See Rossi Answers the countercomplaint
and the Countercomplaint/Answer merge.
Abd’s comments indented.
On lenr-forum:
Rends wrote:
I think this is quite a hard punch against THOMAS DARDEN, et al., because John W. Annesser goes for ANDREA ROSSI, et al. so to speak over to massive attack, for example demanding for seven main allegations strict proofs, means they have counter evidence (because otherwise the call would make no sense). The signal is very clear, Rossi et.al will not hide, they will not retreat and they show themselves more than convinced to be right and to have the evidence and I do not think this is just sebel rattling.
There are plenty of places in the Answer where Rossi demands “strict proof” when what IH had claimed was simple and already verifiable, and not legitimately controversial. As an example, see paragraph 36, where Rossi demands “strict proof” of what is immediately obvious from looking at Rossi’s Exhibit B, that there are missing pages of the original Agreement, as they say, Page 20 of the exhibit is Agreement Exhibit A. Page 22 is Exhibit D. Page 21 is apparently the second page of Exhibit C, and Exhibit B is missing. From the text of the Agreement, this was the “AEG Agreement,” i.e, the Ampenergo agreement. I can easily understand why Rossi might have not included that. As well, it appears that the first page of Exhibit C is missing, as IH claims. As described in the text (1.2) C was a description of each of the “1 MW E-Cat Unit” or the “Hot Cat Unit.” What is missing is the “Hot Cat Unit” description.
Rends is one of the five lenr-forum members, including the founder, whose join date was Feb. 9, 2014. One is shown as a “Beginnier.” The other four are staff, and Rends is a Super Moderator. Of Super Moderators and Administrators, Rends is the least active. I started a thread on lenr-forum to look at what Rends had been claiming about Industrial Heat et al. That thread was shut down by Alan Smith. The references were to what appears to be Rends’ blog, The New Fire. The perception of Rossi’s pleadings as strong is common on Planet Rossi.
Bob wrote:
I am not a lawyer, but I am very surprised that Rossi provided no evidence of any kind to support his claims. No letters, no contracts, no bills, nothing.
It did surprise me as well. He may simply deny allegations, you can see this in the IH Answer. However, he is probably going to face a motion for summary judgment. I’m not sure of procedure here. In such a motion, there may be reference to discovery responses — or non-responses. Mostly, his claims are either simple denial or vague. His presentation of the facts is biased. For example, he mentions that the GPT could be scheduled as agreed. That was true, but the actual Second Amendment requirement was more stringent. 0001-4_exhibit_d
“Commencing on the data agreed to in writing between the parties.” Rossi has not alleged the existence of such a written document, nor has he alleged estoppel. He simply alleges agreement without specifying when it occurred, but he implies that it was about the Penon test plan. That document, that we have seen as an attachment to a discovery response, has Penon calling himself “ERV,” and it mentions a “test,” but not Guaranteed Performance Test — though it is 350 days.
There were (4) statements that I found very interesting, however there was no supporting evidence.
1. He stated that IH specifically agreed to the Doral test as the GPT. They of course are denying this.
I cannot imagine that he would not have provided the letter, etc. in the answer. He needs to realize that “Rossi says” will not sway the judge! He does not state that IH made the commitment in writing, verbally or by what means. Only that they did. I would think he would have at least stated something like “in memo dated xx/xx/2014 from T. Darden, IH confirmed that the test was the GPT”. He gives no indication other than “they specifically agreed”.
At this point, the goal is not to “sway the judge,” except in one way: if Rossi faces a Motion for Summary Judgment, the judge will rule if there is a basis for going to trial or not. The observation is correct that nothing specific is stated on this, and that is one reason why I have claimed that the IH case is so strong. The core of the complaint is missing, and without it, the rest collapses.
2. The answer stated that they “lacked sufficient knowledge” about the J.M. Products and the Doral plant! How could this be? Johnson (Rossi’s attorney friend) was president of J.M. Products. As far as we know, Rossi setup J.M. Products.
There are many Answers where it makes little sense. But that could be harmless, in itself.
3. Rossi admitted to denying Murray access to the plant, but gave the reason being that Murray was there
to gather information to provide to a competitor! What competitor? What information? I cannot believe
this will sit well with the judge. I would not think paranoia is a defense.
This was effectively an admission that Rossi was hiding secrets, it astonished me that Annesser allowed Rossi to Answer this way. It is most likely that Rossi was hiding something from IH, and the “secret” might be how to make COP 1 look like a megawatt, as far as what the “instruments” say. I wrote before that the denial of access to Murray was the first clue as to a major breakdown between Rossi and IH. Rossi’s “explanation” now makes that clear! Obviously, if Rossi did disclose all the IP to IH, they could simply give it to Murray. And if not, then Rossi was in crucial default on the Agreement. As well, the Rossi Answer on the patent issue shows that Rossi was behaving, in February, as if he wasn’t going to be paid and IH was out to steal his secrets. Which they paid for!
Paranoia may be a defense against criminal fraud. Not civil fraud.
4. Rossi stated that Apco was hired and provided “Mantras” for him to use to answer his own questions
on JONP! This is quite astounding! Do you think it would take Apco to make up a couple of alias’s to
post on JONP under? Again, no documents, just Rossi says.
Paragraph 105. As another has pointed out in a subsequent comment, this is probably a typo. We do not know if APCO was hired or an APCO staffer volunteered, or what. We don’t know how Rossi was told this . What is fun here is that, if this is true, it was Rossi who was saying on blogs what APCO instructed. Smoke that, Sifferkoll!
I am not a lawyer, but comparing the IH answer, who submitted evidence such as memos, test data etc., Rossi’s answer contained nothing and seemed extremely weak. The vast majority of answer was one of two statements. (Paraphrased)
1. We deny
2. We lack sufficient knowledge to answer and demand proof.
He denied the obvious in some cases. To be fair, there may have been some subtle implication; for example, IH denied that Vaughn was a “manager” at Cherokee, which led to some derision from Planet Rossi, citing Vaughn’s Linked-In page. But “manager” of an LLC has a specific meaning in the state of incorporation for Industrial Heat, and Vaughn was not that kind of manager. More likely, some of Rossi’s answers may simply be cheap, easy to write.
