When I can’t make up new words any more, shovel dirt in my face. This one is easy, though, a rather obvious back-formation.
The occasion is the reaction on LENR Forum to new filings related to the Motions in Limine. For those who need a program, these are motions seeking to exclude evidence as improper,perhaps likely to emotionally (and irrelevantly or deceptively) bias a jury, or as spoliated, i.e., damaged through deliberate action or carelessness when care was due.
I’ll start with a post just before the docs hit the fan, IH Fanboy wrote:
@Shane,
Yeah, I agree that JMP/Rossi are for most purposes (although not technically) one and the same.
What is interesting to me is sig mentioned a lease agreement, and that he had seen it. That is new information, at least to me. And how did he gain access to it? Inquiring minds want to know, and all that.
IHFB is more or less unique on Planet Rossi in that he does acknowledge the “customer fraud.” In a new document that IHFB has not seen yet, evidence is emphasized that countersinks the screws. (None of it is particularly new, we just see a little more of the JM/JMC/JMP negotiation) that makes the “Johnson Matthey” fraud totally clear, and Rossi’s later claims about it as probable perjury. IH does not here assert all the evidence that has been shown. For example, Bass saying to Rossi that he’s not clear how to answer questions about Johnson Matthey. Where did he get the idea that Johnson Matthey was involved? He clearly has the idea that the Doral operation is a Johnson Matthey operation.
However, I don’t think IHFB is familiar with the case documents. Frankly, that’s quite understandable. I’m spending many hours a week sorting and organizing document access, and I don’t consider myself thoroughly familiar, merely more than the average bear.
In this case, as sigmoidal points out:
It’s on the docket (236-33 pp72-73), including a copy of the actual sublease (236-37). And if it were anyone but you, IHFB, I’d make ’em look it up themselves 😉
And this was the point I was making to Roger about bunches of evidence and facts available on the docket that can be referenced to quell some disagreements.
As sigmoidal knows, with sincere participants who merely disagree — even strongly –, it is possible to build consensus and disentangle disputes, discovering underlying assumptions, etc. It is very human to read evidence to confirm existing beliefs, so it is very natural to look for what is wrong. Here, IHFB clearly is imagining that sigmoidal is an “insider,” and thus not to be trusted. But sigmoidal is anonymous, if I’m correct, and so whatever comes from sigmoidal is to be considered hearsay, which is useful for investigation, but should be avoided for creating conclusions. Sigmoidal has a reputation for probity, but that’s about it.
To sigmoidal, I’d suggest that he actually link to the documents. I was thinking that he might have been looking at our docket (because the Walker docket filespace doesn’t describe files in adequate detail), but he might be maintaining a local archive. So he might not have had this in front of him, quoted from our docket index:
== 236-37 – Exhibit 37 Leonardo sublease Doral to JMP
(And obviously IHFB has not exercised diligence.)
236-33 pp 72-73, the JMP deposition by Rossi, can be directly linked by adding “#page=[pdf page number]” to the URL for the PDF. The reference in the deposition is to Dep. Ex 3. Depositions have an exhibit index, which is occasionally useful. Some of the deposition exhibits, which are usually, with few exceptions, only extracts, don’t show this index. Motions do often give the deposition exhibit number. Dep. Ex. 3 might be the exhibit 37, or might have been a direct copy of the lease agreement.
So then Walker notified LF of some of the new documents. There are now several more, filed by IH just before midnight, Eastern time.
IHFB wrote: (I’m adding links and emphasis)
I think we can now dispense for good the myth that Woodford’s investment was not centrally focused on Rossi’s technology.
“On March 4, 2016, Woodford Funds explained that “Rossi’s technology was a core element of the initial [$50 million] investment.” Ex. 4. In fact, according to Defendants’ balance sheet, as reported by their business valuator, Plaintiffs’ technology and/or IP accounted for approximately 95% of Defendants’ total “low energy nuclear reactor” investments. Ex. 5 at 21. Applying that percentage to Woodford Funds’ $50 million investment in Defendant’s IP Holding company, Woodford Funds’ investment attributable to the E-Cat IP is $47.5 million.”
Also, we finally get the honorable magistrate’s reasoning for denying the spoliation request/allegations. 276-1
What I notice immediately is how IHFB has translated the WF “a core element” into “centrally focused on.” If the WF investment were centrally focused, and crucially so, on E-Cat IP, it would surely be strange that this went into IHHI, to be spent — as a major chunk of it has been spent — on other technology, showing nowhere near the commercial possibilities as claimed by Rossi. The comment by Paul Lamacraft (working for Woodford but not exactly Woodford) was an immediate reaction after he had just been informed of the IH press release of March. The central thrust of that comment was disappointment. In quoting Lamacraft, Rossi counsel has distorted it by inserting “[$50 million].” That is not what Lamacraft wrote and is likely not what he intended. The accurate quote is:
This is clearly very disappointing given that Rossi’s technology was a core element of the original investment.
