LENR+ is never having to apologize

Once upon a time, IH Fanboy, while clearly a Rossi supporter, was more or less coherent, at least sometimes, as I recall. That’s gone out the window. Gross errors are made but never admitted or directly confronted. If Jed, say, points out a fact that doesn’t fit the IHFB story, IHFB then changes the subject to something else where maybe, he thinks, he might “win.”

At this point he is more or less reduced to “You don’t know everything” and “You have no proof that,” when, in fact, anyone sane recognizes that little is proven, but much is plausible and even probable. At this point, to be careful, the only evidence that exists in Rossi v. Darden is depositions, most of which we have not seen, basically what is provided under oath. The pleadings are not evidence, rather they supply, sometimes, documents which may later become evidence, being attested under oath — and then the witness may be cross-examined.

Nevertheless, we have seen plenty of evidence that, if introduced — as we would expect if this case goes to trial — would strongly indicate various conclusions. IHFB is arguing against many who are pointing out the problems with what he’s claiming, but he doesn’t back up and become careful. I would not expect him to lie down and play dead, but rather to become more interested in balance.

Here is an example of what I’m writing about:

IH Fanboy wrote:

oldguy wrote:

What, That is what Murray said not what Penon wrote after in the report. I thought you didn’t believe Murray’s views.

Aw, oldguy was poking IHFB, playing Gotcha! Cotcha! Contradiction! What to do when someone pulls that? Smart would have been: “Murray was right here.” And then if he still wants to pay IRYW (I’m right and you’re wrong), he could add. “Got a problem with that? Even a stopped clock is right twice a day.” At least be funny! Or one’s on-line life is doomed. But, no, IHFB doesn’t get that he’s out on a limb, up the creek without a paddle. He insists on something totally preposterous to anyone who has been following the case and the discussions.

There is nothing about absolute vacuum–anywhere.

Of course there is. Jed first brought it up when he was saying what was in the preliminary ERV report he had seen. “0.0 bar.” Surely IHFB knows that this is an “absolute vacuum” — at least to the nearest tenth of a bar. Bar means absolute pressure. Period.

Then when we saw what appears to be the actual Penon data, sure enough, every day, the “steam pressure” was “0.0 bar.” This was an obvious error, so obvious that Murray simply ignored what it actually said and imagined what it might have meant: 0.0 barG. Gauge pressure. 0.0 barG is the actual atomspherice pressure, because barG is generally with respect to the atmosphere, barG is a difference in pressure.

By saying that “there is nothing about an absolute vacuum — anywhere,” IHFB is stating with great emphasis what is plainly and provably wrong. This has, for years, been my habit: talking about the discussion itself, where there is a record. That may be why I dislike it when moderators delete stuff, because it was there, it was part of the discussion, people saw it and might be reacting to it, but it becomes impossible to disentangle the mess if part of it has been “cleaned up.”

So then IHFB compounds it with a double ad hominem:

You likely picked up on that canard from Jed.

It doesn’t matter who it came from. Jed claimed to base his comments on a preliminary report he’d seen. While we are free to doubt him, the fact is that he now claims that everything that he had seen was in Exhibit 5. That isn’t strictly true, Jed saw the report and lists of numbers, Jed means something slightly different. He means the substance is reflected there. But in this case, we don’t need to depend on Exhibit 5, we can see, more or less, what Jed and Murray saw, almost certainly: 0.0 bar. For the purposes of this discussion, an absolute vacuum. And, yes, it’s preposterous and yes, Penon didn’t mean that. It was a mistake, which is very simple.

I think the author of Exhibit 5 was told certain things (e.g., the atmospheric temperature bit), and expressly claimed other things (e.g., the piping is DN40).

I notice this all the time. Writers make gross errors and don’t fix them. None of this is about “atmospheric temperature.” Murray wrote about “atmospheric pressure.” Some blogs don’t allow corrections, but LENR Forum does. For reference, here, Exhibit 5. Murray states:

The steam pressure was reported (for the entire period) to be 0 kPaG and the piping is DN40.

This has been poorly read in some of the discussions. A fuller context for that statement, Murray addresses Penon in Exhibit 5, which is a memorialization of his questions.

You stated that the pressure of the steam that was available to J.M. Products (JMP) was nominally atmospheric pressure (0 kilo Pascals gauge (kPaG) or 14.7 psia). […] According to the data you have reported, the conserved mass flow rate of the system from February to November 2015 was […] and the temperature of the water and steam were […]. The steam pressure was reported (for the entire period) to be 0 kPaG and the piping is DN40.

I have previously pointed out that the last sentence has two separable clauses. Is Murray himself stating that “DN40” was reported? From the last sentence, no. It would not be written that way. However, Murray is listing data from what Penon “stated” and what he had “reported.” The verbal statement, apparently, was “nominally atmospheric pressure.” This indicates what Penon meant, in his written reports (the preliminary seen by Jed and the “Final Report,” by 0.0 bar. It was simply an error, it should have been 0.0 barG. As to the piping, the language here indicates that Murray is rehearsing facts for Penon, not an “allegation.” He is not “claiming” that the piping was DN40, he seems to think that this was known and accepted.

Was he in error? Of course that’s possible! I revise my earlier opinion, though, I see no evidence that “DN40” was necessarily Murray’s personal observation, only that he doesn’t seem to think that there is a contradiction. The pipe size is not crucial to Murray’s question, though it would enter into a detailed analysis.

If I had to make a decision based on this evidence, though, it would be that Murray believed the pipe was DN40 and expected that Penon would not argue with this, and I’d assume DN40, then, unless there were stronger evidence for a different size. If the pipes were insulated, it could be difficult to estimate the size from a photo. To be clear, this is about the return pipe, that would carry water, not about the steam pipe itself, pre-condenser.

 It is not a matter of whether I believe the author of Exhibit 5–whatever was written in that exhibit was written. The DN40 piping is probably outright false.

I wouldn’t be so sure. IHFB is correct about “belief,” though. At this point, Exhibit 5 is a report of personal information and belief, and, if supported under oath — which is expected — it will be accepted by the court unless and until it is controverted. To the extent that the court accepts Murray as an expert, his conclusions, such as his conclusions about flow, may be admitted, but that is not necessarily his role in the court process. What is probably most important about Exhibit 5 is that the questions were asked and were not answered, indicating default of professional responsibility by Penon. If it is necessary to establish his conclusions, I would expect to see independent expert testimony.

IH Fanboy wrote:

I have good reasons to believe that the DN40 piping claim is false. If you remember, I used a picture of the old plant and using known dimensions of shipping containers, was able to show that the exit pipe of that plant was very likely DN80, based on a proportional analysis. The chances of Rossi changing from DN80 to DN40 is next to nil.

There is a major contradiction running through all this. IHFB is pointing out certain things we don’t know, and more or less demanding that in the absence of definitive knowledge, conclusions must be avoided. Yet he has a “belief” about one of these things. He is effectively, here, asking what has become a number of participants who are highly skeptical of his claims to accept his prior investigation, but he does not link to it or show it. I certainly don’t remember. Many of those discussions became so convoluted that I stopped reading them. He is claiming we don’t know enough, but asserting “I believe.” Doomed, wouldn’t you think?

Was the old pipe insulated? The construction of the customer return was new. DN80 pipe is more expensive than DN40, and perhaps this was a longer run. Bottom line, this is flimsy. But, of course, the devil is in the details. Instead of running on “belief,” how about actually taking the time to find the old discussion and link to it? How about focusing on fact instead of belief. Presumably that old estimate was fact-based. So what facts, how were they analyzed?

On the other hand, the entire purpose of this is doomed. What has been shown is that there are enough problems with the ERV report that it can’t be trusted. Unless Rossi comes up with a Wabbit — he is desperately searching for one, this is obvious in his discovery revelations — the Doral plant wasn’t a GPT, and at that point the actual function of the Plant becomes almost irrelevant. IH will then be, presumably, attempting to prove fraudulent representation, which is more difficult.

(What looms large, if no GPT, is the problem that, even if Rossi’s devices work with him present, IH claims they could not verify this in independent testing. That’s devastating to “Rossi technology.” Nobody will invest in his technology, in the future, without full and genuinely independent testing, or, at least, if they do, they would have been fully warned. They will be aware that if there is a disagreement, Rossi is likely to sue them. He’s really screwed himself over by filing the action, given what we know.) IHFB continued:

As for the pressure measurements, there are some mixed signals. The test plan had specified an absolute gauge. The ERV data doesn’t specify what is meant by 0 bar. The Exhibit 5 says it was atmospheric pressure. So, take your pick.

Yes, the test plan specified an absolute gauge. 0.0 bar has a very clear and precise meaning, but it would be crazy in context. Exhibit 5 is entirely derived from Penon information on this point. There is a contradiction, one might think, in Exhibit 5, between what Murray wrote and what is actually in the Final Report. There are a number of possibilities. IH has alleged that there was data in the preliminary reports that was missing in the Final Report. Murray was not looking at the final report, but only at preliminary copies. So maybe something changed. However, the simplest explanation is not accusatory. Penon simply used “bar” incorrectly, in the tables. And then Murray, knowing what was intended — and confirmed by what Penon “stated” about atomospheric pressure — simply referred to it as barG. And then we have the problem with 0.0 barG.

What pressure gauge was actually used? Obviously, at this point, we don’t know. Penon removed those instruments. He might have used an absolute gauge and then translated the data to barG, but that seems strange. Much more likely, he used a different pressure gauge.

None of these approaches lead to confidence in Penon’s work. It appears that he was to have been deposed last week in the Dominican Republic. We are unlikely to see that unless there is some dispute over it, until one of two events take place: a Motion for Summary Judgment, which might possibly rehearse some uncontroverted fact, or this goes to trial.

IH Fanboy wrote:

Paradigmnoia wrote:

@IH Fanboy ,
And we don’t really know pipe sizes, temperatures measured, electrical energy in, or amount of water heated.
So bin the whole works.

Agreed! That is part of this exercise, to show those who have formed such sure conclusions to question themselves. Nothing is certain at this point. Jumping to conclusions can be very damaging to LENR and the public’s perception of it, and especially LENR+.

IH FB is confusing LENR and “Rossi”. Rossi is Plan A. Plan A does not depend on public support, at all. The only kind of “Plan A” that needs it is faux Plan A, fantasy Plan A. Plan A will happen regardless of what the public thinks. It only takes one person, or, more realistically, a small group. To the extent that Plan A is possible, it cannot be stopped. The Planet Rossi meme of “the market is the judge” is correct, for Plan A. All the cheers and boos and hisses and “sustain” on blogs are irrelevant to Plan A.

So for Plan A, “Rossi Savior” and “Rossi Evil” are irrelevant. The outcome of the trial may affect Rossi’s ability to continue development, but that is the trial outcome, not the Judgment of the Blogs.

For Plan B, however, public support is very important. Because there are private investors and donors, who will disregard the fluff, Plan B may continue even in the face of the maintained rejection cascade, but public funding (which could be greater than private) will be elusive and difficult. For that purpose, the best condition is that the extreme claims of Rossi be discredited, rejected, and that Rossi be considered the way he apparently wanted to be considered, as a fraud, while, at the same time, IH be supported for having had the courage to confirm or disconfirm Rossi’s claims, in spite of obvious appearances. Rossi’s claims were not about LENR itself. Rossi has attached to various theories when it served him, but the entire NiH approach is not the place to start, educating the public about LENR. We do not have a clear theory as to fuel and ash for NiH, no heat/ash ratio, none of that. To the extent that Rossi has been mentioned, the issue has been confused, and it can backfire.

If Rossi is sufficiently damaged by the lawsuit, he might not be able to continue. If the Rossi Effect is real, that would be a shame, but we would also have to notice that he brought this on himself. Perhaps Rossi’s strength was also his weakness, his bull-headedness.

If Rossi sees that he cannot continue, and if he actually cares about children (with cancer or otherwise), he would then disclose all his secrets. Ideally, he’d publish them. Notice that to maintain a patent, he’d have to do this anyway. To hit the market, he’d have to put technology out there where it could be independently examined. Rossi will have to trust someone, or he and his work is toast. Dried-out, cold toast.

Jed Rothwell wrote:

IH Fanboy wrote:

That quote is about as obtuse as it gets, and you provided no attribution or source, nor who inserted the sics.

That quote was uploaded by Rossi in the lawsuit filing. Abd inserted the sics, as I explained previously.
If you do not believe Rossi, who do you believe?

This is what happens, how someone who is expressing sincere belief can be led far astray. There is a conversation. The normal human mind does not remember the sensory, nor, typically, exact wording. It remembers “meaning,” which is invented, in a process that usually creates ideas that will then predict the future. When there is emotional reactivity, it is the emotion that is most strongly remembered and associated. What IHFB remembers is not what was actually stated, but how he thought about it, later, his reaction. His reaction was “it’s wrong,” so then he proceeded to invent reasons for it to be wrong. Since he didn’t notice the attribution, he objected to the lack of it. He did not go back and reread what he’d read. Why should he? He had already read it once!

When what was said becomes controversial, I always attempt to find it and check my memory. Usually, my memory is sound, but not always. If I erred, my stand is to immediately correct it, when possible, hang how it looks, I’ll worry about reputation later.

Now, everyone here should just believe me, right? That would create a Planet Lomax. While trusting my intentions is reasonable — I’d say! — my suggestion is to verify as much as possible. I make mistakes. At this point I remember Jed’s posting and, yes, he did attribute. But what is the reality? It’s crazy to argue about something that can be verified in less time than it takes for normal argument.

Here is what I find. In objecting to the sics and lack of attribution, IHFB was not referring to Jed’s post, but to one by THH. THH did not clearly attribute. Sloppy, to be sure, but that’s common on public fora.

