Alan Fletcher

I wrote this update to a post reviewing of certain LF discussions, and mentioned Alan Fletcher.

His response, Alan Fletcher wrote:

AbD’s been grumbling about me … ” because he has continued with other face-palm stupidities. “

AbD : AF

Thanks for the link, Alan. That was a relatively minor part of the updated post, but I have now added an anchor so that the particular part of the discussion can be found. (Anyone may ask that I add such anchors. They do not appear in the page display. They must have the form [letters][numbers], no spaces. Capitalization matters. If a page anchor add to a URL doesn’t exist, the browser will simply display the page, ignoring the anchor, so if someone wants to use an anchor, they can use it (add “#[anchortext” to the URL, and then add a comment to the original post, here, asking for the anchor, I’ll add it ASAP. Make it civil. Be specific.)

Unfortunately, two minor problems: My full name is Abd ul-Rahman Lomax, which may be spelled various ways, but the initial noun is “Abd,” which is pronounced “Abid,” accent on the first syllable. Where Alan got AbD from, I have no idea, but the capital D would probably lead to mispronunciation. (However, it would mean, in Arabic, as probably pronounced — Abdee — “my slave.” Not bad. At your service.)

And Alan misrepresents the statement, by taking it somewhat out of context. For years, I have been described as complaining (or “grumbling”) when I state obvious fact. I do think that details matter, and often point to them, but … I also know that LENR Forum is sometimes like a bar-room discussion (or brawl, minus the physical violence, but with all the high-testosterone challenges).

If there is anything dumber than argumentum ad spelling-errors, it is arguing about pointing out spelling errors, or the like (such as rounding off numbers). I had mentioned “face-palm stupidites,” but wasn’t specific as to what was face-palm stupid. Rounding off numbers wasn’t an example of that, it was dicta. Leaving out sources gets closer, when one says something that if one is not “stupid” — which in this case can mean ignorant — one would not say, the effort of finding a source for the claim would often lead to self-correction.

This blog is not a bar-room discussion, it serves two purposes. One is blogging, users with author privileges here (there are now four) can use this to express themselves, with high freedom. The other is building useful content. Blog posts are, by nature, transient, though they can be cited as part of building content. Pages here are used for content. Both posts and pages can be categorized ( I have set this WordPress blog to allow that) and, here, we have our first subpage, to remove clutter from top-level indexes. Expect to see this more and more. The RvD pages will probably become a page hierarchy, because it is necessary to organize them for study access.

… for rounding numbers ($90M vs $89, $270M vs $269 ) … but (unless you’re writing the check) rounding is often better.|Heck, I shoulda rounded $89M to $100M and $267M to $300M.

This isn’t what “worried me a bit” about Alan, nor was the omission of the source for his claim:

.. for not giving references (Hey, this is a blog, not a court case).

See Rossi vs. Darden developments [CASE CLOSED] referencing docket 214-23

If this were Be Kind to Readers Day, in Fletcher’s calendar, the actual document would be linked. Apparently it’s not. Nor is the document linked in that earlier post of his, but there are quotations or references, without page numbers. 214-23 is 48 pages. Which page? [turns out the page is mentioned, simply not linked).

This is very common with highly opinionated conversation. It is not investigative, sharing knowledge by sharing sources, it is extraordinarily sensitive to prior belief. Alan is a notch above common Planet Rossi commentary, but still not out of the fog, and that was my point.

I said : In their investment letter they said they’d have to raise it quickly — at just the time they said it was not the GPT.

He purports to be quoting himself there, not the document. But he also didn’t write that in the older post. This kind of sloppiness is all-too-common. The problem with exact quotation is? True, he didn’t use quotation marks, but “I said” implies them. He did not say what he claims he said. He said something that was itself interpretive (not what IH “said”) . Rossi v. Darden was a riddled with these interpretive statements on Rossi’s part, and so too was general Planet Rossi commentary. If Alan wants to move beyond that (does he?) he will need to develop better habits.

Good writing is work. Occasionally I just dash something off — this is, indeed, a blog, but not this page — but I can always be asked for sources by anyone, and if I can’t find a source, I’ll say so and I will fully understand that, then, my comments might be deprecated.

