The judge. Faced with three motions to dismiss, and not having the time to review all the claimed “undisputed facts,” she punted.
It took me months of study on this case to come to the point where I might be able to see through the fog. I never finished the study pages, though I may still work on them for historical value, but at this point it is moot. An appeal of a dismissed MSJ is not likely, and that it might even be possible is controversial.
The parties’ voluminous, competing briefing and submissions plainly show the record is brimming over with disputed issues of material fact. Indeed, the Court is hard-pressed to locate any material facts on which the parties agree. Disputed factual issues are for the jury to determine.
In reviewing the MSJs, Oppositions, and Replies, what I found, way too commonly, was fact, clear from the record, that was nevertheless “disputed,” ending up as a matter to be adjudicated, when the asserted fact in the Motion was not at all in dispute, but rather possible implications.
So far, I have only seen this arising in Rossi pleadings, but I have not thoroughly studied the other side yet. By these assertions of dispute, the appearance of “no-agreement” was amplified, and the judge is clearly irritated. Tentatively, I think her ruling was an error, because no process filtered out genuine agreement from faux disagreement. The structure and limitations she ordered (even against unanimous request from all the parties) may have made it difficult for parties to do this.
I’m interested in where process goes south. If the goal was to survive to trial, and to increase litigation costs, Rossi won here. The ultimate impact of that, we will not know until the jury announces its verdict, and even then, I’m seeing possible causes for appeal (at least if the result is adverse to Cherokee, to Darden and Vaughn personall, and possibly to Industrial Heat. This could drag on for a long time.
Meanwhile, Rossi is alleging perjury on the part of Darden, which I have seen no support for in the available documents, and review of certain Rossi claims in his depositions and affidavits indicates possible perjury to me. Rossi clearly, for example, established for IH that the “real customer” was Johnson Matthey, and then only revised this to an impression that JM was acting through JMP, all supported by Johnson, supported by evidence regarding Bass and Rossi emails. IH clearly believed that the customer who “needed” steam for “his” chemical plant was JM, many documents support this. Where did that come from? It’s obvious: Rossi told them.
They knew it that to tell Rossi he was lying would be to end the relationship, and they wanted to continue it until there was overwhelming evidence that — just what they claimed in their Answer — either Rossi had not communicated the necessary technology to them, or it was fake or mistaken, basically didn’t exist.
I think those Rossi emails, plus sworn testimony from others, establishes enough for a charge of perjury to stick. The matter of the “cancellation” of the Second Amendment is similar. Rossi knew, it was not a surprise, that IH would not consider itself bound to pay unless he satisfied them, either by helping them replicate (what they really wanted), or running a real GPT, which would obviously include allowing access to IH experts — as Rossi rejected, with Johnson in support, following Annesser — even if there were missing technical details. The Rossi spoliation, whether or not it results in exclusion of evidence, made it impossible for IH to verify the Test.
Rossi, attempting to avoid the obvious, presents many irrelevant “facts,” confusing the issue, and “disputes” what is not in dispute, thus leading to the Judge’s ruling.
What I don’t know is the extent to which IH may have done the like of this; all I can say at this point is that I haven’t seen it, while Rossi smokescreens have been highly visible. I see no sign that Altonaga actually reviewed the evidence enough to conclude what she concluded. She doesn’t claim to have done it, does not address the issue.
While this might be appealable, that does not appear cost-effective to me at this point, and could irritate the Judge, never a great idea. Going to trial may be simpler, and may be superior for public welfare.
When this is all done, Rossi may have a decent case for legal malpractice against Annesser. And maybe against Chaiken, who did some very weird things, deliberately and blatantly violating a protective order in a deposition. He wasn’t allowed to have that document — so did he lie when he said to the Magistrate that he’d kept no copy! (I’d need to look at dates.) (This is in the Darden deposition just after what I quoted on Lying liars redux. I think it was an attempt to intimidate the witness. The conversation there is amazing.)