Here is where Jed posted the Penon description, Tuesday, February 21.  Perhaps IHFB missed it. Jed credited me for my “[sic]” insertions. One of them was probably incorrect, as another pointed out. The original was here. The Penon description is attributed on that page, linked to a local copy. The description was dated 9 February, 2015. The alleged first day of the “test” was 24 February, 2015, see the “Final Report Annexe.”

(I may have somewhere stated that the test began on 31 January, 2015, because of the weird way that the data is paged. That is, I did make that mistake, but may have caught it and corrected it before publishing.)

IHFB went on and on, apparently not recognizing the taste of his foot in his mouth. I’m going to stop with this one, because I’m mentioned in it. Most of what I point out here is also noticed by others….

IH Fanboy wrote:

JedRothwell wrote:

The data uploaded by Rossi means nothing to you?

The ERV data deposited in the court docket does mean something. Aside from the weirdness the latter half of November, the data has a certain interesting realness to it, as if there were a real, varying load, and with spikes in input power generally corresponding to FLP data. It doesn’t immediately come across, to me, as fake data.

To someone with high experience reviewing calorimetric data (Jed Rothwell), it does. So start with that, with respect for his experience. That doesn’t mean that he is right, but if you believe he is lying, forgeddaboudit, this all becomes posturing to impress others.

All this counterargument means is “I don’t see it.” The depth of the error is more than might be apparent. There are multiple factors interacting here, and, while it can be useful to focus on one only, reality is generally more discernable by first becoming clear on each factor, as to the range of possibilities, then looking at all of them. With each factor, some alternate explanation might be possible. However, how likely is this? That something is possible does not make it probable. And then, what about a series of possible but improbable “explanations”?

Or do you actually believe the pressure was 0.0 bar and the flow rate
was exactly the same for days, even when Rossi said the machine was
turned off? Do you seriously believe that nonsense?!?

The thing is Jed, you immediately jump to conclusions without considering alternative possibilities.

Perhaps. Jed has been studying and following Rossi since, likely, before 2011. At some point, one settles. Human ingenuity is endless. “Alternative possibilities” may always be invented. However, has IHFB found some? I’m looking. I don’t prejudge, I have learned to set aside expectations — which I have, like everyone else — and see what is actually there. It’s part of my training.

I had never observed that kind of behavior from you until you became intimately involved with IH. It is a shame. 0.0 bar.. what? We need more information. 1 atmosphere? With DN80 piping and a slight vacuum created by the heat exchanger, you all of the sudden plausibly have the pressure instrument showing 0.0 bar. Are you sticking with DN40 as your final answer?

Jed is a major figure in the field, and has been granted some level of access on promise of confidentiality. I have been granted that (to a lesser degree than Jed). My project is facilitating research, creating structures and processes that will resolve the scientific question of LENR. It is not promotion of anything other than scientific research, which must be, overall, neutral. I.e., I’m not suggesting and working for research to “prove” something, but rather to resolve questions and confirm or disconfirm prior work. I would be delighted to find that the Rossi Effect is real and that he hits the market with a product. However, absent that showing and activity, and aside from bringing a certain level of attention, a double-edged sword, Rossi has harmed and continues to harm the field. Above, IHFB is arguing like the last valiant defender of the flame of truth, in a hostile world. “DN40” is a tiny detail, and Jed doesn’t actually know the pipe size, he has reports — apparently more than one, but he can correct that. IHFB has convinced himself that the pipe was DN80. While that affects some of the arguments seen, it’s irrelevant to others. By focusing on where he thinks he can win, IHFB misses the trees in front of him in favor of an imaginary forest.

0.0 bar has a very clear meaning, if it is the reading of a gauge. Because that meaning is impossible, we — starting with Murray — interpret it as 0.0 barG. Atmospheric pressure, by definition, i.e., the actual pressure, not merely nominal pressure, pressure varies with altitude and the weather. If the system is open at the other end, as it appears it is, i.e., the “other end” is the internal tank to which system cooling water is returned, then we have an issue of what creates high flow. There is an obvious possible answer which has been rarely mentioned: a pump in the customer area, after the heat exchanger. This pump creates low pressure there, allowing high flow with 0.0 bar in the steam line. Peter Gluck thinks there must be a pump there, before the flow meter. He might be right, but it would not be the E-cat pumps.

The flow rate was exactly the same for days probably because the granularity of measurement apparently was 1000 kg/h for this flow meter, and once you dial in the pumps, the variance is quite small, as has been pointed out numerous times here by different people. You refuse to consider these as explanations, but that doesn’t mean that alternate possibilities don’t exist.

Within the restricted world of IHFB’s attention, he can construct alternate scenarios. First of all, the flow meter was the wrong meter for the application, because of the 1000 kg increments of the flow meter reading. This would not be a rate reading, it would be integrated water flow. The meter is being operated below specified minimum flow, which, as pointed out, could produce lower flow readings, not higher. However, in the contrary direction, pipe volume occupied by other than water, typically air, could produce higher readings than actual water flow. Depending on what happens in the customer area, there could be extensive error. One of the kinds of pumps used with steam condensers uses an injected fluid or gas; this would work with air or water. It would create the vacuum needed, but could also fill the pipe largely with air.

Absent some kind of pressure manipulation in the customer area, and with the internal tank being also at 0.0 barG, there is a difficult problem, but it gets worse.

As to the even when “machine was turned off.” What machine? Which one was turned off? The plant was composed of multiple conglomerations of e-cat reactors grouped into “tigers,” with backups to spare. We have no idea what was actually going on!

The question refers to variance in the number of “machines” operating. This particular issue is complicated and I have not been following all the discussions. At some point perhaps I will review this. What is the correlation between:

  1. The daily flow
  2. The input power
  3. The Johnson reports of delivered power (it was always either 750 or 1000 KW).

“We have no idea” is not true. We have ideas, indications, and some evidence. IHFB’s position is obvious: because the evidence is strongly indicating that something was off about the “Test,” he is making the “you have not proven it” defense. But we don’t need to prove anything. We are simply, for the most part, observers, noticing this or that. Some of us have agendas like proving that we are right, we were always right, unlike the rest of you. If only they had listened to good, sensible people, IH could have saved themselves millions of dollars. However, what I notice with IH is that they seem to be over $20 million ahead, with more money on tap if they need it.

Also, the laws of thermodynamics have not been repealed. You cannot heat a small space with 1 MW of heat with no ventilation and survive. That is a fact. You can deny, deny, deny it, but facts are facts and this is indisputable, irrefutable proof that Rossi is lying and that you are deluded. You are ignorant of the fundamentals of physics and common sense.

And no, there was no invisible chimney.

I would not say “lying.” Rossi is, most likely, my opinion, delusional, but high-functioning in a way that can confuse the naive. I don’t think that IH was naive; rather, they recognized the alternate interpretations that IHFB wants to point out. They decided to find out. They found out. That, in my book, was a win, even if they’d have won much more if Rossi had a real technology and followed the Agreement.

But there was ventilation. And there was a chimney! This has been pointed out by Alan with photographic proof. The chimney is not sized to vacate ALL of the 1MW heat. But it could a large portion of it, and the rest could be used to heat vats of water, then mixed with cold water on its way down the drain, keeping it under the regulated heat levels. This too has been shown by others to be possible, including your friend Abd! You can deny, deny, deny, but there are plausible alternate explanations for nearly every puzzle.

Alternate, yes. Plausible, no, not collectively. I explored cooling with water last year, extensively, researching the water economics and regulations. As Jed points out, you cannot discharge 80 C water in the public sewer system, it would create visible effects and it would be illegal. The chimney shown is not in a location to be used for the suggested purpose. This is truly a major problem for the idea that Rossi was actually generating a megawatt. IHFB here, simply names some alternatives but does not actually explore them. I’d encourage him to do the math. Rossi originally claimed that whatever heat was not “consumed” by the customer was vented out the roof. Large endothermic process without a large movement of product doesn’t seem to be possible. A great one would be melting ice. But there would be a very large amount of ice needed, day in and day out. The simplest thing would be venting steam, but that would, of course, be highly visible.

It is obvious: IHFB is desperately clinging to whatever possibility allows him to “keep the faith.” In a way, this is noble, but he has added something that is not noble. He’s claiming that others are wrong. I like Richard Garwin’s “They say there is no doubt. But I doubt.” It’s honest, and that is, in fact, a great counterargument, except for one problem. It does not correctly state what “they say.” Garwin has cartoonized the “believers.” His “they must be doing something wrong” was a plain admission of his pseudoscientific position (more commonly called, in a case like this, “pseudoskeptical.”)

What comes to mind for me as the strongest issue is the combined claim of 0.0 barG steam pressure, constant water flow, about 104 C steam temperature and then an assumption of complete vaporization. I’m not the first to point out that if there is total vaporization, there is no control on the steam temperature, a small change in heat generation will produce a significant change in steam temperature.

[Thanks to THH for the link to his post covering this issue, it was that post that brought this out clearly.]

From the tightly constant normal daily total flow — a problem because of timing effects as point out by many — we must assume that the reactor metering pumps are set to create a constant flow, regardless of actual heat production.

As reactors aged, there would be a decline in efficiency, apparently. Why did Rossi refuel on the last day of the Test? If Rossi was able to tightly control heat production, to maintain the constant steam temperature at full vaporization, what was he varying? Originally, the main control was heat, but if he is operating in Self-Sustain mode, that’s gone. He isn’t controlling the cooling rate, we just defined that as constant. As well, what happens when the load changes?

There is a conclusion: bottom line, the flow data shown was not a recording of flow meter readings. It was calculated, at best. Or it was assumed. The flow meter does not show rate: it shows accumulated water flow, in units of a metric ton, 1000 kg. IHFB, with his “1000 kg/h” is not simply making a spelling error, he is missing the point. The apparent set rate is 1500 kg/h, but the meter would be just like a water company water meter, which doesn’t show rate, but accumulated usage, in units of 1000 kg.

So who’s in the Dominican Republic?

Since I last commented on case documents, we have:

02/20/2017 0144.0_Rossi_hearing_notice amended 2/23
02/21/2017 0145.0_Discovery_Order misc. including Rossi screen names order
02/21/2017 0146.0_Discovery_Order various including Boeing deposition
02/21/2017 Discovery Hearing (no document)
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 2/21/2017. Total time in court: 15 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, D. Porpoise Evans, Christopher Perre (Digital 10:50:40) (cg1)
02/21/2017 0148.0_Discovery_Order re deposition in Dominican Republic, site inspection
02/21/2017 0149.0_USQL_Answer (Fabiani)
02/21/2017 0150.0_IH_Hearing_Notice re bank subpoenas, Rossi/JMP non-response
02/21/2017 0151.0_Rossi_Memo_re_138 Mazzarino privilege claim
02/23/2017 0152.0_Discovery_Order_re_privilege (Hearing 2/23).
02/23/2017 0153.0_Rossi_memo_opposing_143 re Deep River Ventures privilege
02/23/2017 0154.0 Discovery Hearing (no document)
02/23/2017 0155.0 Discovery Transcript (no document yet)
02/23/2017 0156.0 Discovery Transcript (no document yet)
02/24/2017 0157.0_IH_reply_to_153

Stuff is Happening.

145 is mostly routine Magistrate business. This Order came out of the hearing February 7, and includes deadlines that already expired. There are warnings of possible sanctions. I would not conclude much from that. These warnings have been issued on both sides.

However, as to the interests of the peanut gallery,

Plaintiffs shall serve their supplemental interrogatory answers to Defendant, John Vaughn’s First Set of Interrogatories by February 10, 2017. Such responses shall include all screen names or aliases Plaintiff Rossi uses to post information on the lnternet. To the extent Plaintiff Rossi does not use screen names or aliases to post information on the lnternet, he must issue a response verifying the same.

D.E. 148 has this:

 … the defendant is permitted to question the witness set for deposition in this matter on February 22, 2017, in the Dominican Republic. The plaintiff shall provide the defendant with the name of the attorney for the witness who is scheduled for deposition in the Dominican Republic. 

Some of the orders coming from the Magistrate seem to reflect an inability of the lawyers to agree on relatively simple things. The indication here would be that the witness is someone whom Rossi might not want to have deposed. And an obvious guess is Penon, who was missing, IH had been unable to serve him.

Also in D.E. 148:

ORDERED AND ADJUDGED that if the defendant’s expert is available after the conclusion of the deposition in this matter taking place today locally, the site inspection shall occur today after the conclusion of that local deposition. If the defendant’s expert is not available to inspect the site today after the conclusion of the local deposition in this matter, unless the parties agree otherwise, the site inspection shall occur on March 2, 2017, at 9:00 AM.

This is obviously to be an inspection of the Doral site.

D.E. 149 is the USQL (Fabiani) Answer and Affirmative Defenses. While I saw nothing of much note in this (being mostly unexplained denial, which is legally sufficient), I intend to prepare a Merge document with this as with the others, to show the Answers in context of the Claims being answered. It is otherwise unintelligible. One point:

150. Third-Party Defendants state that the Technical Consulting Agreement speaks for itself. Third-Party Defendants deny the allegations in Paragraph 150 to the extent that they are inconsistent with the terms of the Agreement. Third-Party Defendants also deny that the Agreement was properly renewed.

From what we have seen, this claim will likely be estopped because he did accept payments pursuant to the Agreement.

This is interesting, an Affirmative Defense:

The Technical Consulting Agreement is sufficiently ambiguous that upon a determination of the intent of the parties, no breach by the Third-Party Defendants has occurred. The intent of the parties was for Mr. Fabiani to assist Dr. Rossi in his work on the Ecat technology. Mr. Fabiani’s duties and obligations to provide data were of minor consequence to the Third-Party Plaintiff and Mr. Fabiani did in fact provide data to the Third-Party Plaintiff for the entire term of the working relationship. Any data not provided was excused by the failure to pay all sums due to the Third-Party Defendants.

