, all the while claiming that maybe the owners, after some successful operation, would allow their names to be revealed. And “I wasn’t supposed to mention their name.” This was outright lying while attempting to set up plausible deniability, and the jury will see this easily in the evidence. No knowledge of nuclear physics or steam engineering needed, just ordinary common sense.

James Bass, in correspondence with Rossi, clearly thought the real customer was JM. And Johnson admits that his certification that the owner of  JMP was a “U.K. entity” was false, but a plan, and they decided not to create the “U.K. entity” because it was too expensive.  However, why would they even want to create a U.K. entity? It is totally obvious: to justify that declaration that allowed the appearance to continue that JMC/JMP was owned by JM, a U.K. entity. Rossi will claim that IH knew that the “customer” was the Florida corporation, but who was the owner? The real party in interest. They had no way of knowing  the reality other than what Rossi told them,  and he was lying. There was no public record of the ownership. Rossi also demanded that IH not ask JM about the affair, it might spook them. This is all plain in the record.

Pace told jurors that his clients tried to gain access to JM Products’ warehouse but were blocked and told that the company was engaged in a secretive manufacturing process. When International Heat finally got an engineer into the warehouse, they found clear problems, he said.

The Law360 reporter is quite good. However, what I notice is nuances that she would not be aware of. IH did not attempt to gain access to the JMP customer area, where “secrets” would allegedly be, but to their own Plant, when  that access had been guaranteed by the Term Sheet, the agreement between IH, Rossi, and JMC (later JMP). There were problems visible when Murray finally had access. He  raised the issues with Penon, verbally, and then in writing later. Penon did not respond in writing. As I recall his deposition, he claimed that this was because he had already answered the questions verbally. This was radically unprofessional. We still don’t know what his answers were. It is not that the questions were necessarily sound. Murray ight have made mistakes. But this is not how a responsible engineer would behave. Not if the goal is convincing a company  to pay $89 million for test performance. Rather, if the goal is to satisfy a technical requirement for a signoff, he signed off, and too bad if they  don’t believe him. That is why IH sued Penon, but couldn’t find him to serve process. Chaiken claimed he would be at the trial to testify. We will see.

The amount of water that Rossi claimed the E-Cat machines were turning into steam each day — about 9,000 gallons — was impossible, because at most, the pumps available there could pump only 5,000 gallons of water per day, Pace said.

This is a complex issue. The Penon report claims that outlet pipe pressure was at atmospheric, and this pressure would propagate back to the individual reactors.  The pumps used have a particular rating. In a post yesterday on e-cat world, Engineer 48 — who has claimed to be in direct negotiation with Rossi about reactor installations — claimed that the pump rating used by IH in the opening was based on rated flow against a particular back-pressure, if the back  pressure  were lower, more water could be pumped.

My understanding is that these were metering pumps,  designed to insert a measured flow. As Penon claims very constant water flow,  this would be likely to be how flow was controlled. There was also a pump in the customer area, apparently, a whole can of worms that could have been used to create certain appearances. IH will need to establish fact here, and that is what all the opening statements are doing, proposing fact that they will attempt to evidence during that phase of the trial, and proposing interpretations for the jury to keep in mind. This, again, is easy to understand.

The actual flow meter used was removed by Penon at the end of the test, but  it appears that IH has tested identical flow meters, and, as installed, they  can fail to accurately report flow under some conditions as may have existed, but this became difficult to clearly verify due to the removals by Rossi. (Others have pointed out possible  failure modes, and flow meter failure has featured in prior LENR disasters, i.e., apparently successful tests that were not.)
IH’s expert witness,  Smith, has opined that the system was flooded, and equipment that would have prevented that or detected it was removed by Rossi, it is alleged, before the beginning of the test. My sense of the test setup is that partial flooding, at least, would actually be likely. Consider the condition of a failed reactor (and apparently, by the  end of the test, most reactors had failed): Constant flow of water in, but no boiling, say a heating element burned out, or the electrical input was inadequate to boil the water, what would  happen? The reactor would fill with water, and then this water would flow in the outlet pipe. Penon’s protocol declared that what was done in the customer area need not be examined, thus demonstrating his practical incompetence.  It matters, because there were various frauds (or accidental errors) that could be introduced in the customer area, and for $89 million, one would want redundant measures.

International Heat had also called Florida Power & Light to check on the electricity records for the warehouse and found discrepancies with what Rossi was reporting, according to Pace.

I’m skeptical about this, and so will be the Jury, I think. There are details to examine. I think that what was recorded by Penon was actually recorded by Fabiani,  there is evidence for that. What should have been recorded would be accumulated power usage, the meter reading, not daily usage, which would then be calculated. With that, an error in recording would then be corrected by the next day’s reading.

(The Penon report also has a problem in this way with water flow. The flow meter was not a proper meter for the expected flow, it was too insensitive, operating below minimum rated flow. However, there should still be variation in daily readings, but Penon shows none. What should have been reported as raw data was actual meter readings, not a calculated difference.)

Florida P&L will report, on bills, actual meter readings. Power usage is then calculated. So error in one day, if that is what happened, should be corrected by the next day.

Fabiani, by the way, was on notice from IH that if he did not disclose full data and information to IH, he would be what he feared, “involved” in the lawsuit. In spite of that, he acknowledged destroying the raw data, and his emails with Rossi and Penon.

The FPL discrepancy is a mystery, and that comes out in depositions. It’s reason to suspect something, but proves nothing and is not even strong circumstantial evidence. IH would be advised to keep the case as simple as possible. Do not present mysteries to the jury, present clear fact and clear conclusions.

He said the defendants acknowledged to investors that Rossi was a risk because of previous failed business ventures and a reputation for being difficult, but they gave him latitude because they felt that he had a remarkable technology that produced clean energy cheaply. Pace argued that it is Rossi who should refund the $11 million paid out by the defendants because of the lies he told them.

More accurately, they felt there was some possibility that Rossi ight have a “remarkable technology,” and they wanted to “crush the test,” to find out, not merely to depend on relatively weak inference as from, say, his past.

“Those E-Cat boxes weren’t filled with magic,” he told jurors. “They were simply filled with lies.”

That is pure polemic, designed to create an impression, and it was skillfully delivered, my opinion. Pace’s manner is not “slick lawyer.”

This is not a “fact.” It’s a sound bite,  and the jury will be looking to see if Pace can back this up with clear evidence. Nothing that Pace asserted was new. Anyone can read the case documents and find the evidence, but if anyone has questions, they may be asked here. I might even be able to pass on some questions for any party or attorney.  I will be careful and polite if I do. There is a cordial atmosphere in the trial, and there is, so far, plenty of room for more spectators or reporters.

3rd Party Defendants Johnson, JMP, and Bass (de la Barra)

Both lawyers (de la Barra and Nunez) pointed out that lawyer statements are not evidence (which the Judge had told the  jury already). I will here give the statements of the case, which is close enough to what they said.

They were largely boring, sounding like excuses, not actual defenses.

JM Products, Johnson and Bass Defense to Count IV:

FDUTPA JM Products, Johnson, and Bass deny Industrial Heat and IPH’s claim that they were engaged in a scheme to deceive Third-Party Plaintiffs. JM Products, Johnson, and Bass (i) did not participate in, and are not parties to, the License Agreement or other agreements between Plaintiffs and Defendants, (ii) do not have any interest in the outcome of the testing of the 1 MW Plant, (iii) and were not responsible for the operation or measurement of the 1 MW Plant. Furthermore, Bass did not play any role in Industrial Heat and IPH’s decision to move the 1MW Plant to Florida.

Claim (I) is false as to Johnson, because Johnson, for JMP, did participate in the Term Sheet, an agreement between the parties. Claim (ii) is possibly misleading. Johnson was (is?) President of Leonardo Corporation, and if Rossi obtains an $89 million payment, he’d be likely to benefit. There is also a problem with Claim (iii) because the Term Sheet required JMC/JMP to measure the power delivered to them. So JMP was responsible. Not Johnson personally, but he issued the invoice requests, drafted by Rossi. Johnson appears to be on the  hook for some substantial expenses. Bass, much less so. Bass participated in maintaining the illusion of an independent customer, and basically lied as instructed by Rossi. That’s how the evidence appears to me at this time. It is not clear what losses were suffered by IH as a result of Bass’s behavior. Perhaps without that, they might have pulled the plug sooner.  I think not. I think the Bass deception was without major consequence, it was basically Rossi foolishness. Bass may not end up with serious damage. I feel sorry for him.

Fabiani and USQL Defense to Count IV: FDUPTA

Fabiani and United States Quantum Leap, LLC (“USQL”) deny that they are liable to Industrial Heat and IPH for a violation of Florida’s Deceptive and Unfair Trade Practices Acts.
Fabiani and USQL assert in defense of the claim that they had no involvement in manipulating Industrial Heat and IPH into sending the E-Cat plant to Florida. Fabiani and USQL further assert in their defense that while the E-Cat plant was in Florida they did not engage in any deceptive or otherwise improper acts against Industrial Heat and IPH.

I have seen no clear evidence that Fabiani was involved in the “scheme.” It will be difficult to show that he was part of the plan, it is not clear what he knew about the “customer.”

Fabiani and USQL Defense to Count V: Breach of Contract

Fabiani and USQL deny that they failed to perform in accordance with the duties imposed by the Technical Consulting Agreement entered into with Industrial Heat. Fabiani and USQL assert that they properly performed all material terms as required under the contract with Industrial Heat. Fabiani and USQL also assert that they turned over all or substantially all data collected during the 1MW plant’s operation in Doral and any data not provided was excused by Industrial Heat’s failure to make full payment as required under the contract.

This, however, is clear in the other direction. “Substantially all” is not “all,”  and there was a breach of contract. Fabiani promised to turn over all the data, then didn’t. Murray offered to give him his final check if he turned over the data he had. It was not necessary for Fabiani to do more work, just turn over the raw files. Instead, Fabiani erased them. That data belonged to IH, as work product. As well, Fabiani apparently destroyed his email records. That might cause him to be found to be a participant in the “scheme” by helping to cover up aspects. Very Bad Idea. Nonpayment is no excuse for destroying a client’s property.

Now, it’s late and trial begins again tomorrow.

 

 

 

RvD trial day 2 (Mistrial)

See Mistrial.

Official Transcript

It had been mentioned before recessing for the day that three jurors were asking to be excused.

Before RvD began again, I watched a sentencing hearing for a woman who had pled guilty to a Medicare fraud offense. The defendant had health issues; however this was not her first offense, she did not clearly take responsibility in her statement, it was superficial. One would think that her attorney would have coached her … but many people don’t take coaching well. It takes practice to learn anything. Folks, start now, don’t wait. It can get more difficult as we get older.

Altonaga gave her the minimum sentence under the aggravated offense guidelines, almost three years, as I recall. She did recommend that the Bureau of Prisons place her in a medical facility.

Then the RvD trail opened, with results covered on the Mistrial post. Two more jurors requested to be excused. Even if one request were rejected, the jury size would be down to the minimum, and if anything happened to cause the loss of another juror in five weeks of trial, there would then be a mistral wasting a lot more time. Better to take the pill now than later. All the attorneys and Altonaga agreed. Mistrial. Jury selection to start again Friday.

RvD trial day 1

June 28, 2017

Official Transcript

Jury selection was scheduled to begin at 12:30. I arrived about 11:30. As viewed by the Judge:

On the left side, Rossi, Bernstein, Chaiken, Lukacs, Annesser.

On the right, Pace, Bell, Maugans, Darden, Vaughn, and behind them, Lomax, Mastrucci, Handleson

Along the right wall:

Nunez (Fabiani travelling)

de la Barra, Johnson, Bass

There were three people in the Gallery with cell phones. I was told they are interns working for Altonaga. Other than those and myself, the Gallery is generally empty. I’d sat down to the left (ref. judge), and was asked to move to the other side, since they would be using the left side for prospective jurors. I was also asked to remove my hat. Ouch! I knew that, simply forgot.

Altonaga came in and said two jurors had been excused for cause. Then she had all rise as the rest of the panel was admitted. (This is a display of respect for the triers of fact, it was repeated whenever jurors came in or left.)

Altonaga often smiled. She asked the jurors some general questions, answered by raising hands, then asked “How many of you are happy to be here?” Silence, and no hands. Then the entire courtroom laughed.

The attorneys and parties were introduced. Fabiani is to be back next week.

Jurors were asked if they had heard of any of the parties or  “cold fusion” or “low energy nuclear reactions” or had seen the CBS 60 Minutes program, “Cold Fusion is Hot Again.” One had heard of cold fusion.

Altonaga explained this would be a five week trial, but the Court would not meet on Monday and Tuesday of next week for the July 4 holiday.

The names of witnesses were read and jurors asked if they knew any of them. If I got them all, these were the names.

Listed by the plaintiff:

  1. Darden
  2. Vaughn
  3. Mazzarino
  4. Dameron
  5. West
  6. Wendy Carter
  7. Ampenergo (Cassarino)
  8. Childress (Boeing)
  9. Rossi
  10. Bass
  11. Fabiani
  12. Weaver
  13. Wong
  14. Penon
  15. Levi
  16. Hoistad
  17. Pace
  18. Di Giovanni

Defendants

  1. Smith
  2. Fogelman
  3. Commonwealth of Florida (Health Dept)
  4. Murray

Then Lukacs and Pace asked general and then specific jurors questions. The judge would say, “While you have the mike…” (a hand-held microphone was being passed around) and then ask some other questions. Pace seemed a bit discombobulated, going to the podium, he left his papers and pen back at the table, he frequently apologized for this or that. (This was in contrast to Lukacs, who was crisp.)