As with everything connected to Rossi, I have come to expect to be disappointed. I was hoping for some real news / evidence with his answer. I was disappointed. Will the judge be disappointed as well? We continue to wait….. 
The judge will not be paying attention at this point, and will only look at things if there is a Motion.
P.S. Thanks Eric Walker for posting the documents!
Hmpph! I think I did post it a little earlier, but it doesn’t matter. (I also sent out a newvortex email announcing the Answer.)
Bob wrote:
Possibly..
MrSelfSustain wrote:
“[…] I think this answer fits in with the strategy to not reveal anything more than they are absolutely forced to until the trial. By doing so, they might be hoping to force I.H. to show their hand. So far, I.H. is…”
I guess it is from what perspective one views the events. You state that IH has not revealed their hand, but I think they have.
They have not revealed all evidence they have, nor are they required to, in the pleadings, only enough of a core to create an issue for a jury to decide.
They deny the test was a GPT. They provided evidence that it was presented to them as a sale of heat.
They did. The strongest evidence was the Rossi email proposing the Doral installation, and the Terms Sheet. There are a number of places in the Answer where Rossi deals with such evidence by saying it speaks for itself. His goal would be, I’d assume, to require a jury to look at this and decide on the factual implications. When Planet Rossi first looked at the IH Answer, there were some claims that the emails might be faked. Rossi has admitted all of them, and has only denied implications.
They claim fraud was involved and provide evidence that J.M. Products is controlled by Rossi or his associates. They claim there was no customer or production and this adds to the case of fraud.
None of this is bare accusation without evidence. In some cases, perhaps, there can be alternate constructions of evidence. Some is quite clear, though. We could look at specific examples.
They claim the data was invalid. They provide evidence of the flow consumption being the same day in and out. The billing was for the same amount, even on days the plant was shut down. The test data in the exhibit is provided to show bad data and Rossi is the one who recorded all the data.
Indeed. Some of this is so clear that a judge might decide it does not need to go to a jury, unless controverted, more than merely being denied. In a Motion for Summary Judgment, if I’m correct — I don’t know specific procedure here — what is revealed in Discovery will become relevant. If Rossi has alleged something that was revealed in Discovery (and he has), he is not absolutely required to refer to it here, he can merely claim the substance. In one case I have in mind (the issue of IH allegedly not being able to pay from the beginning) the matter is so clear that a Judge might rule on it. It really is a preposterous claim, given who Darden and Vaughn are, and Rossi has argued estoppel, whereas he obviously accepted IH — based on the relationship with Cherokee, a $2 billion corporation, which could, indeed, come up with the $89 million but … which wasn’t going to do so for very obvious reasons! IH was set up to protect Cherokee and the investors in IH from exactly this kind of nonsense.
They have provided answers on all questions about ownership, individuals roles in IH and IHH and so forth.
We know much more about the IH side, particularly given the material revealed by Rossi in his discovery appeals (which mostly failed, by the way, there is anther discover hearing coming up the 20th.) Most discovery responses are not visible to the public.
Whether we like it or not, I do believe Abd is correct…. it boils down to “was this the GPT”. It seems clear that the $89 million was based solely on a successful GPT. There were certain requirements that were set forth for the GPT to meet. If the one year test did not meet those requirements and was therefore legally not the GPT, the $89 million lawsuit by Rossi is void.
Thanks. The GPT structure was a piece of very defective agreement; however, IH felt safe, I assume, because of the specific requirements. The original contemplated GPT was to be at their facility, it would have been fully visible to them, regardless of who the ERV was. The whole concept of a single consultant to serve as ERV for an $89 million question was nuts. I conclude that this is what Rossi wanted .. and demanded. If they had not agreed to what Rossi wanted, he would have walked, that was his common behavior, and they knew it. Giving Rossi what he wanted, they included enough to protect themselves without seriously offending him, and they did not do Rossi’s legal work for him. If he consulted a lawyer in 2012, he didn’t listen!
IH has counter sued with fraud allegations to :
1) support their claim that the test was not an agreed upon GPT and that Rossi was trying to subvert it into appearing as one.
2) to show that Rossi has acted fraudulently in other dealings, providing circumstantial evidence that he is trying to defraud them now.
3) Show that they were damaged by fraud and will try to collect some of the paid $11 million back.
It seems very clear to me what IH is doing.
It is clear if one takes the time to actually read the documents. What most will do is to only read reactions, and then have their own reactions. I was just told by someone who might know that I may have invested more time in this case than Rossi’s lawyers — which would not surprise me. I spent 12 hours yesterday compiling and formatting that Merge document, and, knowing that this would be time-consuming, I needed to decide if it was worth the time. I realized that this was an opportunity to go ever every detail of the IH counter-complaint and the Rossi Answer. In fact, I may now go back and do the same for the IH Answer, to give me more balance and depth. This is what I’ve done, in my life. It can seem obsessive, but it generates deep learning. The Merge document is, as it stands, neutral, there is no “judgment” in it, it is simply a study document, to make it easier to see what is not so easy to see just looking at the individual filings. And I added links to evidence where it was mentioned.
Many won’t read the actual documents, but may strongly react to individual items. Peter Gluck has gone ballistic over Exhibit 5, even though Exhibit 5 is a small piece of the IH case, being Murray’s questions to Penon. It refers to matters that would be introducible as evidence, though. In a way, it’s a hint. It is more important as a foundation for the counterclaim against Penon.
It is not clear to me what Rossi’s defense on these counter claims are. You are stating he is not wanting to “show his hand”. However, you must consider the fact that there is a real possibility that the judge will throw his suit out on grounds of lacking evidence if he does not provide reasonable evidence. IH has shown evidence, not all nor complete, but documented evidence supporting their case. So far Rossi has shown none to support his lawsuit nor his motion to dismiss the counter suit by IH. I believe he is very much in danger of having his case thrown out and the counter suit continued against him! This may not be the time to be “holding back”! […]
I’d think so, but … perhaps all Rossi is doing is buying some time. Maybe he is busy moving assets out of the U.S., that can take time. As to his Motion to Dismiss, that was rejected, as I predicted.
JedRothwell, Malcolm Lear, sigmoidal and one other like this.