This is at a level of contradiction with what Rossi has commonly claimed, that IH had “two men” on site to report to them what was happening, one being Fabiani (the other would be Barry West). However, it seems fairly clear that the primary duties of both of them was to assist Rossi. At the end, it appears from emails shown that Fabiani stopped talking to IH, when Murray offered to pay him the final payment in return for the data. And then this contradicts the idea that the agreement was not renewed.

(A party may assert contradictory defenses.)

These contradictions appear in the rest of the Affirmative Defenses. Fabiani’s points are at least arguable.

D.E. 150 is of some interest. These are additional issues to be addressed at the upcoming Hearing, time permitting:

Thursday, February 23, 2017 at 3:00 p.m., on (1) Plaintiffs’ and ThirdParty Defendants’ J.M. Products Inc.’s objections to Defendants’ subpoenas to Bank of America, N.A., BankUnited, Inc., and TD Bank, N.A.; (2) Plaintiffs’ violation of the Protective Order entered by this Court on October 14, 2016; and (3) Plaintiff Andrea Rossi’s failure to respond to Industrial Heat and IPH International B.V’s Third Request for Production.

(See D.E. 144 for Rossi business at that hearing, which was amended from D.E. 135). The salient business here is IH claim of attorney-client privilege with regard to certain requests for production and an IH motion for a protective order, which was rejected because not according to procedure, then there are memoranda re law on this, from IH and from Rossi.

Without detailed study, I have a rough impression of the IH case being stronger, but …. not enough to really call this. Rossi is fishing, looking for admissions that they never intended to pay him, i.e., that he was defrauded. So far, his searches have come up with what pulls the rug out from under some of his arguments: Woodford had committed an additional $150 million if needed, so if it were prudent and necessary, IH could have paid the $89 million. However, that was obviously contingent on Rossi performance on his part of the Agreement.

D.E. 152 is an Order affirming privilege for two emails (one from Darden to a “Mr. Zalli”) and adjudging no privilege for one (involving Zalli and “Mr. Uzi”).

D.E. 153 is a Rossi argument against the Mazzarino privilege claim.

D.E. 154-156 are discovery hearing business. Transcripts will be available someday before the end of time. (Actually, 5/24/2017).

D.E. 157 is the IH reply. My immediate reaction: yeah, I thought so. Basic standard; while there may be exceptions, if one communicates with an attorney expecting confidentiality due to common interest with the client, it is probably covered under attorney-client privilege. I’m not, at this point, reading up on the case law.

In comments below, there were speculations:

Bob says (February 22, 2017 at 11:34 am):

If I were a betting man, I would bet the “secret” expert located in the Dominican Republic is none other than Penon. But then I would not bet much either! This drama has some interesting twists and turns in it.

Abd ulRahman Lomax says (February 22, 2017 at 6:34 pm):

Yeah, strange, isn’t it, “Penon” also popped into my mind.

Dewey Weaver played with this on LENR Forum. Shane had asked, February 23, 1:22 am

Is the “site inspection” to occur in the Dominican Republic, or Doral? ECW has it as the DR, and after re-reading that section, it sure sounds like it could be…or it could be poor wording. If so, and it is the DR, could you give a hint as to what the heck took place there? And while you are at it…who is this DR witness IH is deposing?

OMG. Shane isn’t reading our blog! WTF?

ECW badly mangled this interpretation of DE 148, and apparently the dense fog there confused Shane. Alternate interpretations of text are common; and this is a reason why one will sanely attempt to understand every word. Yes, errors happen; however, the Order Frank interpreted contained multiple clues that indicated that there were two separate and distinct depositions, one in the DR, and one “locally,” with IH’s expert witness. The DR deposition was “set for February 22,” whereas the Order was February 21, and refers to the expert deposition as “today.” The alternate reading doesn’t work, and was so deviant from the obvious intention or the Order that it did not even occur to me as a possibility. There is only one major “site” in the case that could possibly be inspected, and that might take a court order to allow. Doral.

In any case, Shane’s question still stood, who was the DR deponent?

Dewey Weaver wrote:

Shane – the site inspection is slated for Doral. Some have correctly deduced the DR depo witness (three initials, first initial A and last initial d). You can study the order and find more details – the Court had to get involved in an interesting way.

OMG, Dewey Weaver reads this blog!

Shane wrote:

Thanks. So the site inspection is in Doral. As to identifying the DR witness with the riddle: “3 initials, first A, and last d”, which does not add up to 3, and then give me my homework to go back to the documents to piece together, sorry, I just am not in the mood to do that. I already spend too much time going over this stuff. Instead, how about you be clear this once?

Life is a riddle, a puzzle, and it is particularly puzzling when we make assumptions about the clues. Dewey did not state that the clue would identify the witness. He wrote that “Some have correctly deduced …”

“Initials” was possibly misleading, but that would not obstruct decoding the message, because the task the clue gives doesn’t depend on the “initials” merely being letters. What are the three letters? The first is A, the last is d. Let me think…. what could that be. If the first part of that sentence is understood, one would be looking for … the name of someone who “deduced” the identity. In fact, it wasn’t a deduction, either, but this is the task of life, again: to see through a forest of noise at something that, then, is reality. Dewey was playing, and, contrary to common Planet Rossi belief, he is not paid as Minister of Propaganda. He is a human being, and does have, in fact, quite an interesting job that leads him to be highly informed on Rossi v. Darden and quite a few other sometimes-murky topics.

I maintain multiple interpretations as far as possible. As we will see, there are those who believe that whatever comes from Dewey is unreliable, but … let’s put it this way: these people are unreliable, themselves.

I’ve been studying Dewey’s comments since NCKhawk, and, where independent evidence has appeared, he has not been misleading, even if he has erred or misstated something on occasion. In this case, if the deponent was not Penon, he is being directly misleading, in a matter that could easily become public. Under the Ministry of Disinformation theory, that would violate MOD Manual section 12.57: Never make a verifiably false public statement. Maintain, at all times, plausible deniability. When Rossi says, for example, that he’s in North Carolina, he probably is, until and unless there is some specific evidence contradicting that.

Dewey Weaver wrote:

Shane D – I was trying to let you know that Abd got it right on the DR depo.

Thanks, Dewey. Of course I got it right. What I wrote actually could not possibly have been wrong, I have absolute certainty. I did not write “It was Penon!” I wrote that the name popped into my mind. And it did. Q.E.D. This points up something: how to be a careful witness, how to distinguish between inference and intuition and the like, and fact. Basic ontology. Dewey might have written, Abd’s intuition was right. (and Bob’s!) Intuition operates this way. It doesn’t need “reasons.” It doesn’t need to be certain. Intuition, my understanding, is based on the operation of a vast association engine, with most “processing” occurring outside of consciousness. Of course, having thought of Penon, I could then find “reasons” to support the idea, but I didn’t bother.

More mishegas continued on LENR Forum, the usual mixture of cogency and mind-boggling trolling or idiocy. Meanwhile, on ECW,

Bob wrote: (Thursday, February 23, 2017 8:54 AM)

The inspection was to be at the Doral facility using an expert hired by IH. (The identity has not been revealed as far as I know.) This did not take place yesterday and is now scheduled for March 2.

The witness who has been deposed in the Dominican Republic is Penon and the court ordered deposition was filed by IH, not Rossi.

(The above two items per post from Dewey Weaver)

Shane D. provided a clear synopsis of the new documents at :

[Link to LENR Forum]

[and then he quoted Shane].

Here, Bob wrote: (2017/02/24 at 1:21 am)

today, I was going to make a post about the latest court documents and received a message stating I had been banned from ECW when attempting to save the post. I did not receive any notification from Mr. Ackland nor did I receive any warning about any transgressions I might have committed.

I sent him a private email asking if there had been some issue and he responded later in the day stating “Yes, I took that action based on your posting history on E-Cat World. ” It continued stating that E-Cat World was not a place for skeptics and that “it seems you are firmly convinced that the E-Cat is simply fake”.

Bob’s Discus profile seems to not exist now. For comparison, here is the NCKhawk profile. It is unclear to me if an administrator can delete a Discus profile. My guess is not. However if a user is banned, I’m speculating that the profile becomes disconnected from the posts. I don’t know if NCKhawk is actually banned. In any case, Acland’s reported email comment to Bob indicates a banning of someone for their assumed mental state, rather than for offensive posts, and there are many users on ECW with the mental state ascribed here to Bob. But maybe he is banning all of them. Definitely, skeptical comment seems sparse there.

These are the ECW “commenting guidelines.” It does not appear that Bob violated the guidelines, and the normal, routine sanction for violations would be deletion of offending posts. “Belief status” is not given as a standard, though it says that

E-Cat World is a site that takes LENR seriously, and accepts it as a valid field of research, and a potentially useful energy source. ECW is not a venue where LENR/cold fusion skeptics are given free rein, or a place to debate whether LENR/cold fusion is real. Here we assume here that LENR/cold fusion is a valid scientific phenomenon, an important topic, and one worthy of mature discussion.

However, under

… the following types of comments are subject to moderation:

We find:

Comments that state openly or by implication that LENR/cold fusion/E-Cat is a fraud or hoax

The lawsuit, Rossi v. Darden, is rife with evidence that particular events involving the E-cat involve fraud. What Bob did that apparently triggered the ban was to quote what had been written elsewhere about events in the case. There was no direct implication of fraud (if Bob had intended such, he’d have pointed to much more specific evidence.)

So … I think that Frank overreacted, and perhaps he’ll rescind the ban and apologize. It’s up to him, of course, it’s his blog. Balancing that freedom is the fact that anyone else may comment on what he does, on his blog if he permits it, or elsewhere whether or not he permits it.

Ordinarily, banning people while not deleting allegedly offensive comments or at least warning them (if, for example, the comments have received a response so that deletion would cause harm to context) would be offensive for a moderator. The biggest problem, for me, as a writer, is, however, (1) deleting comments without opportunity for the author to recover what was written, and (2) banning which prevents authors from correcting errors, or responding to critique, without any necessity and notice. This is rude and inconsiderate.

There was a bit more on ECW of interest.

wpj US_Citizen71 Thursday, February 23, 2017 9:06 AM

DW and ABD say that it’s Penon that is there.

Strange how it has gone from “Rossi says” to “Weaver says”. He also say that there was no site inspection.

Mike Rion wpj Thursday, February 23, 2017 8:36 PM

Yeah, it seems most of the posters on LENR Forum are converts to the new religion called Dewey Weaver, who is nothing more or less than a paid shill of IH.

Typical blogviation. First of all, I did not “say that it’s Penon.” I merely wrote that the name occurred to me, as I imagine it might occur to anyone with extensive knowledge of the case. But I don’t know the fact. Dewey, as an IH insider, might actually know. Rossi, of course, would also know, but would not reveal this, very likely, and I suspect that the only reason we know about the DR deposition and the site inspection is that Rossi would not voluntarily agree to these.

From the name and behavior, I suspect ECW Mike Rion is LENR-Forum Rionrlty. Rion appeared on ECW April 10, 2016, shortly after Rossi v. Darden was filed. He started up on LENR Forum the day before. I’ve been looking at his recent LENR Forum posts, they tend to be classic Planet Rossi. He is apparently a real person, and Mike Rion is his real name, and he is indeed a “retired real estate agent,” living in Hemet, California, apparently about 71 or “in his seventies.”

There is no coherent community on LENR Forum that believes something just because Dewey Weaver says it. I do not report DW Says as “fact,” other than the fact of him saying what he said. Rion calls Dewey Weaver a “shill,” and has treated the documents filed in Rossi v. Darden as if there was big news there. There was not. We knew that Dewey was working for IH, and that he was involved in communicating with the scientists in the LENR field. While it was not known specifically that he had a consulting contract and was probably paid (we still don’t actually know that), it was simply not surprising information.

What was known very quickly, by the end of April, 2016, was that Weaver was an IH insider, that he was a principal in an LLC, Deep River Ventures, which was an identified shareholder in the parent company of IH, IHHI. His comments and statements, then, would be easily known as involving a “conflict of interest.” Nothing changed about that with the court documents. I knew, well before 2017 dawned, that Weaver was a gatekeeper for IH. I’d met him at ICCF-18, in 2013, so this wasn’t new.

On LENR Forum, Rionrlty wrote:

Dewey Weaver wrote:

If you’ve got something concrete to contribute RiRi then bring it otherwise your professional troll status is setting up faster than super glue in the high desert.

Jones Day is doing one heck of a good job on behalf of their clients. These judges are no nonsense and there is very little worry about where this case is heading on the Def / CP side of the battlefield. The same cannot be said for Planet Rossi.

I’d agree with Dewey. Is it because he wrote it? No, it’s because, since early on with Rossi v. Darden, I have been collecting, studying, and analyzing the case documents, individually and in consultation with an attorney, plus reading all the other arguments. I’ve identified and reported on apparent Jones Day errors, but my overall assessment remains that Jones Day is being effective, and I see just about zero possibility that Rossi’s suit can survive trial, and it may not survive even that long, it is highly vulnerable to Summary Judgment. This is not about a belief in Dewey Weaver, about a belief in fraud, as such, nor about any kind of hatred of Rossi. I don’t hate Rossi.

Rion’s comments are highly provocative and accusatory, designed to poke, not to communicate and find agreement. That’s trolling. Most trolls are anonymous. Not all.

Dewey, I’m a retired Real Estate Broker in Southern California and I would love to get paid for posting on forums, but so far I’ve received no offers. Interested? No one has anything concrete to deliver, you because of ND and biased credibility, and the rest of us simply because it hasn’t been supplied to us yet. Along with the rest of the poster’s here we must wait and see what the Jury decides, unless it settles out of court.

