For those who don’t know colloquial English, definition of kablooey.
For those who need it spelled out:
Mediation reached an impasse. There has been some misunderstanding. Attendance at this mediation conference was obligatory. Coming to an agreement was not obligatory, and the mediator will not criticize the parties, generally, if they showed up and appeared to be participating in good faith, which could still be quite stubborn.
IH filed a motion to extend certain deadlines, adding 60 days to the dates set by the Judge in D.E. 23. These remain before the trial date set in that Order, but the latest deadline is only two days before the “calendar call” on June 20, 2016. See below for more implications.
With the motion for extension, IH attached copies of emails involving Rossi, Bass, and J.M. Products. Summary:
The emails were provided as responses by Johnson and Bass to the few pages as yet provided to IH in discovery requests. It appears that the complete emails are shown, though not all related emails. According to the IH request for time,
Third Party Defendants James Bass (“Bass) and Henry Johnson (“Johnson”) have produced some documents, but the total is only 842 pages. Even though this is not a sizable production, the documents in the production have already clearly established important allegations in this case to the benefit of Defendants, including among other things that (a) Third Party Defendant J.M. Products (“JMP”) was not a “real Customer” (to use Rossi’s phrase) using power from Plaintiffs in a manufacturing process, (b) JMP was not associated with the wellknown British company of Johnson Matthey, and (c) Rossi was in control of JMP and paying for all JMP’s expenses, but in a manner to conceal this from others, including Defendants.
What’s in that “production”?
[In response to Bass’s question, “What do you want me to say?” that shows he doesn’t know much, Rossi assures Bass:]
You will meet for 5 minutes and they are friends. We will talk 10 minutes before you meet them.
This could possibly be explained away. But the plot thickens:
Quoted in the above mail, Bass asks:
When we met with some people last year (I do not remember who it was), one of them asked me how does Johnson — Matthey heat their platinum in other plants. At that time I didn’t know you were cooking platinum sponge, and I didn’t know what process they were using in other US operations, so I was very uncomfortable answering.
My question is, will the people I meet tomorrow want to know anything technical?
And Rossi assures him:
Absolutely not, he will just ask you if you are satisfied with the plant. No technical questions will be put.
This shows, clearly, that as of the first meeting “last year” (2014), IH and Bass considered or thought or believed that the customer was Johnson Matthey or that, at least, J.M. Products was connected with Johnson Matthey. Then there is no sign that this had changed by February of 2015.
This shows that Bass was being closely managed, not by J.M. Products, but by Rossi. Rossi was setting up and controlling the very brief meeting, managing impressions. He has probably lied to Bass. There is no sign that Bass is aware that this is potentially an $89 million fraud.
I can imagine Bass’s answer to that question: “Oh, very satisfied. I have heard no complaints.” In 5 minutes, they are not likely to cross-examine him, and, if they did, “How much power are you using? How are you handling the waste heat?” he could easily beg off, “I’m sorry, I have an appointment I’m late for.”
At that point, IH was not going to rock the boat…. Their goal was to see if Rossi would actually generate major heat, when he was in full control.
Rossi had initially asked Bass, February 14, 2015, to be in the Doral “factory” February 16, from 10 AM to noon, to “present you important persons.” [sic]
And then there is: An email from Rossi to Colette Sauer, January 8, 2016:
Please make an invoice to Leonardo Corporation for 1050 $ for “grams 4000.0 of nickel powder purity 99.6%”
I will transfer the payment Monday morning.
Ms. Sauer is “Legal Assistant to Henry W. Johnson.”
What was going on? In the middle of February, Rossi “refueled” the reactor, according to his blog. He need to put something in, he was getting ready for that. But why not buy the nickel directly, why create an appearance that it was bought through J.M. Products. I can imagine an excuse, but this is all consistent with a story that Rossi is hiding transactions, using J.M. Products. It gets worse. There is a different explanation for that suggested invoice, shown in what was copied from previous emails. In time sequence now:
Copy of an email from Diane Annesser to Collette Sauer, January 8. (Rossi email of January 8, ibid)
Attached is my invoice for 2014 tax preparation and a meeting with Mr. Rossi.
and Copy of an email from Colette Sauer to Rossi, January 8 (ibid).
I have two invoices that must be paid from the JM Products account totalling $1050.
What is quite visible here is that Rossi is paying JMP routine expenses, but arranging to disguise this as an invoice for nickel powder.
Then we have the email from Sauer to Rossi of January 11: (now in date sequence of sections)
Johnson to Sauer, January 11, 2016, simply forwards:
Bank of America to Johnson, January 11.
YOUR ACCOUNT IS OVERDRAWN. […]
J.M. PRODUCTS, INC.
Insufficient funds amount: $750
Fee assessed: $35
Annesser to Sauer, January 11.