Here, Fletcher is referring to a massive document, 241-23, covering the IH investment strategy, detailing how they would spend the $25 million Woodford investment that was planned (that later became $50 million).

Fletcher does mention “page 8”. In Kind to Readers Week, one will simply add the standard PDF page anchor, “#page=8”. It is just as easy as writing “page 8” but far faster to use.

This is the reference.

Shown is a budget assuming $25 million additional funding. It then considers a “Rossi contingency,” stating at the top:

If Rossi is on track to earn his $89M success fee, then IH may seek up to an additional $150M as early as Q3. 

This is not an agreement, nor does it state that there is an agreement. It is silent on the matter of the Second Amendment failure.

The document is undated. The document is not OCR’d, as I have it. Rossi cited this document in his Motion for Partial Summary Judgment as “Ex. 22.” The argument was crucial, but the document doesn’t support exactly what Rossi claimed about it. (Rossi’s pleadings were full of claims that were not supported by the sources, but maybe if you squinted when you read the source, having Rossi’s claim ni mind, you could find a hint.) From that Motion, PDF page 13:

39. In October 2013, Defendant IH, Rossi and Leonardo executed the Second Amendment
to the License Agreement, which extended the time for the commencement of the GPT. See Ex. 7.
40. In addition to the Second Amendment, Defendants’ internal and external
communications reflected Defendants’ agreement that the time for commencement of the GPT had
been extended. See IH-00122484-508 (investment memoranda), IH-00107550-52 (9/11/2014, email
from Vaughn to Mazzarino and Darden), IH-00106452-74 (IH Business Plan), appended hereto as
Composite Ex. 22.

There is no agreement to GPT mentioned in the document. Rossi has cherry-picked the history, leaving out crucial facts. What existed was a conditional statement that was vague as to meaning, and this was not a document given to Rossi, so he could not have depended on it. Rossi never bothered to get agreement, but relied on fuzz. So, as an example, IH could have been talking about a possible set-up for earning the payment, not an already -existing one.

The Second Amendment was “executed” by three of the five parties to the License Agreement, which required all parties agree. Leave out IPH, which had become a party through the First Amendment, that’s an obviously technical detail that would not alter the substance — just like the Leonardo signature being omitted, so leave that out as well — … this was not a complete document, it was never dated, and, crucially, there was no Ampenergo signature. And we learn in other documents that this was deliberate, Ampenergo refused to sign, this was not an accident. Rossi called the Amendment, in an email, “cancelled,” so he knew it was invalid. Without it, the time for the GPT performance had indeed lapsed.

However, the Second Amendment, were it valid, then required a written agreement of all the parties to a start date. Ampenergo was a party. If such an agreement had been created, it would have been equivalent to Ampenergo signing off on the Second Amendment (and the Ampenergo signature could have been added later to the Second Amendment, there was no expiration date unless a signing party had notified the others of a withdrawal) Rossi did not bother with legal necessities and instead proceeded to set up a faux GPT, resembling a real one in a number of ways.

IH was assuring Rossi, during this period, that even though the time for “GPT” had elapsed, they were willing to pay if Rossi could show them how to make devices that passed independent testing.

I.e., ordinary common sense, necessary for raising that kind of money without defrauding investors.

They also could have elected to accept the Doral operations as a GPT, paying Rossi, and they held that possibility open (by making sure that they had access to the funds, if needed, to pay Rossi.) That was not an “agreement” as Rossi claims. It was simply preparing for a contingency, that did not arise, because …

Rossi in his recent interview claims that he decided he wanted the License back, as his total priority, when he learned that IH had became involved with other LENR efforts. That was part of the business plan, and Woodford was totally on board that plan, apparently. The plan did not exclude Rossi, it included him. The plan was probably issued in 2014, we know that the Woodford commitment existed then. IH was long suspicious of Rossi — they were not stupid — but did not act to handle suspicions until July, 2015, when they scheduled the Murray visit that Rossi refused to allow.

That destroyed any possibility that Doral would be treated as earning $89 million. It is not impossible that this was deliberate, a more complicated version of the Hydro Fusion fiasco.

What had Alan written that I considered stupid? Alan gets to it below. Here, he cites the $150M statement

IH said : If Rossi is on track to earn his $89M success fee, then IH may seek up to an additional $150M as early as Q3.