I’d have added a like, but, ah, banned accounts cannot do anything on the site, they cannot even read it, unless the site cookie has been whacked. I could use a sock. Should I? (My general habit is to disclose any socks, but … if that then results in sanctions against the sock without actual disruptive behavior, I then have, in the past, used an undisclosed sock. I was making the point (on Wikipedia) that rigid enforcement without regard for the original Wikipedia Rule Number One: Ignore All Rules, actually increases disruption and makes enforcement of policy more difficult, not easier. I can edit Wikipedia any time I choose, but don’t.
zorud wrote:
[…] I would love to see what he has. Why nobody is unlocking the door in the Doral place and take a look? The Ecat is still sitting there, ready to be refueled and restarted again within days. Why this does not happen? Probably because IH is not able to do so despite they spent 11 Mio$ for this machine and the secret sauce behind….
Actually, they spent $1.5 million for the original Plant, plus they constructed a second one that is there, the one actually used. They could make more; according to Rossi the construction cost for the Doral plant was $200,000, not that this is necessarily reliable. Yes, they also supposedly were given the formula. However, in his Answer, Rossi reveals that he had secrets that he did not want Murray, the IH engineer, to see, that was his reason for refusing to admit Murray, a belief that Murray was going to provide secrets to his competitors. See the Merge document, paragraph 81. He has tied himself into a knot. He is either getting very poor legal advice or he is ignoring it. This claim about “competitors” underlies much of the Rossi complaint. I suspect that he is sincere, i.e., “it appeared” means “it appeared to me.” However, this was a reincarnation of Rossi’s long-term paranoia about any independent examination of his devices. In writing this, or in thinking it before, he seems to have forgotten that he sold all the relevant secrets to IH, per the Agreement, and that if he was hiding something of importance, he was in gross violation of the Agreement. Were it true that Murray was a spy, the appropriate response would be to tell IH about it. Instead, he did not just disallow Murray, he disallowed any new visitors not already approved. (Under that “rule,” the Woodford investors may have been allowed to visit in August, but there were no other visitors after Rossi’s exclusion, and the reason implied in his email is that he was busy with the “test under way.”)
IH shut down the operation of the plant in February, 2016, but it looks like Rossi was prepared for that to happen. He knew by then that he was not going to be paid the $89 million, IH had made it very clear in early December, 2015, that the Doral installation was not a GPT and Penon was not an “agreed ERV”. Rossi’s action in exluding Murray more or less sealed this, because it meant that IH could not observe the test with their own engineer.
The “Facility” is apparently rented by JM Products, probably Johnson as agent. The Terms Sheet requires that IH have access, but I assume that IH decided to keep the thing padlocked, to avoid spoliation of evidence. Rossi could not lawfully restart the Plant, without permission, it is IH property. IH could retrieve the plant at will, legally, but it might take a court order.
Shane D. wrote:
Bob,
That is what I read also. In addition, in response to the incriminating “exhibits” IH provided, he simply blew them off as they “speak for themselves”. I particularly loved the part about the “Swedish Royal Academy of Sciences” doing the Lugano test. Sounds more official then Levi, and some professors from Sweden I guess. Then he asks for more information as to IH’s assertion that Lugano was later called into doubt by “other publications”, demanding proof…Guess TC may be needed. 🙂
“Speak for themselves” is a way to avoid denying that the evidence is authentic, while avoiding any discussion of the significance. The Merge document paragraph is 68. Yes, I’d noticed the Swedish Royal Academy error — or misrepresentation. This was not relevant to the IH claim, it is a blatant attempt to make the Lugano Report appear authoritative. The Answer contains other material like this, irrelevant arguments inserted to get them into the record, apparently. For example, mentioned in a comment above, the mention of investor visits was irrelevant as to the point being made, it does not matter for the specific allegations being answered how many visits there were or how much they invested or, in fact, what IH told them — which is apparently speculation on Rossi’s part, though maybe he has been given some email.
Hard to read until the end, but that is where it does get real interesting. That is where Rossi responds to IH’s “affirmative defenses”. He relies heavily on a general theme of IH being fully aware of, and participants in every level of planning along the way.
There is an examination of the ADs by sigmoidal, that goes into some detail. Rossi is alleging this knowledge, but little specific evidence for it. Rossi gives circumstantial evidence (though perhaps verbal and hearsay), for example, that Darden approved of the Cook paper, see denials for paragraphs 107 and 108, and then Rossi’s Affirmative Defense 2, with a rare alleged evidence (though perhaps verbal). It appears to be rumor, in fact, but perhaps Darden emailed Rossi. This was not the “written permission” that would be required. At most, it might establish estoppel on the breach of confidentiality claim, through documented acceptance and non-opposition, depending on other facts we do not know.
The bombshell (to me at least) comes when Rossi throws the “unclean hands” back at IH, because they induced him into the agreement when they had no “financial means to make payments” in the first place! I guess the old saying about “a good defense is a good offense” applies here.
This is mind-boggling. It is normal for one who promises a future payment like that to not have the funds available, but to make the promise on an expectation that, if payment becomes necessary, the funds can be raised in some way or other, including borrowing them. Anyone who understands LENR would know that, if Rossi had taught IH how to make devices that would pass independent testing, much more than $89 million could be raised, by expert investment advisers, which is what Darden does as a day job. This is Rossi paranoia, rooted in terminal business naivete, or worse. Imagine the chaos if, every time a person defaults on a mortgage, they were accused of fraud because “they did not have the financial means to make payments.” False representations as to credit worthiness can become relevant, but “capacity” does not mean “performance.” Rossi speaks out of both sides of his mouth: on the one hand, he claims that he depended on the real investor being Cherokee, which, in fact, might be able to write a check within five days for $89 million, if they chose to do so. Then he claims that IH didn’t have the means, probably because they disclosed, in discovery, what assets they had. IH created a stock issue for $20 million, a few days before the $10 million payment was due, and immediately raised $11.5 million, which probably reimbursed Darden for the $1.5 million. They they probably raised more money to operate.
(Speaking out of both sides of one’s mouth could be used to describe alternate scenarios, but Rossi is not here alleging alternate scenarios, this will normally be done explicitly, an example would be (1) My client didn’t do it, and (2) it was self-defense.)