There will be the following payments out of the J.M. Products INC checking account 1/15/16.
Florida Unemployment – $ 72.05
Federal Unemployment – $ 42.00
ETPS – $331.36
Please be sure there are enough funds to cover these automatic payments.
“EFTPS” is other federal taxes, paid monthly, including turning over withholding. And then Sauer to Rossi:
I do not have time to prepare an invoice, but see below. [i.e., here, above]
To which Rossi replied:
I transfer tomorrow morning 500 $ from Leonardo to JM as an account on the supplying on course.
You will invoice alltogether the next time.
Rossi writes like he is her manager. Finally, IH cites this mail from Rossi to Johnson and Sauer, March 15, 2015.
Dear Attorney Johnson, Dear Colette:
Please change the official address of JM, putting it in the factory where JM is manufacturing its product.
So the updated address becomes, instead of Boca Raton, as follows:
JM Products – Advanced Derivates of Johnson Matthey Platinum Sponge.
7861 46th Street
Doral, Florida 33166
Phone 786 631 4676
Fax 786 631 4741
This shows that Rossi is managing JM Products, instructing Johnson and Sauer what to do. It also confirms that “Johnson Matthey” was the pretended association, and that “Johnson Matthew” in the earliest JMP invoice request published was a misprint. See also the Bass email above, giving what Bass thought and showing what the apparent IH representatives in the earlier meeting thought.
The documents show Rossi managing and supplying all routine funding for JM Products. The overdraft showed that there was less than $750 in the JMP account on February 11, 2016, and the emails show that Rossi was expected to supply the expenses. This is no active manufacturer. It is not impossible that some token processing of something was undertaken, but Bass did not seem to know about it.
Aside: Federal Unemployment tax is a bit complex. $42 is the maximum per-employee rate per year. This payment amount indicates to me that they had one employee, and this payment was for the year, 2015. This is not what an active manufacturing plant would be paying. If I have it correctly, the Florida new employer UI rate is 2.7%, so the payroll was $2670. This would be per quarter, so $205 per week. This may have been for a few hours per week of janitorial help. Minimum wage, $8.05/hr, $205 is 25 hours. They may have paid more per hour. There was apparently site security, but this must have been provided through an agency.
EFTPS is, for 13 weeks, $25.48 per week. The standard tax to be paid for a low-income employee (not having any federal income tax withheld) would be 13.85%, so the estimated weekly pay is $184. Given that there can be various adjustments, this is close enough. It gives us the basis situation: one employee, probably low-wage; a professional would probably be working as a contractor. Definitely not a manufacturing staff.
The conclusion is extremely strong from the above that JM Products was a shell, formed by and for Andrea Rossi, by Johnson, the President of Leonardo Corp., his company, in order to induce Industrial Heat to move the 1 MW Plant(s) out of their control into his own full control, and to create a pretense of independent measurement (and payment for) delivered power. If JM Products were independent, and had somehow failed to maintain funds in their operating account, we would not have seen this email sequence, which plainly and clearly expects Rossi to pay the expenses of this “independent customer.”
This was fraud. It might be criminal fraud, the evidence is getting stronger for that. The fake invoice requested was plainly to match what JMP needed to rectify the overdraft and anticipated payment, per Sauer’s request. This could be, among other things, tax fraud.
Some people never learn.
One more fact: Annesser (per Colette Sauer) amended the articles of incorporation for J.M. Products, Inc., to reflect Rossi’s request, March 23, 2015. I would not have advised this, if J.M. Products were anything but a total servant of Rossi. Why not? Because Johnson was the trustee for the on-paper owner (a trust in Johnson’s files, probably), and the change would cause all correspondence and legal notices for this allegedly wholly-owned company to be sent to the Doral plant, under total Rossi control. It is clear that secretarial help for J.M. Products was in Boca Raton, not in Doral. This was a dumb request, with no particular value except some sort of Rossi idea that it would be “better.” It established less independence, not more. Unless, of course, independent staff were there on-site in Doral, including an independent manager. The small payroll does not allow that.
wow check out doc 118
Bass and Johnson have produced some documents “to the benefit of the defendants”— That JMP was not a “real company”, not associated with Johnson Matthey and under Rossi’s control and that Rossi was paying JMP’s expenses.
Not exactly, though close. The documents were produced by Bass and Johnson (who have the same attorney), upon IH request, which is the meaning of “to the benefit of the defendants,” and one document was an email to Bass from Rossi, showing Bass’s lack of knowledge and showing that Rossi had represented to IH that JMP was connected with Johnson Matthey, the others were emails from Rossi to Johnson’s legal assistant showing routine payment of JMP expenses by Rossi, and that JMP apparently had no other major income or extensive financial activity, and … probably one employee, part-time. Rossi control is shown.
