Who won?

Color mind boggled. “Winning” is generally a highly subjective judgment, unless there are clear standards, which, in this matter, there are not. Someone may claim that the issue is clear, by either proposing or assuming a specific standard, which is, in this case, post-facto. The “case,” is, of course, Who Won in Rossi v. Darden? or Who Won by Reaching Settlement?

Frank Acland started a poll on E-Cat World. Poll: Rossi v. IH Settlement — Who Won?

The announcement refers to a discussion on the Vortex mailing list. I’ll get to that. On-line discussion groups have long ignored the processes of deliberative democracy. A question is asked, sometimes, but the exact form of the question is well-known to have a massive influence on answers. A question is asked and then people answer it, often arguing for their answer. Very normal in on-line fora.

But in a deliberative democracy, no question is asked, other than immediate procedural questions, that has not first been discussed, debated, considered, and perhaps amended. The group itself decides the form of the question (generally by simple majority vote) and decides when it is ready to vote (which generally takes a supermajority, normally two-thirds).

What I find remarkable in the ECW poll, as it is so far, is that only 60% of those voting think that “Rossi won.” ECW is a community explicitly created to support Rossi. It allows some level of dissent, but any extreme dissent is often banned. Rossi has declared that he got what he wanted, post-facto (I know of no place where he made it clear that this was his goal, and had he done so, and followed it up with action, as advised by his attorneys, he’d very likely have gotten what he now says he wanted without spending a lot of money on legal fees. His report on the Lewan interview has him realizing what he wanted in discussions with his attorneys (either during the negotiation in court, which was remarkable to watch or shortly before). Why did it take so long?

But it looks like 40% of those voting don’t accept this position. I voted that both won, and I think that is fairly obvious. That is, for both sides, the settlement was considered superior or at least not worse than actually proceeding with the evidentiary phase of the trial. So they both saw it as in their interest. Then Planet Rossi and others argue about why they saw it that way. Rossi does give his explanation, but it’s not sane, from a business perspective. It boils down to his paranoia. It made him uncomfortable! He had no actual examples of harm from IH behavior. It was all fear. Instead of waiting until there was some actual harm, and then suing, he sued immediately at the first excuse, even a day early.

Something shifted that day, Day 4 of the trial. You can read the transcript here. Pace says that there was still no agreement the day before, so Lukacs brought some change. We do not know what it was.

Planet Rossi thinks Rossi won because he got the License back, which he claims would not have happened without the settlement (and he’s probably correct about that. But who told him he could unilaterally void the license, as he attempted to do almost immediately after filing suit? Annesser was his attorney then. Lukacs was the new kid on the block, actually the most experienced attorney on the team that went to trial, appearing as counsel shortly before. It looks like Lukacs told Rossi what was going on, straight. There may have been more, much more, because if Rossi had won the $89 million (forget about the triple damages for fraud, that was insane from the beginning), he’d then have had a stronger negotiating position for buying back the License, if that’s what he really wanted. Buying back the license, though, didn’t help him in any way as to going to market. Rossi was no longer obligated to cooperate with IH, except as to certain patent filings.

But it makes a nice story, “I got what I really wanted!” And then his fans can cheer and vote that he won. But there was another choice: both won.

IH, in their pleadings and the evidence they provided, had obviously come to the conclusion that Rossi technology was useless. If it was useless, the value of the license was very low, if not zero. If it was useless, the value of the 1 MW Plant was not the $1.5 million they paid for it, it was zero, it was’t worth retrieval and storage costs.  By the settlement, what did they lose?

They lost revenge, which doesn’t appear to matter to them in the least. There is no sign that they were intending to sue Rossi for fraud, even though there was ample and clear evidence of “fraudulent inducement,” particularly around the representations Rossi used to induce them to send the reactor to Florida and share costs there.  They filed counterclaims, apparently defensively, and nearly all their counterclaims withstood Summary Judgment motions, with the basis being clear. (Four out of eight initial Rossi claims were dismissed immediately, with the central claim I hanging on by a thread, pending discovery. Discovery revealed nothing significant, but the Judge then dismissed all the Summary Judgment motions without actually looking at the claimed uncontroverted evidence and the legal arguments, a rather shocking display of a judge becoming so irritated at party behavior that she didn’t do her job, and took the easy way out.)

Given IH arguments that the technology was unusable, that they surrendered the License without compensation was consistent. To them, it was not worth fighting over. The bulk of what they had paid was probably unrecoverable, due to estoppel and previous formal acceptances, and lack of clear proof of fraud in the Validation Test. (There were relatively minor Rossi misrepresentations that they asserted, probably not enough to convince the jury of fraudulent representation in the matter of that test, and lapse of time probably estopped them from asserting the claim later.) The costs of the move to Florida and for Fabiani and Penon may not have been worth the expense of trial. They might have been able to get an award of expenses. Maybe.

But IH did not like being in court. It’s not how they normally do business. By allowing the dismissal with prejudice, they were giving up recovery of costs, but they had already written that off and were not planning to seek reimbursal.

The Vortex-l initial post:

Why Rossi won.

I look at most posts in this thread. Some writers uses it as an excuse to bring in their Favorite Topic. It ends up being a farrago of posts, wandering into subtopics with very little relationship to the introduced issue, the “win” — or not-win.