My notes say 18 jurors were stricken. It must have been more than that. 10 jurors were selected. Altonaga told the panel that if they were not selected, they were to report back to the jury pool room. She said that if any selected juror left, the marshals would lock down the courthouse and “get you before you leave!” Again, laughter.

Then, after the excused jurors left, and after jury instructions, the trial began with opening statements from Rossi (Chaiken) and IH (Pace).

From my sketchy notes, and with my comments in indented italics

Chaiken:

Dr. Andrea Rossi is the inventor of an amazing technology. Industrial Heat marketed this technology, but when it came time to pay, they did not do so. What was supposed to be worth $2 billion was now worth zero.

Marketed? IH never attempted to sell the technology to anyone. Rossi is claiming “unjust enrichment,” but the only basis for that claim is the Woodford investment, which was not a sale, it was joint investment, not in Rossi technology, but in other LENR technology or research.

Rossi obtained his PhD in Italy.

It was not a PhD, at least that is the information I have. It does entitle him to be known as “Dottore.” This is misleading as presented in the U.S.

Chaiken quoted a “leader in LENR technology,” about Rossi’s work. That was Darden, early on.

Darden was not a leader in the field, merely someone who wanted to support LENR, and who was willing to invest and gather investment. He was not specifically qualified to assess the technology.

Chaiken mentions the report of “members of the committee that awards the Nobel Prize.”

There was, apparently, only one on that committee: the late Sven Kullander. It is unclear to me what report is being mentioned, with Kullander as author. Rossi has claimed he is under consideration for a Nobel Prize, but there is no prize for the kind of work he has done.

Chaiken talks in bursts. I am considering the possible significance of that.

In May, 2015, IH sold 4% of the company for $50 million, based on showing investors the Doral Plant.

This is misleading. IH was sold to IH Holdings International, Ltd. for penny stock, which all IH shareholders (apparently) were issued. So IH became a wholly-owned subsidiary of IHHI, which then issued preferred stock to Woodford Fund, with a par value of about  $45 per share compared to $0.01 per share for ordinary stock, the kind held by Darden, Vaughn, Mazzarino, etc. I’m not completely clear on all details, but this is clear from evidence in the trial record and on the UK government web site with corporate information for IHHI. I do not know the total direct investment of IH in Rossi, $11.5 million is often mentioned, but  that is only the sum of direct payments under the License Agreement to Rossi.  A $20 million stock issue was originally authorized, so  my speculation is that they spent about  that, which seems plausible, given their roughly $5 million payments to Ampenergo (AEG) as compensation for AEG allowing transfer of the License for the territory.

The Rossi License is held by IP Holdings (IPH) Bv, entirely owned by IH. The original plan was to make that the overall holding Company. IH was assigned the license with the consent of the parties (see the First Amendment), and became liable for payments, in addition to IH. However, apparently Woodford insisted that the UK company be formed. So it was done. As I understand it, the preferred stock has the same voting power as ordinary stock. So Woodford contributed massive capital for further LENR investments, while allowing control to continue with the original investors. However, preferred stock, while it is subsidiary to debt, is first in line for distributions of profits, if any, or for distribution on liquidation after payment of debts. IHHI does not have any  liability to Rossi, that is with  IH and IPH. So if Rossi were to win a judgment, the Woodford investment cannot be touched However, IHHI may choose to pay the ongoing expenses of IH (such as legal expenses), or IHHI could stand aside and let the chips fall where they may.

This transaction did not “value” IH at $1.25 billion as implied. It established no particular value for IH or IHHI, other than as a vehicle for making investments in LENR technology and research. If any of those investments lead to commercializable technology,  that could then be “marketed,” probably through sale of sublicenses. There have apparently been no such sales.

To establish that Doral was the GPT, Penon was quoted as saying in the communications with Darden that the proposed test procedure was “pursuant” to the License Agreement, but also called Doral a “demonstration,” as well as calling himself the ERV and referring to the length of the “demonstration.”

I would greatly prefer to see a transcript than to rely on my sketchy and incomplete notes. I am working on obtaining access to the daily transcripts that are emailed to the attorneys. There may be access at a public terminal in the court.  Even if I could bring my phone into the courthouse, I could not photograph this display, nor record myself reading it. These are all prohibited activities in the courthouse.

That Penon had called himself the ERV was known. One of the documents exchanged was an exhibit to a Rossi appeal to the Magistrate (pdf page 26). This document does not contain the language Chaiken used, so it must be some other document in the exchange. On the face, since Doral was set up as a sale of power and a demonstration, the Penon protocol does not establish IH consent to the start of the GPT, as required by the defunct Second Amendment, which required the written consent of all parties. It is, at best, a vague implication. This was also not an email between IH and Rossi and is like other hints found in previously private IH correspondence. IH did think of Doral as some kind of test, in addition to a demonstration for possible investors.

There is no evidence, however, of actual investment resulting primarily from a visit to Doral. Woodford did visit at the beginning of Doral operation. The only known major investment was the Woodford investment, which had been planned since 2014, see the AEG written notes of conversations. The Woodford investment appears to have been structured to avoid dependence on or risk involving Rossi, and that investment was used to pursue  non-Rossi alternatives.

Annesser & Chaiken have a tough row to hoe, full of rocks. By cherry-picking the evidence (which is readily expected from attorneys), they may claim the path to truth is clear. I know too much to agree. Will the jury?

Some have thought that Rossi cannot introduce new evidence at trial. While that is technically true, “new evidence” does not mean “evidence that has not  been publically disclosed.” Rather, there was evidence mentioned in the Chaiken opening that was not previously public, AFAIK, but it is very likely in the documents listed in disclosures, many of which merely were listed by Bates numbers, only meaningful to the parties. There is a vast number of these, and this strategy will conceal content from the public and not put IH on notice on what specific material from those documents will be used. Unlike IH, Rossi also did not provide a document presenting and analyzing the evidence from depositions, stating they were prevented by “technical difficulties,” and would present the  document physically to the Court. (see the bottom of pdf page 1 of D.E. 325)

A some point in the proceedings the Statement of the Case was read by the Judge, which contains an outline, more or less, of what the parties stated as Opening. I did not take any notes on the IH Opening Statement, probably because the claims presented were quite familiar to me, there were no surprises. I intend to analyze the Statement document in detail, and there is some small analysis coming for Day 3.

This entire day became moot on Day 2, as too many jurors were lost, so a mistrial was declared and everything started over on Day 3.

Mistrial!

10 jurors were selected yesterday. First 3 of them requested to be excused, that was known yesterday. Pace agonized over allowing this. On the one hand … and on the other…

Pace suggested interviewing them (I.e., as in the original selection.) Altonaga said she had no questions, it was all written and clear.

Then Altonaga announced there were two more. At this point, all the lawyers agreed: mistrial.

Lawyers in court at 9 AM, Friday the 30th, to go over juror questions. Selection begins at 10 AM. If that finishes, opening statements, deja vu all over again. More when I get home, I’m sitting outside the courthouse.


I have a few minutes before leaving for the Court. Reading the LENR Forum discussions,  a few clarifications and brief comments.

The trial actually started with 10 jurors seated on the 28th. The Judge read the case summary (see the docket), then Rossi and IH presented opening arguments (Chaiken and Pace respectively). So there was a bit more than an hour in actual trial.  Then, before adjourning, the Judge noted requests from jurors to be excused due to conflicts, said that this would be addressed in the morning at 10 AM. There was some hesitancy on IH’s part to accepting the requests. Pace was really unsure, huddled with Darden. Then the Judge said there were two more requests,  and all the attorneys agreed on a mistrial. I had a chat with one of the lawyers, who pointed to the real problem: jurors were not prescreened for “five week trial.” So a lot of time was wasted interviewing jurors who weren’t ready to serve. We’ll see what happens today.

Chaiken said that jurors will see evidence from Penon. That might be the video deposition.

Practice makes perfect. Chaiken and Pace get to present their opening statements to a new jury. The jury will again be cautioned that lawyer claims are not evidence. When I get a transcript I may be handing out some Pants on Fire awards.

Shanahan’s remarks are totally off-topic, but Jed is right: Shanahan is fringe,  and keeps himself there by not actually seeking communication and agreement, merely claiming he has been unfairly rejected. Ironic, eh? I’ve been pointing out the irony for years, and have many times offered to assist Shanahan in settling issues. Yes, “random CCS” was an error. There are errors aplenty on all sides. So? There are places where a full and complete discussion can take place. I created one on Wikiversity. Shanahan ignored it. On Wikipedia, Shanahan kept attempting to put information in the Cold fusion article that did not meet Wikipedia guidelines. It was not just “CFers” who removed it, it was ordinary Wikipedia editors. An article on CF calorimetry with his ideas was deleted by JzG, a very much anti-CF administrator. I rescued it for work and  review. My reward? Shanahan supported my ban.

There is something special about actually meeting Rossi and the others. This is no longer dealing in abstractions, these are real human beings.

The document referred to as the Cassarino (Ampenergo) deposition is actually a much longer document containing all the depositions IH is planning to introduce, with annotations showing attorney objections, etc. Rossi, because of “technical difficulties,” planned to present that in person to  the Court.

Many writers (on all sides) are cherry-picking the evidence. One example is IHFB’s continued insistence that Woodford considered the Rossi technology “core” for their investment; in fact, the statement in an email has a clearer interpretation: Lamacraft was commiserating with Darden or  Vaughn (I forget which) over the disappointment, because Rossi was core to the original investment. Not the Woodford investment.

Again and again, it is asserted that IH used the Doral test to recruit investors. There was only one major investment after Doral began, and that was Woodford, and it is quite apparent that Woodford insisted on this being an investment into a UK limited liability company, which would then own Industrial Heat. Not in IPH, which had a contractual relationship with Rossi (and which was the original idea). IH did not actually use Doral to raise money, but Lamacraft wanted to see Doral, I’m sure. The Ampenergo notes (I have covered them in detail) show that Lamacraft was not particularly impressed.

And I must leave now. I have no internet access while I am in the Court, until I retrieve my phone from security and walk outside, and they would not be pleased by retrieving it for a few minutes…. I may still apply for a press pass, but until I have one …. I have limited facilities here.

 

I posted on JONP June 27

I wrote:

Bob Belovich, perhaps I made that call, I did publish this on coldfusioncommunity.net at 9:20 AM Monday. I was informed, last week, of the change to Wednesday, so it is odd that Dr. Rossi apparently did not know. (His comment here is why I checked, first thing Monday.) Judge Altonaga’s office told me that Jury selection would begin at 12:30 PM.

I waited until comments after this were approved. This comment was, then, likely “spammed.” Recent comments approved after Rossi said he would not be attending to the blog (but someone would be approving posts, or spamming them

A moderator will spam all the comments offensive toward anybody and any comment related to the litigation on course.

It appears that pointing out fact and a mystery, politely stated, is “spamming,” but many posts have been approved having to do with the trial and the trial schedule, and offensively attacking Cherokee, a defendant (and much was made of Cherokee today in Chaiken’s opening statement.)

attacks Darden and Cherokee as fake environmentalists (citing Sifferkoll)

announced trial start but not time and purpose

pointed to Sifferkoll attack

amazing little rant that claims Cherokee  fake environmentalism was learned from Rossi’s Italy history.

more about Cherokee “corruption.”

CC
June 28, 2017 at 5:47 AM
The trial is started today in full, with the selection of the jury and the presentation of the cases from the parties. Info from the Court.
Let’s hope Andrea Rossi will stand also this pressure, after the last high pressure two years.
CC

I don’t know the time zone for the blog. What was done today was jury selection, 10 jurors were empanelled. Then the judge instructed the jury as to what to consider as evidence and that lawyer statements were not evidence. Then Chaiken presented his opening statement, and then Pace, his. I will give my  impressions elsewhere. The 3rd party defendants will make their opening statements tomorrow (June 29th) at 10 AM.

The judge told the jury to be prepared for a five-week trial. From a judge’s announcement, two jurors might be excused right off. The minimum federal jury is six members.

Andrea seemed not happy before the trial began, but he  lightened up, and,  when I greeted him, was cordial. I introduced myself, I think he knew who I was, and he remained friendly, displaying nothing but the charm he is famous for. We wished each other a good evening. I did not have the impression of poor health.

I took notes, but probably won’t publish them until the weekend. It is a pleasure to be there, to this piece of reality, real people, real faces, and real feelings (which can show through masks). The jury is a cross-section of humanity, but filtered by those who can take the time. (almost everyone who pled hardship was excused).

The study of Rossi v Darden provides an endless supply of flabber.

The Quark-X is powered by quantum accelerated coherent collapse (quacc) of  Meshe Gas with itself. E-cats are fueled with liberal applications of Flabber Gas and Rossi Grease. Rossi v. Darden provides  a limitless supply of flabber, enough to serve the needs of sarcastic writers far into the future.

Every time I look at Rossi’s blog, or at the case documents, there is no shortage of material, the question is always where to begin.

Mike Dunford of The Fogbow was flooded with flabber, reading the License Agreement. I am told that Fogbow is flooded with lawyers. I’ll agree, it seems that way, but … it takes all kinds. In any case, Mike reported that he had to read the Agreement more than once, because he wasn’t believing what he was reading. It couldn’t be that stupid.