Doc 118 is a huge blow to Rossi. Whether it has legal bearing on the GPT itself is yet to be determined. It certainly will not sit well with a jury, and goes to credibility.
The legal argument is that if there was fraud by Rossi involved in setting up a “GPT,” Rossi cannot use it to force payment. There are layers to the IH defense and counterclaims. Rossi’s claims of fraud are entirely in his mind as an interpretation of events, with no actual evidence of intent to default. The IH claims are substantial and with evidence, and more is appearing to substantiate what they already suspected.
IH’s engineer testifying that a COP of 1.3 “might be an answer” (while being evasive to the question) is also a blow to IH’s credibility, who has been signaling something entirely different since early 2016.
IHFB has been repeating this, that the answer of 1.3 to the question in context is a blow to IH credibility. However, I’d read all those statements from IH, last year, and did not interpret them as he did, and my interpretation is confirmed by the Dameron testimony. “No heat” meant “no significant heat,” or “no confirmed heat,” not that they never got a measurement above COP 1.0. Others go on to point out error bars, and similar points. A single measurement is not the basis of a professional evaluation, because there are many possible error sources. The question asked in the deposition of Dameron (pp 7-8) was vague, and designed to create the answer the attorney got, an answer that, taken out of context, is deceptive.
Everyone who has been following this story knows that IH have given the impression, repeatedly, both in public statements, and in court filings, that they have seen no excess heat. Then, when placed under oath, IH’s own engineer contradicted that very public position.
IH’s “public position” has been succinct. It is not hedged with the details necessary to make it fully complete and fully informative, but anyone who knows about the measurement of excess heat with devices like this knows that individual measurements can be off. When IH wrote “no excess heat,” they clearly meant “no significant or reliable or confirmed excess heat,” not that they never measured any value above COP 1.0. A single measurement of a value is not a confirmed result even from a single test. IHFB is astonishingly unwilling to recognize this, even though a number of people are telling him. He is using this to denigrate Industrial Heat, but it is a formal argument based on an assumption that general statements must be true in every single detail and with no exceptions, or they are false and misleading, and he is using this kind of thinking to claim contradiction, whereas sane evaluation actually looks for confirmation of apparently different statements, do they have harmonizing interpretations? And then what is implied by those interpretations?
What is the substance of the IH claims? Has that changed as a result of Dameron’s deposition? Even given that we have not see the remainder of the deposition, where Dameron may have clarified, nor any result of an examination of Dameron where more precise questions might be asked, I see no change. Dameron is confirming that in their own testing, they never saw an apparent COP higher than about 1.3. And if that is truth — and this was stated under penalty of perjury — it is an established fact and would show that awarding Rossi $89 million when the fundamental purpose of the Agreement, technology transfer to IH, was frustrated, would be a perversion of equity.
Exhibit 118-A exposes Rossi’s customer masterpiece. We have Rossi asking for what looks like a fake invoice from JMP so that Leonardo can pay for their tax prep. Rossi asks his lawyer to change JMP’s address. Rossi preps Bass for his meetings.
Yes. The mails show that Rossi was supervising JMP and providing what appears to be all funding. Earlier, IH attempted to subpoena the bank records, probably for that account. That was denied, because that could be requested in Discovery. There is now a clear basis for such a request, and if Johnson doesn’t provide the records, and Rossi likewise, then the Magistrate would, I assume, allow the subpoena. (Or the Court can sanction a party through adverse interpretations, i.e., rejecting their claims and supporting the claims of the party whose proper requests were not satisfied. I am not sure, both seem possible.)
It is not illegal for a party to refuse to provide documents, but the result of such refusal can be dismissal of that party’s case, if they are the plaintiff, or a motion for judgment adverse to them, if they are the defendant. Not cooperating in good faith with Discovery, Bad Idea.
Some meta: A quote from Bass to Rossi:
At that time I didn’t know you were cooking platinum sponge
Did Rossi mislead Bass about some actual process going on, or was Rossi actually “cooking platinum sponge” on the “customer” side?
Likely, the “platinum sponge” idea came later. This is a very high value product, being pure platinum, by weight. Spot price today is $31,710 per kilogram. So a lot of product value could be moved in and out without much visibility. However, one then has security issues. An armored car would be used, unless they were stupid.
I know I might look silly, but I don’t want to leave any stone unturned. Is there a process that involves transferring heat to platinum sponges; if so how would that process consume 1MW?
The only truly stupid questions are ones not asked, or asked with certainty as to a stupid answer.
