This was three days late, but that is now legally moot. (But see Better late than never, or better let sleeping dogs lie?)
I have compiled a merge of the IH Counter-Complaint with the Rossi Answer paragraphs, so that they may easily be seen together, and I added links to exhibit files, again for convenience. This now outlines the counterclaim case.
Those who have been looking for a Wabbit won’t find it here, the Answer is mostly formulaic denial. (But something is described below that is truly remarkable, amazing that Rossi counsel let this by. It’s not a Wabbit but a Toad, as in “I toad you so.”
There are some claims of interest, but almost no specific evidence is indicated. There are no attachments.
I woke up this morning realizing that, indeed, there is no Wabbit that I’ve noticed so far, here, but a Toad. My emphasis and insertion:
81. Plaintiffs admit that certain visitors were permitted access to the E-Cat Plant in Doral, Florida at the request of Defendants, including several investors, who, on information and belief, made multi-million dollar investments into Industrial Heat based on representations made by Darden and Vaughn as to the efficacy of the E-Cat technology. Plaintiffs further admit that Mr. Joseph Murray was denied access to the plant on one occasion in 2015 because it appeared that Mr. Murray had improper motives, including but not limited [to] obtaining information to be passed on to a competitor for Leonardo, for wanting to visit the Plant. Plaintiffs deny the remaining allegations contained in Paragraph 81 of the Counterclaim and demand strict proof thereof.
The reason given for denial of access is consistent with Rossi’s general behavior with regard to any independent examination of the E-Cat technology. However, above, Rossi has denied failure to disclose the technology to Industrial Heat, and that is inconsistent with the above claim.
Rossi has, in fact, claimed the “improper motives” for Industrial Heat itself, and the only difference with Murray would be that he was an engineer and might observe a secret, which, then, according to Rossi’s assessment of his or IH’s motives, Industrial Heat could then disclose to “competitors.” Yet this would be equivalent to licensing the technology to “competitors,” which IH was explicitly allowed to do. In order to license it, though, they must understand how to create the heat effect.
I am astonished that Rossi’s attorney would allow Rossi to say this, but, in the end, Annesser works for Rossi, and the representation here is not false. Rossi does appear to believe the statement about the investors, and “it appeared” would be “appeared to Rossi.”
However, that appearance shows that Rossi was still hiding something from Industrial Heat. It could be a secret that would allow the reactors to work, or it could be a secret as to how Rossi makes it appear that they work, but this, then, requires that Rossi had not, in his mind, transferred all the technology.
As well, if this was his reason for not allowing the visit, and if it was personal about Murray, something Rossi somehow knew, there is no sign that he disclosed this to Industrial Heat, which could, then, have retained another engineer. Instead, he did not deny just “one occasion,” but any additional visits by anyone not already mutually authorized, until the “test” was complete.
The typographical error is a sign of haste (and there are many others). This filing was three days late. Most of it is boilerplate. What took so long? I can guess.
Rossi has also disclosed another paranoid fantasy.
Affirmative Defense No.3:
Counter-Plaintiffs’ equitable claims are barred, in whole or in part, by reason of CounterPlaintiffs’
unclean hands. Counter-Plaintiffs and the Defendants engaged in a scheme to deceive
the Counter-Defendants by, inter alia, fraudulently inducing Counter-Defendants to enter into
the License Agreement with an entity that was without the financial means to make payment on
its obligations. Counter-Plaintiffs never had the means, nor the intention, to honor its payment
obligations. See Complaint at ¶ 38-46.
The payment obligation referred to would be the $89 million payment triggered by a fully successful Guaranteed Performance Test. However, agreements for future payments are routinely made by individuals and corporations which do not directly possess the means, but as a statement of intention. Rossi claims that IH had no intention to pay, but he has asserted no evidence for this claim. His technology, if IH had been able to independently verify his claims, would easily have allowed them to raise the $89 million, and they had “means” to obtain that, specifically, well-established connections with people and partnerships with wealth to invest.
This “unclean hands” argument would make any promise to pay a balloon payment in a mortgage into fraud, unless the promisor already has the money, when, in fact, such payments are often expected to be made by refinancing. Rossi has, through discovery, confirmed what would have been obvious: they didn’t have the $89 million. But could they have borrowed it, or obtained additional investment, or some combination of these?
Given Rossi’s behavior with Murray, they could not. IH’s “failure” can be directly traced to Rossi’s lack of cooperation, if he actually has a working technology. There is substantial doubt regarding that.
I have reviewed the entire Answer, merging it so that it can be compared with the counterclaim paragraphs.
I have also similarly reviewed the IH Answer to the Rossi Complaint.