[Culpa mea : AEG got $4,200,000.00 — is THAT precise enough ? — in cash, some $500K (intentionally rounded) more in equity. So I should round down IH’s payment to $4M. I don’t think they mentioned an amount in their email to Rossi about the $89,000,000 GPT tranche. [ No, I’m not going to hunt down the reference]

I don’t know why he is apologizing about a reference to AEG. Must have been some other post. Yes. IH said what he quotes, I quote it above. This was written before any alleged “test” began.

.. for saying the parties represented they had the funds to back up their contract. I thought it was in the license, but I know it’s in the docket … somewhere.

This was a prominent Rossi argument, that IH didn’t have the funds when signing the contract. It was totally dumb, because almost never would a promise like that be backed with actual cash on hand. They didn’t have the $10 million either, but they paid it. They actually didn’t have the $1.5 million, but perhaps only half, and Darden appears to have borrowed the other half from Cherokee.

Yes, this was an example of face-palm stupid. The error shows a lack of familiarity with the case arguments, and an acceptance of Planet Rossi claims, which were then extended into an alleged false claim in the License Agreement, with Alan’s misleading claim matching Rossi’s, but extending it a little.

The closest that the prior arguments comes to this is a Rossi claim that Darden and Vaughn assured him that they would be able to pay, and Rossi commonly takes what is said and runs with it to make it mean something that wasn’t said, whatever he wants it to mean.

Is Rossi lying about what they said to him? Well, one of the arguments in the IH Motion to Dismiss was that Rossi hadn’t been specific, and I can imagine things that they might have said, that were true, but that he may have interpreted differently. For example, they may have said “we” and Rossi interpreted this as meaning “Cherokee.” Very easy misunderstanding.

And this is why the Licence Agreement had an Entire Agreement clause, to avoid misunderstandings like this. Darden and Vaughn did not lie in the fundamental premise: that they could make the payments if earned. If Woodford, for some reason, had backed out, they had other possible resources. Further, a failed intention does not show fraud, at all. If they had misrepresented their ability to raise the money, maybe. It’s still very difficult to show fraud from that, it would need to be very specific and clearly deceptive, in addition to, for something brought up years later, being memorialized in writing. The initial Rossi case absolutely reeked.

Rossi attacked what appear to be, in reviewing the documents, angel investors. They made it as easy as possible for him. So … what did he do? The case documents and the pleadings and his recent Mats Lewan interview show reality, the latter being, still, Rossi Says, but probably accurate in at least some ways about his thinking.

He’s leaving something out. I doubt that Lukacs only presented “You won’t get your License back.” And that desire could have been asserted at any time; it would not have been crazy to formally propose a return of the license, and if Rossi didn’t have enough money to pay them the whole amount, I’m sure some arrangement could have been made. That would be sane business.

Instead, Rossi sued first, creating enormous expense for everyone involved, not taking the time to attempt a negotiation. What was the rush? Some big deal in the wings?

We do know that Rossi met with IH lawyers in something like January 2016, Mats Lewan mentions it in his recent interview. Rossi refuses to say what it was about, as if he’d be prohibited by an NDA, but all those claims about violation of NDAs were killed by the joint dismissal with prejudice, and ordinary attorney-client privilege doesn’t require the client to keep the topic of discussions secret. This is more Rossi secrecy-for-the-sake-of secrecy.

Planet Rossi believes that Rossi made an offer to return the License for $11.5 million. Rossi said that to Mats Lewan, but then, it develops that this may never have been actually presented to IH, it was just blog chatter. Had this been formally presented, I’d have expected IH to hold out for, say, some compensation for expenses. I doubt it was mentioned in the negotiations in court in that 15 minute period.

AbD did send me an email on the Prominent project, which I’ll take note of.

It is important how Alan does this. The idea is totally excellent.

If the goal is to prove this or that, the work could be contaminated. The goal would be to carefully and accurately describe actual pump flow, at maximum setting, under varying back pressures, or at least at atmospheric. (It is not necessary to test at 2 bar. That would add complications; at low pressures, water head is good enough and no pressure gauge will be needed, just precautions to avoid air pockets, etc.)

And then the variation of setting and actual flow at various settings and pressures, frosting on the cake.