There is no such process, beyond phase change. I.e., as is pointed out by another, one could melt the platinum and carry the molten stuff outside to cool off. But platinum melts at 1768° C, and it would take an enormous value in platinum, and there is no way to heat above the steam temperature, which was, if above 100° C, not much above. Energy is not “consumed,” it is changed from one state to another. Chemical processes can be endothermic, i.e., absorb heat, but this is really storage of energy., and such storage is not very efficient. If there were an efficient energy storage process going on, there would be several problems. This would, for one thing, in itself, be a billion dollar idea. Secondly, storing a megawatt per day into a material makes a material that would be capable of massive energy release. I.e,. extremely dangerous. As has been mentioned, you could convert ice to water and then steam, that would be practical, but would still require the regular delivery of a lot of ice, very visible, plus a steam plume if released to the air, and sending it down the drain would be illegal.
If I understand correctly, these exhibits show the company was operating with a few hundred dollars a month which was being paid by Rossi.
That’s how I read them, and then the implication is strong that Rossi created a phony purchase of nickel in order to put lipstick on the $1050 payment, which was actually for specified expenses in the email from Johnson’s legal assistant, not for nickel. All this shows that JMP was not functioning as an independent company, but was creating an appearance of independence as long as one does not see the actual transactions and management.
Also, Rossi instructed his lawyer to say the company has a connection to Johnson Matthey. One document seems to show that Bass has no idea what the company does, and he seldom shows up to work.
He shows up when told to be there, and his involvement appears to be nothing other than to create an appearance of a real operation. As to the instruction to Johnson, it’s strange, because if JMP were truly independent, having the office of the registered agent and the company, for correspondence, be the office of the attorney and trustee of the trust that owns JMP, would be normal. Changing that to an address under the defacto control of Rossi would be crazy. It only makes sense, internally, if JMP is, in fact, a Rossi puppet company, with Johnson not really caring what Rossi does with it. The bank account was separate, and Rossi could not write checks on that account, I assume, and could not create liabilities that might bounce back to Johnson. (Except for something like this, which I doubt that Johnson anticipated. For all I know, he’s angry with Rossi for getting him into this mess.)
I guess Johnson and Bass handed this to I.H. Right? Perhaps inadvertently? I don’t get it. Don’t ask me what’s going on.
It’s not that complicated, but it does require paying attention, otherwise one has way too much information to process at once, and shortcuts are then taken, assumptions are made, etc. It also requires some knowledge of legal process, though one can learn that by paying attention here.
Yes. They turned over, to IH, 842 pages of documents as required by the initial discovery requests. (They are now required to turn over more, and I assume they will comply.) These emails were covered by Request No. 3, in the IH First Request for Production, and were among those provided, I assume, before the Magistrate overruled their objections to the rest. (That order was written by IH at the Magistrate’s request.)
This was not inadvertent. The Production Request would clearly cover these documents, so failure to turn them over would be sanctionable. The Request:
REQUEST NO. 3: All Communications between You and Rossi, Leonardo, Fabiani and/or USQL.
Notice that while Johnson is an attorney, he was not acting as Rossi’s attorney in these matters, so there would be no attorney-client privilege.
Nothing in these documents that we have seen is a smoking gun as to intention to defraud on the part of Johnson or Bass, but this is all devastating to the Rossi case.
What I notice is that the attorneys for Johnson, Bass, and Fabiani all consented to the 60 day delay request, but the Rossi attorney opposed it. From Rossi’s comments (see below) and from Annesser’s general behavior in this case, Rossi wears the pants and Annesser does what he’s told, supplying legal-sounding language, but it’s all lipstick on a pig, applied by a certified cosmetologist. In this case, Rossi said No, so Annesser said No, even though this would be setting up some problems! Such as IH responding in kind to that Rule 11 Motion — which was utterly and totally rude, not to mention incredibly stupid. (I’d noticed the gratuitous rudeness as early as the Annesser response to the IH Motion to Dismiss.) And yet the IH action is easily justifiable because of Annesser’s opposition. They needed to show reason why delay was needed, how disclosure was bringing out important facts, and that it will take time to follow up, etc.
On his blog, see below, Rossi sounds disconnected from fact, musing about what is next to impossible (i.e., that his emails might have been faked.) In theory, we can imagine it, but under the circumstances here, it’s not worth the time it takes to ask “fake?”
BUT SOME LEVEL OF MANUFACTURING AT A RATE ABOVE ZERO SEEMS TO HAVE TAKEN PLACE.
The Bass mail does not show this. Bass is relying entirely on what Rossi has told him, it appears. It is possible that some effort was made to do something with the heat. “Rate above zero”? Maybe they cooked hot dogs, it would work great at 20 KW. Tasty, too, if you like that kind of thing. I have a hypothesis I bring up from time to time that this was all a Rossi “magnificence,” where he dreams up an idea and presents it as fact. Then when it doesn’t happen, he points out that it was only plan. They planned to buy Johnson Matthey platinum sponge and process it somehow. Cool idea, eh? But they never got around to actually doing it, and there were a few problems, such as it being freaking expensive, and Rossi’s idea was that Johnson Matthey would leap at the chance to be a part of history, by loaning them some sponge. Didnt;’ they loan palladium to Pons and Fleischmann? How could he know that JM would decline?