Of course, Mike has not been following Rossi. It could be that stupid, and routinely is. So, then,  the koan: if Rossi has the reverse Midas touch, that whatever he touches turns to shit, why did Industrial Heat, which has a long history of engaging with risky ventures, and which certainly would afford counsel and indeed, had in-house counsel handling IP issues, go ahead and agree, and pay Rossi $1.5 million for the Plant and $10 million, based on a very shaky “Validation Test”?

That is a koan for advanced students. The answer I came up with is counter-intuitive, but few of us would have the intuition needed to cope with Darden’s primary business, Cherokee Limited Partners, an LLC that creates many LLCs, each one taking on some risky project. If these projects fail, they will lose up to $25 million or so of Cherokee Funding.

Normal thinking Is that if a risky business fails, the investment was a mistake. However, nothing ventured, nothing gained. The business of Cherokee would not be in avoiding risk, as such, but  in estimating, perhaps quantifying it, and comparing that to possible gains. CIP projects might fail more often than not (though I don’t think they do), but if CIP invests in projects with sufficient possibility of success multiplied by the probability of success, it cannot be said that an investment was an error, merely because it failed.

If Darden et al’s sense of possibility and risk is, in general, more likely to be right than wrong, in mercato veritias. If they are losing money on every  transaction, but trying to make up for it with volume, they would not be running a $2.2 billion investment fund, apparently successfully.

In 2011 and 2012, Rossi enjoyed massive publicity in the LENR world. He was commonly discussed on the private CMNS list My sense of the majority opinion was that it was possible he had something, but his rejection of sound scientific approach (“I don’t need controls, because I already know what a control will do: nothing”) was very visible. The errors of Kullander and Essent were obvious. But those errors did not prove that Rossi had nothing, only that their conclusions were flawed. And that Rossi was “eccentric.”

It appears that by 2012 Darden et al had decided to enter the field of LENR research and development. It appears that their first investment was a modest one, in Brillouin Energy. However, all other LENR working groups  were working with modest levels of power, at best. Clear XP at a watt is often considered a significant result.

Who would want to invest in technology that is so far from commercial feasibility, when Rossi was claiming many kilowatts? They decided that they needed to know the truth of Rossi’s  claims, and they needed to know either way, because the uncertainty was causing harm to the field. There is an IH deposition where they stated that if there was any possibility of a reality underneath Rossi’s bluster and even obvious deception, if this was as low as 1%, it would be worth continuing. In 2011-2012, I would have estimated the possibility of Rossi Reality (i.e., a real LENR effect, generating  significant power, as would be known  with conclusive tests), at perhaps 10%. (90% he was mistaken or creating fake demonstrations.)

Given that functioning LENR at the power levels claimed (say 10 KW per reactor, at a COP of 6) could be worth a trillion dollars, a 1% chance of success could be worth $10 billion (but investors would’t cut close to those values, unless the buy-in is truly cheap.) They were obviously willing to risk about $20 million. I would assume that they knew it would be difficult to recover that investment if Rossi were insane or even a deliberate fraud, unless actionable fraud could be shown, and if Rossi had let matters stand as they stood before the fraudulent Guaranteed Performance Test, he might have gotten away with it all.

It didn’t work out that way. That Rossi took IH to court has to stand as a major mystery in this case. I explain it with insanity,  which more or less means “it doesn’t make sense.”

However, I have called the IH investment “brilliant.”  That’s because it created desirable results. Confining desirable results to commercial success with the Rossi technology will miss that they wanted to find out, and to find out they needed independent testing, fully under their own supervision, and validated by others. To do that they needed to buy the IP. So I assume that they had already decided to accept the Validation Test, no  matter how much it stank.

Rossi wrote the Agreement. It’s bonkers in many ways. It gets even worse to  see how Rossi interpreted it and the Second Amendment. IH could see this, I’m sure, it was immediately obvious when I saw the Agreement, and more than one lawyer has opined in this direction. Mike saw this, from the Agreement, section 16.18.

Any controversy or claim arising out of or relating to this agreement, or breach of it, shall be settled exclusively by the Court of Miami, Florida, USA.

Rossi did not have a lawyer draft the agreement. As Mike points out, this is a $100 million agreement, secured with an immediate $1.5 million payment. In case anyone doesn’t notice, there is no “Court of Miami.” This usage is common on Planet Rossi. Given that the specified court does not exist, for it would necessarily be referring to  a specific court, this was a major flaw. However, the entire thrust of this provision is something that no ethical lawyer would recommend. IH certainly had fallen into a “controversy,” but lawsuits are a last resort. Before then, instead of jumping into Court to settle the issues, the parties will attempt to settle the issues, by negotiation. Instead of attempting negotiation, before the end of the “test,” where IH raised their lack of agreement to GPT and ERV — which is very well supported, possibly enough for summary judgment — Annesser threated to sue them immediately for anticipatory breach. Pugncious in the extreme. Lawyers like this create losing situations for their clients … but more legal fees.

However, it is possible that Annesser was just following orders. The lawyer had a fool for a client.

Another little tidbit from Rossi’s blog:

Yrka
June 23, 2017 at 9:39 PM

Dear Mr. Andrea Rossi.
I wish you success in court.
You will win! Serious interference in your work will be eliminated.
Advise where you can follow the course of judicial supervision.
Yuriy Isaev
engineer
Russia, Tyumen

Andrea Rossi
June 23, 2017 at 10:46 PM

Yrka:
Thank you for your sustain.
I think the official pacemaker is the source for information on internet, but I am not sure.
Warm Regards,
A.R.

There is common opinion that Rossi is many of those who comment on his blog. For some of these, evidence is reasonably clear. However, in this case, the question may be sincere. Rossi’s answer, again, shows his lack of clue. There is at least one follower of Rossi who has acknowledged the  value of this blog, and especially of the Docket page here.

The “official source” is PACER. See our introduction to the docket page. “pacermaker” or “pacemaker” is a complete error We have also seen “the pacermaker of the Miami Court.” Or variations. PACER is the document retrieval system of the U.S. Federal court system. It happens that the United States Federal District Court for the Southern District of Florida is currently located in Miami.

Pacermonitor is a site that sells access, and that, for a short period of time, shows the Docket entries. They charge roughly  twice what PACER charges (Pacer is being sued over the fees being illegally high, at ten cents per page, with no limit for some documents, like the docket itself, they charge to show a subscriber the index to the documents.)

So if the questioner is sincere, Rossi misled his supporter. Someone with a conspiratorial mind might think that he doesn’t want his supporters reading the actual documents. Some have bailed after reading them.

Rossi also says that the trial begins June 26, tomorrow. Maybe. The information I have is that it begins Wednesday June 28. I will be talking with the Court tomorrow,  and, obviously, I will be checking. Rossi also treats “one month” as a fixed length of time. He’s naïve. However, it may not matter.

i have confirmed, this morning (Monday) with Altonaga’s office. 12:30 PM Wednesday, June 28 starts jury selection. I knew this last week (I.e., I had information, and I was told it was public.) So why didn’t Rossi know it?

 

Fogbow and community discussions

Because it was linked from LENR Forum, I wrote some posts on Fogbow recently, and the experience reminds me of why I avoid such fora. This is not a particular problem of Fogbow, it is generic to open fora without disciplined moderation or clear and efficient decision-making structure.

I wrote this before noticing some comments that may shift my view. So what will be read here, first, is how this all occurred to me, is not some sort of final conclusion or definite and overall judgment.

The topic there is Rossi v Darden : Cold Fusion Trial

The motto of Fogbow is: “Falsehoods unchallenged only fester and grow.”

However, what is “challenged”? If someone writes, “The moon is made of green cheese,” is the falsehood challenged by someone writing “You are an idiot”? That comment would be a violation of Fogbox rules, as an insult. However, what if the person had asked “why do I think that the Moon is made of green cheese,” would “Because you are an idiot” be an insult?Yeah, probably. But if you say, “That’s an idiotic idea, like the other ideas you have advocated,” is that an insult? Apparently not, though the actual effect is almost identical. The direct insult to the person, however, is easily recognized, and sanctioned, it’s blatant, whereas insult to idea or an assumed general stand or an entire class of people is allowed, even if clearly and deliberately provocative.

Trolls, defined by the goal of enraging or outraging others, then become skilled at making statements that will provoke as insults, but not be immediately recognizable as such. Such a person may appear to those who don’t know the circumstances as merely opinionated or even correct. They may become skilled at making plausible allegations. Yet the goal is to enrage. That goal will not necessarily be visible in an immediate interaction, it could show as a pattern of behavior over time.

There is no clear dividing line between pseudoskeptics and “debunkers,” and trolls. The effect can be the same. Discussion sites like Fogbow and tend to become infested with trolls and pseudoskeptics. Sometimes “believers” can also troll, as to provoking the others.

Bottom line, understanding of truth is not spread by merely “challenging” falsehoods. That idea is common, and it fails. Falsehoods can be asserted with brief statements that convey complex ideas, to actually answer them better than a mere challenge (“Lies!”) takes lots of words, or sometimes it can be done relatively briefly with references. On discussion sites, though, the routine practice becomes sound bites, considered entertaining, and some people who are not trolls themselves enjoy the fray.

I concluded quite a while ago that there was mostly insufficient benefit in “confronting someone who is wrong on the internet.” It’s endless, and discussions where that is the norm commonly go nowhere, failing to create genuine corrective analysis and structure, efficiently accessible.

The topic of the Fogbow discussion that I posted in was the lawsuit, Rossi v. Darden, and LENR in general. LENR in general, when brought up anew in a forum, generates a host of very predictable comments, too often stated confidently by users with one of two positions: “this is the truth, and is how mainstream science views this topic,” or “here is my original idea, aren’t I brilliant and aren’t they stupid for not thinking of this.” The discussion format encourages this, and useful content is not built.

I am considered by many to be highly informed on LENR, familiar with the arguments. However, LENR is a fringe topic, or, possibly more reasonably, an emerging science, still considered fringe by many. I hope to be able to show, within the next year, some far stronger experimental evidence on something that was already strong, as, I hope, was shown in my Current Science paper (2015). However, that’s not what I want to focus on now. Last year, I began writing on Rossi v. Darden (mostly on LENR Forum). I recognized that there was no archive making the case documents readily available. (“Pacermonitor” was often represented as a place to get “the docket”, which was quite misleading. Various documents had been downloaded and were hosted in many different places, erratically. So I created an archive, originally in the filespace for the newvortex mailing list. Then I moved it to this blog, and it is recognized by many as the best such resource available. (There is also Eric Walker’s googledrive, but it is not indexed and organized for rapid access, and there are files on thenewfire, also not well-organized (but some of those documents are OCR’d which makes for easier quotation.)

But that is not all I did. I also studied the pleadings and created analytical pages where, say, all the cited documents were linked and page-referenced for fast access; to do this, with the Motions to Dismiss that I studied, required reading or at least literally seeing all those documents, and often rereading them. As a result of this, it is possible that I know more about this case than anyone else on the planet (possibly even including the lawyers and parties). I mentioned this on Fogbow. As could be expected, on a site like Fogbow, this attracted derision. The possibility that it might be true, or true in some ways, was totally disregarded.

There was an apparent lawyer commenting there. His comments were generally correct, in my view, about law, but were not well-informed about the particulars of the case. And that attracted support, and his comments were considered to be “correcting” me. I will look at that one narrow issue, but my decision to restrict my posting to Fogbow is much more about an issue of the allocation of time than about any specific offensive comment there. But here was that commentary (and Startibartfast may be one of the better writers there):

[better than I thought, see below for another post by Starti)

Startibartfast wrote:

[blue, first-level indent]

Mikedunford wrote:

I don’t – despite Slarti’s attempt to make my head swell – consider myself to be one of the “real lawyers.”

Sorry to embarrass you, but what you wrote essentially proves everything I said about you, so you kind of torpedoed your own modesty. In any case you once again demonstrated that you have some small understanding of what you are talking about.

I’m licensed, but I’m not a practitioner and have no immediate plans of becoming one. What I am is an early-career legal scholar

Even a baby legal scholar is still a legal scholar and I thought Abd needed to understand that. Thanks for showing him! :thumbs:

Um… what was shown to me? I responded to Mikedunford, assuming that he had knowledge of law, but not necessarily the particulars of this case, which is unlikely in anyone without extensive study, no matter how much they know about law. Yet we are seeing confident expression of opinion without that study. I will return to this.

(who really should be working on a 20K-word dissertation instead of procrastinating here),

And Abd really should be getting ready to travel to Miami to cover the case (and for reasons that are fairly obvious from what has routinely happened, “cover the case” seems to have been interpreted in some very weird ways, such as “testify as a witness” or “have some interest” — i.e., as an involved party.)

What is the value of writing on Fogbow? It is not building content that can be efficiently accessed. Right now the RvD discussion there is 120 comments, the RvD Developments discussion on LENR Forum is at over 8900 comments. The same claims are made over and over. Sometimes those who might correct them burn out, and stop. It cannot be assumed that the latest comments are the most cogent, it can merely indicate that the “survivor” was the most fanatic, the most stubborn. It’s a structural problem. Fogbow software is even worse than LENR Forum software. Quotations do not refer back to the original comment, so context cannot be checked, tracking the flow of a discussion becomes difficult. There is no method of creating a content hierarchy, of tagging individual posts with meaningful categories. (But threads can be categorized, but only so vaguely as to be nearly useless.) The flaws of Fogbow include most of the flaws of LENR Forum, but cutting a bit deeper.