Overall though, I would agree that Rossi showed little, if anything new. I do not know if he can make it past the judge with so little to add, other than these counter accusations, and get this into a courtroom this way. If he does, then I can see how his introducing APCO as he does here, the possibility IH “induced him” and never intended to pay, gave his IP to his competitors, etc. may appeal to a jury and get him off the hook for the counter-charges. But nonetheless, it will be hard to overcome what is increasingly apparent about JMP, products, Bass, etc. when Rossi asks a jury for his $89 million.
APCO is only introduced as to his public comments, and without specific evidence, just a general claim. “APCO” will be meaningless to a jury, unless significance is established. Really, this only means that IH did give certain instructions. Did Rossi follow those instructions, or did he disclose more than they permitted? Was this in writing? (My guess is, yes.) This is all vague. At this point, it is a real issue whether or not this will ever go to a jury. While it does depend to a degree on what is coming out in discovery, I expect to see, in fairly short order, well before trial, a Motion for Summary Judgment that will result in a dismissal of the primary case, leaving the secondary case to proceed. It is possible that IH will elect not to pursue certain claims, if they are relatively weak (i.e., the breach of confidentiality claims, perhaps). At the beginning, I would assume, one alleges everything and the kitchen sink, but an important goal would be not to overwhelm a jury, keeping evidence and arguments as simple and clear and focused as possible.
Still no ERV report provided by either side yet though. That seems strange.
I certainly did not expect to see it here. At this point, the “ERV Report” is hearsay. The disappearance of Penon will make it rather difficult for Rossi to introduce it and have it stand against critique. What we have so far is reference to preliminary reports, by Murray, in Exhibit 5, and then the Rossi complaint alleging that the Plant passed the GPT requirements. Specifics are missing.
Rossi had, I’ve expressed before, a long-term defense against fraud. He would claim that it was others who claimed his plants produced such and so COP. As well, we don’t know what he told investors, privately. and I only know of two serious investors: IH and Ampenergo. By 2011, I was writing that any investments were probably covered by serious disclaimers of no warranty, etc. Rossi appears to be claiming the same here, and it’s been pointed out, he may be pushing Penon under the bus. “Really? There was a problem? I depended on Penon!”
Bob wrote a decent comment,
No response is necessary here.
Shane D.,
ditto, but I’ll respond to one point
Good point about IH. Why muddy the waters as you say. Hey who needs Abd!
My daughter does, for a time. As to Rossi v. Darden, my commentary may be useful for some, not for others. Bob and Shane have understood the points I was making, and I accompany what I write, hopefully or on request, with the same evidence I have looked at, so others can follow and see the same (or interpret the same evidence in their own way) and this is part of what makes my posts long. They are not, generally, polemic, where brevity is the soul of wit.
Alan Smith wrote:
Hermes wrote:
“My take on this is different. Here we have Rossi claiming that there was secret information that Murray was not to see. As Rossi accepted payment to transfer ALL the IP to IH, this implies he did not comply with that agreement. What a revelation! Furthermore, how can he claim that there was a GPT if it included undisclosed secrets?”
IH was not in any sense of the word a competitor, since as you say, they were due ‘full disclosure’ and allegedly working together with Rossi. Even Anesser would not make that mistake. I think the implication is (perhaps) that Murray was intent on selling information to a third party and therefore a spy.\
They noticed. However, if Rossi had information that Murray was a spy, it would have been incumbent on him to inform IH of it. However, in fact, Rossi suspected IH itself. Paranoids often do not follow through on the implications of what they believe. IH obviously trusted Murray, and would tell him what they knew, already. If IH was revealing his secrets to competitors — or a spy for a competitor –, he had only two ways to stop it: first, sue them, which could easily fail, or don’t provide them with the secrets in the first place.
Rossi has essentially admitted that he didn’t reveal all the secrets, and he justifies it variously, as a worry about competitors, or that they were trying to steal his secrets in the first place, never intended to pay, missing that they did pay, $10 million for immediate transfer of the IP (and continued transfer of all related IP), plus a contingent payment — which could still happen if the conditions were properly set up. Starting with a written agreement! The paranoid Rossi would not even attempt an actual agreement, because it would require truly independent testing, which he had been avoiding for so long, it must be like second nature to him.
Some on Planet Rossi have claimed that this was unfair, that IH could simply refuse to allow the test. That is a misunderstanding of contract law. IH could not unreasonably prevent a test, but it could prevent a test like Doral, with Rossi fully in charge, taking the measurements, with the supposed ERV popping in maybe once every three months to say hi to his old friend that had gotten him this cushy job, and go out to dinner, or whatever. If IH had refused to negotiate in good faith, Rossi could have gotten a judgment requiring specific performance. The lawyers would work it out, that’s what they are for, in most business — to avoid messy trials and no-win situations. Everyone would win — except for someone who is cheating and trying to get away with it.
Further, if it was unfair, Rossi nevertheless signed the Second Amendment, which set up that requirement for written consent to the GPT start date.
Remember when IH challenged the Second Amendment based on missing signatures on the copy provided? That was fishy, to me, since the Agreement was to be executed in parts, separately, so maybe it was all signed properly and this was simply one of the parts. But as a result of that, Rossi strenuously argued estoppel, that it had been accepted so it was in effect. This is, in fact, a point where I agreed with the Rossi claim. But the Six Cylinder Unit issue was a bit messier. The concept of the GPT was of a plant that already existed. the 2nd A changed the requirement to the Six Cylinder Unit, and then the actual test in Doral was of something different. If that was merely a power sale and demonstration, not a problem, who cared? But as a GPT, with a huge payment riding on it, dotting your i’s and crossing your t’s is … highly recommended!
Remember Defkalion? They had a secret. To get the reactor to work, you had to reduce the cooling water flow to practically nothing, letting it get hotter, and then it would start to work. They didn’t want anyone to know their secret. Now, did they know this was creating a flow meter artifact? Contrary to many, I do not conclude that they knew, though it is possible. Mysteries remain. They vanished, leaving us to wonder what happened. Easy to claim it was fraud, and maybe it was. But maybe it was error and they shut down, or apparently shut down, for other reasons.