Dewey just delivered an apparent fact: the Dominican Republic deponent was Penon. If this were false, it would be useless, and would prove harmful to some supposed anti-Rossi or pro-IH agenda. Having studied Dewey’s comments for almost a year, reading them over and actually compiling them, I can report my preliminary impression: when Dewey reports fact, and when it becomes verifiable, he’s not been lying. Dewey, for that year, has been refusing to answer certain questions because of NDA, which is not just with IH, it would also be with those with whom he regularly communicates.

Rion is ontologically naive. “We must wait.” We “must” wait for what? If I were thinking of investing in Rossi technology, damn straight I’d suggest waiting! However, by what rule are we prohibited from looking at fact as we have it — and even at opinion — and presenting conclusions? Rion is interacting with Dewey, here, who actually knows what’s going on, we can assume, far more than any of the rest of us. Rion then deprecates what Dewey writes, effectively because he’s an insider, but Rion has speculated at length about this case, without knowledge, for almost a year.  I haven’t notice that he’s contributed anything of value. (which is true for many blog participants, to be sure). So ….

Dewey Weaver wrote:

RiRi – Oh yeah – our field attracts a lot of loud mouth real estate brokers who find themselves credible.

You got nothin’ – thanks for clarifying.

More comedy – less pain.

That’s Dewey Weaver. He is not a spokesperson for Industrial Heat and IH does not necessarily approve of what he writes. While he is under an NDA, that’s between him and IH and anyone else involved. What I’ve seen him write, I doubt that IH would sue him. My guess is that it has been suggested that he tone it down a bit. I suggest that myself. However, my training is in working with people engaged in transformation, and a level of tolerance is required. Nobody will be perfect in any respect. On Planet Rossi, the standard idea is that there is a massive campaign to discredit Rossi, coordinated by APCO, and accomplished with many paid operatives. It’s preposterous. Of course, Sifferkoll and Rossi claimed I was paid, so … obviously I’m not going to admit it, and, obviously, I will lie.

I could go into detail about what Rion wrote on ECW. I won’t. I think he’s sincere, and massively deluded, his thinking is far from clear, and appears to be afflicted with old-guy paranoia, if this is not addressed when we are younger, it gets worse with age as our flexibility declines.

I am, by the way, probably close to his age. Rionrlty is not engaging in real conversation. He’s just tossing cheap shots. Exceptions? Anyone may point to one in comments here. I love being wrong, it is the fastest way to learn. That would be the argument against judging “before we have all the facts.” We might be wrong! But I DGAF about being wrong, because I can correct errors, as far as anything that actually counts. People who are terrified of being wrong paralyze themselves so that they cannot learn. (And then this shades into firm attachment to being right, already.)

If there are any errors on this blog, please point them out! A sincere attempt to correct errors can lead to useful conversations, whether they are “right” or not.

And now for something completely different. Links!

The discussion on LENR Forum that I covered yesterday fell into a series of Planet Rossi trolls doing what PR trolls do: repeat the same stuff over and over, hoping it will stick. Sometimes, eventually, that stuff stands because nobody bothers to answer it Yet Again. Victory! Proven! Nobody Could Answer! So, bored by this and the constant temptation to point out how Stupid it all is, I noticed mention by a concern troll of a Marianne Macy article that I had not read. And that led to more articles, some I had not noticed before, some that I had, and some that I read now with new understanding. Join me in a ride through Reality, it’s fun. Continue reading “And now for something completely different. Links!”

Dewey Weaver and the Temple of Doom

Okay, the title may be meaningless. So sue me.

Because the recent IH disclosures have revealed the contract between Industrial Heat and Dewey Weaver, there has been much blogviation over this. Aha! they proclaim. We knew it! He is Paid by Industrial Heat!

But that has been obvious for a long time, that Dewey was working for Industrial Heat — in addition to being an investor in it. This has nothing to do with whether information from Dewey can be trusted or not, other than the obvious necessary caution. It means that the man probably knows some things that the rest of us don’t know. Anyone who will take all statements from someone in Dewey’s position as Gospel Truth would be foolish. Dewey makes mistakes, among other things, and then much of what he has written is clearly not factual, but judgment. Judgment is conclusory in nature, and it’s not difficult to tell the difference between testimony from knowledge and the expression of conclusions, though sometimes circumstances may be confused. I.e., I might say that X is true, but the reality — and I’d say this if asked — could be that So-and-so told me X is true, and I trust So-and-so. That is why it must always be possible to cross-examine witnesses, to tease out fact from conclusions.

In a legal matter it is up to the judge and/or the jury to come to conclusions. Witnesses provide fact as grist for that mill, and judges and juries assess the probity of testimony and its implications, and attorneys may present arguments for this or that interpretation, advancing the interests of their clients.

This — and the other blogs — is not a court, a brilliant observation which has been made by many. We are the peanut gallery. However, some people who read these blogs might be makers somewhere, somewhen, somehow. We are interested in and discuss Rossi v. Darden because it’s there, or because we have some axe to grind, or some critical interest to protect. What I find hilarious, in particular, are those who say, “this is all useless to discuss, because the court will decide,” and who then argue strongly for some position, often in ways blatantly contrary to the evidence available, and full of contempt for other views.

What’s true is that almost none of this discussion will have any influence on the outcome of Rossi v. Darden, but it may help us understand it.

(It is possible that some of us may come across something that was overlooked by the attorneys. It can happen. )

Most of the issues are already laid out well enough to make predictions. Such predictions are not certainties. There may be a Wabbit. If we are so lucky as to see a Wabbit, our entire perspective on life can change. But we don’t expect to see one when we get up in the morning, do we?

So, Dewey Weaver is being discussed on LENR Forum, and Peter Gluck, who wrote he was going to abstain from comment on LF, didn’t. We are not surprised.

Eric Walker pointed to the Industrial Heat Memorandum of Law that provided so much information about Deep River Ventures, i.e., Dewey’s LLC … so I’m starting with this, a rock tossed in the river. Splashes? Ripples? How deep is the river? Continue reading “Dewey Weaver and the Temple of Doom”

Conversations: Pweet

Pweet posted a comment, and it brings up some issues worthy of a blog post. We seem to be establishing a Conversations series here, creating connections and understandings. This will, I expect, expand and will greatly expand when we have more users here with Author privileges. Eventually, we will have a governing structure that is not Abd Says, but here is where we start. Every real journey starts Here, not in some imaginary place.

Before I cover Pweet’s comment, some history. Googling the name, besides a lot of porn (I have no idea why, except that the porn pages have thousands of words at the bottom to trick Google into displaying them), I found what may have been my best post ever to LENR-Forum, put up shortly before I was banned, as a response to Pweet speaks and Gluck responds. As can be expected at my age, I had forgotten about it, though I did immediately recognize it.

As usual with LENR Forum, what might be useful or cogent or thought-provoking is buried in the avalanche of dreck. There is no process for creating or measuring consensus, other than a crude upvote/downvote system that doesn’t sort posts, so to find anything of value takes massive work which mostly isn’t done. We could set up a rating system here that would allow finding the Best Posts on any forum, and that can be done with overall neutrality. However, that’s a suggestion from a chief, a tribal elder. Are there any Indians?

Looking for the original Ego Out posts, I came across one of the strong evidences that Rossi lies. So why not collect these? Rossi Lies.

Little by little, we go far. And for one of those massive Lomax diversions, see this page, which shows how blogs create rumors that are passed on as fact. I knew that aphorism from the Spanish, which he covers, but also from the Arabic, “shweya shweya.” Now, where were we?  Continue reading “Conversations: Pweet”

Conversations: Simon Derricutt 3

Simon again. Quoted in full, my comments in indented italics.

The only evidence that points to the 1MW having been produced is the ERV report, with the quantity of water turned to steam and the measured temperature of that steam. As has been noted many times, the data we’ve heard about doesn’t seem consistent with what might reasonably be expected as a set of real measurements, but it is nevertheless the data that exists.

It exists in a sense, yes. That is, there is a report, incompletely presented, just the data tables without explanatory material, and without attestation of any kind.  Continue reading “Conversations: Simon Derricutt 3”

If our knowledge expands, is that “backpedalling”?

A remarkable post on LENR Forum — and posts like this are part of the reason that most scientists stay away.

IH Fanboy wrote:

[17 alleged examples of Dewey or Jed “misinformation.”] Here, I look at them, having known for a long time the tactic of presenting “overwhelming evidence” that vanishes when examined. Is that happening here?

Conclusion: IH Fanboy was creating noise, personally attacking Dewey and Jed, in a highly misleading way, with the effect of distracting from new information from Dewey about the lawsuit.

Continue reading “If our knowledge expands, is that “backpedalling”?”

Living in a fog

Planet Rossi is enshrouded in fog. Some of the fog may be deliberately produced, of the nature of FUD; however, much of it is simply wishful thinking that interprets evidence in certain ways, and is not even aware of the interpretation, it imagines it is declaring fact.

The Request for Hearing filed by Rossi on Tuesday is seeking a Protective Order. The Motion is extremely brief. The title:

NOTICE OF HEARING (add-ons – to be heard if time permits) 

And then the text is in a box, unusual as well:

Plaintiffs’ Motion for Protective Order As to the Depositions of J.M. Products, Inc., United States Quantum Leap, LLC, Fulvio Fabiani, and The Boeing Company

There is no clue what this is about. There are, as discussed, two kinds of Protective Order. The one that there is a stipulation about is about protecting disclosed information, already disclosed. This may be different, this may be attempting to prevent information from being disclosed, and, if so, it does make sense that this would not be described in public, more than it has been.

On E-Cat World, Frank Acland posted:

I believe this is the first time I have heard mention of Boeing in connection with Rossi, and Boeing has not been brought up in the court case until now. The only possible connection that I can think of is that Rossi has said in the past that he had been doing some kind of research involving a jet engine, and there was some kind of connection with an aerospace company — but as usual he was pretty vague about it all.

It sounds like whatever the depositions here are, that Rossi’s team is seeking a protective order, which means they don’t want the information in the depositions to be made public. So we might not find out what Boeing’s involvement might be. But it’s interesting to see them mentioned.

This was reasonable speculation.

Ged wrote:

We know Rossi was investigating the use of the QuarkX output for jet engines. Boeing most likely would have just consulted Rossi on what output, tolerance, and other design conditions would be necessary to work with different jet engine designs, and seen the data regarding all that. Maybe they even went as far as doing simulations. This would explain why Boeing is appearing on the Leonardo’s third parties’ side of the table.

What I notice is “Leonardo’s third parties’ side of the table.” There is no indication of Boeing being on “Rossi’s side.” Rossi previously opposed subpoenas for uninvolved parties (ie., his bank, and the telephone service provider).

 barty wrote:

According to Dewey Weaver (investor in IH and good friend of Thomas Darden) Boeing was testing the E-Cat together with IH: (LENR Forum link).

Well done, barty. Straight information, clearly attributed, including the affiliation of Dewey. How this was taken:

Ged wrote:

This is the first we have heard of this… Dewey is also extremely biased (monetarily and personally! Can’t get more biased than that) and has already heavily and intentionally mislead with statements about this case many times before, as we have seen as more data is released (as well as used absurd ignorance/hyperbol like the place melting and the heat being visible from space).

That’s a personal attack without evidence. “…. heavily and intentionally mislead.” I have never seen an example of that. Dewey is not a careful witness, writing like a scientist. He is, as stated, a friend of Darden and an investor — and a consultant for Industrial Heat. This is not any secret, and it’s obvious. Dewey has strong opinions. However, this would be a simple fact, the relationship of IH and Boeing. (The place melting would be hyperbole; it merely would get too hot for human habitation, if a megawatt were being dissipated in that warehouse without heat handling equipment, so … what was “misleading” about a little hyperbole, easily recognized as such or at least marginal? Some stuff might have melted, in fact, with a megawatt. Don’t carry a chocolate bar into the place! I don’t recall seeing that statement, but Dewey wrote quite a lot on Mats’ blog and elsewhere. “Visible from space” is quite possible, for a megawatt dissipated in a warehouse. Depends on what one was looking with, of course, but that much heat should be visible in the IR from a satellite, and, in fact, it is quite possible that IH purchased such images instead of hiring a helicopter, which is what I’d thought they might have done. If Dewey said “visible from space,” I’d certainly consider it possible! It makes sense, but not to someone who will knee-jerk reject anything from such a biased source.

In short, I don’t believe him or anyone till we get more actual information.

There is no basis for considering it a lie. It’s testimony, “information.” Sure, one may want to see corroboration, but if we consider the side Ged is arguing on, the constant flow of disinformation from Rossi, with a series of clear lies, exposed by uncontroverted evidence, and this comment about Dewey stands out in its full ridiculousness. Sure. Wait and see … but meanwhile, what is stronger, baseless speculations or actual testimony from someone likely to know?

Could be Boeing just made or leased some important piece of equipment and that is the extent of their involvement, or gave some consulting not directly related to the E-cat (like consulting on how to build a jet engine), and much less than actually testing one. Considering they are showing up on Rossi’s side and not being brought out by IH, that also is suggestive (could be they are the ones behind JMP in that case, that is how baseless we can speculate with such meager info on this surprise appearance).

One could speculate endlessly, it is always possible. However, none of these are at all reasonable in the sense of being substantially likely. Further, Rossi has actually commented on this, and this more or less nails it.

It’s hilarious: his attorneys have told him over and over, he claims, not to comment on the case, but …. he does.

    • Darius

      Dr Rossi, Now there comes a new claim that Boeing tested the Ecat for/with IH, and it did not work for them, were you present during this demonstration?