I don’t know, yet, whether Jones Day could have presented their MSJ more effectively. Maybe, maybe not.
I now hope to meet — or at least see — the players at the end of June. If someone knows that the trial will be cancelled or might be postponed, please let me know! Otherwise I’ll be starting to spend money, not in plentiful supply around here.
3 thoughts on “She’s underpaid or understaffed”
Maybe looking at the career of Silvio Berlusconi could give the reason for the determination to take this to a jury trial. Such cases can still be arguing about things and avoiding any punishment until the principals die of old age. Maybe US justice is a bit faster than Italian justice, but I’ve been following the case of John Rohner for years now and he’s evaded justice by keeping the court-case running. I’d thought the evidence was clear-cut, but it seems the lawyers don’t agree.
I thus really see all the legal arguments by Annesser as muddying the water enough that a jury trial is unavoidable, with more delaying-tactics later on to prolong the trial as much as possible. Also I’d expect a series of appeals until the money runs out, and if all else fails then Rossi will go somewhere he can’t be extradited from. In the meantime, of course, he’s free to try to get more believers to follow him and finance him.
This implies to me that Annesser knows what he is doing and why, and that Rossi’s strategy is purely to delay the inevitable final verdict as long as possible (and maybe for the rest of his life). A summary judgement would be far too quick, in other words.
This may also explain why Rossi started the court-case in the first place, when the logical thing to do (we’d think) would have been to take the money and run. He probably expected IH to want their money back, and that wouldn’t do at all. Rossi may be wrong and he may find that US justice can’t be so long-drawn-out as the Italian version he is used to, but I’m still pretty sure that it can be dragged out for at least 5 years if not more. With another 5 years, maybe Rossi thinks he can find his Wabbit and emerge victorious over all the snakes and clowns who said he was talking sh*t.
Since I also think that the Doral test was a delaying tactic, and was simply a cover for Rossi urgently trying to find where the Wabbit was, I think the truth will be very long in emerging.
That’s something to bear in mind when you’re watching the trial. You may see the start but not the end, so be prepared to leave once you’ve done as much as you want. If you do shake hands with Rossi, don’t forget to count your fingers afterwards.
Perhaps I should count them first, have an independent witness verify the count and sign and date an affidavit. I should probably also require a bond. In the IH Opposition to Rossi’s appeal of the privilege order, just filed, IH shows what I’d noticed yesterday: the blatant, in-your-face violation of the Protective Order by Chaiken. They are asking for sanctions for that, as a minimum their costs.
Not only did Rossi counsel fail to return or destroy the document in question, they then attempted to display it to Darden, thus providing proof that they had violated the Order by keeping it. It was deliberatively provocative, disruptive, and explicitly so. It’s an amazing piece of business. It was a show. For whom? For Rossi, I think, to prove to Rossi that Chaiken is a bad-ass lawyer who will fight for whatever Rossi wants, screw the rules, the hell with equity, and, by the way, Andrea, please make sure this week’s invoice is paid on time.
Rossi had no case ab initio, this became quickly obvious, for many reasons. Too many, perhaps, because Jones Day points out almost every problem. (They still have not emphasized that, even if the Second Amendment was valid, there was no agreement on start date signed by all the parties — which would still have included Ampenergo, unless Rossi and IH had created a separate agreement binding on both of them. They didn’t.) Rossi’s case depends on a series of vague implications, from a very few off-hand comments, and “why didn’t” questions. Meanwhile, the core of the Agreement — technology transfer, allowing IH to independent make and verify working devices — is claimed as irrelevant, not required by the Agreement (even though technology transfer is explicit in the agreement, and how would we know if technology has actually been transferred, instead of a load of distracting crap?) These are, indeed, arguments designed to confuse issues. And it seems to have worked, though I suspect that Altonaga is boiling under those robes. She’s not blind, but she is supposed to put on a show of being blind, and that is what all judges do, pretend not to notice what might be called the implications, the human considerations, until and unless it all becomes so clear that she will risk an appeal to state and act upon it. Good judges then set those implications aside. Not Judge Judy, to be sure, but Judge Judy is not a ‘real judge,’ but plays one on TV. She is actually an arbitrator, voluntarily accepted by the parties, some of whom she abuses verbally. If a real judge did that, they’d be sanctioned. They are allowed to think it, and, again a good judge will notice the reaction and attempt to factor for it. Notice how the Magistrate handles this. He’s pretty careful to dish it out evenly, even if he can see that most of the problem is on one side. IH quotes him, in his exasperation with Rossi’s behavior.