With Defkalion, independent measurement of water flow was prevented, not allowed. That was a relatively small individual reactor. Rossi had a large number, and there was an independent measure of heat: I call it the warehouse calorimeter. This is real! Factoring for cooling rate, air flow, etc., the temperature rise in the warehouse is a measure of the heat being generated. Rough, to be sure, but hiding a megawatt is difficult. (Marijuana growers have difficulty hiding 20 kW.) There was apparently no major temperature rise, which is more consistent with the input power of maybe 20 KW. Didn’t Rossi notice this? At some point, IH likely noticed it and Woodford probably noticed it.
LENR Calendar wrote:
[…] Rossi is bringing up the APCO story to demonstrate that IH was consenting to Rossi’s communication. Saying that Rossi is answering his own questions would be out of context.
To answer your question about why APCO is being hired to craft a few phrases: we already know that APCO was working for IH (months ago, they were cc’d in an email from IH to LENR bloggers). It’s not unreasonable for APCO to have been working on Rossi’s communication if they were already doing other stuff. So they were not hired just to craft a few phrases.
Rossi claims APCO was hired. We do not actually know that. What we know is the Brian McLaughlin, who was with APCO until May of 2016, was cc’d in a mail, and also attempted to visit the Doral Plant with Vaughn, which visit, it appears, was refused, the Murray rejection email mentions it. McLaughlin’s expertise is with governmental affairs. I suspect that he might have been assisting IH pro bono — which I assert as a possibility, not a fact. We don’t know the details of the instructions mentioned (paragraph 105). This is worth looking at:
105. Plaintiffs admits that on a few occasions Rossi disclosed information relating to the Guaranteed Performance test, but denies that this was in violation of the License Agreement. Specifically, such disclosures were made with the knowledge and consent of the Defendants. In fact, Defendants hired APCO Worldwide, a public relations firm, to specifically provide “mantras” for Rossi to use in response to questions posed by him [sic] including questions relating to his relationship with Defendants.
The mention of APCO is irrelevant in itself. what if the “mantra” had been “I do not disclose the details of my relationship with my business partners”?
I suspect that Rossi found something in discovery. Any email communication with APCO would have been revealed to him or at least to Annesser. Rossi does not state that these “mantras” were actually given to him, nor that he followed them, he merely asserts that disclosures were with knowledge and consent, which might have been true for some and not for others, and APCO was irrelevant to that. It may play well on Planet Rossi, though.
The License Agreement (16.4) required “written advance approval.” Did Rossi receive that? If so, he’s home free on this point. However, if not, he then has to go through some contortions and it gets tricky. This alleged violation of confidentiality is not necessarily a big deal, it is merely one among a series of contract violations that IH alleges, showing a pattern of contractual laxity. It very much appears that Rossi avoided any mention of GPT until the summer of 2015, perhaps.
oldguy wrote:
even if it true that APCO helped Rossi, I don’t see that gives Rossi “card blanche” to say anything he wishes and things that were restricted by contract.
Carte blanche. That’s correct. Rossi does not actually say that APCO helped him. Rather, my guess, he found an email with the advice. Possibly that was passed on, but this didn’t give him permission to disclose anything, other than what was specifically permitted in that communication. what disclosures were involved? Let’s look at the context. This is a response to paragraph 105 of the counter-complaint. From the Merge document:
105. Addressing solely the time period prior to the filing of their Complaint in April 2016, Leonardo and Rossi violated the first confidentiality provision by disclosing various specific terms of the Agreement:
a. Leonardo and Rossi disclosed that their agreement with Counter-Plaintiffs required a test of the Plant.
b. Leonardo and Rossi disclosed that their agreement with Counter-Plaintiffs required a test to be conducted over 400 days.
c. Leonardo and Rossi disclosed that their agreement with Counter-Plaintiffs required a test involving 350 days of operation of the E-Cat Plant.
d. Leonardo and Rossi disclosed that their agreement with Counter-Plaintiffs required a guaranteed performance, or “guarantees of performance” test.
Exhibit 4 and Exhibit 24 appear to be duplicates. They come from a summary made on e-catworld. While these might violate confidentiality, if there was no permission, it is not the disclosures mentioned above. Exhibit 24 is mentioned in the Merge document in paragraph 122. I see no example of the above violations in Exhibit 24, which is used in paragraph 122 to establish development of the “E-Cat X,” which I think is now called “Quark-X/”
Exhibit 25 also does not contain any examples of the above 4 disclosures. Unless it is somewhere else, I conclude that IH has not presented evidence of this specific violation of confidentiality. That does not mean it didn’t happen, allegations may be made in pleadings without presenting proof. I seem to recall having seen such from Rossi. There are some words to use there for a search. And, sure enough,from Rossi:
Dear Andrea,
1. Will the customer of the first 1 MW plant be involved in the testing of the plant before it is installed to ensure it meets expected performance standards?
2. Will the plant replace an existing heat source at the customer’s location, or will it be installed on a brand new production line?
3. Is your work on the 1MW plant currently on schedule?
Many thanks!
Frank Acland
Frank Acland:
1- No, we have to respect the guarantees of performance we signed for and we will be paid if the guarantees will be respected. As it happens for any kind of technological plant.
2- Brand new production line with a back up in case of problems to our plant
3- Yes
Warm Regards,
A.R.
Dear Mr Rossi, you say that you have a “production plant”, does that mean that the 1mw unit is producing energy that is literally being used in a productive capacity at the customers premises.
Allowing that there must be “down time” while you do the necessary changes and improvements as you proceed?
Georgehants:
Yes, the 1 MW plant is for to generate energy necessary to the Customer of IH to make its production in his premises.
Yes, for the first 400 days of operation is allowed now and again a “pit stop” to make adjustments and improvements, along with regular maintainance. The important is that within 400 days the plant makes its full production for at least 365 days. This means that during the first period of 400 days we have at our disposal a maximum of 35 days of stop to make improvements, adjustments and maintainance. The operation is intended 24 hours/day, 7 days/week.
Warm Regards,
A.R.
Dear Andrea,
Has the 400 day period you mentioned in the reply to georgehants started already?
Many thanks,
Frank Acland
Frank Acland:
Yes,
Warm Regards,
A.R.