    • Andrea Rossi

      I never knew of this demo and I do not know with which apparatus it has been done. I apprehended of it during the litigation. The replications and tests I have been informed of from September 2013 through February 2016 are the ones on the base of which Cherokee Fund Partners-IH have collected 250 millions in UK and China. No further comment.
      Warm Regards,

Now, Rossi lies, so we cannot assume this is true. However, take it straight: Rossi did not know of the relationship with Boeing “until the litigation.” This matches Dewey’s story, this was between IH and Boeing. Then, of course, Rossi introduces his meme about $250 million from UK and China, which has, so far, no support. He continues the drumbeat about Cherokee being involved, when it has been Industrial Heat from the beginning. Yes, Darden got entree by being Cherokee principals, but Cherokee would have no business investing in Rossi. This was something Darden and Vaughn wanted to do, personally — and obviously.

Now, this is fascinating: If Rossi doesn’t know anything about the testing (probably not “demo”)  — and I would expect IH to have arranged fully independent testing, with Rossi not present, very much with Rossi not present! — then why a Protective Order motion?

This was last-minute, tacked into today’s hearing. If there is a difficult issue, I’d expect a temporary Order while they argue it.

One thing is clear from the Rossi comment, assuming he is not lying. This was not about Rossi and Boeing collaborating in some way. All that speculation was just typical Planet Rossi, as Dewey pointed out on LENR Forum:

Dewey wrote:

Bob – they’ll continue to create alternate realities as long as they possibly can. Fake news is real news on Planet Rossi.

Update, February 10, 2017:

“Darius” asked again.

February 9, 2017 at 1:34 PM
Dr Rossi, According to the source on LENRForum, IH did in fact present a ecat to Boeing and that it did not work. That would seem highly unusal that the priciple engineer was not part of such an important presentation?

Andrea Rossi
February 9, 2017 at 6:45 PM
No comment.

Rossi deletes spam and other garbage. It’s clear that, at the very least, he approves what he wants to be seen. Most observers seem to have concluded that many posts on JONP are sock puppets, i.e., Rossi himself.

Here, he makes an argument that would be typical for Rossi. How could one expect the ecat to work without Rossi being present? An easy answer: of course not, since it never has worked without Rossi Grease.

If Dewey is correct, IH asked Rossi to assist with their work to verify the technology, and Rossi refused, being too busy with the “test under way.” What Dewey has claimed now is that they asked or allowed Boeing to do their own verification. This would not be a “presentation.” Presentations are what Rossi has done for years. He’s put on a show, a “demonstration.” But what everyone sane wanted, and a real commercial effort would absolutely need, would be devices that can be made and work according to clear instructions (such as a Patent!), not with Rossi Grease.

This is so obvious that it’s a complete wonder that Rossi supporters manage to show their faces from time to time. MrSelfSustain just changed his user name on LENR Forum to THEDEBATEISUSELESS, and then dropped a LANCB message.

Rossi Motion for Protective Order

135.0_Notice_of_hearing Rossi motion for Protective Order re 3rd P defendants’ depositions. (Hearing scheduled Thursday February 9, 2017)

Plaintiffs’ Motion for Protective Order As to the Depositions of J.M. Products, Inc., United States Quantum Leap, LLC, Fulvio Fabiani, and The Boeing Company

This strikes me as quite unusual. There is a Protective Order Agreement in place. It allows a disclosing party to label disclosures (and depositions) as Protected, which are then governed by special rules. Normally, it is the disclosing party that designates material as protected. However, there is a provision that allows any party to designate material as protected. However, this motion might not be about that kind of Protective Order. It is possible that this is an attempt to prevent certain questions from being asked in depositions. An example was produced on ECW of a case where a shareholder in a plaintiff company — not a party to the dispute — was to be deposed by defendant action, and the court agreed with the plaintiff that this was way overboard intrusive, probably a fishing expedition. But we don’t know, and some people are inventing interpretations not supported by any evidence so far. Continue reading “Rossi Motion for Protective Order”

And now for something completely different

or same old, same old. Academic discussion has a basic rule: quotations should be attributed and accurate. If paraphrasing is used, quotation marks should not be used to imply exact quotations. If words are omitted, they should be shown by ellipsis. I attempt to follow these rules, and here we see an example of what happens when one does not.

Here, there was a quotation error that was then surprisingly persistent, but eventually, the author recognized his error and corrected it, see the Update.

Continue reading “And now for something completely different”

Blizzard of blogviation

Discussion on lenr-forum about the new filings shows a phenomenon often encountered: an obvious argument is brought up, and someone says that this was considered and rejected long ago. But there is no actual reference, and the fora do not actually have a decision-making mechanism, usually, so this is just an opinion. I have seen it happen that a view was advanced and essentially crushed by many responses, but what I saw today was not like that. Rather, people had mostly quite talking about it, until a new occasion arose. This is coming from the newer, grittier version of the old IH Exhibit 5, Peter Gluck’s favorite punching bag, but it is now actual data, apparently, from the … ta daaaa!!! Penon Report! “Final,” it says. Continue reading “Blizzard of blogviation”

RvD: Judge demands fast response

With regard to the IH request to amend, the Judge ordered opposing parties to file yesterday (January 30, 2017) and IH to reply by today. Oppositions were filed by attorneys for Fabiani, Johnson/Bass, and Rossi.

For us in the peanut gallery, of greatest interest are the exhibits Rossi attached. Exhibit 1 appears to be part of Penon’s Final Report.

And then IH shows daily utility usage reports, compared with Rossi’s punk monthly charges. Who knew?

The Judge approved the request. IH dodged a bullet there, I did predict the Judge would approve. In fact, she gave the reasons for not approving (as had the counterclaim defendants) … and then approved based on an assessment of “due diligence” due, I’d say, to the complexity of the Motion to Dismiss history. I would translate that to “barely adequate diligence.” She then allowed the cc defendants the statutory time for motions, however, she has firmly rejected the “failure to state a claim” argument.

Below are my comments before the Order.
Continue reading “RvD: Judge demands fast response”

RvD: dismissal of 3rd party claims

As matters stood when the claim was dismissed:

11/23/2016 0078-0_3rd_amended_ih_answer
12/19/2016 0090.0_3rd_party_MTD
01/03/2017 0101.0_IH_Opposition_to_3rdP_MTD
01/10/2017 0110.0_3pD_Reply_to_IH_response_to_MTD
And then the Order:
01/17/2017 0120.0_Order_on_3rd_Party_MTD

There were three third party claims, III, IV, and V. III was kept, IV and V were struck. With respect to III, IH had presented the Compliance notice signed by Johnson, but it was undated and did not assert when it was signed. Because of that, it was not shown that IH relied on this notice to enter the Term Sheet agreement. Because the Term Sheet was heavily marked up, with the markup initialled by both Johnson and Vaughn, I assume that the Compliance was provided during or in connection with the signing of the Term Sheet, and preceded any shipment of the reactor(s) to Doral. The judge did not notice this.

The provision of the actual Term Sheet, which then revealed the lack of date (something I noted as far back as April of 2016), damaged IH’s ability to maintain the claim. However, notice: that they alleged a meeting at which the Term Sheet was signed, and what Rossi and Johnson claimed at that meeting, without proof of that (though there is a little circumstantial evidence in the JMP letterhead about “Johnson Matthew” — but this was obviously later), was enough to maintain Count III.

Less is more.

This should not be confused with failure to disclose evidence and trial intention in Discovery. By the time Discovery is complete, opposing parties should know what they are facing, with high specificity. On Planet Rossi, there has been some opinion that IH has been grandstanding. Maybe. I have seen nothing from them on this point. Dewey has been claiming that they have much more evidence than what they have asserted so far. I don’t doubt it. On the other hand, they have cluttered the Docket with, now, five copies of their AACT and similarly the exhibits, and if their motion is granted, count on a sixth. The large majority of this was not legally necessary to maintain their defense (careful denial is generally enough for that, i.e., accept whatever is true of what is claimed, and deny the rest, or claim no knowledge).

Overwhelming a Judge with masses of evidence, as distinct from presenting, clearly and concisely, precisely what the Judge needs to see to maintain a claim under dismissal rules, is a technique for alienating the Judge. So I’m puzzled., unless their goal is public relations and they have made a choice to take the hit. Yet IH does not depend for its operation on public opinion, it is heavily insulated from it. So I remain puzzled here.

As to Count IV, the FDUPTA claim, the Judge points out the law:

To state a claim for a FDUTPA violation, a plaintiff must show: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.

As to (1), she wrote:

The crux of the alleged FDUTPA violation is the manipulation of testing and performance data in order to obtain the final $89 million payment and related payments.

That is her conclusion as to the “crux.” The claims against Fabiani and Bass are that they conspired to support a continued appearance, supporting the continued payment of expenses to Fabiani and Penon (and for Barry West). She writes:

Counter-Plaintiffs have not satisfied the first element as to Fabiani and Quantum Leap. While Counter-Plaintiffs lump Fabiani and Quantum Leap into the “FDUTPA Defendants” group, these Third-Party Defendants were not involved in the substantive acts mentioned in Count IV.

Is fraudulent support of continued “related payments” a “substantive act”?  I will need to review what IH actually claimed, searching on this particular point. There are two issues: did IH present what was needed, and did they present it skillfully, so that the Judge would immediately see what she would need to see? From the point of view of my training, Jones Day did fail on the second point, and obviously, because we see strong evidence: the opinion of the Judge. As to the first, what is remarkable here is that the Judge has ruled strictly here, not asking for or waiting for full discovery, whereas with the original IH MtD, she bent over backwards to allow Rossi opportunity to show, in discovery, sufficient evidence to carry on. Something is odd here. I am not claiming (nor do I think) she is prejudiced, though she might have some sense of allowing the obvious underdog, Rossi, every facility, the boutique lawyer Annesser faced with highly skilled and experienced counsel. She might be expecting much more from Jones Day.

At most, the Third-Party Claims suggest in conclusory fashion the failure to provide information was tantamount to affirmatively misrepresenting the nature of operations at the facility. Counter-Plaintiffs do not attribute any specific deceptive statements or acts to Fabiani or Quantum Leap.

Jones Day remains less than crystal clear on this. However, that belongs in an analysis of their new motion, not here. I will, before completing this, review the pleadings, but my impression now is that the Judge was arguably correct on this, and her ruling might still stand on appeal. However, she did not rule “with prejudice,” explicitly. I don’t know if that matters, is a ruling with no statement as to prejudice “without” or “with” prejudice? Here, she dismisses based on something missing from the pleadings. In moving for amendment, IH appears to be correct. They should be allowed to amend, but … they are on notice that the amendment should be completely clear on what they are alleging, and, this is important: no exhibits are needed. (And they don’t provide any on the specific point here, they merely make noises about utility bills, indicating, at the least, sloppy work on the part of Fabiani. “Sloppy work,” however, can cover deceptive intent. I would give them the opportunity to establish what they clearly suspect, deceptive intention, that is, initially, based on a pattern of behavior (i.e., not mere suspicion, which is not enough). If they do not show actual evidence, in or from Discovery, they would then be open for a Motion for Judgment on the part of Fabiani (and Bass, though the matter is more clear regarding Bass. He was, at least, unwittingly deceptive, if the IH claims are true, as she must assume, and that deception reasonably contributed to an IH choice to continue support for a fraudulent “test.”

The Judge does accept that the first FDUPTA test was passed as to the JMP defendants. Then,

Turning to the second and third elements, Counter-Plaintiffs fail to plausibly allege causation between Johnson’s, J.M. Products’s, and Bass’s complained-of deceptive acts and actual damages in the form of service payments, expense reimbursements, and equipment costs. 8

According to Counter-Plaintiffs, Johnson and J.M. Products contributed to the scheme by inducing the Plant’s move to Florida, while Bass allegedly made false statements about J.M. Products and the confidential operations at the facility. While these actions may have contributed to the scheme, none directly resulted in Counter-Plaintiffs’ damages.

This was strange, because her note 8 has:

8 Counter-Defendants and Third-Party Defendants charged for work and equipment related to the Plant’s operation, causing Counter-Plaintiffs to pay for expenses not truly incurred for their benefit. (See ThirdParty Claims ¶ 145; Resp. 12 n.12). These expenses at least constitute actual damages, which flowed directly from the false representation the E-Cat was performing at exceptional levels.

The damage alleged here is continued payment of expenses, not the initial expense of moving the Plant to Doral (and the accompanying loss of control and ability to supervise or closely monitor an alleged test, an issue that she seems to understand).

Plaintiffs do not allege how Bass’s statements and his posing as an employee — while misleading — directly caused Counter-Plaintiffs to believe the Plant was performing at the promised productivity rate, and hence, did not directly cause them to incur damages. As a result, Count IV is dismissed as to all Third-Party Defendants.

Her comment misses a middle position. The middle position would be that Rossi behavior would cause any reasonable person to suspect problems. However, the representations of Johnson and Bass led them to postpone confrontation; after all, if these were not misleading, then the “problems” were only in some appearance, with possible explanations other than fraud. A independent customer willing to pay $1000 per day for power, allegedly based on their own measurements, is a very strong argument for reality, and Johnson and Bass clearly contributed to that (if what IH has alleged is true).

As to Fabiani, Fabiani was their insurance policy, one might think. Again, because Fabiani was an old friend of Rossi, they might have suspected him, but they may also have thought, “We are paying him well, surely he would not defraud us, it would be unlawful.” Whether or not Fabiani actually conspired with Rossi, or was merely negligent or sloppy, would be a matter that would need to be shown. Negligence might be actionable, and that could be Count V. It would not be relevant to Count IV.

(Rossi has frequently claimed that Fabiani was one of “IH’s men” in Doral, as an argument that IH knew everything going on.)

