I’m compiling the arguments and creating a study pages for the Rossi Motion for Partial Summary Judgment, and came across this gem:
61. As early as October 2013, Defendants did not have any intention of making their requisite $89 million payment to Plaintiffs. See, e.g., Composite Ex. 9 at 117-121.
That is the Darden deposition. It struck me as odd, and so even though I hadn’t arrived to that point in the analysis (I need to do this systematically or it will take far too long), I looked it up. Rossi has contradicted his own basic argument about estoppel on the Guaranteed Performance Test, by citing this deposition this way.
Here it is (starting on page 116): (Links added)
20· · · · Q.· ·Right.· I’ll show you what’s been marked as
21 Exhibit 16.· Exhibit 16 is the Second Amendment to the
22 License Agreement.· This is what you talked about
23 earlier about changing the timeframe and changing the
24 equipment for the purposes of the guaranteed
25 performance test?
·1· · · · A.· ·Um-hm.
·2· · · · Q.· ·And who drafted this document?
·3· · · · A.· ·I don’t know.
·4· · · · Q.· ·Now, this is your signature on page three
·5 of this document?
·6· · · · A.· ·Yes, I believe it is.· Yes.
·7· · · · Q.· ·Now, at some point in time — and this —
·8 it’s not dated.· This is the — it says on the first
·9 page October, blank, 2013.
10· · · · A.· ·Um-hm.
11· · · · Q.· ·Do you know approximately when you signed
12 this?
13· · · · A.· ·No, I don’t know.
14· · · · Q.· ·Do you know where you were when you signed
15 it?
16· · · · A.· ·Um-um.· Sorry.· I don’t know.
17· · · · Q.· ·After you signed it did you send it to
18 Ampenergo?
19· · · · A.· ·I’m trying to remember the details.· Did we
20 send it or did Rossi send it or — I can’t remember the
21 details.
22· · · · Q.· ·Did you have any conversations with
23 Ampenergo after you had signed the document?
24· · · · A.· ·I’m sure we did.
25· · · · Q.· ·I mean, who specifically at Ampenergo do
you recall speaking to?
·2· · · · A.· ·I don’t remember the specifics.· I remember
·3 they didn’t want to do it.
·4· · · · Q.· ·And did they ever explain to you why
·5 they didn’t want to sign this?
·6· · · · A.· ·No, we were — we were confused about that.
·7· · · · Q.· ·Is there any reason that you’re aware of
·8 today as to why they would not want to sign?
·9· · · · A.· ·I don’t remember the conversations around
10 that.· I think J.T. might have been the one talking to
11 them.
The handwritten notes of conversations between J.T. (Vaughn) and Greg Cassarino of Ampenergo are in the record, and I have transcribed them at Amped up on Ampenergo. Linked from there is the Cassarino deposition for Ampenergo, which covers these issues.
12· · · · Q.· ·Did you have discussions with Dr. Rossi
13 about Ampenergo’s refusal to sign it?
14· · · · A.· ·Yes, we did.
15· · · · Q.· ·And what were those conversations?
16· · · · A.· ·Well, they said, “Well, they didn’t sign.
17 So, you know, I guess that deal is off or can’t do
18 that.”
19· · · · Q.· ·So after that conversation took place did
20 you say, “Hey, listen, Ampenergo didn’t sign.· The
21 license agreement says you guys start the test as soon
22 as you get — as soon as the equipment arrives;
23 therefore, you’re in breach”?
24· · · · A.· ·Yes.· We said, “We don’t owe you — you
25 know, sorry.· You missed the date.· They don’t agree to
·1 this so what are we going to do.”· We said to him, “We
·2 would love to pay you some more money if we had
·3 technology that worked.· So why don’t you think of some
·4 other kind of test that we could do.· We’re willing to
·5 pay you money if you — if we can build devices and we
·6 can operate those devises.· We don’t care how long it
·7 is really.”· I mean, we care a little bit but, you
·8 know, we’re willing to be very malleable about that.
·9 “Let’s build some devices.· Let’s get something
10 operating.”· You know, but, I mean, the agreement
11 speaks for itself.
12· · · · Q.· ·Did you put that — that subsequent offer
13 in writing?
14· · · · A.· ·I don’t know.· I mean, it was — did we say
15 to him in writing somewhere, “We can’t build these
16 units.· We want to build these units.· Help us build
17 these units.· Let’s get something going.”· I don’t know
18 but we — I’m sure that we said to him, “Andrea, the
19 problem is not money.· We’re happy to pay money if we
20 have technology that works.· We don’t have technology
21 that works.· Help us get some technology working
22 somewhere and we’re happy to pay you some money.”
23· · · · Q.· ·Right.· But did you ever say in writing,
24 “Hey, listen, the time for the test has now come and
25 gone.· We need to reach some other arrangement.· We’re
·1 happy to pay you money, but it’s got to be under
·2 different terms”?
·3· · · · · · · · · MR. BELL:· Objection to form.
·4· · · · · · · · · THE WITNESS:· I don’t remember
·5 specific writing about that.· You know, we were in the
·6 same office so we talked about a lot of this.
·7 (BY MR. CHAIKEN)
·8· · · · Q.· ·Did you — after you had the conversation
·9 with Dr. Rossi about Ampenergo not signing off did you
10 say, “Hey, you know what, Ampenergo didn’t sign off.
11 Let’s start the guaranteed performance test right away
12 because the clock is ticking and we made this
13 investment, and time is money”?
14· · · · · · · · · MR. BELL:· Objection to form.
15· · · · · · · · · THE WITNESS:· Well, we said all the
16 time, “We want to get something running.”· I’m sure
17 that we didn’t say, “Let’s start the guaranteed
18 performance test.”· You know, the time period for that
19 had passed.
20· · · · Q.· ·Got it.· So it’s your testimony today that
21 Dr. Rossi knew all along right after October 2013 that
22 his ability to enforce the 89 million dollar payment
23 pursuant to the license agreement had come and gone?
24· · · · A.· ·Yes.· He knew that his ability to enforce
25 that had come and gone.· We also told him that if we
·1 had successful evidence after the technology worked,
·2 that we approved devices that we built, we would be
·3 happy to discuss paying you more money.
Rossi has claimed that they “didn’t tell him it the time for the GPT has passed.” (I should really find where that was said, it’s easy to remember incorrectly.) What we can see is that Rossi is claiming that they never put that expiration of time in writing, and they didn’t. They told him and he clearly knew (see his “cancelled” comment in an email with Ampenergo, I think it was).
Rossi is also claiming that replication was not a requirement of the Agreement, and he’s correct. Technically. Cassarino points out that it was understood that, no replication, no more money.
Rossi’s arguments are full of gotchas like this, half-truths, ripped from context, where carefully reading the sources comes up with something quite different. Darden did exactly say, as Rossi claims, that he had no intention of making the “requisite payment,” largely because it wasn’t requisite, but they did assure him that they would pay if they could replicate.
Again, they did not put that in writing. And Rossi did not ask them to put it in writing, apparently. He had a different plan to try to force them to pay. A masterpiece.