Thank you for the clarification about the 400 days.
If you don’t mind, could I ask:
a) Is the 365/400 days requirement a contractual obligation you must fulfill?
b) If so, are you currently within this obligation for the 400 days that have started?
c) If you go over the 35 days, does the clock restart, and a new 400 day period begin?
d) Is there a required average COP level you must achieve during the 365 days of operation?
Many thanks,
Frank Acland
Frank Acland:
I am sorry, but what you are asking for are particulars of a contract between IH and the Customer that are under NDA.
Warm Regards,
A.R.
And recently, when the test was finished, there was
Gerard Mc Ek:
The charge size has beene refined with the experience in thousands of experiments and, obviously, also on the base of theoretical considerations.
Yes, the test of 350 days is finished, yesterday the ERV has completed his tests.
Now it will take about a month to know the results from his report.
No more information about the 1 MW E-Cat that made the tests from now until the publication of the results will be allowed.
Warm Regards,
A.R.
The APCO reference is not relevant to these except perhaps for that last February 5 post. That would be, more or less, the mantra he was given to ward off evil.
Bob wrote:
[…] I guess we do not know if evidence was presented to the judge that has not been put on the PACER portal, but it would seem that many of these claims would not be under NDA, such as the agreement of the GPT if Rossi had one.
Some basic legal procedure: The judge is, with little exception, and at this point, only seeing the pleadings, i.e., what is on PACER. The exception would be what is brought up at a hearing, and I don’t think that is relevant to what Bob is interested in. You can be sure that Rossi is being asked if he has such a thing. As well, Rossi is scouring the thousands of documents provided that he obtained through discovery, looking for something that will at least resemble consent. What has come up so far is only what Rossi originally alleged, the proposed Penon protocol, which communication was one-sided, but I do assume Darden responded in some way (as Rossi claims). However, it is, my view, extremely unlikely that Darden wrote, “Yes, great, this is perfect for the GPT! I am so glad we agreed to use you as ERV, you are so thorough and reliable!”
Discovery issues are handled by the Magistrate. Situations are coming up there that we are not seeing, yet. Those hearings generate a public record, but it is delayed substantially and there is opportunity for redaction. If we were to send a reporter to the hearings, we could get reports. I think the transcripts might also be available from the court reporter.
The Judge is not going to rule on anything at this point, unless presented with a Motion, and if you have b een watching, you have seen that, in these rulings, (i.e, motions to dismiss or strike) the Judge will place the burden of proof on the movant, not the respondent.The claims of a party will be presumed true unless directly controverted by evidence the party introduced or that is otherwise not controversial. Otherwise issues of fact are to be decided by a jury. This phase of the trial is one where information is shared as to the respective cases, there should be no guessing at trial. I am a little puzzled by how much Rossi, at this point, denied. The case is more mature now, and fighting over issues that are not actually controversial, that will be easily established in court, is a waste of time and money. On the other hand, many of the Rossi “denials” are merely formal and won’t make any difference later. This is what it means: if a party has denied the allegation of another party, the alligator (great word from Jesse Jackson, apt for Florida, thanks, sigmoidal), to present this to the jury, must evidence it. It cannot simply be said except as personal testimony (under oath and penalty of perjury) as to fact (not conclusions).
Shane D. wrote:
sigmoidal wrote:
“But as others have noted, Rossi’s assertion that the one year test was an agreed upon GPT has no evidence to support it except ‘Rossi says’.”
Sig,
Awfully good analysis. You sure you are not Abd? 🙂 Not that it matters, and not trying to dox…OK just a little.
And yes, “Rossisays” has helped Rossi convince a lot of people that a blue shipping crate will save the world, so it is no surprise he thinks he can keep on doing the same to win over a judge and jury.
I wonder what his lawyers are thinking? They know you eventually have to show some proof to back the Rossisays, and this may have been their last chance to do so before the judge tosses the suit against IH. I know I would not want to be his lawyers standing in front of the judge, and have her say “is this all you have?”.
Sigmoidal wrote a good analysis of the affirmative defenses, I’m happy to have company in that kind of writing. I will be reviewing it in another document. Rossi has been successful with audiences that he selected, for the most part. As to his lawyers, lawyers commonly lose, they are trained to be objective, and, ideally, to be unflappable. It is difficult for me to distinguish, in the pleadings, the voice of Annesser and the voice of Rossi, much of that is there is Rossi hysterical reaction,so Annesser may just be doing what Rossi tells him to do.
Annesser was working with a different firm when the case was filed, the Silver Law Group, and Patricia Silver, the founder of that group, and highly experienced, was also officially Rossi’s attorney. Then Annesser went to his new firm, and Silver was removed as counsel. Annesser was a fairly recent law school grad, 2012. I suspect that Silver bailed when she took a look at the case. As I have written, an attorney would never mention that. While Annesser is still listed on the Silver Law Group web site as an Associate, he is shown on LinkedIn as no longer with them. Annesser is still, I think, drafting the pleadings.
Something is off. There are statements in the Answer that seem, to me, to seriously harm Rossi’s case, and they are thinks that didn’t need to be said, as far as I could tell. Part of being a good attorney would be knowing when to keep one’s mouth shut.
Sigmoidal made some kind comments in the next post, it’s appreciated.
LENR Calender wrote:
Is it expected to provide proof of what you are writing in those kinds of legal documents?
It is common for those not familiar with law — or with science — to think and talk about “proof.” Then we would need to get into levels of proof. Criminal law requires proof beyond a reasonable doubt, which is supposed to be a high standard. Civil law,however, needs to make decisions and it is not about “guilt” or “innocence,” it might be about who owns a piece of land, and someone does. The standard in making decisions in civil matters is “preponderance of the evidence.” Basically, in a binary situation, there is plaintiff and defendant, and there is no presumption as in criminal law (that the defendant is innocent until proven guilty). Rather, in filing a complaint, the plaintiff must allege evidence. Another term for this is “fact.” Not merely conclusions, “they defrauded me” is a conclusion. The fact is that such and such was said, such a document was signed, property was exchanged or not, etc.