Right there with you. For me it’s writing my father’s eulogy and preparing a brief for a meeting next week.

Sorry about the father.

with relevant degrees from a couple of places, a solid foundation in US law, and (hopefully) a better-than-the-average-lawyer understanding of global intellectual property law.

Do you have any idea how hot you look right now? :lovestruck:

In other words, MikeDunford may be an ordinary lawyer with some specialization (“better than average”) in intellectual property law. I have no difficulty accepting that. The only problem here is that IP law is not at all the core of the case.

Law360 got it wrong. This is not a licensing dispute, even though it involves a licence. There were some licensing claims in the original Complaint, they were dismissed, and what remains relating to them is very weak and mostly irrelevant.

I would suggest that if Rossi and HI et al. had a lawyer or two who understood global IP law when they were writing their deal they might not have needed to spend a combined $15 million on lawyers for a contract dispute.

Just sayin’.

This obviously assumes that the problem was an ignorance of “global IP law,” and that Andrea Rossi would be interested in and follow legal advice when writing that Agreement; on the other side, it assumes that it would have been practical for IH to modify what Rossi was suggesting according to their own legal advice. It is highly likely that IH had significant access to legal expertise. They were faced with a problem that is not even on the radar screen of this “just sayin'” writer. They knew full well that the investment was risky. IH accomplished what they set out to do, as one possible result. I’m not going to explain what I’ve seen as their strategy in detail, beyond mentioning that Dewey Weaver, one of their investors and the only one discussing the case in public, has affirmed it, and it matches what is in the IH depositions.

That Rossi would sue as he did was not something easily anticipated. He had no history of initiating legal action. He was paranoid. A choice apparently had to be made: allow him what he wants, or no deal, nothing discovered. The Agreement is obviously flawed six ways till Sunday, but the legal costs cannot be traced to flaws in that Agreement, since, as written, the Agreement protected IH adequately; Rossi basically ignored the Agreement and fact to sue. Putting in stronger protections, such as a provision for binding arbitration or something that would have weakened the decisive role of the ERV, would probably have led Rossi to bail. IH needed to know if Rossi had a functional secret, if his technology worked, because it would threaten any other LENR technology. So they bought it.

They found out, not as an absolute proof, but as a clear demonstration that nothing Rossi said could be trusted, that he would shamelessly cheat and lie, and that he also was able to fool scientists and others — there is a major trail of wreckage, where scientists (such as the “Swedish professors”) blackened their records with serious errors, and that is all still working out. And IH still has a hedge, the License, just in case Rossi pulls a Wabbit out of a hat.

IH really looked like they had screwed up, to me, when I started studying this case. However, as I went deeper, I came to see their plan as absolutely brilliant, even though I still do not agree with every detail of how it was executed. There is a proof: Woodford. The initial Rossi investment and followup was about $20 million. The IH goal was not profit, as such, their original interest was environmental, they are what is sometimes called “socially responsible investors.” Their goal was to support the possibility of LENR. They hope to make a profit with their investments, on average, and they commonly make risky investments in pursuit of their goals, and they are patient, willing to follow the long term. Woodford is similar, apparently, and invested $50 million in what became the parent company of IH, IH Holdings International. This was obviously set up to protect the Woodford investment from Rossi predation. Woodford also committed an additional $150 million if needed.

So Darden and Vaughn amplified their own $20 million, and that they took the risk with Rossi made the world safe for further investment, not in Rossi, but in other LENR research and technology. They are still cash ahead, even considering the legal costs, and they may be able to recover those, from two defendants: Rossi, who may own on the order of $10 million in Florida real estate, though that is probably being mortgaged, my guess, to pay his own legal bills, and Johnson, Rossi’s real estate lawyer, who supported the fraudulent representation that is quite obvious from case evidence. In addition, there are aspects of this case that call attention to possible lawyer misbehavior.

There is a pattern shown in the Rossi pleadings. He has accused Jones Day of legal misconduct, while his own lawyers may be more in line for sanctions for that, he accused Darden of perjury, whereas he has, himself, almost certainly committed perjury, demonstrable by comparing his depositions and attestations with clear evidence, his own emails, and, of course, there was the basic case filing itself, claiming fraudulent inducement, when there is no evidence of that on the IH side, and plenty on the Rossi side.

So, what did MikeDunford show me? His posts. Search for Rossi v Darden to see the seven posts (at this point)

Fri Jun 16, 2017 3:50 pm

I haven’t weighed in on the legal issues yet, and won’t unless/until I get a chance to read the papers in some detail. (Which is very unlikely to happen in the next several weeks.) I’ll also freely admit that my patent law knowledge could be getting blurred because it’s not my primary area, but it is one where I’ve done the basic-level class for multiple jurisdictions. That said…

My recollection is that the validity of a patent is generally relevant in a patent licensing dispute, because if there is no valid patent, there is nothing to license. Whether or not the invention actually does what it says on the tin is generally relevant to validity, because a patent for thing that can’t possibly do what it claims may be invalid for lack of utility.

So I do think that the science may be relevant. But this sounds like a strange arrangement of contracts, so I’d have to take a good long look to be sure.

Sounds like a smart lawyer, actually. What I would point out is that the validity of the patent has not been legally challenged. The idea that this was a patent dispute appears to be common. It isn’t. It is, indeed, a contract dispute, with a few odd claims relating to IP tossed in. IH is claiming that if Rossi knows how to make working devices, he didn’t show them, so he’d be in prior breach. The only relevance I know of patent law is application to some of the dismissed claims in the Complaint. Rossi claimed that by adding a co-inventor to a patent application, they had somehow infringed on Rossi’s patents, which, is, ah, cloud cuckoo land. I’m confident that Mike would agree.

IH is not asking for the patent to be invalidated.

Fri Jun 16, 2017 4:44 pm

Having skimmed a couple of the summary judgment motions, I feel very sorry for the judge and her law clerks. And that’s all I’m gonna have to say about that.

I responded to this with general agreement, but then some details. Mike came back with:

Sat Jun 17, 2017 3:30 am

This is complicated, but in summary, I had argued that the Judge erred in dismissing the Motions for Summary Judgment without looking at any fact and legal argument. What Mike asserted about Summary Judgment was all general truth, but Mike did not address my specific claim. He merely gave a conclusory comment, an opinion based admittedly on a shallow review. here were his notes:

1: Even if the other side has the burden at trial.
This was a note to “The burden to persuade the court that summary judgment is appropriate rests with the moving party”. That is correct, AFAIK.
2: It’s a lot harder for a plaintiff to win on summary judgment.
I think so, as well. The “Partial Motion for Summary Judgment” filed by Rossi was preposterous, not even close to what might have succeeded, in my opinion. As well, IH as counter-plaintiffs had a tough row to hoe. Most counterclaims required matters in controversy to be decided. There might have been some relatively simple ones. As a tactical matter, my impression is that Jones Day attempted way too much and so got nothing. But IANAL, and assessing the practical reality of that is beyond my pay grade.
3: I agree that the 4-page blanket denial was a bit of a slap at the lawyers; I’m not sure it was an unwarranted one. The motion I read (the Int’l Heat one) was very hard to get through and did not do a great job (IMO) of clearly setting out the basis for summary judgment.
It was not merely “hard to get through.” To actually study it required reading the SOMF, and to understand what was happening with the SOMF required reading the evidences asserted, and that was, as these documents exist, tedious. Did IH “do a great job”? No, they didn’t. That’s obvious. A great job would have won at least one issue for summary judgment. Or would have resulted in the Judge clearly rejecting the arguments and explaining why. What they got was zilch. No examination. In my training, when I get results like that, the training is to take responsibility. “I failed …” However, this wasn’t my pleading, I did not write it and wasn’t asked to review and perhaps edit it before it was filed.
Mike actually says he’s not sure. I am more sure, but have likely spent an order of magnitude more time studying those documents. This is not about familiarity with law. Mike and I appear to agree on the legal principles. Mike did not actually address my central claim, that the Judge didn’t do her job, reviewing and accepting or rejecting arguments. She just threw up her hands in … despair or disgust? It’s hard to tell. This was not the assessment of uncontested fact that I would have expected. The result: the Rossi strategy of generating massive smoke screens worked. He could make up a set of unsupported arguments and she took this as a “disputed fact.” It didn’t matter if those arguments had any relevance or evidentiary basis. I think that’s error.

The result is a complex trial expected now to take a month. Some of this might have been unavoidable. She apparently is pushing for settlement. If she had dismissed what was dismissable, based on uncontradicted evidence and arguments (and particularly on the original complaint issues, thus the standard should have been easier, this was IH as a defendant), settlement might have become more possible.

Mon Jun 19, 2017 4:45 pm

This got convoluted. I pointed out that the term “absolutely” was a “bit strong,” he wrote “not a bit strong,” but we actually agreed on the substance, and his restatement did not use “absolutely,” nor any equivalent.

As I said above, technically speaking the defendant doesn’t need to produce any evidence in opposition. It’s a good idea for the defendant to try to produce evidence, of course, but the defendant can – through argument – convince the finder of fact that the presented evidence is simply insufficient to meet the burden of persuasion.

In the most significant and clearest of the issues covered by the IH MSJ, IH was the defendant. I did not claim that all the IH MSJ issues were worthy of much attention, and Mike’s argument, apparently thinking of IH as plaintiff, focuses on plaintiff arguments, but I still am concerned about what the Judge did. This was a complex case, with two initial plaintiffs (and confusion over the identity of one of the plaintiffs), four initial defendants, and then counterclaim plaintiffs and originally about eight counterclaim defendants, reduced by one when Penon could not be found for service. The Judge wanted all elements included in a single motion, of restricted size. She also created a much earlier trial schedule than what the parties had agreed upon, and refused to allow consensual postponement of deadlines. That all raised my eyebrows. Other than not allowing the parties to have what they agreed upon, however, her prior rulings all seemed within reason.

 

At a point where I agree with Mike (saying “that is correct,’) he wrote:

I’m relieved to learn that my years of legal education have not been entirely in vain.

Not a good sign….

Nothing shown to me here that I did not already know. I was thinking I’d write more detail, because Mike went on to present speculations as if they were facts …. but I’m losing interest rapidly. Mike is clearly knowledgeable about law, but then made hosts of assumptions about the specific facts. He did ask me for an example of what MSJ might have been granted, but I’m not convinced the question was sincere. I’ve covered that extensively here. Someone else can answer him.

And then:

Tue Jun 20, 2017 4:32 am

tjh wrote:

So … ONE person (though not an attorney) who knows BOTH the law AND the technology? My vote’s for Abd.

Mine isn’t.

Abd’s knowledge of the law is clearly substantially weaker than Abd thinks it is.

Apparently his vote is for himself. Surprise? I am not a legal expert, I merely have more knowledge of law than many lay writers. Mike imagines he knows what I think. He did come up with a stronger statement of what he thinks are my errors.

Tue Jun 20, 2017 8:29 am

It’s tempting to respond to him, but …. no. I will lay out what I will do, but what I will not do is to engage in these bar conversations. His comment above is an insult, a comment made either as trolling or in reckless disregard of normal responses. His subsequent comment actually addressed issues, but … context matters. If anyone has questions regarding any of what I wrote or what he wrote there, ask me here. Comments are open; only the first comment from a user requires approval. There are some loose ends to tie up. First of all, thanks to tjh for the kind comment. However, we are not running for office and there is no job on offer, nobody is to be established as The Authority. I merely know more than the usual about some things, but I make mistakes and that is one reason why I generally provide sources and links. I don’t always do that, so if anyone disagrees with what I’ve written and it was not sources, please ask. If you have the question someone else might, as well.

So, tjh. I had not seen his post.

Mon Jun 19, 2017 11:21 pm

vic wrote:

Sterngard Friegen wrote: [quoting Abd, adding a highlight]

“I don’t need this forum for anything in particular, I posted here Just Because I know more about the topic (that lawsuit) than almost anyone else on the planet, and this discussion was mentioned elsewhere.”

Regarding the highlight – an ego is a terrible thing to waste.

I’m the one who created this topic, and referenced it on https://www.lenr-forum.com — which might be why Abd came here.

Yeah.

But I will endorse his comment “I know more about the topic (that lawsuit) than almost anyone else on the planet”.

Let me put it this way: I’ve spent a year studying the suit, and then creating the resources on coldfusioncommunity.net, I read the documents again and again. There are some people who know things that are not public, and sometimes people notice things about the documents I have missed, but … when I read the comments of those who have not studied the documents, I notice the many errors that are common, and I know how I know what I know, because I’ve been over and over those documents, reading what others write about them, and my comment was an opinion that might be fact in some ways. And the reception was chilling, overall. People mostly go away when treated that way, sane people do (women will almost always not tolerate it)

One commenter imagined I didn’t know what a troll was. I’ve been dealing with on-line community since the 1980s on the W.E.L.L. People confuse their own ignorance or differences of opinion with the ignorance of others. “Troll” is a word. What it means is up to us. We use language, or we let it use us. I prefer the former.

Rossi’s and IH’s attorneys may know more about the law …

They certainly do. Some abuse it. My knowledge will also be spotty, incomplete. I often comment from a common-law perspective, more or less equivalent in some ways to “common sense,” though common sense is not necessarily common.

but they know (and care) little or nothing about the technology. Read the depositions.