So maybe he told Bass that Bass would be the engineer for this planned operation. Meanwhile, they have some meetings to handle. Don’t worry, James, they are friends and you will not be asked any technical questions. I’ll be there to support you, but I’ve told you what you need to know. We may be ready to start the engineering next month. I’ll call you.
What actually happened will, I expect, come out in discovery. Bass will be asked far more specific questions, before IH is done, based on what has appeared from the First Request for Production.
a narrative with extensive quotations, I just want to acknowledge the work done.
The e-mails in 118 just confirm what we know since half a year. Not less not more. JMP was founded by Rossis lawyer. This is known for more than a year.
Wyttenbach, we think, is a math PhD, using his real name, which is admirable. However, what he writes on LF is often far from cogent. Here, what we see is not about Johnson being the “founder” of JMP. It is about the operation of JMP, as not independent, but totally depending on and managed by Rossi, and about Bass, as not having substantial independent knowledge, asking Rossi what to say. This is much more direct evidence than we had before, confirming what IH had inferred circumstantially.
Anyway: I wouldn’t trust e-mails because I can send an e-mail in behalf of any person I would like to do so!
This is not just any email. This is email provided by correspondents in response to a request for production. Presenting false evidence in such a situation would be perjury, a criminal offense. It happens, to be sure, but Rossi knows if those emails are genuine, because he is shown as the sender; the mails were provided by the recipients, and the mails reflect actions that can be shown and correlated with them. For example, I point out the shift of legal address for JMP that was a response to the Rossi direction. This was not an action that made sense, if JMP was actually independent. It only made sense if Rossi was entirely in charge.
Just for the curious ones: Some e-mails deal with detailed material order, what makes no sense in case of fraud…
Wyttenbach does not understand. The Johnson assistant asks for $1050 to cover some expenses (one of them is, in itself, a demonstration of lack of independence, the accountant billing for meeting with Rossi. Why would the accountant for JMP need to meet with Rossi? My guess: lots of transactions that made no sense to her.)
In response to that, Rossi asks her to invoice him for $1050 worth of nickel. That way he can give this money to JMP without it being so obviously support of the routine operations of JMP. The accountant will then have a problem with where the nickel came from. How does she figure COGS? Don’t worry, we will-a figure it out later.
I think Rossi had no idea about Discovery.
Far more interesting is the following Mediation report: (Ex 117)
MEDIATOR’S REPORT AND NOTICE OF IMPASSE
This case was mediated on Thursday, January 12, 2017. All parties and counsel were present. The participants negotiated in good faith. The parties were unable to resolve this case at this time. Therefore, the mediation resulted in an impasse. It is hoped by the undersigned and
expressed to the parties that at the completion of discovery and motion practice, the parties consider undertaking further mediation efforts.
This report could be 100% standard, boilerplate, used for every mediation that does not result in a settlement. The Court requires attendance at the mediation by someone fully authorized to settle, but beyond encouraging settlement, there, the mediator will not judge or adversely comment on the parties.
This was expected (at least for Rossi, and, remember, the 3rd Party Defendants still have not Answered the Counter-Complaint).
Wyttenbach, are you serious? If you sincerely believe this is ‘more interesting’, you really show your ignorance of court procedures.
Mediation is a requirement built in to most legal agreements, often to comply with state laws.
Unfortunately, sigmoidal has confused Arbitration with Mediation. I have written about this before (on LF). This mediation was required by the Rules of the Court, it did not come from the Agreement at all, which did not provide any dispute resolution procedure, one of the shortcomings.
@sigmoidal: If you don’t understand legal matters, then you should not post and otherwise down-vote facts!
There is no requirement to attend a mediation! The facts are: All parties attended the mediation! Now you possibly understand the legal aspect!
I’ve brought this here because Wyttenbach has some misconceptions that others may also have. As well, the firm belief in one’s own rightness, combined with contempt for others … Pride goeth before destruction, and an haughty spirit before a fall.
Attending this mediation was obligatory, parties could have been sanctioned for not showing up. That’s why Fabiani requested permission to attend by internet.
It was not reported that there was a “lively discussion.” Wyttenbach made that up, or does not understand what “good faith” means in this context. I’m not sure what it means, either! Basically, what happens at the mediation conference is confidential, and simply sitting there could be “good faith participation.” The point is to bring the parties together just in case a little communication might resolve the case. Sometimes it will.
Peter is a long-standing supporter of LENR, who became enmired in the Rossi claims that he calls “LENR+”. This is off-topic, not being about developments in the case, merely about his idea of what is going on, generally.
An analogy and a few questions to Dewey, Jed and other supporters of the IH,
After one year of seemingly normal marriage, Irene-Helen has accused her husband of repeated rape, but only after he started an action of divorce.