What is “the original investment“? Lamacraft would not be referring to the $50 million they put in, in May, 2015, but to the actual original investment in Rossi Technology. There is absolutely no doubt that there was a major investment in Rossi. IHFB is quoting Rossi’s argument, as if it were not flabbergas. Annesser is arguing against this IH statement that they quote (links added, and my emphasis):
… the Defendants argue that Plaintiffs lack evidence supporting the position that Defendants improperly provided E-Cat IP to companies in which Defendants invested and/or that Defendants “received a $50 million investment from Woodford Funds based on the E-Cat IP.” ECF No. 264 at 19.
Defendants further argue that Woodford Funds’ investment did not “have anything to do with the E-Cat IP…. other than IH and IPH’s investment in Leonardo” Id. Defendants’ argument is not only improperly couched as a motion in limine, is meritless, but also ignores incontrovertible evidence. On March 4, 2016, Woodford Funds explained that “Rossi’s technology was a core element of the initial [$50 million] investment.” Ex. 4.
In context, there is no basis other than Rossi opinion for inserting “$50 million” into the comment. It clearly refers to the original investment of IH. While this is a lot to hang on an off-hand comment, Lamacraft would have referred to the $50 million as “our investment,” not “the original investment,” and the true original investment — the costs associated with the License Agreement and subsequent related spending — is actually brought up and it has nothing to do with the $50 million, even though Annesser tries to make it so, with a cake-and-eat-it-too claim.
In fact, according to Defendants’ balance sheet, as reported by their business valuator, Plaintiffs’ technology and/or IP accounted for approximately 95% of Defendants’ total “low energy nuclear reactor” investments. Ex. 5 at 21. Applying that percentage to Woodford Funds’ $50 million investment in Defendant’s IP Holding company, Woodford Funds’ investment attributable to the E-Cat IP is $47.5 million.
Definitely a “creative” use of statistics. The “percentage attributable” appears to be simply taking the percentage of IH investments connected with Rossi, based on 2012-2014 operations, as distinct from other investments in that period, and then assuming the conclusion: that this percentage is related to the Woodford $50 million, while there is evidence in the record that the focus of the Woodford investment, as such, was forward-looking, encouraging IH to diversify and to invest in other approaches.
These Rossi assertions are related to a circumstantial and shaky argument: there is an assumption, often proclaimed by Rossi on his blog, that IH raised “hundreds of millions of dollars” based on claiming wonderful things about the Rossi technology. No evidence of this has appeared. It is obvious to me that IH’s boldness in taking a risk with Rossi, even in spite of evidence present from the beginning and appearing more and more strongly, that Rossi was deceptive and that the technology worked when tested defectively per Rossi insistence, but not when these tests were tightened up, as with using controls, or with fully-independent efforts, as with Boeing, was a factor in Woodford’s investment. So one might claim that it was related; but this could just as easily represent IH having slain the dragon that would cast doubt on all research not showing immediate commercial promise. (By allowing the dragon to incinerate himself, given a high degree of freedom.)
Clearly, again, IH — and Lamacraft — found the situation with Rossi — who was at that point preparing to sue IH — “disappointing.” They had hoped that Rossi might actually deliver and that the demonstration in Doral might conclusively show major power (even if less than COP 3 or 6). But Rossi’s deceptions and cover-ups and habits demolished that hope. Rossi has created his bed and apparently continues to lie in it.
Back to IHFB’s comment. It appears that IHFB thinks this Lamacraft mail is newly revealed. I’m not sure when it first showed up, but it is 214-36, filed 3/23/2017, as an exhibit in the Rossi Motion for Partial Summary Judgment. The following has links added, and my comments are in smalltext.
54. IH encouraged Rossi to discuss the status of the GPT and the technology with their investors during these site visits. See Ex. 1 ¶ 24.
Ex. 1 is a Rossi affidavit and assumes that the Doral test was “the GPT.” There is nothing there other than that Rossi is testifying to his belief under oath. Error is not perjury unless it can be proven that the deponent actually knew the error.
55. In May of 2015, during the course of the GPT, Defendant IH closed on a $50 million investment by non-party Woodford Investment Funds. See Composite Ex. 3 at 170:9-14, 204:25- 205:5; 206:6-207:6; IH-00021986 (4/21/2015 IH memo from Darden to P. Lamacraft); IH-00080193 (5/15/2015 email chain between Darden and J. Spear, S. Hartanto, P. Lamacraft, N. Woodford, and S. Saha); IH-00099714 (3/4/2016 email chain between P. Lamacraft and Vaughn); IH-00112920 (11/2/2015 IH Business Development memo), appended hereto as Composite Ex. 34.