Right. Jones Day has a real blooper in one of their pleadings. This is what I know about professionals in my life: they know more in general, almost always, but they don’t know my situation as well as I do. So I use professionals without making them into gods. I’m responsible for my choices, not the professionals I might consult. They are responsible for sharing their experience and knowledge with me, but they are advisors, not governors.

(From the technology end I would love to cross-examine ALL of the “technical experts”. How to do it legally … no idea. I do know that major cases can hinge on ONE question, eg “Is there any possibility you MIGHT have seen the microcode?”)

One of the nutty things that was tossed at me was the idea that I was trying to intervene in the case, to get the Judge to read my work. Basically, people make up what fits their preconceptions, so what I wrote was read that way. In fact, what I had suggested was that a clerk might use certain documents here that had links added; the clerk would not trust the document, but would verify that the links were what they purported to be, that the copies were true, etc. That would be much faster than creating it from scratch. Maybe ten times as fast. I spent many days creating some of those documents. With such a document, hypertext, reading the MSJs would be far easier.

(I never completed those documents, they would still be useful to someone who wanted to make it easy for the Judge to review. Frankly, my opinion, attorneys should be required to present documents like that, instead of what they have been doing for way too long. It should be possible to verify a claim in a pleading as to what is in evidence, in seconds, not several minutes per claim.

Lots of people (with whom I have corresponded on forae and by email) know lots about the technology. (eg Rothwell, Storms) …
[Edit]: but little or nothing about the law.

That’s what they tell me, they are honest about it.

Abd has an excellent technical reputation in this the technical area (I met him first online on vortex, but he got thrown off for rationally defending a religious attack).

Given Fogbow, it’s ironic. The fellow was a birther and that was a major part of what I confronted. That is, in fact, where I learned about that flabber.

So … ONE person (though not an attorney) who knows BOTH the law AND the technology? My vote’s for Abd.

(He sure ain’t modest, he sure ain’t polite — he’s dinged me for posting some hignorant stuff. )

Sorry. Not about not being modest (though simply saying that I may know more than the vast majority of people on some topic is not immodest, if it’s factually based), but about any hurt feelings. I have learned what I learned by writing and, on occasion, being corrected by those knowledgeable enough to accomplish that. Some have been polite and some not, but the opportunity is there for me. I would probably learn much on Fogbow, but it ain’t gonna happen. Most of those conversations were far too boring, on matters where I discussed the stuff to death years ago.

AND I’m still not going to defend Cold Fusion / LENR here.

It doesn’t need defense, or, at least not on Fogbow, which will make zero difference in what happens with LENR. In fact, I’m strongly suggesting that people without high knowledge stop arguing about LENR, and people with high knowledge usually have something better to do.

And then Startibartfast.  Tue Jun 20, 2017 12:05 am

[I am creating links for his footnotes, and backlinks just for fun]

I find it fascinating how quickly bad blood can arise from a failure to understand each other’s position (and grumpiness too, also1). In an effort to get an interesting thread back on track and prevent someone who seems to me to be making a worthwhile contribution from getting turned off, let me see if I can help explain… or at least make things worse.
:towel:

Since I was a moderator on the W.E.L.L., I have been noticing social pathologies in on-line discussion, probably related to the lack of direct visual and auditory cues, and the depersonalization related to the low bandwidth of text. It’s an issue I have worked on since then, because there are also vast possibilities from there being a clear and accessible written record of conversations. However, what I saw, then, and continue to see, is that this possibility is largely missed because it is overwhelmed by social phenomena and how people routinely form opinions. To review the record to find the original of conflicts was, in practice, almost useless, because people mostly will not read the record, and will assume that references to the record are “cherry-picked” or otherwise simply reflecting the political position of the one making the references. This is an aspect of general dysfunction in how we form our identities and beliefs. To move beyond it generally takes training, and that training is not routinely supplied or expected.

Those who might be expected to see beyond these reactive patterns often don’t. I saw a professor of linguistics argue with one of the most skilled trainers on the planet, that he was using words wrongly. If anyone should know that language is a tool, not  truth, it would be such a professor. He walked out, because he could not tolerate “wrong.”

Stern,

I don’t think Abd is trying to peddle woo, I believe he is just someone who, based on his own informed opinion, believes that cold fusion is real4 and hopes that, one day, it will result in commercially viable energy production.

Thanks. To be clear, I am informed more than most, and less than a few. I am sufficiently informed to be able to participate usefully in conversations with experts, and to be able to write a review paper and see it pass an initially negative peer review and have it be published, and cited by the person I most respect of all the experts. However, I do not “believe” that cold fusion is “real.” To be sure, the word “believe” carries many possible meanings. A more neutral statement of how I think is that I have concluded through a preponderance of the evidence, pending the availability of better evidence, that at least some of the reported effects sloppily called “cold fusion” are real, not merely artifact, and that it is nuclear in nature. This view is probably consistent with the view of the majority of informed experts. Cold fusion, like some other fields, is afflicted with experts who do not know the evidence, so “informed experts” would mean those who are somehow tasked with a review and study. People like McKubre and Robert Duncan. I just noticed that a Rossi voir dire asked if jurors had seen the CBS special on Cold Fusion, where we saw Duncan investigating cold fusion.

I use the term “cold fusion” for political purposes. That is, the evidence shows that the reaction is likely the conversion of deuterium to helium. That conversion, regardless of mechanism, would routinely be called “fusion” as to effect. Steve Krivit has never understood this and argues at great length that most in the field are promoting a wrong idea, fusion. But then he means by fusion “d-d fusion,” which is easily understood as either impossible or in any case not what is happening with the Fleischmann-Pons Heat Effect and the production of gammas. Huizenga point it out long ago when he noticed the heat/helium evidence, considered this an amazing report (it was!), that it would explain a major mystery of cold fusion (the ash!), but that it would probably not be confirmed (because no gammas!). That opinion was obviously based on an assumption that if heat and helium were correlated, the reaction must be d-d fusion. That is only an assumption. There are other possible pathways.

An information cascade formed in 1989-1990, where a “scientific consensus” arose, meaning broad and common opinion among scientists, that was never based on completed or conclusive scientific study and findings. Gary Taubes wrote the best skeptical book on Cold Fusion, Bad Science. Even though he finished the book after the Miles announcement of heat/helium correlation, he never looked at it, and the reason is obvious: his simple story of bad science, a long-term theme of his, became really complicated, and he needed to finish the damn book! Later, he investigated some other information cascades and wrote compellingly about them. These cascades are still in place, but falling apart as real research is done. Taubes, indeed, founded NuSci to facilitate that research. I like Taubes, a lot, even though some of my LENR friends hate his guts. He worked his butt off. For some understanding of how information cascades work, google “Taubes Tiernan information cascade”. Here:

Diet and Fat: A Severe Case of Mistaken Consensus

How the Low-Fat, Low-Fact Cascade Just Keeps Rolling Along

Information cascades are not “bad.” They are a mechanism by which society creates more efficiency, but they can fail to recognize anything that is outside normal thinking or what is easily accessible. Overcoming them can be quite difficult. I’ve been looking recently at the history of the recognition that h. pylori infections case gastritis, ulcers, and stomach cancer. The creation of review bypasses could have saved many lives and improved the quality of many more. The cost of the rejection cascade was in the billions of dollars. My guess is that the collective cost of such phenomena is in the trillions of dollars per year. That does not mean that people should be so open-minded that their brains fall out. Rather, it only takes a few to review and spread the news, if structures are in place.

Creating those structures is my goal, long term. Cold fusion is merely one example of an information cascade where what became insanely strong rejection, if it delays the commercial application of LENR, costs about a trillion dollars per year in lost opportunity cost. Even if the probability of such applications is low, this would be worth many millions of dollars in review costs, including, of course, definitive experimentation.

In discussions of LENR, N-rays and polywater are often mentioned as prior examples of “pathological science,” tossing cold fusion in that basket. However, N-rays were shown to be artifact by a conclusive experiment. That experiment did not “prove” that N-rays were not  real, but that the evidence for them was not based on objective observation, but was a product of observer expectation and interpretations that “seeing is believing,” even if the seeing is … at the edge of clear. Polywater was shown to be artifact by an experiment that conclusively provided a prosaic (though remarkable in itself!) explanation, contamination of the water by condensed sweat from the researchers.

The core findings of LENR were never shown to be artifact, i.e., the heat. The early neutron radiation report was, indeed, artifact, retracted. That was often considered proof that the heat effect could not be real, because d-d fusion would always generate copious neutrons, but the interpretive error is obvious. As well, the conclusion that the heat was nuclear in nature was premature. Pons and Fleischmann actually had, when they initially announced, three evidences of “nuclear.” First, the level of heat was beyond chemistry, in their judgment, and chemistry was their expertise. Second, they saw evidence for neutrons. Third, they found tritium. The neutrons and the tritium, however, were far below the levels expected from d-d fusion. The neutron evidence was artifact. However, that was never shown for the heat, nor for tritium, and both of those effects were widely reported, confirmed. A few neutrons have even been shown, but those findings are not confirmed.

As such, this trial is of interest to him just like many other trial threads on the Fogbow are of interest to you and the rest of the boogle2.

Yeah. It was doubly interesting, because it is a convergence of two significant interests. It might be a good place to ask legal questions, for reasons that Starti makes clear. However, it’s also a public comment forum, with very loose administration, with all the down sides of that. I broke a rule. No administrative warning, just some blame from a troll and friends. Yes, some explained the rule I had violated. Yet from the common severe disrespect and contempt shown, the initial offense, the kind that seriously damages discussions and tends, for example, to drive away women or others not interested in bulls butting heads, and endless waste of time in discussions that never go anywhere, that rarely accomplish any measurable benefit, was tolerated, and it was repeated. I.e., the judgment of “insult” was superficial. This is a product of the limitations of narrow administration without decent structure. That is a discussion forum default because it’s easy and familiar and can be controlled by the owner. There are far more powerful options. Hybrids, essentially, and few have experience with them.

You might find cold fusion to be nonsense, but Abd doesn’t and seems willing to discuss LENR on the merits.

Yes. If you look around this blog, you will find serious discussions with serious skeptics. I don’t expect a knowledgeable skeptic to lay down and play dead. My stand is for all to express what they know. Emphasis on know. As part of the process, there is the expression of opinion, which is reactive, not exactly knowledge (though necessary in human process).

More precisely, the opinion that “cold fusion is nonsense” is obviously an unsupported judgment as apparently held. It would depend on a definition of “cold fusion,” wouldn’t it? I’ve had this argument with some atheists. Speaking at a university on Islam, a young man stood up, proud to express his opinion. “I don’t believe in God.” Great. I asked him, “in what God do you not believe?” It appeared that nobody had ever asked him that question, he was dumbfounded. I then said, “The God that you do not believe in, I don’t believe in either.” Now, I’ve had this discussion with serious atheists, who were not naive college students. Their ultimate objection: I capitalize God, and I capitalize Reality, and I define God as Reality. Period. No ideas attached, not as belief. There are some explorations and possibilities, that’s all.

The “cold fusion” that is nonsense is an idea in the mind of the pseudoskeptic, typically unquestioned, almost invisible, because it is assumed that we know what is being talked about, i.e., say, the claims of Pons and Fleischmann. However, they did not actually claim fusion. Their paper claimed an “unknown nuclear reaction.” In the title, as I recall, they had Fusion? at the end. The editors lost the question mark.

The history of cold fusion is an extensive comedy of errors, a demonstration of how very smart people can make very stupid mistakes. All of us can. In my ontology, “mistakes” are the fastest way to learn, if we pay attention and are not attached to being right.

Which is perfectly reasonable from a scientific point of view3.

Thanks. To echo Mike, I’m grateful that my fifty years of observation and study and training have not been wasted. (But I actually do thank you, I am not being sarcastic.)

Anyway, I think Abd is adding value to the discussion (and certainly a lot of knowledge about the particulars of the case) and, at the very least, isn’t doing any harm.

I doubt that whats-his-face, the user I set to ignore, will leave because of my “insult.” The insult was actually calling him a troll, as I recall, which was very obviously reasonable, i.e., if someone trolls, they are, in that interaction, a troll. No action exclusively creates identity. I was not claiming and would not claim that the only thing the fellow does is troll, that he is a “pure troll,” only that he was obviously trolling, and I drew a conclusion from that, which was personal, that I was not going to continue interaction. If he wants to communicate with me, this blog is open for comments. I have no assumption that he has nothing of value to contribute; such an assumption would violate my basic ontology and stand. Mike is merely opinionated and quick to judge, I didn’t see trolling there. Mike has actually raised an issue worth exploring, which I intend to do here, but not today, I need to get ready to travel to Miami.

In any case, I don’t think he really deserves all of the scorn you’ve leveled at him. Certainly not because he chose not to answer a hostile comment on Saturday afternoon by Sunday morning7. Just my opinion.
:towel:

Indeed. That was trolling, highly offensive, provocative, and … obviously tolerated, and, my guess, much from him is tolerated, probably because he is seen as a “valuable contributor.” That is an error very common in site administration. It is possible to create and enforce civility without losing truly valuable contributors; that this is thought not possible is a result of failure to respect the capacity of users to cooperate, when that is tested. Most will cooperate with civility rules, if they are clear, and clearly and reliably enforced, but it takes some administrative work, and admins are typically overworked and definitely underpaid.

p.s. I didn’t know the story about your avatar, so, if nothing else, I’m grateful to Abd for getting you to share that.