Irene-Helen has then described her husband as a monster,a summum of all evils so everybody and her aunt has asked her why she has married him or why she has not asked divorce 11 months ago?
And her answer is? Peter’s apparent point is that if Rossi is so horrible, why didn’t they sue him years ago? This is a circumstantial point, and has nothing to do with the situation of “poor Irene-Helen” nor of IH. It has been extensively explained why IH would do what they did, in spite of certain appearances, and it appears that they accomplished what they wanted, which was to find out the truth and, if Rossi’s claims had reality behind them, to obtain a license. Truth is elusive, but they do have the License., and it is now safe for them to invest in other LENR technology that is not claiming kilowatts or megawatts. Peter does not understand what is going on in the case.
IH people try to convince everybody that for them- IH- to win the litigation is a certainty they have terabytes of hard proofs for zero excess het, bad instruments, flawed measurements, no customer, no consumer, impossibilty to consume the claimed heat, fraud and conspiracy.
Peter is massively confused about who is writing what. Any lawyer will tell us that there is no certainty at law, particularly in advance of all facts being laid out, but if this has gone to a jury trial, there can be even more surprises. Juries are human and can be quirky. Who are “IH people,” and what determines membership in this group? The only person writing who is actually connected with IH is Dewey Weaver, and I don’t see him “trying to convince” anyone, he just expresses his opinion and a little of his knowledge, and he knows much more about this case, from direct experience, than most of us.
There is no mention anywhere of “terabytes of hard proofs.” Again, Peter does not understand what he reads. Rossi requested data from IH, and fulfilling that request required them using a hard drive holding terabytes. Nothing has been said about what was contained in that, but we have seen the Rossi Production Requests, so it would contain what he requested, it is presumably all the test data they had. Data is not proof, that requires analysis. They would also provide whatever internal analyses they had of that data.
Then Peter lists some of the IH claims. We have seen evidence for them. LF is discussing some of that evidence, showing that the supposed independent customer was actually under full Rossi control, based on what Rossi himself wrote to James A. Bass, who was apparently responsible to Rossi, not to JMP, and what Rossi wrote to Johnson’s legal assistant, who was handling all JMP affairs, clearly depending completely on Rossi. Peter may be unable to consider this one issue at a time, he wants to have an overall understanding first, so that he will know how to react to the individual facts. That is a gross error, common when people become attached to some view.
And yet they need 60 days more to answer to the statements of JMP, Bass, Fabiani.
Yes, they do. Peter does not realize that the 3rd Party Defendants he names have not yet Answered the IH Complaint. JMP and Bass partly responded to the Production Requests, and have been ordered to provide more, their objections being overruled. Fabiani has not responded at all, as of the IH request for more time.
The normal process for discovery involves requests and responses. From the responses to the first requests, more questions are asked. There is a limit to how far this goes, but the goal is for all parties to be fully informed as to what evidence exists and what arguments are planned, so that the trial is not a surprise, where new evidence comes up and the other side has not even seen it before, and examining evidence carefully takes time. The goal is that the trial be an orderly presentation of evidence to the jury, not a dramatic revelation of something unknown before to the parties.
Per the Motion for more time, the parties originally agreed on a Trial the week of September 18, 2017. However, the Judge apparently thought that such a long time would not be needed, and s:
The Court entered its Scheduling Order on July 1, 2016, setting forth the current pretrial schedule, which mandates completion of discovery by February 27, 2017 and a trial period beginning on June 26, 2017.
Six weeks to complete discovery is unlikely to be enough. However, the Judge will review the IH request and will decide if it is reasonable or not. IH will then follow the Order she will issue. However, Rossi has yet, apparently, to significantly satisfy any production requests. I have not reviewed the timing, but he may be pushing legal limits.
Part of the delay has been caused by IH adding 3rd Party Defendants, which was not contemplated by the Judge, perhaps, when she set the timing. That complication enabled certain Rossi delays. The 3rd Party defendants have not completed the first round of discovery.
The attorneys for the 3rd Party Defendants accepted the IH request for more time, and this would have been a simple consent order, but because Rossi’s attorney refused to accept it (and see Rossi’s comments on his blog, below), IH needed to argue that this was all necessary and material, so we have now learned a bit more because of all this. In general, we only see discovery material when there are objections. Otherwise, it’s only exchanged between the parties. Rossi did not like his “secrets” being revealed, but then he says he didn’t read the revealed emails. Why not? He is claiming, again and again, that IH has provided “no evidence,” but the one who has not provided evidence, most of all, is him. So, Peter, why do you trust him?
So I ask, in your opinion what are the chances of IH to win?
Just for your info, Irene-Helen’s sory is based on a real case and the poor girl lost due mainly to delay in tyhe action.