Counter-Plaintiffs allege Fabiani and Quantum Leap breached the Quantum Leap Agreement by disregarding contractual obligations to Industrial Heat in assisting Rossi and Leonardo’s deceptive operations in Florida and failing to disclose complete and accurate information related to their work on the Plant. (See id. ¶¶ 86–88, 153–55). Third-Party Defendants argue Count V should be dismissed because: (1) it does not state a cause of action since the alleged breaches occurred after the Quantum Leap Agreement terminated on August 31, 2014; (2) the contract is void as a matter of law with regard to Fabiani; and (3) Fabiani is not bound by the entire agreement, since the Joinder only bound him to certain sections. (See Mot. 17–19). Although the first issue is dispositive, the Court addresses each argument in turn.

The Judge here relies on the 3rd Party Defendants’ claim that the USQL contract terminated. Here is an example where including the contract as an Exhibit created that appearance. This was somewhat contradicted by the Fabiani emails, which appeared to expect that the contract was in force.

What had IH asserted? 11/23/2016 0078-0_3rd_Amended_AACT — links added.

[Paragraph] 63. Shortly after the Plant was delivered, Industrial Heat retained Fabiani, who had long worked with Rossi, as an independent contractor. More specifically, on September 1, 2013, Industrial Heat entered into a Technical Consulting Agreement with USQL, through its sole member, Fabiani (“USQL Agreement”). The USQL Agreement is attached hereto as Exhibit 11. Industrial Heat engaged USQL and Fabiani – who joined the USQL Agreement in his individual capacity – to “provide services related to the manufacture and development” of the Plant and related E-Cat IP. USQL Agreement at 1. […]

83. Leonardo, Rossi, JMP, Johnson, USQL, Fabiani, and Bass also restricted access to the JMP area at the Doral location, claiming that there was a secretive manufacturing process being conducted there, when in fact it was simply recycling steam from the Plant and sending it back to the Plant as water.
84. Fabiani, USQL and Penon also played critical roles in the scheme to hide the fact that the Plant does not perform up to the standards set forth in the License Agreement.
85. The USQL Agreement imposes an affirmative obligation upon USQL and Fabiani promptly to disclose information relating to their work on the Plant or the E-Cat IP. See USQL Agreement § 7. The USQL Agreement also makes clear that information obtained by USQL or Fabiani during the course of their work under the USQL Agreement is the sole property of Industrial Heat. Id. § 6.

83 and 84 are apparently conclusory and possibly confused. How did Fabiani restrict access? 85 would rest on an allegation that the USQL Agreement was still in effect. IH did not specifically allege this. However:

88. As just one example, in late February 2016, shortly after the conclusion of the purported Guaranteed Performance test, USQL and Fabiani committed to send certain data and a report by the end of March 2016 that would “bring to light all the flaws and functional deficiencies of the system” and identify “the plant stop periods (total or partial).” In later emails, USQL and Fabiani also committed to provide Industrial Heat with the raw data that USQL and Fabiani collected while working with the Plant in Doral, Florida. Despite repeated reminders, however, USQL and Fabiani have refused to provide either the report or the raw data to Industrial Heat. See, e.g., Ex. 21.

Exhibit 21 shows that there was an ongoing relationship. In context, the default would be to assume the continuation of the prior Agreement. If IH had not asserted the Agreement as an Exhibit, creating something that any competent attorney would immediately notice (the expiration), the issue might not have come up. They would simply have claimed that there was an agreement between IH and USQL and Fabiani to provide stated services for stated compensation. If this is to be performed short-term, and if it can be established by testimony, it need not be in writing.

But there was an agreement in writing, which provided for termination and extension only with written agreement. Was IH obligated to disclose that and then deal with the detail? My opinion is no, they were not. The parties behaved as if the Agreement were continued. Classic estoppel.

IH, in Count V, again referred to the USQL Agreement, quoting part of it. They do not refer to any evidence that the agreement had been renewed. The paradox here is that a plaintiff is not required to show evidence to make an effective pleading, they must merely establish the possibility of evidence. Stating that there was an agreement could be enough. So more was less.

In the 3rd Party Motion to Dismiss, as to Count V, we have:

Although the Technical Consulting Agreement provides that it may be extended if the parties agree in writing (id.), IH has not alleged that any extension occurred nor has IH attached a copy of any written agreement extending such contract. Accordingly, based solely upon the allegations contained in the Counterclaims and Third-Party Claims, and exhibits thereto, IH’s claim for breach of contract fails. Clearly, any actions and/or inactions occurring after the stated termination of the Technical Consulting Agreement on August 31, 2014, cannot give rise to a claim for breach of contract. Moreover, by the plain and unambiguous terms of the Technical Consulting Agreement, upon termination of the Agreement, USQL and/or Fabiani had no further obligations to IH. For the foregoing reason, IH’s claim for breach of contract fails.

There is an irony here, I’ll briefly mention. The Second Amendment to the License Agreement between Rossi, IH, and Ampenergo provided that the date of the Guaranteed Performance Test was to be set by a signed agreement of the parties. Rossi did not (and has not) alleged that such an agreement exists. On the other hand, IH has never specifically raised that particular issue, there was only a hint of it in the withdrawn Motion for Judgment.

Responding to the MtD, IH had:

A. The USQL Agreement Was In Force During The Relevant Period.

USQL and Fabiani’s argument that the USQL Agreement was not in effect during 2015 and 2016 is unavailing. […] Accepted as true, the emails in Exhibit 21 demonstrate and allow the Court to draw the reasonable inference that the USQL Agreement was in effect in 2015 and early 2016, and thus Counter-Plaintiffs may allege that USQL and Fabiani breached the USQL Agreement during that time.

There is a semantic error here. The original USQL Agreement expired August 31, 2014. What the USQL attorney asserted was not that there was no agreement, but an obvious truth: without a written extension, that Agreement expired. Yet there was obviously an ongoing relationship, with IH paying Fabiani and expecting services, and Fabiani acknowledging the right of IH to services, and promising them, from Exhibit 21. IH may allege violation of an agreement, but not “the USQL Agreement,” without alleging something further, which they did not allege. The objection of the USQL attorney was an obvious one, any attorney who did not pick up on it would be incompetent, brain-dead, or both. Yet IH doesn’t face it directly. It is possible that Jones Day was unaware of the renewal, yet they would surely have asked about it. Did IH really pay over $11,000 per month with no agreement?

It seems unlikely, but it could have happened. IH vaguely asserts estoppel here. A claim of estoppel should not be vague, if I’m correct. It is not enough that IH paid Fabiani. It must have been upon an agreed expectation (written or otherwise). IH did not assert such, clearly, but relied on the Exhibits, and, as I’ve pointed out before in studying this case, and in spite of it being a common lawyer trope, Exhibits do not speak for themselves.

As might have been expected, the USQL attorney comes back with clarity. This is not Annesser.

Third Party Defendants Fabiani and USQL do not disagree with Defendants that they entered into a contractual relationship with IH to perform services, but re-assert that the Technical Consulting Agreement was not the operative agreement and did not bind any of the parties after it expired. The Agreement expressly provided: The Agreement shall commence as of September 1, 2013 and shall
continue in effect for an initial term through and including August 31, 2014 (the “Initial Term”). This Agreement shall terminate upon expiration of the Initial Term unless the parties agree in writing to extend it. (ECF No. 78, Ex. 11.) “The cardinal rule of contractual construction is that when the language of a contract is clear and unambiguous, the contract must be interpreted and enforced in
accordance with its plain meaning.”

IH may have been lulled to sleep by dealing with Annesser. The behavior of the parties after August 31, 2014, showed a continued relationship but does not, itself, show if an Agreement is being followed and, if so, what Agreement, specifically. Inventing this, if, in a conversation between Fabiani and someone with authority at IH, they verbally agreed to continue “as before,” this would be a new agreement, that merely incorporates the old one by reference. Strictly, speaking, it would not be the old agreement being enforced, but the new one. Such a new agreement may not have an expiration date, and would be, defacto, renewed and continued at will.

The Judge simply agreed with the USQL attorney, who was correct. The problem is that IH did not clearly establish what agreement was in force. Absent more specific claim, it was not the original Agreement, as the IH language implies. If it existed, it was a new agreement created mutually. If they had asserted that, the Count may have been allowed to stand. They did not.

However, I do think the Judge erred. A more proper response, my opinion, would have been to note the obvious defect and request IH to remedy it on pain of dismissal if they did not.

As this stands now, with the request to amend, they have provided evidence of renewal. What they gave before was only conclusory, “the Agreement was in force,” and was, strictly speaking, incorrect, because “the Agreement” referred to the original agreement. What was in force was an extension, now Exhibit 28.

That document also shows explicit and immediate Joinder of Fabiani. Key, however, is what is in the pleadings.

The 4th amended AACT contains the same weakness as the 3rd (and probably previous). Paragraph 85 in the 3rd refers to “the USQL Agreement” but does not state what agreement, there were probably three, probably continuous. Agreement executed what date? They do not refer, there, to the Exhibit they had provided, which was, originally, the wrong agreement, it was the old, obsolete one. They have not fixed these defects. (The fix would have modified Paragraph 84 of the draft 4th Amended AACT.)

However, under Count V, they do assert renewal — though not joinder! However, the Judge dismissed arguments based on alleged joinder issues. Fabiani is personally on the hook, if the Motion is granted.

I predict that the Judge will now allow Claim V, because, now, the basis for dismissal is clearly incorrect, and it is not clear that IH cannot appeal that dismissal to her. They can appeal it to a higher court, and could possibly win (I’d say probably), and I’m told that Judges hate to be reversed. Besides, sense of fairness and all that.

Fabiani on the hook again?

IH just filed a motion for leave to amend their AACT, a fourth amendment (as proposed) They attach exhibits, 28 and 29, that show that the Fabiani contract with IH was explicitly renewed, contrary to an apparent claim or misunderstanding of non-renewal that was used by the Judge to dismiss Count V, against Fabiani for Breach of Contract. Continue reading “Fabiani on the hook again?”

Why the Doral conditions matter

Industrial Heat alleges that the Doral installation was set up fraudulently, but Rossi supporters argue that all that matters is whether or not the reactor worked. If it worked, they believe, IH should pay him $89 million, because that is how they read the Agreement.

However, what was contemplated in the Agreement did not happen. The Agreement was poorly drafted, from all points of view, but was tolerated by the parties, each for their own reasons.

The terms of the Agreement for a Guaranteed Performance Test were not followed; this was replaced by the Second Amendment with something more workable, but that, too, was not followed.  Continue reading “Why the Doral conditions matter”

Patent nonsense

A discussion on lenr-forum struck me. The issues raised have been raised many times, and addressed, but they keep coming back.

It’s about claims that IH has made contradictory statements about whether or not they have confirmed excess heat with Rossi devices, and about the patent they filed, why did they file a patent if the technology was useless?

Perhaps this is worth a close examination. Continue reading “Patent nonsense”

RvD: Analysis of 3P MTD arguments

Count III
Count IV
Count V

Count III

From the 3rd Amended AACT:

COUNT III: FRAUDULENT INDUCEMENT (Term Sheet) (Industrial Heat against Rossi, Leonardo, JMP, and Johnson)

134. Industrial Heat realleges the allegations in Paragraphs 1 through 88 as if fully set forth herein.
135. Rossi, Leonardo, JMP, and Johnson falsely represented to Industrial Heat that JMP was a manufacturing company with a real commercial use for the steam power generated by the Plant.
136. In reality, JMP was not a manufacturing company, had no commercial use for the steam power generated by the Plant, and was created solely as a ruse to induce Industrial Heat to ship the Plant to Florida.
137. Rossi, Leonardo, JMP, and Johnson made such false representations to induce Industrial Heat to enter into the Term Sheet so that Leonardo and Rossi could operate the Plant without Industrial Heat’s direct supervision or oversight, thereby allowing them to manipulate the operation of the Plant, any measurement of the operation of the Plant, and any purported “Guaranteed Performance” testing of the Plant.
138. Industrial Heat justifiably relied on such false representations in entering into the Term Sheet. Industrial Heat would not have agreed to the Term Sheet but for such false representations.
139. As a result of Rossi, Leonardo, JMP, and Johnson’s fraudulent inducement, Industrial Heat has suffered and continues to suffer damages. Among the damages are the following: the cost of transporting the Plant to Florida; the cost of operating the Plant in Florida; the cost of engaging and paying two independent contractors, one of whom was Fabiani; and a host of additional expenses charged to Industrial Heat in connection with the operation and maintenance of the Plant in Florida.

My plan was to copy and study the arguments from the MTD, the response and the reply, but I found immediately that I would be copying much redundant material. Instead, I’m most interested in the thinking of the judge, so I will review that first. As in other analyses, I add links to relevant documents and where possible to cited cases or other informative pages.

From the Order:

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this “plausibility standard,” a plaintiff must “plead: factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (alteration added) (citing Twombly, 550 U.S. at 556). “[I]t simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [behavior].” Twombly, 550 U.S. at 556 (alterations added). The mere possibility a defendant acted unlawfully is insufficient to survive a motion to dismiss. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (citing Iqbal, 556 U.S. at 678).

A. Count III: Fraudulent Inducement
Counter-Plaintiffs claim J.M. Products, Johnson, and Counter-Defendants fraudulently induced Industrial Heat to enter into the Term Sheet by falsely representing J.M. Products was a manufacturing company with real commercial use for the steam power generated by the Plant. 
(See Third-Party Claims ¶¶ 134–39).

To state a claim for fraudulent inducement in Florida, a plaintiff must plead: “(1) the defendant made a false statement about a material fact; (2) the defendant knew the statement was false when he made it or was without knowledge of its truth [or] falsity; (3) the defendant intended that the plaintiff rely and act on the false statement; and (4) the plaintiff justifiably relied on the false statement to his detriment.” Persaud v. Bank of Am., N.A., No. 14-21819-CIV, 2014 WL 4260853, at *12 (S.D. Fla. Aug. 28, 2014) (alteration added) (quoting Barrett v. Scutieri, 281 F. App’x 952, 953 (11th Cir. 2008)). Additionally, Rule 9(b) requires plaintiffs to plead the circumstances constituting fraud with particularity, see FED. R. CIV. P. 9(b), setting forth the precise oral and written statements made, when and where these statements were made, to whom and by whom they were made, and/or what was obtained as a result. See Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (quoting Brooks, 116 F.3d at 1371).