It is legally sufficient here to alleged evidence, some basis for a possible conclusion as claimed in a pleading. A defendant may simply deny the allegations and is not obligated to prove this. However, as the case develops, if there is evidence for the allegation and no evidence against, the case may obviously develop adversely to the one against whom the allegations are made. It is definitely not necessary or even expected to “prove” an Answer. It might be educational to look at the IH Answer, which is the first part of the document, responding to the Rossi Complaint.
I was a bit off-put by the phrase used frequently by Annesser, ” Plaintiffs deny the allegations contained in Paragraph 123 of the Counterclaim and demand strict proof thereof.” A party to a case is in no position to demand “strict proof,” which is a very strong phrase, I would think. However, I googled it and found it is common. However:
Demanding Strict Proof Thereof: An Unwitting Admission
Quit Demanding “Strict Proof” in Your Answers — it’s not a thing
My intuition was correct, and she may be stating what is relevant here:
If the Rules don’t require it and case law doesn’t demand it, then why do attorneys keep doing it?
I can’t really say why attorneys keep injecting their demands for “strict proof” into their responsive pleadings. Maybe it looks good to clients? Maybe its because the attorney saw it in an answer one day and thought, like I first did, that it was necessary to hold the plaintiff to his case. Or, maybe, it is because the attorney does not know why they do the things they do.
the “strict proof thereof” is a term that was in vogue when I began practicing two and a half decades ago. It is virtually meaningless and of no legal heft these days. You either deny or admit things alleged in a complaint. If you have no knowledge, you can say so and neither admit nor deny.
Bob wrote:
LENR Calender wrote:
“Is it expected to provide proof of what you are writing in those kinds of legal documents?”
It is to my understanding that one does not have to present all the evidence one might have at this point. However, I believe this is the stage that the judge makes a decision whether a case has enough merit to proceed to the jury trial. The defendants can ask for a judgement to dismiss with the argument that the case does not have sufficient legal grounds. Not so much on “who is telling the truth”. That is reserved for jury.
There is a misunderstanding of the case status here. Some events have been missed. First of all, yes, a party may ask for summary judgment, which, if granted, is a decision by a judge that there is no reasonable uncertainty as to the outcome of the case, based on the evidence standing at the time. There was a Motion to Dismiss filed by IH,and of the 8 original claims, 4 were dismissed (which was a high number, indicating a poorly drafted complaint). When IH Counterclaimed, Rossi filed a Motion to Dismiss, as well. It was recently rejected, which is why Rossi was required to Answer the counterclaims.
IH also filed a motion for Judgment on the Pleadings, following up on a hint from the Judge that she might rule that the test was not a GPT< based on the “Six Cylinder” issue. IH then withdrew that motion, it was never decided, and it may be that Jones Day decided to wait until the matter was totally clear.
Yes, factual issues are to be decided by the jury. A judge only rules on issues of law. If the legal issues are clear enough, however, a judge can rule, even if it might seem to be a matter of fact, i.e,. was Doral a GPT or not? By looking at the documents, the judge may be able to determine this based on some clear requirement.
In this case, a suit was brought that $89 million dollars was owed, so one party (Rossi) is suing the defendant (IH, et al) IH submitted a request for dismissal and provided evidence as to why the judge should dismiss. Mainly, the $89 million was based on the GPT and the GPT had very defined parameters that had to be followed. IH denied the 1 year test was the GPT, that it did not meet the contract parameters and showed evidence why it did not.
The Motion To Dismiss submitted by IH is resolved. There is no pending motion on this point. The situation is that one might be possible. The Agreement, and specifically the Second Amendment, was clear on a basic requirement for a GPT, a written agreement of the parties setting the date. That’s simple and a judge might rule on that basis. Arguments over vague assertions or resemblances will be less clear and might need to go to a jury.
Then Rossi had to give an “Answer” to the motion to dismiss. I.E. What evidence did he have that would show the judge that the case should continue to the jury trial. It had to “answer” the points in IH’s motion to dismiss. This is the document that Rossi recently submitted to the court and was posted on PACER.
No, the recent Answer is an Answer to a complaint, here called a “counterclaim.” It is not about a pending motion to dismiss. You can, if you like, study the case documents on our archive, they are in date sequence and are annotated. You will see the Complaint, the IH Motion to Dismiss,
It had to have a point by point reply to each of IH’s motions. It did. Almost all where “we deny” or “we do not know” (paraphrased) The point here is that Rossi provided NO evidence. Only statements, much as he is used to doing on JONP.
He is not required, actually, to provide evidence, he may simply, at this point, admit, deny, or claim no knowledge. If he claims no knowledge, what I found indicates that he might have to file an affidavit stating this. In this light, some of his “no knowledge” answers are a bit weird. Proving criminal fraud for Rossi might be difficult. Proving perjury might not be; however, at this point, we have not seen sworn statements on the case from him. This is all pleadings. An Answer must reply with one of the three options or the claim in the complaint will be considered true. It may also explain and it may provide evidence, but that evidence need not be included as exhibits, as IH did. IH did more thorough and more open work.
So to answer your question, to my understanding and I am not claiming expertise in this matter, is that Rossi had to “prove” or submit evidence that countered the motion to dismiss claims that IH presented, enough to the point that the judge can consider if the case has merit to continue. I do not think that “we deny” or “we do not know” will be sufficient. He needed to provide a document that provided evidence that the 1 year test was the GPT. Without that agreement, his case will be thrown out.
This was the error. There is no motion to dismiss on the table. It is possible that the missing evidence could lead to an IH motion for judgment on the pleadings. There was an indication in the earlier rejection of the IH motion to dismiss with regard to the GPT issue that the judge might view the matter differently if it were shown that the Six Cylinder Unit — which is what the /Second Amendment requires — were not the plant that was tested; IH subsequently stated that the Six Cylinder unit was still sitting in Raleigh, and showed photos of it. What we know is that there were actually two plants in Doral, the 1 MW E-Cat plant originally delivered to IH, and a new plant made by IH, called the “slabs,” allegedly four 250 kW units (each one consisting of many individual reactors). If we are looking for a clear protocol, with independent measurements, of a clearly defined Plant sold to IH in 2012 and delivered in 2013, Doral was not it, nor was there any clear modificiation of the Agreement.