What did she lose? Rape charges between husband and wife can be very difficult. In most cases of alleged rape, lapse of time before complaint can create plausibility problems, particularly difficult with rape because there may be no independent evidence, and because “rape” can be tricky to define in a marriage. I imagine that her story sounds horrible, and rape should not happen to anyone, but this was a criminal charge, where he would presumably go to jail if convicted. Does “lost” mean that he didn’t go to jail? But she’s not married to him any more, and if he was such a monster, to be out of that situation is not a loss, it is a victory. Further, if she told the truth, all other women would be on notice that he might not be as nice as he might seem, and the second time that this happens, if it happens again, he’s not going to get off so easily, though, I’m sure, it wasn’t easy to face rape charges.
But analogy remains just an analogy, isn’t it?
Analogies reveal how we think and react. Peter, you think that IH is alleging rape, a crime that, if there is delay, may be difficult to prove. However, you don’t see the case in perspective. IH has not alleged a crime, they have alleged failure to perform on an Agreement, which is susceptible to evidence. They have alleged “fraudulent inducement,” and the evidence for that is quite strong. They have alleged damages, and having paid $11.5 million to Rossi, and more to do all the work they did making devices — remember, they made the devices used in the Doral Plant — and to pay other expenses, and they have nothing useful to show for it — beyond having given Rossi every opportunity to fulfill the Agreement.
Peter uses the fact that they did not sue Rossi, as if that were proof of something, perhaps because he imagines that if the facts were as alleged (actually, as shown), he’d have sued and he thinks anyone reasonable would have sued. These people are not limited by ordinary thinking, that’s why they do what they do, why they are in the business they are in. I know these kinds of people and how they think. I find such inspiring. This world of “win” and “lose” and good and bad is not where they live. They live in a deeper reality than most.
I think. I haven’t met them, except briefly Dewey Weaver at ICCF-18. But I recognize the signs.
The one who has alleged “rape,” i.e., fraud, without evidence, is Rossi, claiming that IH intended to not pay him from the beginning, and tricked him by setting up Industrial Heat. He had a year to realize that this was a mistake, if it was, but he chose to go ahead and accept the $10 million. His story of deception is actually irrelevant, because of his subsequent behavior.
Peter asked a question: “in your opinion what are the chances of IH to win?”
“Win” is not defined. Giving it a loose definition, 99.5% “Win” is always “compared to what?” So look at the other side:
Rossi’s prevailing on the triple-damages fraud claim: 0.001%
Rossi winning $89 million: 0.1%
Rossi getting the License back: 1%
Rossi getting to keep some of the $10 million: 2%
Rossi declaring bankruptcy: 95%
Since the question was about IH, Johnson being found liable: 90% … but there are many facts that may come out that could shift this.
Bass not being liable or settling for no liability in return for full cooperation: 80%
There is no way to determine if I am correct or not, even in the future, because these are probabilities, so all of them allow for something else to happen.
January 14, 2017 at 3:14 PM
the well known peripathetics on the bankroll of Cherokee-IH have made comments about presumptive emails between you and JM: apart the fact that for me it is normal that between you anf JM could have been a private business, if they produced chemicals and you used chemicals, but I’d like a comment from you: I think Cherokee-IH are scratching the bottom of the barrell to invent something against you: probably it is for this reason that they have also asked to delay the term to find evidence against you.
January 14, 2017 at 4:00 PM
Here is the release allowed by my Attorneys:
I have not reviewed any emails which are supposedly reduced, but I can say that we are confident that the evidence we have uncovered is more than enough to support our claims.
While I cannot comment on emails I have not seen, I question the authenticity of such emails as the Court has entered a protective order prohibiting the release of that type of document in this case.
Dr Andrea Rossi, CEO of Leonardo Corporation
January 14, 2017 at 9:15 AM
The paid puppets of IH – Cherokee have published the emails between you and JMC saying they compromise your credibility, they also said they got 2 months of delay for the process: what do you say?
January 14, 2017 at 1:27 PM
1- the publication of the emails or the diffusion or of their content is in violation of the confidentiality put from the Court. The matter of the pre-trial research is strictly confidential and I cannot make any comment, while our Attorneys will take care of the matter.
2- in general, the publication of pieces of evidence abstract from the specific context is misleading and nonsensical: I cannot speak of the specifics of this case, because they have to be brought first in Court
3- I am more than convinced that we have all the necessary evidence to sustain our case and our evidence does not belong to the blogs, but to the due place
4- our Counterpart has asked for a delay of the term to present evidence against us, we do not need any delay because we have all the necessary evidence already.
Comments have missed that the amount for nickel was clearly a way to pay JMP for other expenses, while concealing it, the mails make that clear. These are not “presumptive emails,” but emails provided in discovery, apparently by Johnson and Bass, all are emails from Rossi. If those are faked, who faked them? Rossi has been asked in discovery for all this, and has apparently not provided any of it.