To support their fraudulent inducement claim, Counter-Plaintiffs rely on Johnson’s and J.M. Products’s representations at the August 2014 meeting (see Third-Party Claims ¶ 74), and a written representation made by Johnson on behalf of J.M. Products (see id.).(4)

(4) Johnson and J.M. Products represented J.M. Products was a subsidiary of Johnson Matthey at the August 2014 meeting in North Carolina (see Third-Party Claims ¶ 74), and indicated Johnson Matthey was interested in using the E-Cat technology in connection with a confidential manufacturing process it wanted to operate in Florida (see id.). In an August 2014 document, Johnson on behalf of J.M. Products certified Johnson Matthey was owned by a U.K. entity and neither the Counter-Defendants, Johnson, nor any affiliated parties held any ownership interest in the company. (See id.).

Third-Party Defendants argue Counter-Plaintiffs fail to comply with Rule 9(b) because: (1) they do not 
“specify when, specifically, or to whom, specifically, [the meeting] statements were made” (Mot. 6 (alteration added)), and (2) the allegation false statements were made in “August 2014, generally” is insufficient given the Term Sheet’s effective date on August 13, 2014.(5) The November 16 Order already determined Counter-Plaintiffs adequately pleaded their fraudulent inducement claim with respect to the August meeting statements. (See November 16 Order 13). The purpose of the meeting, per Counter-Plaintiffs, was to convince Industrial Heat to permit the Plant to be moved to Miami, Florida. (See Third Party Claims ¶ 74 (stating the meeting was “in furtherance of [the] scheme” to remove the Plant for Industrial Heat’s control (alteration added)). The meeting would not have occurred if the Term Sheet had already been signed; hence the Third Party Claims sufficiently allege the August meeting occurred before the execution of the Term Sheet.

The same cannot be said for J.M. Products’s written representation regarding J.M. Matthey in the document titled “Compliance with OFAC.” (See Compl., Ex. B 25). In the document, Johnson, acting on behalf of J.M. Products, certifies to Industrial Heat that J.M. Products is in compliance with the rules and regulations of the Office of Foreign Asset Control (OFAC). (See id.). The document further states J.M. Products is owned by a U.K. entity and neither the Counter-Defendants, Johnson, nor any affiliated parties hold any ownership interest in the company. (See id.). This is the portion of the document Counter-Plaintiffs fixate on to
support of the fraudulent inducement claim. 

(5) Additionally, Industrial Heat argues Johnson and J.M Products have failed to plead the knowledge element of the FDUTPA claim. (See Mot. 7). Because the claim involves Johnson and J.M. Products’s false representations about themselves, at the very least they ought to have known of the falsity of their statements, which is sufficient to establish the knowledge element. See Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So. 2d 168, 172–73 (Fla. 4th DCA 1994) (finding knowledge element is satisfied when “the representor ought to have known, if he did not know, of the falsity” of statements (internal quotation marks omitted) (quoting Alexander/Davis Properties, Inc. v. Graham, 397 So. 2d 699, 706 (Fla. 4th DCA 1981))).

However, the document is undated and it is not facially apparent why it was produced (for instance, if it was signed after the execution of the Term Sheet or as part of another agreement between J.M. Products and Industrial Heat). Although Counter-Defendants submitted the document in the same CM/ECF exhibit as the License Agreement and its attachments (see Compl., Ex. B), it is not listed as an attachment and does not appear to be a part of that Agreement (see License Agreement § 16.15 (listing exhibits and schedules)). Without more information, most importantly, the date of signing, the Compliance with OFAC document cannot support the contention Third-Party Defendants intended Counter-Plaintiffs to rely on the misrepresentation to enter the Term Sheet; thus, the document does not meet the heightened pleading standard of Rule 9(b). Nevertheless, because the August meeting statements are sufficient to state a claim, Count III remains intact. 

She noticed. I’ve been writing for months that the document was undated, and that the document was accidentally included with the filing of Exhibit B, but indications (from the name of the company) are that it was signed around the time of the meeting in North Carolina, where the Term Sheet was executed. She is quite correct: this document does not show that it was executed in order to induce IH to enter into the Term Sheet agreement. It remains as evidence as to what was being represented to IH. My sense is that IH prepared that document, and gave it to Johnson to sign. The approximate date of this could be established, but the Judge’s point is clear: this doesn’t show the necessary timing.

Jones Day may have fallen into a common trap here. Johnson was almost certainly lying (or being grossly misleading) in signing that certification, but so what? It only matters here if IH suffered damage as a result. (We see commentary on Planet Rossi all the time claiming that this or that alleged fact shows IH to be Bad People and therefore … therefore what? Similarly, Rossi uses sock puppets on his blog. Therefore …. therefore what? I am only interested in that because people and how they think are of high interest to me. It has no legal significance beyond the unlikely but possible filing of a defamation suit. Rossi might be held accountable for what he pretended was said by someone else.

In this case, the error did not harm IH, because at this point all that matters for IH is that Count III remained intact. That document could be introduced as evidence, easily, at trial and might have an effect on a jury.

Count IV

From the 3rd Amended AACT:

(Industrial Heat and IPH against all Counter-Defendants and Third-Party Defendants)
140. Counter-Plaintiffs reallege the allegations in Paragraphs 1 through 135 as if fully set forth herein.
141. As described in greater detail above, Rossi, Leonardo, Johnson, JMP, Penon, Fabiani, USQL, and Bass (the “FDUTPA Defendants”) were all engaged in a common scheme against Counter-Plaintiffs.
142. The first part of the scheme was to manipulate Counter-Plaintiffs into allowing the Plant to be sent from the Industrial Heat facility in North Carolina – where any work on, operation of, or testing of the Plant could be supervised and overseen by Counter-Plaintiffs – to Florida, where Leonardo, Rossi, USQL, Fabiani, and Penon could operate the Plant and purportedly conduct measurements of the Plant’s operations away from the oversight and control of Counter-Plaintiffs.
143. The second part of the scheme was to manipulate the operation of the Plant and the measurements of the Plant’s operations to create the false and deceptive appearance and impression that the Plant was performing at astronomical levels, with COP measurements not only well in excess of anything achieved by any third party testing of the E-Cat technology, but in fact many multiples higher than anything achieved by any third party testing. For example, notwithstanding flaws in their testing methodology that would have caused them to overstate their conclusions of the COP they were measuring from an E-Cat reactor, the Lugano scientists concluded that the E-Cat reactors they measured were producing a COP of 2.6, 2.9, 3.2, 3.6 or 5.6. According to the manipulated and fabricated testing and measurements of the FDUTPA Defendants, they – through Leonardo, Rossi, and Penon – claimed that they were achieving COPs more than 10 times greater than the Lugano scientists, and in fact as high as 40+ times greater than the Lugano scientists.
144. The final part of the scheme, of course, was for Leonardo and Rossi, based on the false and deceptive operations of the Plant in Florida, to claim to Counter-Plaintiffs that they were required to pay Leonardo and Rossi $89 million and, when Counter-Plaintiffs rightfully refused, to institute litigation against Counter-Plaintiffs.
145. Another goal of the scheme was to obtain various payments from CounterPlaintiffs for work that one or more of the FDUTPA Defendants was performing not to benefit Counter-Plaintiffs, but in fact with the goal of harming Counter-Plaintiffs. Among these payments were service payments to USQL, Fabiani, and Penon; expense reimbursements to Leonardo, Rossi, USQL, Fabiani, and Penon (including for travel, apartment rentals, visa-related costs, repair work to the Plant, patent attorneys, and patent application fees); and payments for equipment (or the transportation of equipment) to be used – or purportedly to be used – by the FDUTPA Defendants.
146. In furtherance of this scheme, the FDUTPA Defendants engaged in the unconscionable, unfair, and deceptive acts and practices described above, including:
a. Deceiving Counter-Plaintiffs about JMP, the operations of JMP, the supposed role of Bass, and the reasons for JMP wanting to use the steam power that could be generated by the Plant.
b. Deceiving Counter-Plaintiffs as to the reasons for wanting to move the Plant from North Carolina to Florida.
c. Manipulating the operation of the Plant and the measurements of the Plant’s operations to create the false impression and appearance that it was producing a COP far in excess of the COP it was in fact achieving.
d. Providing false information to Counter-Plaintiffs as to the operation of the Plant and the measurements of the Plant’s operations.
e. Refusing to provide other information properly requested by CounterPlaintiffs, and to which Counter-Plaintiffs were entitled pursuant to the License Agreement, the Term Sheet, the USQL Agreement, and/or the nature of the purportedly (but in fact, not) independent work being done by Penon.
f. Preventing or blocking Counter-Plaintiffs from obtaining truthful information about the Plant’s operations, the measurements of those operations, the role of JMP, the use by JMP of steam provided by the Plant, the role of Penon, or the bases for expenses or costs charged to Counter-Plaintiffs.
g. Charging Counter-Plaintiffs for services, expenses, and equipment that were purportedly being used either for the benefit of, and to further the goals of, Counter-Plaintiffs when in fact no such services, expenses, or equipment were being used for Counter-Plaintiffs’ benefit.
147. The acts and practices alleged above, including in the prior paragraph, were unconscionable, unfair, and deceptive. As such, they have been declared unlawful pursuant to Section 501.204 of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).
148. As a result of the foregoing acts and practices declared unlawful under FDUTPA, Counter-Plaintiffs have suffered and continue to suffer actual damages, as described above.

The Judge reasoned:

B. Count IV: the FDUTPA
Counter-Plaintiffs allege Counter-Defendants, Third-Party Defendants, and Penon violated the FDUTPA by engaging in a common scheme focused on moving the Plant to Florida and creating the false impression the Plant was performing at exceptional levels in order to obtain the final $89 million available under the contract as well as other related payments. (See generally Third-Party Claims ¶¶ 140–48). Third-Party Defendants’ main argument is  CounterPlaintiffs fail to establish all the elements of a FDUTPA claim.(6) (See Mot. 7, 9–15)

(6) Third-Party Defendants also begin attacking the FDUTPA claim by echoing an argument rejected in the November 16 Order. They contend Counter-Plaintiffs improperly recast their contract claims as FDUTPA tort claims. (See Mot. 7–8; see also Counter-Defendants’ Motion to Dismiss 21). The November 16 Order rejected this argument, finding claims giving rise to a breach of contract may also constitute an unfair or deceptive act under the FDUTPA (see November 16 Order 15–16); and CounterPlaintiffs adequately described deceptive practices “related to but separate from their breach of contract claims” (id. 16).

To state a claim for a FDUTPA violation, a plaintiff must show: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. See Medimport S.R.L. v. Cabreja, 929 F. Supp. 2d 1302, 1319 (S.D. Fla. 2013) (quoting Blair v. Wachovia Mortg. Corp., No. 5:11-CV-566-OC-37TBS, 2012 WL 868878, at *3 (M.D. Fla. Mar. 14, 2012)). “[A] deceptive act occurs when ‘there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.’” Gavron v. Weather Shield Mfg., Inc., 819 F. Supp. 2d 1297, 1302 (S.D. Fla. 2011) (alteration added) (quoting PNR, 
Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003)).

To plead the second element of a FDUTPA claim, a plaintiff must show causation, stating how an alleged deceptive or unfair practice actually resulted in damage. See Kais v. Mansiana Ocean Residences, LLC, No. 08-21492-CIV-MORENO, 2009 WL 825763, at *1 (S.D. Fla. Mar. 26, 2009) (citation omitted). At the time of trial, the plaintiff need not prove reliance on deceptive acts, but “causation must be direct, rather than remote or speculative.” Lombardo v. Johnson & Johnson Consumer Cos, Inc., 124 F. Supp. 3d 1283, 1290 (S.D. Fla. 2015) (quoting Hennegan Co. v. Arriola, 855 F. Supp. 2d 1354, 1361 (S.D. Fla. 2012); citing Fla. Stat. §501.211(2) (A “person who has suffered a loss as a result of a violation of this part . . . may recover actual damages.” (emphasis and alteration added))). Finally, to satisfy the third element of a FDUTPA claim, a plaintiff must show actual damages which “directly flow” from the deceptive or unfair act; consequential damages are not recoverable. Hennegan, 855 F. Supp. 2d at 1361.

Fabiani and Quantum Leap. The crux of the alleged FDUTPA violation is the manipulation of testing and performance data in order to obtain the final $89 million payment and related payments. (See Third-Party Claims ¶¶ 142–45). Even accepting the allegations of the Third-Party Claims as true, Counter-Plaintiffs have not satisfied the first element as to Fabiani and Quantum Leap. While Counter-Plaintiffs lump Fabiani and Quantum Leap into the “FDUTPA Defendants” group, these Third-Party Defendants were not involved in the 
substantive acts mentioned in Count IV. The allegations as to Fabiani and Quantum Leap focus on and are based on these parties’ failure to provide information in breach of the Quantum Leap Agreement (See Mot. 15). At most, the Third-Party Claims suggest in conclusory fashion the failure to provide information was tantamount to affirmatively misrepresenting the nature of operations at the facility. Counter-Plaintiffs do not attribute any specific deceptive statements or acts to Fabiani or Quantum Leap. (See Third-Party Claims ¶¶ 84–88). Accordingly, Count IV is dismissed as to Fabiani and Quantum Leap.