You’re welcome. My comment about his avatar was not a claim — as he represented — that he had created the avatar to insult me, which would have been stupid and egotistical — more or less his point in making the claim. Rather it appeared to be a symbol of his interactions, not just with me, but with many. It’s not just grumpy, it is in-your-face grumpy. It is or has become his identity.

Abd,

Please correct me if any of my suppositions above are untrue. You seem very forthright and write long, detailed comments (see below :towel: ) and you’re arguing the counter-orthodoxy5 without, in my opinion, crossing the line, all of which gets my sympathy, but I think you’ve made some (very understandable) blunders due to circumstances you aren’t aware of.

That’s life. I don’t think they are “blunders,” however. When I toss a pebble in a pond and its splashes, it would not be a blunder unless it creates damage to some goal important to me. In fact, the splash tells me far more about the pond than a more cautious approach would. I assess actions based on outcomes, not on presumed freedom from “error” as if that were an intrinsic characteristic of the actions, which the language of “blunder” incorporates. If my goal were not to break rules, it would be a blunder, or, in my training, that is called a “breakdown.” But it is also said that “from breakdowns come breakthroughs.”

I became, as a result of the comment, very quickly aware of many aspects of the situation that I might not have learned for a long time. Not only has no harm been done, I saved myself a great deal of wasted work. Writing details responses takes much time. Mark Twain said, about a long letter, “I would have written less but I didn’t have time.” That is, writing effective polemic, if it is to be deeper than “you’re an idiot,” takes time. Providing sources takes time (and this is part of how I learn when writing sourced material. To provide a link, I have to look at the source again. So I end up seeing sources over and over. Basic method of learning: exposure to material. It can actually be superior to what we call “understanding,” which is often an illusion (meaning that we have some conclusion that fits into our world-view).

This forum, while having long ago branched out, started as an anti-birther forum. Conspiracy theorists in general6 are still a major focus.

What I see as the Fogbow condition correlates with that. Moletrap was started by Steorn debunkers. RationalWiki was started by Conservapedia debunkers. These become insular, self-reinforcing social structures. RationalWiki does build content, but it is heavily biased in a particular direction. Moletrap doesn’t, generally.

It is not that the debunkers are “wrong.” It is that contrary views are buried in mud. On Moletrap it was quite obvious. That community effectively denied the existence of pseudoskepticism, which is an extreme view, with no distinction being made between pseudoskepticism (which fails to be self-skeptical) and genuine skepticism (which does not require brains falling out, it does not require accepting and believing “woo,” and the very term “woo” is pseudoskeptical, it has no clear definition other than “stuff we think is loony.”

As such, two things are true: first, some of the people, especially those who have been here for a long time, have a very quick trigger when they think people are supporting frivolous arguments or woo, and, secondly, while the membership here is very diverse, it is still skewed heavily towards lawyers.

This could be both a strength and a weakness. Lawyers are skilled in argument, at inventing arguments to support any position whatever, including attacking and discrediting the views of others. Some lawyers are skilled at dispute resolution and mediation. Some are fight-to-the-bitter-end-never-give-up hired guns. And then they follow those same principles with their own opinions, a busman’s holiday.

Unfortunately, you happened to run afoul of one of the most well-respected8 and grumpy of those lawyers, who seems to have thought that your comments implied beliefs that were frivolous or unscientific and, as you pointed out, he trolled you about them. Now, you’re certainly right that he showed contempt for your ideas, and while the motivation for your insult was certainly understandable, you are the one who broke the rules.

The rule I broke was calling him what he obviously was, i.e., the name of one who engages in his behavior. That was from one incident, and would not, in itself, an identity define, but what I saw was clear enough to make the call, and what is being said here confirms that the call was not just my own opinion, but matches the community opinion. But he is “one of us,” and I wasn’t. One of the claims made as a result of my comment (besides a call to effectively ban me —  sorry, not allowing comment on the topic of interest, but only in the Cesspool or the Dungeon or whatever it is called may not be “censorship,” but neither is total ban, because the banned person is not prevented from expressing their opinions except in one place. It would still be a ban) was that I didn’t know what a troll was. Which would, of course, be inviting argument, since I have thirty years of experience with on-line conferencing. I was not claiming that the fellow was an “actual troll,” which would require showing that he lives under a bridge, but rather was behaving like a troll, showing signs of habitual trolling, and that claim is confirmed here. But apparently accurate description of behavior is not allowed on Fogbow, if it gores the valuable contributor. This is very common, and boring.

Now that’s certainly not a cardinal sin and, even if you do get thrown in the FEMA camp (and I don’t believe you should or will), you probably wouldn’t even notice the difference (except that people would be free to insult you and vice versa),

FEMA Camp is a user group. From Fogbow Forum information:

FEMA Campers is a closed group. Birthers, SovCits, trolls, and anyone else who joins the forum in order to hassle us are put in this group. Then they can only post in FEMA Camp 7½, a hidden forum.

The FEMA Staff & Visitors group can see the FEMA camp. If you don’t join, you don’t see us dealing with the troublemakers.

Sterngard Friegen is in a group of his own, for reasons that will become apparent when you get to know him. He is the Super Grumpy Geezer.

Why in the world would I write for FEMA camp? I can write on Quora, say, and have 2.6 million page views, I can write on my blog and create useful pages and discussions (and blog posts, i.e., opinions, though some pages express opinions), and have many appreciative readers and why should I care about the others — they don’t care about me. (If they do, they will comment and I respect them and generally reply, even if they are telling me what I’ve heard for as long as I’ve been writing, I write too much. To that comment I say, “Don’t read it, then. Or ask for a summary. Or wait until someone comments and reply to that. Your choice.”

I would surely notice that I was not allowed to post in a topic of interest. Or if somehow that post is there (not rejected by the software), I would notice that I couldn’t see it when not logged in. I don’t know how Fogbow implements this ban that it pretends isn’t a ban.

Fogbow administration obviously has decided that Stern is an exception and may insult others (perhaps as long as he avoids the direct insults that are easily seen without having any idea of the topic). So he can troll others, those people who come to Fogbow to “hassel us, ” because that serves a useful function: when the person, generally a noob, responds like an ordinary human, returning insult for insult, that person can be FEMA camped for breaking the rules. I saw this strategy used to great effect on Wikipedia, there were users who freely broke the rules, in order to tempt “POV-pushers” to violate the rules, to, then, provide easy cover for administrators, their friends, to ban those people. The administrators had points of view that they pushed, but often had difficulty with what they called “civil POV pushers.” Those who followed the rules to push a POV. Wikipedia fell into some internally contradictory tropes, such as the idea that neutrality can be found by excluding people with strong points of view. It often excludes, then, experts, from participating in the discussions.

In this case, if I were to tendentiously argue that this was all unfair, that Stern was truly a troll, i.e., had been trolling — there is no other objective definition — the community, with established habits, would pile on and I could be actually FEMA camped. I won’t do that on Fogbow, and, in fact, I’m not going to argue on Fogbow at all. What I will do will not be argument, itself. Mostly, though, I won’t be reading or following Fogbow, but may look at discussions there pointed out to me. Whatever, it depends somewhat on how much free time I have and what I have to do with that time. I wrote that I posted on Fogbow “Just Because.” I.e., no particular good reason, and I’d chalk it up to testing the waters.

but, if you’re going to hang around here9, I would suggest that a sincere apology to Stern for the insult would probably go a long way towards getting people to take the time to look at who you are instead of who they think you are.

What would a “sincere apology” look like? My opinion, now strengthened, is that Stern trolls users, at least he was trolling me. I don’t see any sign that he was harmed, other than possibly being, himself, trolled into making some stupid comments. But his friends think he is brilliant. Personally, I think that the community is enabling him and harming him. I’m also an “old geezer” (73), and think that when people conspire with my stupidity, they are truly harming me.

So how could I apologize “sincerely”? I know how to influence public opinion in situations like this. But do I want to? Is Fogbow my target audience? (No. Not lawyers, for the most part. Scientists and decision-makers in funding agencies. My blogging is to create a channel for meeting possible supporters for the long-term work, to recruit leaders and empower them and “leaders” can include genuine skeptics who will actually study a topic, seeking deeper understanding.)

I am not willing to lie or deceive in order to generate popularity. I will shut up about some things, not every truth or opinion must be stated. I’m not going to break the rules, though what I’ve found is that if someone is considered an outsider, the rules may be interpreted to ban them, it’s common. What I will do on Fogbow may indeed create some deeper tests. Anyone watching will be able to learn from this.

It’s a small matter and everyone knows you didn’t violate the rules intentionally (and that Stern is a expert at walking the line without crossing it — not to mention really grumpy), but it would be a show of respect for the community and probably enough to let the matter die and return the discussion to the case (or cold fusion in general), which I believe is what you would like.

I am not maintaining the discussion on Fogbow. If that community wants to beat a dead horse, they can continue the conversation. Communities like Fogbow typically prefer to discuss personalities rather than principles and objective fact. What happened on Fogbow is quite common.

You said:

Abd wrote:
I am not a “real lawyer,” for sure, but I’m in regular consultation on these issues with one, and others are chiming in.

Which was simply true.

You clearly want the respect that you think you are due for your knowledge and expertise,

I actually DGAF. However, I understand that if I have knowledge, I have an obligation to share it. It is up to others if they take advantage of this or not. Those who do, learn, those who don’t — I am not responsible for them. They make their choices. I do not “hide my light,” under some idea of pious humility. I don’t consider that kind of humility to be a virtue, at all. Genuine humility, to which I aspire: I know I make mistakes and will consider what is pointed out to me as error.

However… trolling never brings this out, not directly, though I can still take advantage of the opportunity.

but, in trying to convince us that you deserve respect you unknowingly disrespected the knowledge and expertise of this community. Roughly half of the people that are engaging with you are real lawyers (and good ones).

If I tried to convince people of that, the effort would be self-contradictory and doomed. Human beings deserve respect, even from lawyers. (Cue a series of Bad Lawyer Jokes.)

Most people (including friends who don’t know me face-to-face) will not correctly assess my goals and motivations. That’s just the way it is.

In particular, in your exchanges with Mike Dunford it is very clear that you don’t understand that, even in a group of outstanding attorneys, Mike is special. When he gives his opinions, everyone listens carefully, because after over 7,000 posts demonstrating his knowledge and insight he’s earned enormous respect. When he says, “I’m relieved to learn that my years of legal education have not been entirely in vain.”, everyone here is quite aware of just how erudite a legal scholar Mike is.

I don’t doubt it. However, he was making assumptions about the case based on shallow knowledge of it. The greatest expert in the world who does that is out on a limb. The number of posts on a discussion Forum like Fogbow is not a particularly impressive credential, by the way, I place more credence in your own opinion.

Which is not to say that your knowledge and insight into this case isn’t welcome, but it is generally a good idea for IANAL types to be careful about asserting themselves as legal authorities, especially when in discussions with actual lawyers (which is pretty much every thread here).

I have a habit of assertive writing. I will describe things as I see them. IANAL (I am not a lawyer, folks) will cover that there will be things that I misunderstand or miss, but in real-life conversations with real-life lawyers, these are easily fixed. Real-life lawyers, in my experience, listen to my comments, because I’m coming from outside the box and I might see something that, out of habit, they might have missed. Or not. I might be seriously mistaken, so they say so, directly, and if they are true experts instead of stuffed shirts, they can and will tell me why, ordinarily.

If you do a little listening and then ask some questions, I’ll bet you will learn some new things about the law yourself. I certainly have11

I may ask questions, though I do have a lawyer I can call for that.

and:

Abd wrote:
I posted here Just Because I know more about the topic (that lawsuit) than almost anyone else on the planet, and this discussion was mentioned elsewhere. I’ve been funded to cover the trial, and I have multiple places to publish that coverage.

Okay, so you’ve been trolled and scolded and talked about and you’re probably thinking, “why should I bother to stick around?” What you just said is why. I don’t believe you can find a more discerning audience to which to publish your coverage or a more knowledgeable group with which to discuss the merits of the case.

The Fogbow software sucks and is not designed to handle the kind of writing I would want to do. I will publish here (or maybe in Infinite Energy, it’s been suggested, but I have no agreement with them.)

Another place to publish with a wide audience is Quora, where I have many followers, and where there are deep experts on just about everything.

There’s a long standing tradition on the Fogbow of having BOTG (Boots On The Ground) for trials of interest. Members (both lawyers and non-lawyers) post their notes and then the ask questions and start speculating on the meaning and significance of what happened. There is much popcorn and good times all around.

I’m on a low-carb diet. However, I have nothing against good times. If Fogbow sends a Boot, we might have some good times if we meet. I’m big on real-life meetings, it is far more fun than pounding on a keyboard. Or Fogbow could consider me a Boot. It will be up to the users and how they use the opportunities that I present.

So here’s my challenge to you: stick around long enough to post some coverage from the trial and answer the questions you get from Stern and the other lawyers and then see if the analysis they give is correct. I bet it will be. And I bet you will find it a worthwhile experience too. also. What have you got to lose?

Everything and nothing. I stand for the nothing part. I’m not LANCB. I call that “binding the future,” and it is generally a stupid thing to do. People do it because they don’t trust themselves, which is a generally disempowering position.

Questions, I haz some. You say you are being funded to cover this trial, by whom and what is their (and your) interest?