Rossi counsel knows that appealing Altonaga’s ruling is not possible at this point. So they poke her with a Motion for “clarification.” At this point, without study, they might be right, there may be technical error there. The issue, though, would be harm. The harm is speculative and remediable. In fact, that was her point: the demands about Murray were not timely; had they been timely raised, what was required could have been supplied.
My sense is that her dismissal of the IH Motion for Summary Judgment was in error, caused by the confusion of claims. I have not completed my review of the claims in the competing MSJs. It’s a huge amount of work. To the judge, what the hell, let them fight it out in court; she didn’t want to invest the many hours necessary to figure this out. But it could have been done. There are clerks for that, if I’m correct. So her review of the Motions would look for the essentials of each Motion, determine the necessary facts, and then determine if enough has been established as fact to make the case not require a jury. My sense is, yes, but if we look at the joint trial stipulation, as I’m sure she would have done, many obvious and undeniable facts have been “disputed.” Without an actual presentation of contrary evidence. Rather, Rossi more or less wrote what is, in popular parlance, “Guilty with an explanation” — though this is not about guilt. That is not a contrary fact. It is a new fact asserted in mitigation. Often, though, it is not even a fact, it is an interpretation (and thus proper in arguments, not in a list of material facts.)
Underneath all this is Annesser’s possible involvement before the relationship between Rossi and IH openly broke down. The first clearly visible even in this war was Rossi refusing the visit of Murray in July. Until then, IH had hoped, it appears, that maybe Rossi would pull a Wabbit out of the hat. Maybe he was still hiding a secret (which is about the only explanation that still allows there to be an actual heat-generating secret), and maybe even an expert would look at the Plant, see it operating, ask necessary questions and get answers, and check them out. Rossi, in his Answer to the counterclaims, says why he excluded Murray. He suspected Murray was a spy.
Damn straight he was! He was working of IH, not Rossi, and might have seen something important. He might have asked the obvious, face-palm obvious, question of why the warehouse, with a megawatt being generated, was, if maybe a bit uncomfortable, not fatal. And, of course, Rossi could then have pointed to the pipes going up to that amazing heat-exchanger.
But that did not happen. Rossi violated the Term Sheet, blatantly. Just as Chaiken violated the Protective Order. Birds of a feather flock together. So Rossi may be sharing his wealth with Chaiken. Or he may sue Annesser and Chaiken. That’s what friends do for friends. Sue them when things go south.
What I saw with the filing of Rossi v. Darden was that Rossi was guaranteeing that no sane investor would support Rossi in the future, and that even if every claim in the lawsuit was true. But they were not true, the crucial ones were wrong or highly misleading. (Rossi specializes in making statements that will be normally interpreted one way, but that then can later be interpreted to mean something quite different. Even when it is obvious that, from this later point of view, the listener was “mistaken,” Rossi does not correct them, because their “mistakes” serve his purposes. It’s not his problem that they are stupid clowns. (On the other hand, if they don’t present him with a written notice of his errors, and possible frauds, it proves they are deceptive snakes, and therefore they owe him $89 million. And he lies about the history. He knew, long before the end of the Doral “test.”).
I think we might get somewhere if they let this
Judge handle Rossi VS Darden.