Johnson, J.M. Products, and Bass. With regard to Johnson, J.M. Products, and Bass, Counter-Plaintiffs plead the first element of a FDUTPA claim, stating these Third-Party Defendants engaged in at least some deceptive acts or unfair practices. For instance Johnson, J.M. Products, and Bass represented a confidential manufacturing process was being conducted at the Doral facility by a real customer in need of the steam generated by the Plant. (See Third-Party Claims ¶¶ 74, 79). This and other representations were “likely to mislead” CounterPlaintiffs about the actual operations at the facility.(7)

(7) Third-Party Defendants assert Johnson, J.M. Products, and Bass’s relationship with Industrial Heat was limited to mere “rental of the Plant.” (Mot. 11). These Third-Party Defendants maintain the hiring of a fake engineer and the restriction of access to the Doral facility were “not deceptive or unfair . . . pursuant to the Term Sheet” because “access to [the] facility or operation was never promised or required” and “the Term Sheet does not require [them] to provide Counter-Plaintiffs with any details concerning [the] facility or its operations therein.” (Id. (alterations added)). First, an unfair or deceptive act need not be based on a contractual relationship. Further, Third-Party Defendants’ characterizations directly contradict the plain language of the Term Sheet. The Term Sheet expressly provides: “[Industrial Heat] will be allowed to visit the [Plant] at any time” (Term Sheet ¶ 13 (alterations added)), and “J.M. Products will keep records of the operation of the [Plant] as reasonably requested by Leonardo or [Industrial Heat] and will provide copies of such records to Leonardo and [Industrial Heat] upon request” (Id. ¶ 19 (alterations added)).

Turning to the second and third elements, Counter-Plaintiffs fail to plausibly allege causation between Johnson’s, J.M. Products’s, and Bass’s complained-of deceptive acts and actual damages in the form of service payments, expense reimbursements, and equipment costs.(8)

According to Counter-Plaintiffs, Johnson and J.M. Products contributed to the scheme by inducing the Plant’s move to Florida, while Bass allegedly made false statements about J.M. Products and the confidential operations at the facility. While these actions may have contributed to the scheme, none directly resulted in Counter-Plaintiffs’ damages. Counter-Plaintiffs suffered damages as a result of a scheme that engendered the belief the Plant was performing at the rate specified in the License Agreement. The damages did not “directly flow” from the Plant’s transfer to Florida. The Florida location may have made it more difficult to monitor its operations, but it was Rossi’s and Leonardo’s(9) alleged manipulation of the Plant’s operations and deception about its ability to achieve “Guaranteed Performance”(10) that caused the identified damages. (See Third-Party Claims ¶¶ 80, 142–44, 146c–d). Similarly, Counter-Plaintiffs do not allege how Bass’s statements and his posing as an employee — while misleading — directly caused Counter-Plaintiffs to believe the Plant was performing at the promised productivity rate, and hence, did not directly cause them to incur damages. As a result, Count IV is dismissed as to all Third-Party Defendants.

(8) Counter-Defendants and Third-Party Defendants charged for work and equipment related to the Plant’s operation, causing Counter-Plaintiffs to pay for expenses not truly incurred for their benefit. (See Third-Party Claims ¶ 145; Resp. 12 n.12). These expenses at least constitute actual damages, which flowed directly from the false representation the E-Cat was performing at exceptional levels.
(9) Counter-Plaintiffs also allege Penon engaged in similar acts to manipulate measurements and misrepresent the performance of the E-Cat. (See Third-Party Claims ¶¶ 90–92).
(10) Even accepting Counter-Plaintiffs’ allegations as to the deceptive nature of these acts, issuing falsified invoices (see Third-Party Claims ¶ 77); posing as an employee (see id. ¶ 78); and/or expressing satisfaction with a non-existent product (see id. ¶ 78), do not provide information about the rate at which the Plant generates the energy. (See Mot. 11). This is the relevant inquiry when assessing the Plant’s performance, and the Plant’s supposedly high-level performance is part of the reason Counter-Plaintiffs incurred certain expenses.

 Count V

From the 3rd Amended AACT:

COUNT V: BREACH OF CONTRACT (Industrial Heat against Fabiani and USQL)
149. Industrial Heat realleges the allegations in Paragraphs 1 through 88 as if fully set forth herein.
150. Industrial Heat retained USQL and Fabiani to “provide services related to the manufacture and development” of products relating to the E-Cat IP. See USQL Agreement, Page 1. They were required to act in a manner in, and not opposed to, the best interests of Industrial Heat. See id. § 3.
151. The USQL Agreement makes clear that information obtained by USQL and Fabiani arising out of the services they agreed to provide to Industrial Heat is the property of Industrial Heat. For example, the USQL Agreement states: All Confidential Information, records, files, memoranda, reports, drawings, plans, designs, specifications, tests and results, recordings, documents and the like (together with all copies thereof), including any of the foregoing that are electronically maintained, relating to the business of Industrial Heat or the
engagement of USQL [and Fabiani] pursuant to this Agreement that USQL [and Fabiani] shall use or prepare or come in contact with in the course of, or as a result of, the engagement of USQL [and Fabiani] under this Agreement shall remain the sole property of Industrial Heat . . . . Id. § 6.
152. The USQL Agreement also requires that USQL and Fabiani promptly disclose to Industrial Heat (among other things) developments and discoveries relating to the Plant or the ECat IP:
USQL [and Fabiani] further agree[] that . . . [they] will promptly disclose to Industrial Heat any and all improvements, inventions, developments, discoveries, innovations, systems, techniques, processes, formulas, programs and other things that may be of assistance to Industrial Heat or its affiliates, whether patentable or unpatentable, that (i) relate to the actual or demonstrably anticipated research or development by Industrial Heat or any of its affiliates, or (ii) result from any work performed by USQL [and Fabiani] for or at the request of Industrial Heat, or (iii) are developed on Industrial Heat’s time or using the equipment, supplies or facilities or any Confidential Information or trade secret information of Industrial Heat, or any of its affiliates; and that are made or conceived by USQL [and Fabiani], alone or with others, while engaged by Industrial Heat (collectively referred to herein as the “New Developments”). USQL [and Fabiani] agree that all New Developments shall be and remain the sole and exclusive property of Industrial Heat and that it shall upon the request of Industrial Heat, and without further compensation, but at the cost and expense of Industrial Heat, do all things
reasonably necessary to [e]nsure Industrial Heat’s or its affiliate’s ownership of such New Developments. Id. § 7.

153. USQL and Fabiani breached the USQL Agreement by failing to provide services to Industrial Heat relating to the manufacture and development of the Plant and the E-Cat IP. More specifically, USQL and Fabiani disregarded their contractual obligations to Industrial Heat in order to assist Leonardo and Rossi in their deceptive operations in Florida. Indeed, instead of working in “the best interests of Industrial Heat,” as required by USQL Agreement § 3, Fabiani and USQL were – as Fabiani publicly admitted – working “under Rossi’s orders,” including assisting Rossi in actions directly against Industrial Heat’s interests as alleged above.

154. USQL and Fabiani also breached the USQL Agreement by failing to provide Industrial Heat with information relating to the scheme to manipulate the operation and testing of the Plant. USQL and Fabiani had an affirmative obligation to inform Industrial Heat of the scheme to manipulate the Plant’s operations and the testing. Such information would constitute a “New Development” that USQL and Fabiani were required to disclose to Industrial Heat pursuant to the USQL Agreement. USQL and Fabiani also refused to provide other information to Industrial Heat, as alleged above. USQL and Fabiani intentionally withheld information from Industrial Heat relating to the scheme and, therefore, breached the USQL Agreement.
155. USQL and Fabiani further breached the USQL Agreement by failing to provide Industrial Heat with information, including reports and data, relating to the operation of the Plant in Doral, Florida. Industrial Heat made several demands for such information and USQL and Fabiani have repeatedly refused to provide Industrial Heat with the reports and data. See, e.g., Ex. 21.
156. Industrial Heat and IPH have suffered harm as a result of USQL and Fabiani’s breaches of the USQL agreement including USQL and Fabiani’s failure to further the best interest of Industrial Heat, failure to provide Industrial Heat with information relating to the scheme pled herein, and failure to provide Industrial Heat with other information requested by Industrial Heat or that they were required to provide Industrial Heat. These breaches have deprived Industrial Heat of the benefit of its bargain with USQL and Fabiani, led to Industrial Heat paying USQL and Fabiani for services not rendered, deprived Industrial Heat of property that is its property per the USQL Agreement, and prevented Industrial Heat from learning of the deceptive scheme as alleged above.

The Judge considers this:

C. Count V: Breach of Contract
Counter-Plaintiffs allege Fabiani and Quantum Leap breached the Quantum Leap Agreement by disregarding contractual obligations to Industrial Heat in assisting Rossi and Leonardo’s deceptive operations in Florida and failing to disclose complete and accurate information related to their work on the Plant. (See id. ¶¶ 86–88, 153–55). Third-Party Defendants argue Count V should be dismissed because: (1) it does not state a cause of action since the alleged breaches occurred after the Quantum Leap Agreement terminated on August 31, 2014; (2) the contract is void as a matter of law with regard to Fabiani; and (3) Fabiani is not bound by the entire agreement, since the Joinder only bound him to certain sections. (See Mot. 17–19). Although the first issue is dispositive, the Court addresses each argument in turn.

Under North Carolina law,(11) “[i]n interpreting a contract the intent of the parties is [the] polar star[.]” Davis v. Woodlake Partners, LLC, 748 S.E. 2d 762, 768 (N.C. App. 2013) (alterations added; citation omitted). The intent of the parties is inferred from the words of the contract if the plain language of the contract is clear. See Tyndall-Taylor v. Tyndall, 580 S.E. 2d 58, 60–61 (N.C. App. 2003).

(11) Although it makes no difference to the result, the Court notes the parties rely on Florida contract law, but the Quantum Leap Agreement states it “shall be construed and enforced in accordance with and governed by the laws of the State of North Carolina.” (Quantum Leap Agreement § 14). Without knowing if any of the purported contract renewals alter this choice of applicable law, the Court hews to the terms of the contract and interprets the Quantum Leap Agreement under North Carolina law.

The Quantum Leap Agreement unambiguously states it commenced on September 1, 2013 and continued until August 31, 2014, at which point it terminated unless the parties agreed in writing to extend it. (See Quantum Leap Agreement § 8). Thus, unless the parties chose to extend the agreement in writing, it terminated before any of the alleged breaches occurring in 2015 and 2016. Counter-Plaintiffs argue several 2016 emails included as exhibits with the Third-Partly Claims (see Third Party Claims, Ex. 21 [ECF No. 78-21]), “demonstrate and allow the Court to draw the reasonable inference that the USQL Agreement was in effect in 2015 and early 2016” (Resp. 19). The Court disagrees such inference can be drawn.(12)

Counter-Plaintiffs do not provide the actual writing in which the Quantum Leap Agreement was renewed. The 2016 emails at most propose renewal of an agreement with Quantum Leap, but considering the gap in time between the 2014 termination date and the 2016 date of these emails, and lacking an actual writing or allegation (as opposed to a proposal) showing the continued vitality of the Quantum Leap Agreement’s provisions, the Court cannot infer the parties extended the original termination date clearly stated in the original agreement. Count V is thus dismissed on this ground.

Third-Party Defendants’ two other arguments attacking Count V relate specifically to the contract as enforced against Fabiani, stating first, it is void as to Fabiani because no consideration was given at the time Fabiani executed the Joinder on September 9, 2013, and second, even if it is a valid agreement, only some provisions are enforceable against Fabiani. 

12 The Court may consider documents attached to the pleadings on a motion to dismiss if they are central to the claims and undisputed. See Fiegl v. Graphic Packaging Int’l, No. 1:13-CV-4125-TWT, 2014 WL 3854223, at *1 n.3 (N.D. Ga. Aug. 5, 2014) (citing Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005)). The Quantum Leap Agreement is discussed in both parties’ written submissions and is central to Count V’s breach-of-contract claim; the parties do not dispute the original contract terminated on August 31, 2014; they merely disagree as to whether it was extended. (See Mot. 16–17; Resp. 19–20). CounterPlaintiffs argue the Court must also consider and accept as true the emails attached as exhibits to the Third-Party Claims (Resp. 19–20). Even disregarding the content of the emails appears to be disputed, and accepting Counter-Plaintiffs’ interpretation of the emails as true, the emails do not support the inference the original contract was extended for the reasons discussed in this section.

In North Carolina, the essential elements of a valid and enforceable contract are: offer, acceptance, and consideration. See Lewis v. Lester, 760 S.E. 2d 91, 93–94 (N.C. App. 2014). “[A]ny benefit, right, or interest bestowed upon the promisor, or any forbearance, detriment, or loss undertaken by the promisee, is sufficient consideration to support a contract.” Burton v. Williams, 689 S.E. 2d 174, 178 (N.C. App. 2010) (alteration in original; internal quotation marks omitted) (quoting Brenner v. Little Red School House, Ltd., 274 S.E. 2d 206, 212 (N.C. 1981))). It is plausible the “requirement of the Joinder was part and parcel of the [Quantum Leap
Agreement] and Fabiani, as the sole member and manager of [Quantum Leap], reaped the benefits” bestowed on the company under the agreement. (Resp. 21 (alterations added)). These benefits include a $126,000 payment for consulting services and reimbursements for a North Carolina–area apartment rental for Fabiani. (See Quantum Leap Agreement § 9). Read this way, consideration was provided.

Finally, Third-Party Defendants argue even if the contract is enforceable, Fabiani is not bound by the entire Quantum Leap Agreement because the Joinder explicitly limits and binds him only to provisions related to confidentiality (section 5), rights to materials (section 6), and new developments (section 7). It is no matter Fabiani is bound by only some provisions of the agreement because Counter-Plaintiffs allege he violated at least one of the provisions included in the Joinder. (See Third-Party Claims ¶¶ 152–55; Resp. 21–22).