I don’t ask them. Some donors may be seen publically on the GoFundMe site. Some donations have come from a lawyer who saw what I was doing and offered to cover Pacer costs. He wants to be anonymous. But I can say that he has no connection with the parties in the case. Indeed, so far, no donor has any known connection with the parties. What has been said is that they are supporting my reporting, the Rossi v Darden resources on this blog, and they trust my honesty. Most would be called, perhaps, “believers,” i.e. they think LENR is real.

However, that does not bias my reporting, at least I hope not!

My interest is in the outcome of the first major investment by a commercial entity in LENR in a long time. My interest in going to Miami is to see the parties and witnesses myself, personally, instead of just what is written. We can’t see the video depositions, which might convey something. I also may meet with some of the involved people. That is likely, though not arranged yet. I am, as part of this trip, visiting Washington, D.C. and will meet with at least one scientist there. Maybe two.

Mostly, though, I’m interested because It’s There. I like fact and evidence, much more than opinion and conclusions.

What are your relevant credentials and experience? I assume from your name that you are (or were) a graduate student, is that correct, and if so, what did you study?

No. I never completed college, nor was I a graduate student. Abd is not “All but degree.” It is the first noun in my Muslim name, I accepted Islam in about 1970, and have written more about Islam, overall, than about any other topic, over the years. The name is Abd ul-Rahman, “servant of the merciful.” (“Abdul” is not actually a Muslim name, but a fragment of a phrase taken as if it were a word.)

I attended Cal Tech, sitting in the Feynman lectures in 1961-63. I dropped out, became a musician and became involved with “spiritual communities,” and was recognized as a teacher. I created a career as a kind of electronics engineer, and still have some income from the design service I started. I retired on social security, but then went through extensive training from Landmark Worldwide, perhaps specializing in community projects (not “Landmark community,” the training actually prohibits projects involving Landmark graduates specifically, but must be “outside community,” with measureable results. I was a Wikipedia editor, known as standing for community rights vs the “administrative cabal,” which was a Jimbo Wales term. Later, if you called them a “cabal,” you were labelled as a conspiracy theorist, but … no conspiracies are needed. Cabal behavior functions through shared watchlists and interests, cabal members defend each other and attack “enemies.” Sometimes very effectively, if there are members who are administrators. Wikipedia is largely helpless to deal with it.

You referred to later work (after P & F) verifying LENR. Could you give us a layman’s summary of that work and the strength of those results? It might help if you could give us a clear statement about what you think is established science and what you believe that hasn’t been demonstrated yet.

That’s a huge topic. There is a video published by Jed Rothwell that is decent. Focusing on what is the most established science would be my paper published in Current Science in 2015.

I do not agree with everything in the video. But nobody is perfect.

On an unrelated note, do you know anything about Steven Jones, former colleague of Pons and Fleischmann? I’m curious as to the quality of his earlier work given what he did later13.

I’ve met Jones, at ICCF-18 in 2013. Jones is far from popular in the LENR community. His work was entirely different from the FP Heat Effect. He was reporting very low levels of neutrons, and a reaction rate far below what could generate major heat. I shook his hand, congratulating him for being the only skeptic to actually critique the published work of Melvin Miles on the heat/helium ratio, in a peer-reviewed journal. What is unfortunate, though, is that though he pointed to possible heat measurement errors (probably not real, but this is a very ordinary objection) and possible helium measurement errors (the standard one is leakage from ambient, though some results are above ambient, just not the Miles results), he did not address the correlation, which is very difficult to explain with a theory of artifact. It is the correlation, not the separate results, that was significant about Miles.

As to his later ideas, well, sometimes people go off the rails. It does not tell us much about his earlier work. There are mysteries in the 9-11 evidence and there is common thinking that goes “if it isn’t explained, it must be …. [fill in theory].” When someone actually creates a theory that fills in a few blanks, they can become quite enthusiastic about it.

I concluded years ago that there are mysteries that will never be resolved. That is more or less meaningless. What a mystery shows is that for someone, something is not explained, they don’t know enough. So if one wants to know, investigation is in order, but most people are looking for quick answers, real investigation is far too much work. Or might even be impossible. I’ve looked at the videos. There are people who believe that the radio tower vaporized, and that one is obviously an appearance, unsupported by the videos if one looks carefully (this is an element in a directed-energy-beam theory).

Anyway, sorry your welcome to the Fogbow has been a little rough, but know that your comments have been appreciated and I hope that you will persevere and discover the quality of this group. I may be a wee bit biased, but I think the Fogbow is quite simply the best community on the internet.
:bighug:

Not in my book, though, to be sure, I don’t know Fogbow other than only one set of interactions. I was threatened with FEMA camp, but not warned by any administrator, nor did any administrator suggest to me that either I was safe, or in danger, or warn me.

However, Quora is fantastic, with a community of some of the most skilled writers on the planet. It has problems, mostly due to naive administration (Facebook people!). But, still, there are writers there who are, routinely, a joy to read. The format more or less discourages the kind of endless argument that is common on some blogs and sites like Fogbow.

Mike,

It has been bugging me for a while now and I gots to know… WTF is “1 Cranch 137, 177”?
:confused:

1 Cranch 137, 177 is a device used by a lawyer who wants to display his insider knowledge, his familiarity with esoterica. To others it would Marbury v. Madison.

From Wikipedia, “while serving as a Circuit judge, Cranch also served as the second reporter of the Supreme Court from 1801 to 1815. At the time, the reporter was an unofficial post and he used his own funds to produce the reports.[citation needed] Cranch took on the responsibility because of his respect for precedent.[citation needed] He was slow in producing his reports of cases and their accuracy was questioned.[citation needed]

So what might be cited as 5 US is instead cited as 1 Cranch, the reporter. “5 US” would be a later name, 1 Cranch is the original publication. Volume 1, I imagine. 137 may be a page number or docket number, I didn’t find that. Someone who actually looks at the book may find this. Someone familiar may simply know. Remarkably, Googlebooks does not seem to have it.

tjh,

Thanks for starting this topic! I’m really enjoying it.
:thumbs: :popcorn:

I personally find the topic fascinating, a drama, a comedy of errors, one ridiculousness after another, stranger than fiction in many ways. Shallow, knee-jerk reactions appear common in all directions.

1. To Abd: “Too also” is a common Fogbowism, not some kind of speech impediment. (back)

When in Rome, too, also.

2. To Abd: a collective noun used to refer to the membership of the Fogbow. I believe it is the name for a group of weasels or some such. (back)

Something like that. I was put in that group.

3. So long as a hypothesis isn’t falsified (and no one has proven LENR can’t happen), a scientist is always free to argue for it on the merits. (back)

In fact, scientists, like everyone, are free to argue for anything forever, regardless of flabber like “proof.” By the way, it is generally considered impossible to prove that “LENR cannot happen.” That was in the first U.S. DoE review. Rather, it could happen that evidence appears to discredit reasons to think it exists. Unfortunately for the knee-jerk “impossible” debunkers, cold fusion is known and accepted to exist, as muon-catalyzed fusion. (Steve Jones’ specialty, by the way, but this is not controversial). So the question is whether or not there are any other possible catalytic or other processes. I consider the heat/helium evidence very strong, and widely confirmed, with no substantial negative evidence, but … many people remain skeptical because blah, blah, hence the effort to increase precision. That is a classic test of fringe or pathological science: does the effect disappear when precision increases? (Researchers in the field already know that in some cases, it doesn’t, but skeptics can always claim “file drawer effect,” which is a genuine hazard but does not apply to the best research.

4. Which is to say that it will be scientifically demonstrated one day. (back)

My hope is always in the revelation of reality, I trust reality, not my ideas about it or anyone’s ideas.

5. Which I know is hard. (back)

Only if one is attached to convincing someone. My training is not to convince, but to offer opportunities. I have had little trouble, though, finding skeptics who agree that testing heat/helium is a great idea. Pseudoskeptics keep repeating “bogus,” or “even if it’s real, it could never be practical,” or “you are just a stupid believer,” or they say it more politely on occasion. I really only care about encouraging scientists to do genuine, careful research and encouraging those who want to see that happen to support and fund them. So Andrea Rossi can be seen as a huge distraction, someone who wasted millions of dollars in his own fantasies.

I was thinking about this on the way home. In some ways, some of the evidence indicates that he believed his effect was real. There are other ways where he clearly lied, but sometimes fanatic believers will lie, thinking it is justified by necessity. In any case, that’s basically over. Anyone who invests in Rossi or anything like his claims will likely be far more careful in the future. No more pandering to paranoia.

6. Such as sovereign citizens. (back)

We are sovereign, but idiots have appropriated the concepts and live in cloud cuckoo land, or that probably is a nicer concept than the cobwebs filling some minds.

7. I’ve certainly done much, much worse myself… :towel:  (back)

Basic discussion rule: nobody is ever obligated to answer anything if it doesn’t come by service of process or at least registered mail. If someone is asked a relevant question, and that is confirmed by others, and keeps on posting repetitive nonsense where that question’s answer may be significan, this might shift as to what is socially acceptable, but trolls imagine that they make the rules for everyone to follow. Except for them, of course.

8. For good reason. (back)

I.e., excuses.

9. And I sincerely hope that you do. (back)

Thanks. Not going to happen. You are welcome here, and I am likely to occasionally ask questions on Fogbow, as long as that generates value, and I may post occasional comments there, but only as links to this blog. I’m not going to write the kind of explanatory posts that are obviously disliked by some, the expression is pearls before swine, which is not a claim that my comments are pearls of wisdom or that Fogbowers are swine, but that my writing appeals to some and not to others, and writing for Fogbow, the little I did, is not fun, too much work for too little value. I can write for Quora and get millions of page views, if readership is what I want. But at this point, I’m not writing much for Quora, and am almost entirely writing here. And people who like my writing can cite it and link to it, and those who don’t like it can ignore it.

11. I can cite 4 centuries of jurisprudence making President Obama a natural born citizen.12 (back)

I’m sorry.

12. Which is now, of course, totally irrelevant. :crying: (back)

There, there. Remember that it was fun while it lasted.

13. He completely abandoned his scientific integrity to become a 9/11 truther. (back)

I’d rather not sit in judgment of the scientific integrity of a man just because, on some topic, he goes off the rails. If I had time or interest, I’d look more closely at his claims. But I don’t.

There are millions of stories in the Big City. I choose stories that create inspiration. That one doesn’t. Doesn’t mean it’s wrong, but … the stories we follow create the lives we lead. What does that one create?

Ah, one more point before I publish this. Mike brought up a question that is worth answering. What elements in the Industrial Heat Motion for Summary Judgment were worthy of acceptance? I was vague about that, and focused on the failure of the Judge to cover the facts and arguments. Mike has an impression that the Motion was not well-argued. Is that true?

This is not a question to be answered off-the-cuff, and I won’t get to it, until, at least, I’m on the bus to Miami or even later. I would expect to take at least a full day to write something like that, even though I created some study documents that will make it easier.

How does estoppel work if all parties do not agree?

On LENR Forum, oldguy wrote:

And how would estoppel work if there are three parties that were to agree to any changes. It is unclear that Ampenegro gave any indication of approval of any changes to the agreement.

An essential legal fact in Rossi v. Darden. There is no doubt that Ampenergo (AEG) deliberately rejected the Second Amendment. This is so clear that it’s a bit of a tragedy that the Judge did not take this on board and rule for Summary Judgment on what depends on this Amendment (like the entire initial Rossi case). However, that’s not the question here.

The Agreement was quite explicit about full agreement of the parties to amend it, and Ampenergo was a party. Payments were due to AEG per the separate agreement between IH and AEG. As a very interested party, then, AEG would have had standing to sue IH for failure to pay the $89 million, if they believed it was due. It appears from the record that they did not believe that, and, unlike Rossi, they are not greedy and insane. They obviously trusted IH, and do not believe that this trust was violated.

Rossi wrote in an email to Cassarino (AEG) that the Second Amendment was “cancelled.” That was Rossi-speak, commonly imprecise. It failed, it was a draft that was never completed. It could have been completed at any time, it did not have a time limit in it. It did contain two signatures out of the four required: a signature for IH, and of Rossi, who neglected to sign for Leonardo Corporation. That latter defect would have been of little consequence because, with everything else in place, a party will be estopped from asserting some minor technical error, and given who Rossi was with respect to Leonardo, Lenardo would not have later been able to successfully claim, “No we never signed it. Go after Mr. Rossi personally.”

(Notice how Annesser and Chaiken have argued quite the reverse with respect to Cherokee. The Agreement did not contemplate a relationship with Cherokee, and was obviously created as an Industrial Heat agreement to avoid that. Darden was not about to approve an agreement with a contingent liability of $100 million, which is about four times the standard Cherokee investment in a project, and this project was far outside of normal Cherokee investment. Investors could have sued them. The agreement contained an integration clause, but that didn’t stop Annesser from asserting the legally impossible, and it worked, because their pleadings had asserted or implied that Cherokee was a sole owner of Industrial Heat, which was never true, it was only true that officers of Cherokee were involved.

It was also possibly true that Darden and Vaughn assured Rossi that if the payments became due, they would be able to raise the money. After all, look at Cherokee! Rossi tends to interpret everything as what he wants it to mean, but any attorney would have told him that, no, read the Agreement. There is no Cherokee guarantee unless you have it in writing. Oral representations (which can easily be misunderstood or misremembered) are not valid for actions to take place more than a year into the future, and an integration clause makes them explicitly invalid from the start.

We also know that the Second Amendment was a draft only, because the date was never filled in, and there is the matter of the “Six Cylinder Unit,” obviously an idea from 2013.