Because there is no controversy that Woodford invested $50 million, I have not taken the trouble to add the links, except for Ex. 34. This exhibit shows, in fact, much non-Rossi focus, contradicting the emphasis of ¶ 56. As of May, 2015, clearly IH was holding on to optimism. The tide turned within two months, when Rossi excluded Murray. That sealed it; when this was not reversed and when Johnson supported it, IH support for Rossi technology was dead, and could be resurrected only with a miracle. IH continued to pay Fabiani, to provide West, and honored the Penon contract, but it is very obvious that this wasn’t a “GPT,” either in name or in spirit.
56. Woodford Investment Funds later claimed that “Rossi’s technology was a core element of [this] investment.” See IH-00099714 (3/4/2016 email chain between P. Lamacraft and Vaughn), appended hereto as Ex. 35.
In fact, Ex. 35 is included in Ex. 34. Again, Annesser is not content with a simple quotation, but inserts it as if part of the comment, as if context, perhaps, would make it clear. What is “this” investment? The original has “the original investment”? That is actually clear, but Annesser is attempting to confuse it, to make it mean what he wants it to mean.
The alleged fact here is actually an interpretation, a construction, and a complex one that could probably not be resolved without a deposition from Lamacraft. There is no doubt that there is a relationship between IH’s Rossi investment and the later Woodford funding. By taking that risk with Rossi, IH established itself as a major player, but it is also clear that this was seen as a “player in the field of LENR,” not just Rossi, and the actual behavior of IH, and Woodford and the reorganization of May, 2015, shows that. I had thought that Rossi might, in discovery, find a smoking gun, where IH had misled Woodford, but that has not happened.
I have been studying the IH MSJ and Rossi and 3rd party defendants’ responses to it, with this page. I would have started with the Rossi partial MSJ, but the weird exhibit numbering led to an error (since fixed) making it difficult to add the links that are important to such studies (to make them much easier to follow). So I set it aside and have not gotten back to it. This work takes a great deal of time, and it leads to a situation where I see comments, all the time, where I know errors are being made. I only comment on a few. It is also obvious to me that few are truly following the case; rather most seize on what seems to confirm their impressions (though I also see some who show unfamiliarity who are not so strongly biased.)
In any case, IHFB had previously seen the “core element” thing.
April 22, 2017 by IH Fanboy
The following two notions are irreconcilable:
1) IH thought that Rossi’s stuff was not working
2) Rossi’s technology was a core element of Woodford’s initial investment
Notice that the trope follows Annesser’s argument, not the actual Lamacraft email. “the original investment” has become “Woodford’s initial investment.” Actually, Woodford only made one investment, though they committed, apparently, $150 million more if needed. Gee, what would that have been for?
I.e., contrary to fervent Planet Rossi claims, IH was prepared to pay that $89 million and to have money left over to fully develop it commercially, or at least make a dent in the obstacles.
March 24 appears to be the first mention of “core element” on LENR Forum. IHFB participated in that discussion. It is simply a quotation of the Lamacraft email. Then others sporadically mentioned it including “Another troll” — who actually showed a screenshot, which doesn’t allow seeing the context. Most later quotations of the email were not accurate.
I have seen this behavior, repeating old arguments, already addressed, as if they were new and conclusive evidence, from paranoid or otherwise highly attached writers and people. It is ultimately argument from conclusions.
I’d intended to write more here, but I see there are more documents. Duty calls.
Update
Seek and ye shall find. The most interesting document just put up, to me, is the Joint Pretrial Stipulation. This document summarizes the case as it stands. I will annotate it at RvD: Joint Pretrial Stipulation
Probably because I had just written about it, I noticed this, in the Statement of Uncontested Facts.
89. In May 2015, IH closed on a $50 million investment by non-party Woodford Investment Funds (“Woodford”). Woodford claimed that “Rossi’s technology was a core element of this investment.”
This was not a claim by “Woodford,” but is based on an off-hand comment in an email sent by Paul Lamacraft (who is with Woodford) to Darden, reacting to the March 2016 press release, and, while quotation marks are used, this is not an exact quote, and could possibly be distorting the intended meaning. This is an exact quotation:
This is clearly very disappointing given that Rossi’s technology was a core element of the initial investment.
The misquotation follows prior Annesser misrepresentation of that comment. It appears to me that Lamacraft is talking about the original investment that IH made in setting up IH, and not merely about Woodcraft’s $50 million investment.
(I don’t think that Lamacraft would be referring to their investment, by itself, this way, with this language. The misquotation, placed as it is after mention of the $50 million, makes reference to it explicit, instead of that being a weak, speculative, and very possibly incorrect misunderstanding.
Given the misquotation, this stipulation’s language came from Annesser, not from IH. Someone with Jones Day might easily overlook the shift. This, then, was used an element in the Rossi claim that the Woodford investment was based on Rossi IP, which is a half-truth.
I only noticed the discrepancy, myself, because I had seen others misquoting this on LENR Forum and had just written about it, above. Otherwise, based on having read the Lamacraft mail back in March, I might simply have accepted it.
Added new comment based on Pretrial Stipulations and an error there.