On Planet Rossi, there is high impatience with these nitpicky details. To this Planet, all that matters is “does it work?” Whether it works or not does not trigger the $89 million payment. Whether it satisfies the conditions of the Agreement is what would do that, and then there is the additional complication of possible fraud or error on Penon’s part. And the complication of fraud in setting up the Doral test.
Again, only my understanding. “IF” my understanding is correct, Rossi’s case will be dismissed by the end of January. Then the question will be if IH pursues the counter claim of fraud. I expect they will. They have shown evidence of fraud (no customer, no production, presented sale of heat subverted to the GPT, etc. ) and probably have not revealed a fraction of what they may have.
In spite of the error, this could still come to pass, because (1) IH may make a motion for Summary Judgment, or (2) they may settle. I would assume that a settlement may cover the Rossi portion of the IH counterclaims as well.
One should note that in Rossi’s answer, he is apparently preparing the ground to “throw Penon under the bus”. His answers where that the ERV made the COP claims in regard to the validation tests ($10 million paid on) and that Leonardo made no claim of this. In other words, a “do not blame me! We did not make the measurements” They answered no claim by Leonardo Corp. that the eCat provided a COP > 1.
Yes, Rossi has often distanced himself from “expert conclusions,” while at the same time promoting the results and defending them as being from experts of unassailable expertise. The Agreement did not assure as to any particular COP, rather it sold a unit and provided for Validation by an ERV, upon which validation the sale became not revocable at will and the exchange of $10 million and the IP was set up. However, there were attached exhibits to the Agreement (and two pages are missing). The page we have is page 21 of Complaint Exhibit B., which has specifications … and a warranty of two years, but an estimated lifespan of twenty years. This is sufficiently vague that the legal bills could become enormous. Nevertheless, if the Validation was fraudulent, the sale does become reversible.
oldguy wrote:
It sure seems like Rossi has nothing. He has supplied (to our knowledge) nothing that would support his assertion that the work in FL was the GPT. It seems like he would offer something. Dates of conversations, emails, signed agreements, agreement to delay the start of the testing,… something, anything.
What does Rossi have that shows an agreed to start date of Feb 20? There seems nothing in the record other than Rossi said on his blog that he was starting some long test without any mention of what kind of test. It clearly was not a test of his 6 cylinder device.
Then even if you think that he will pull out something that to hint that the FL testing was the GPT, there is nothing yet in the public records that Penon actually approved and “signed off” on the test as valid. There is also nothing in the records yet that show that Penon actually made the measurements required (measuring the heated fluid out of the device not cold water returned into the device, etc). It only appears that Rossi made the measurements and not Penon. That is the next fatal mistake that must be overcome and Penon is nowhere to be found to attest to the report and conclusion. My first question to him would be: did he personally make the measurements?
Rossi has lost this case even if he ever had any working device (which I doubt he had in FL).
There were major aspects of the case that were preposterous, from the beginning, and core of the Rossi case, the GPT claim, barely survived an initial motion to dismiss. The case probably demolished Rossi’s ability to obtain more funding from other sources. I’ve noted especially that his efforts to pierce the corporate veil, to go after Cherokee (not a party to the Agreement) and Darden and Vaughn personally, would discourage any corporate investment in the future. None of the serious elements regarding Rossi’s behavior were public, until Rossi filed. Rossi has not yet even hinted at a Wabbit. Instead, a Toad, see my first reaction and paragraph 81 of the Merge.
So why, when Rossi refused admission to Murray, didn’t IH immediately take legal action? If this had been the GPT, that would have been completely obvious and necessary. It obviously was not the GPT! Then, allowing Rossi to take the measurements, not a problem! It would be between him and Johnson.
JedRothwell wrote:
sigmoidal wrote:
[Jesse] Jackson famously once said: “I deny the allegations, and I deny the alligator”.
That was Amos and Andy, a famously racist program. If you meant that as a joke, it wasn’t a bit funny.
Talk about going off-topic! Gee, I thought it was funny! So I looked it up. Amos ‘n’ Andy. I watched an episode. In spite of how famous this program was, I’d never done that. Amos ‘n’ Andy was accused of being racist, and it certainly played on stereotypes, but it was not the hostile form of stereotyping. Characterizing it as “racist” is misleading. I worked for several years with an almost entirely black community as a prison chaplain, and the kind of humor shown in the program was routine among the inmates.
The U.S. conversation on race was necessary, but it also took some ugly turns, and resentment about that has had some recent political repercussions. As to the quotation, it has been attributed to Jackson, but I could find no specific source. Amos ‘n’ Andy, however, would very likely have been watched by Jackson, and I found a person who had seen it claiming that he (?) would say that if ever in court. The issue of alleged racism opens huge issues, but the episode I watched showed, for example, an African-American judge whose speech was, as would be expected, cultured, and whose demeanor was dignified. There was apparently an episode at one time when one of the characters was beaten by the police. Responding to complaints — from police — that episode was reframed as a bad dream, which is one way to look at the entire history of American racism, as a bad dream, from which we are waking up. The story of racists — all kinds of racists, there are many kinds — as evil demons with fangs is part of that dream, a reaction to it, and, itself, tinged with racism. It’s time to move on.
Humor is commonly based on stereotyping. The last scene in the video I watched is the kind of turn I often saw in the prisoner humor. The stupid Andy turns out to be not so stupid at all.
Note added: Sigmoidal, it turns out, has responded to Jed’s claim of “racist” by deleting the comment. When that is done in conversation, unless it is done immediately, before there is response, it is traditional to use strike-out instead of simply blanking it. The reason given in another response by Signmoidal for removing it is that the attribution to Jesse Jackson was possibly mistaken. However, it is also quite possible that Jesse Jackson actually said it, and perhaps because he had heard this on Amos ‘n’ Andy, which was quite popular among African-Americans. Later on, as part of a movement to strike against racial stereotyping, the program was attacked as racist; however, it was actually cultural stereotyping, not racist, as shown by the variety of normal and educated “blacks” on the program, and the avoidance of any kind of racist attack or implication that the behaviors were racially based. I think “alligator” was funny, and if I’d have said this to the inmates I served, they would have laughed as well. Sometimes, moving toward justice, we lose our balance, it’s part of the process. But it is time to move on.