So, what the Second Amendment draft shows, however is that IH was willing to set aside the fixed timing of the original License agreement. To use technical language, that agreement was really dumb ab initio, the problem was easily anticipated. My assumption is that Rossi wrote this; regardless the stupidity is moot. The timing failed. At that point there was no liability of IH to pay the $89 million.

However, because there was obviously a (proposed) agreement between Rossi and IH, and because IH and Rossi were free to make separate agreements (and did, vide the Term Sheet with JMC), and if the conduct of the parties shows that they behaved as if the Second Amendment were valid, it is possible that IH would be estopped from claiming that there was no agreement. This is the legal theory Annesser is operating on.

The evidence of such an agreement is very thin. Key question: what were the terms of this unwritten agreement? When would the Guaranteed Performance Test begin? The Second Amendment was explicit that it would begin as agreed upon in writing by all the parties. If we are going to reduce the Amendment to a separate agreement between IH and Rossi, no such written agreement has been found. It appears to me that Rossi decided to create a GPT, but to avoid asking IH to agree. What he did was to set up some of the conditions of a GPT: an installation that would monitor the operation of the Plant, as supervised by a person who was previously the Engineer Responsible for Validation, and it would last, as a test, for 350-400 days. To encourage IH to agree to this, Rossi lied about the “customer,” repeatedly and plainly, it is not deniable. He avoided any confrontation over “GPT,” but blames IH for not objecting to a “GPT” to what he did not claim until much later.

He attempts to convert a lack of objection, when the issue was not ever raised, into an agreement to accept.

Rossi has diligently searched for and has found evidence that IH knew that a test was under way, and apparently called it a 350 day test in one email. This was not an email sent to Rossi, and he could not have relied upon it. The existence of correspondence between Darden and Penon over a test protocol shows that Darden knew that there was a test aspect to Doral. But a “test aspect” does not equal “GPT.” The conditions of a GPT were never anything other than explicit, and a major one was agreement of the parties as to start date (which would allow them to effectively object to any aspect of a proposed GPT that was not satisfactory to them.) IH would have reasonably believed that they were adequately protected.

I don’t know that anyone anticipated just how insane Rossi was. The steps IH took to protect themselves appear to be reasonable within ordinary business practice, even dealing with frauds. In my study of the evidence, it appears to me that Rossi has perjured himself, directly contradicting clear documentary evidence. That’s insane. It is a puzzle that Annesser and Chaiken have allowed this, and may speak volumes about what those two attorneys are up to.

So, in theory Rossi and IH could have separately agreed on an equivalent to a GPT. If so, AEG would have rights, pursuant to the original Agreement, if a payment to Rossi were of the nature of royalties or licensing fees (and it is easily arguable that, if this was the equivalent of a GPT payment, that AEG would have a right to payment.)

However, there is a lack of evidence that there was such an agreement, only some vague noises or hints. This was not a GPT as contemplated. In the contemplated GPT, IH would have physical control of the reactor. It is not clear if Rossi would have any right to touch it, but if his being kept away from the reactor could have arguably caused it to fail or to not function after a failure (or at all), he could have argued, fairly, that he should have the right; IH would then have, I assume, provided for tightly managed “interference.” Really, to be careful, Rossi would have not touched the controls, but would have instructed someone from IH what to do (and this is how the Lugano test might have been accomplished to keep it relatively independent).

It would have been insane for IH to agree to what Rossi actually set up as a “GPT.” What evidence exists shows that IH was reluctant to directly challenge Rossi, preferring to follow a long-term strategy, a necessity ab initio, of “give Rossi what he wants.” Without that strategy, there would have been no continued agreement, it would have failed in 2013, if not earlier. IH would not have answered the critical questions that they had: whether or not, in spite of all the obvious appearances, Rossi actually had, underneath the blatant bluster and deceptions, something real.

They did not find out with complete certainty, that could be impossible (unless we learn more than we presently know). Even if Rossi totally faked the GPT, he might have had something previously, Storms has opined that Rossi had something, and lost it, which, given the history of LENR, has to be considered possible. He kept trying to improve it! This is not science, it is rather primitive engineering. Given something as poorly understood as LENR, one would properly hold on to positive results until they were thoroughly documented and examine, not keep working to “improve” them before knowing in detail their reliability (measured!) and such matters as ash (if the heat is as Rossi claims, there should be abundant ash, increasing quantitatively with accumulated energy release).

(That error, though, is common in the history of LENR.)

However, IH created enough evidence by the interaction to know, and for the world to know, that Rossi is utterly untrustworthy, that he has fooled scientists into issuing reports that are blatantly in error — and that cannot be published under peer review. Given that Rossi’s claims were entirely outside the envelope of what existed before, there is no reason to believe him, and to have high skepticism of any test where he was present and at all active. We know without doubt that Rossi has faked tests. IH took a risky path, seeking to develop deeper knowledge, deeper than simply repeating fact or innuendo about Rossi’s past. They gained that knowledge, and it is now available to the world, regardless of the outcome of Rossi v. Darden. No sane investor will touch Rossi with a ten-foot pole, not because of any alleged IH campaign to denigrate Rossi, but because of his own very obvious actions. It was actually obvious from his Complaint: his attempt to pierce the corporate veil would put off any investor using corporate forms for liability protection, his inclusion of Cherokee as a defendant, the major activity of Darden and Vaughn and their cash cow, and his willingness to file a blatantly deceptive Complain and to tenaciously defend the indefensible in it, and his claim of fraud based only on an alleged failure to pay and Rossi suspicion, all would mean that an investor would be risking more, perhaps much more, than actual payments, starting with high legal fees to defend against and insane and highly persistent inventor.

There is more in the crazy results from the “ERV,” the claim in them of steady power of 750 or 1000 KW, without any evidence of necessary heat exchange (and Rossi’s public deceptions about this, until he finally claimed a “second floor heat exhanger”). If I saw that a jury was convinced by this, I would still think it ridiculously unlikely, given all the known facts.)

Of course, I have not yet seen the presentations in a trial. Nobody has. Lawyers will point out that everything could shift, which is true. But we have seen the better part of a year of diligent efforts to discover and present evidence for the Rossi case, with the best result, from a Rossi point of view, being that the contrary wasn’t considered proven yet. Rossi will have to prove his claims to the satisfaction of a jury to prevail on any point. The motion re spoliation failed, but a jury could still decide spoliation, and one of the first words I heard from an attorney about this cases was one word: “spoliation.” This was about the removal of the test instrumentation by Penon.

I can see many possible Jones Day errors, such as not vigorously objecting immediately to that spoliation, such as not requiring Rossi to keep all evidence in place (like the piping or anything else necessary for reactor operation) — or to allow full documentation by IH if anything relevant was to be removed, and, in the pleadings, failing to lean on the absence of the written agreement required by the Second Amendment. They barely mentioned it. That was a much stronger and clearer argument than the matter of signatures and “Six Cylinder Unit,” which can easily smell like technicalities, readily estopped. Written agreement was fundamental.

If it is said enough, does it become true?

Certain ideas are repeated over and over, in spite of obvious correction. One particularly egregious example is what Paul Lamacraft of Woodford allegedly wrote when Industrial Heat gave him a preliminary copy of their press release in March, 2016, at a point where Rossi was claiming to his public that there was no problem with IH. This is commonly misquoted in a way that allows an interpretation that is weak or impossible with the original Lamacraft comment, pursuing a Rossi theme, and this began with Rossi making the claim in court, with that misquotation. This is so bad that a misquotation ends up as “agreed” by the parties. Essentially, a subtle difference can sometimes be overlooked.

On LENR Forum, SSC wrote:

oldguy wrote:

It makes perfect sense – They (Peter and Henry) traveled around the US visiting most of the researchers supported by IH. It would be hard to say they could not visit Rossi. Your assertion that Darden used Doral as a showcase is not correct. I think the “showcase” was elsewhere (possibly the work by Cooper and that by Miley).

You keep on discounting all the other work and the visit on the same US trip by the Woodford group to all the other places. Rossi (I think) was the last place the visited on the way back to the UK.

You assume way to much.

You are assuming too much when you say that the showcase was the work of Cooper and Miley. Everyone knows that the most famous name in the LENR world has long been that of Rossi and it was Woodford (or rather McLaughlin, if I remember the name well) to say that Rossi was their core business. So it is far more likely that Darden has focused above all on the Doral plant to attract investment.

As is common on LF, this is all unsourced. There were two visits by Lamacraft to Doral, one in February, at the beginning of the “test,” and before there was any preliminary Penon report, and one in August, after Rossi had rejected the Murray visit and IH was definitely on edge, and shortly to explicitly deny that Doral was the GPT and Penon the ERV.

Oldguy often writes as if he has inside knowledge. I am not aware of evidence on the “Woodford” visits to other researchers or inventors. However, Oldguy might well have some kind of private knowledge — or I have missed the evidence. However, SSC then cited something he “remembers” which is misleading. This has been brought up many times by IH Fanboy, as alleged “truth,” always with misquotation, so here is, once again, the reality:

In reply to J.T. Vaughn, Paul Lamacraft wrote:

This is clearly very disappointing, given that Rossi’s technology was a core element of the initial investment.

Rossi, having obtained this email in Discovery, presents it as evidence to support a claim, but reinterprets it (by adding an “explanation” in brackets — which explanation then, if Lamacraft had actually stated that, would be proving his point. This is an example of what I found in reviewing the Rossi arguments: the manufacture of evidence through creative interpretation. He wrote this:

On March 4, 2016, Woodford Funds explained that “Rossi’s
technology was a core element of the initial [$50 million] investment.”

Was Lamacraft referring to their $50 million? It would be strange, in context. “Explained” is supplied by Annesser; this is actually Lamacraft commiserating with Vaughn, a principal at the company that actually made the “initial investment,” in 2012-2013. It would be odd for Lamacraft to refer to their own investment in IHHI — which didn’t go to Rossi at all — as “the initial investment.” If he meant what Annesser is claiming, he would have referred to “our investment.” That investment was apparently, from the Ampenergo notes, committed in 2014, before the Doral test began — and what was committed was up to $200 million, also covered by the Darden deposition, as I recall. That IH owned a Leonardo license, would be important for reasons I have explained many times. However, Woodford did not invest in “Rossi technology” as such, that’s obvious, they invested in LENR research, so oldguy is essentially correct. Rossi has distorted reality to make him and his technology the center of the LENR universe.

Yes, Woodford would want to see the Doral plant for themselves. However, Rossi’s claim is that Darden and Vaugh touted the Rossi technology in order to induce Woodford to invest. It’s actually not his business, this is all part of a Rossi smokescreen to create some sort of appearance of impropriety, whereas IH did not actually receive any money from Woodford, directly. Woodford invested in IHHI, insulating their investment from all things Rossi. IHHI can decide to pay IH expenses, or can let IH fall into the gutter. It’s a choice. They own it.

Rossi, in his Motion for Partial Summary Judgment, has:

55. In May of 2015, during the course of the GPT, Defendant IH closed on a $50 million investment by non-party Woodford Investment Funds. See Composite Ex. 3 at 170:9-14, 204:25-205:5; 206:6-207:6; IH-00021986 (4/21/2015 IH memo from Darden to P. Lamacraft); IH-00080193
(5/15/2015 email chain between Darden and J. Spear, S. Hartanto, P. Lamacraft, N. Woodford, and S. Saha); IH-00099714 (3/4/2016 email chain between P. Lamacraft and Vaughn); IH-00112920 (11/2/2015 IH Business Development memo), appended hereto as Composite Ex. 34.

56. Woodford Investment Funds later claimed that “Rossi’s technology was a core element of [this] investment.” See IH-00099714 (3/4/2016 email chain between P. Lamacraft and Vaughn), appended hereto as Ex. 35.

It is true, apparently, that the Woodford investment “closed” during the Doral test. But that it was based on the Doral test is quite unlikely, given the timing and known facts. Woodford committed about $200 million in total funding, in 2014, as shown by the Ampenergo notes. The initial payment was to be “$25-50 million.” Lamacraft visited the Doral plant in February, 2015, as the Doral test was just beginning, there would have been no report from Penon. The investment apparently “closed” in May, 2015, i.e., that is when the $50 million shows up in IH Holdings International, Ltd, the company set up, at Woodford request, to receive it.

This quotation in ¶ 56 of the Lamacraft statement is again misrepresented, to make it appear to refer to the $50 million. In the other quotation Rossi counsel did at least have the full quote and only added an interpretation. Here, they eliminate the word “initial,” replacing it with “this].”

In the Joint Pretrial Stipulation, this is listed as agreed fact, though it is incorrect. The brackets have been dropped.

89. In May 2015, IH closed on a $50 million investment by non-party Woodford Investment Funds (“Woodford”). Woodford claimed that “Rossi’s technology was a core element of this investment.”

It is possible that IH attorneys did not notice the shift.

In fact, what Woodford thought is not really relevant to Rossi v. Darden: this was a casual comment in response to the coming IH press release (not any kind of official Woodford statement; it was private email, a personal note).

The context here presents the conclusion that “this investment” — which is not what Lamacraft actually wrote — was the $50 million. If Woodford actually thought that (I cannot consider it impossible, though that is not consistent with continued IH and IHHI behavior after May, 2016), it still has no legal relevance. If IH used the fact of the “Rossi investment” for some kind of gain — in this case to raise money for other research — this would not be unjust enrichment, it would merely be a consequence of their very risky investment.