Whatever is done should be described clearly so that exact replication can be done by others if needed. If this is done well enough, it might be so widely accepted that replication isn’t necessary, though we already have announced claims on JONP — by anonymous users and no details.

When Alan is done, I recommend then making the pump and any accessories available to the community, selling them to another, and only selling it on ebay if nobody wants it. The committed funder (IHFB) could also agree to back another tester, or require that he be paid back whatever he has put in.

This is a landmark event, in my mind, the “community of interest” agreeing to cooperate and support, even if they have different “agendas,” i.e,. perhaps different ideas of what will happen. Being interested in what actually happens, regardless of what it might seem to imply, is crucial to science. (and also law, by the way),

Update170728

Alan Fletcher wrote:

AF : Well, they declared in the contract that they had the money to pay him the $90M, so NOT having it was a breach.

AbD: Alan doesn’t point to actual evidence. The “contract,” i.e., the License Agreement, didn’t say what he claims. Such a statement would be rare.

OK … I knew I’d seen it somewhere : Complaint 1.0

COUNT VI: FRAUD AND DECEIT
(IH,IpH, CHEROKEB, DARDEN & VAUGHN)

lI2. At all times relevant hereto, Defendants DARDEN, VAUGHN, IH and
CHEROKEE misrepresented to ROSSI and LEONARDO that:

a. both IH and CHEROKEE had funds in excess of One Hundred Million
Dollars ($100,000,000.00) available to pay to ROSSI and LEONARDO for
the license for the E-Cat IP;

COUNT VI was NOT dismissed (24.0 Order) , so this accusation was still in play.

Some people have no clue when to fold. The point has been entirely missed. Alan’s original point was about breach of contract, and about an alleged claim of having the funds that they allegedly did not have. The Count cited is not for breach of contract, but for “fraud and deceit.”

The difference between evidence in the case (the Agreement is evidence, and would be admitted at trial with attestation under oath) and pleadings is crucial to understand. Planet Rossi often misunderstood this and proclaimed that if it was declared in the court filings it must be true, right?

Not right. It’s legal to lie in filings. Under some extreme circumstances, there can be sanctions, but it is not perjury. There is no assumption at law that statements in pleadings are true. They are not generally admissible as evidence (other than for the fact of the pleading being made, which would be rare).

Rossi did not actually quote what had been said to him. He gave a description of a representation that was quite unlikely to be true, if they actually said exactly what he claims. And it would be totally irrelevant and would not create a breach of contract. Under rare circumstances (which did not actually apply here), misrepresenting ability to pay could be fraudulent representation. This could simply be ordinary business puffery. “don’t worry, we will have never have a problem honoring the guarantee,” when, next year the dealership goes belly-up, and if you don’t have it in writing, you are probably screwed. Even in writing, no protection against bankruptcy, unless it’s insured somehow.

In fact, they had means of raising the contingent funding. This was all Rossi fluff in the case, and my opinion has become that Altonaga erred in a few places. The early errors were very understandable (and less significant, then, as errors), but her final ruling on the Motions for Summary Judgment was blatantly incorrect, and that will be covered in analysis. She misinterpreted the rules for summary judgment and did not then take due care. (I don’t think IH can appeal, it’s all now moot.)

What’s significant to me, here, is that Alan clearly wasn’t maintaining the distinction between case fact and Rossi Says. Planet Rossi repeated the meme over and over that IH didn’t have the means to pay, they had lied, and Alan apparently believed that. As a belief, then, we tend to fill in facts that confirm the belief. If it was just Rossi Says, not very impressive. But if this was a clear violation of the Agreement, it’s a much bigger deal.

But it wasn’t in the Agreement. Where Alan got the idea speaks volumes about how he has been thinking about the case.

If I seem to believe something because IH said so, rattle my cage! (I do tend to accept what they have stated, because I know no history of major error in it. But I still distinguish between their pleadings and evidence presented. Murray said some things in his query to Penon. Those were not attested fact. What Murray said in his deposition is attested fact and will be presumed true unless controverted. Either one can still be “wrong.” (especially opinion can be wrong, but lying about opinion would still be perjury; hard to prove but not impossible). What was presented in the Motions for Summary Judgment was attested.

I’m looking forward to Alan’s report on the Prominent pump.

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