Rossi is ignorant about the Protective Order. It allows a party disclosing documents to label them as protected, and to reveal a protected document without Court permission would be sanctionable. However, to claim protection without cause is not advised, because it can increase attorney costs. These documents were, rather obviously, not protected. They could be introduced as evidence at trial, or even published, without further permission.
Rossi had just, in his Motion for Sanctions under Rule 11, revealed some material from depositions, and Dewey Weaver warned that he was setting precedent that he might not like. We now see why. A Rule 11 filing is quite hostile, it is going after the attorneys themselves. IH has not retaliated in that way; however, Rossi counsel refused to assent to the Request for Time filed by IH. That made it prudent for IH to include evidence showing why delay may be necessary. In other words, all this came out because of Rossi intransigence. Otherwise, no necessity, IH would not have added evidence, this would have been an order by consent.
Rossi’s explanation of the reason for delay is inaccurate. It is to have time to review evidence from Discovery that has still not been provided, from the 3rd party defendants and from Rossi himself. He is creating delays, not IH.
Does Rossi really think that IH would present faked emails? Or that his lawyer Johnson would take part in defaming him? Rossi’s ideas about confidentiality are naive, but he should know that, because he published deposition material in his Motion for Rule 11 Sanctions, page 7 and page 13.
Perhaps Rossi should read Rule 26. There are provisions there for Protection. If material has not been protected, it is my opinion that any party privy to it may make it visible to others. If it was formally Protected, then there is an issue, but these are all relevant matters, and none of them appear to be of the nature of trade secrets or the like. Rossi uses nickel? Haven’t we known that since 2011?
The point is missed, of course: Rossi was managing JM Products and providing them with funding for routine expenses. The invoice for nickel was a cover-up for the real purpose, supporting JMP. He gave $500 to cover one set of expenses, and then $1050 to cover others, what the Johnson legal assistant asked for; he told her to invoice him for nickel, that amount. While I could imagine a (very unlikely) scenario that made this a legitimate invoice, the burden of proof has shifted, such that Rossi will need to establish those purposes instead of making irrelevant noises.
Rossi is scrambling for damage control:
January 15, 2017 at 2:39 AM
Dear Dr Andrea Rossi:
The fact that Cherokee-IH has asked a delay of two months to find evidence against you, while you do not need such a delay is inspiring…
I cannot comment further after the statement allowed from my Attorneys. Every further consideration from us will be disclosed exclusively in Court.
For a defendant to ask for more time is utterly unsurprising and is not a showing of weakness. Bluster is a sign of overconfidence — or pretense. (Rossi must be considered responsible for most comments on his blog. There are possible exceptions, and here is one:)
January 15, 2017 at 12:33 PM
You mention that JM Products could have been producing the chemicals that were needed by Leonardo Corporation. My thinking is that JM Products could have used the platinum black (platinum sponge) in a pressurized hydrogen environment — UTILIZING THE HEAT FROM THE PLANT — as a spillover catalyst to produce atomic hydrogen that could hydrogenate nickel. Hence, the product being produced (which would be very useful to Leonardo Corporation) could have been optimally hydrogenated nickel.
Do you think this is a likely scenario?
What are your thoughts on this possibility?
To me, regardless of any other considerations, it would seem to have been a beneficial arrangement between JM Products and Leonardo Corporation. Moreover, it would show that both manufacturing was taking place and the heat from the plant was being utilized.
My Attorneys ordered me not to talk in the blogs of issues to be discussed in Court.
Mills, who is a major Rossi fan, is confused. First of all, he’s speculating about Rossi’s secrets on Rossi’s blog, a bit odd. DT had not actually said what Mills claims. Platinum black is not platinum sponge. The idea that JMP was using platinum sponge to create fuel for Rossi, perhaps, is an interesting one. It doesn’t solve Rossi’s legal problems, because JMP was still a Rossi operation, not independent. It does not magically dissipate the heat. The opposite, I think, if nickel were being hydrided, this would generate heat.
January 15, 2017 at 1:54 PM
Dear Dr Andrea Rossi:
the “peripathetics on the bankroll of IH”, as correctly DT called them, are trying to force you to make the process in the blogs, in particular in LENR forum, that is their blog, instead of in court.
Your attorneys correctly want you to confine any discussion in court and you correctly respect this. Anyway, this attempt of IH gives evidence of their weakness in court. Do you agree?
January 15, 2017 at 3:24 PM
As you correctly say, my Attorneys told me not to talk in any blog of issues to be discussed in Court.
Only on Planet Rossi is it believed that lenr-forum belongs to IH, and that Industrial Heat is waging a war against Rossi on the blogs. Nobody is forcing Rossi to do anything, other than through the Court. Rossi created this mess….