Che Fri, 21 Jul 2017 20:58:59 -0700

… Here’s The Settlement—Getting The License Back Was Rossi’s Top Priority
<https://animpossibleinvention.com/2017/07/18/heres-the-settlement-getting-the-license-back-was-rossis-top-priority/>

The bottom line appears to be that IH ‘settled’ — because they simply
could not *prove* fraud (which perhaps, never actually took place — at
least the way IH sees it). Simple as that. So they would have _lost_ the
case if it had gone to trial — and been liable for whatever _they_ would
have been liable for.

The problem with this is that it is total speculation and not founded on the evidence and the behavior of the parties in court. IH had a very strong case for fraudulent representation, as well as for spoliation of evidence. As a result of this, the Rossi claim that (1) this was the GPT and (2) the reactor performed as was required for an $89 million payment, was extremely weak. Nothing is “impossible,” but IH was not worried about a Rossi victory on the $89 million, even less on the fraud claims. A victory on the counterclaims was more difficult, but still probable. However, a victor going back to a restoration of their $11.5 million would have been quite difficult, because of estoppel, as I’ve written.

Certain fraudulent representations did take place, and certain actions that called the Penon report into serious question, and Pace was on his way to showing this to the jury, and the difference between the Pace presentation and the Chaiken one was very obvious in court.

Rossi OTOH, strategically forewent the money he was ‘owed’: because he
valued the IP over everything else — and is smart enuff to know when to
‘fold’ and walk away.

This is following and believing what Rossi claimed in the Lewan interview. I find it plausible that this is what Rossi told himself to rationalize his decision. It is inconsistent with his prior behavior. He did not demand the return of the license. There was a report (by Lewan) in 2016 that Rossi had offered $11.5 million for the return of the license. I consider circumstantial evidence strong that this didn’t happen; had there been such an offer on the table, it would likely have been used by IH counsel to sweeten the result from their point of view. Rossi could have walked away in 2016, suffering no loss, the license was important to him only in theory, because there were no actual sales to fight over. He was not legally compelled to file so quickly. Later, now, he rationalizes dropping that very complex lawsuit by his desire to disconnect from IH, but that desire did not come from any business purpose. There is no sign that his attorneys tried to negotiate with IH over the return of the license, the alleged Rossi offer in 2016 was just blog talk (Lewan has affirmed that). As to his practical ability to work on QX and and to profit massively from his inventions — if they actually worked — he did not need the return of the license.

His desire came solely from his paranoia. Read what it was based on! With Ampenergo (Rossi’s old friends) and with their investors (and especially Woodford), the diversification that IH engaged in starting in 2015 was open and not hostile to Rossi and did not prevent him from moving forward. But to him the world is full of enemies, specifically “competitors,” and that term encompasses the entire LENR field if it isn’t Rossi.

From what I saw, Rossi was extremely likely to lose in court, but it is not clear how much benefit that would have been to IH, and there could be collateral damage. IH works with inventors and researchers, and a lawsuit against an inventor isn’t good publicity for them, no matter how one slices it. Had there been IP worth fighting over, they might have continued.

This is what is clear to me from the settlement: they did not think the IP was worth holding on to, nor the reactors. Other than Rossi himself, nobody else but IH, on the planet, was in a position to know as much about the possibilities. In mercato veritas, eh?

Some have said that the settlement proves that the IP was worth $89 million, when a much stronger interpretation would be that it was worth zero. (Or, technically, less than the value to IH of the tax deductions plus legal expenses, which LLCs pass on to their investors, who generally have income to protect.)

Is that it, or close enuff..?

Not even close.

bobcook39…@hotmail.com Wed, 26 Jul 2017 18:23:15 -0700

The folks on Vortex-l that in the past have suggested Rossi was a fraud etc
must be busy eating crow based on the significant silence of their anti-Rossi
claque.

I love it! Conclusions based on silence. However, the evidence in Rossi v. Darden shows beyond doubt that Rossi lied, many times. The black and white idea of “was a fraud,” or “was not a fraud” leads to communal stupidity. What does the alleged silence of some in some places (people are writing in many places) have to do with “eating crow”?

Axil Axil Wed, 26 Jul 2017 18:55:32 -0700

Rossi is not as sure footed as he lets on. His small low temperature
reactor cluster did not work at the start of the 1 year test. Rossi had to
substitute the quad 250,000 watts tiger reactor cluster. To this day, Rossi
still doesn’t understand why those small low temperature reactors failed to function.

Without understanding the underlying theory that underpins his technology,
Rossi must use trial and error. Like a mouse in a maze each day can bring a
wrong turn that can result in failure. Yet Rossi projects a facade of
confidence and defiance. This state of ever present insecurity must be
hard to conceal from his competitors, his supporters and especially his
detractors.

There are people in the LENR community who still claim to “support” or “believe in” Rossi. I’ve had extensive conversation with one, whose idea is that Rossi had a real technology, but has not been able to make it reliable. To me, that is consistent with his lying about what he has, and about so many things that come out in the lawsuit documents.

Che Wed, 26 Jul 2017 20:51:49 -0700

On Wed, Jul 26, 2017 at 9:55 PM, Axil Axil <janap…@gmail.com> wrote:

>[quoted above]

Rossi’s primary motive seems to literally be to get rich as quick as
possible. As you say above — his modus operandi leaves much to be desired. I only took an interest in this money-grubber when he was promising steam gushing out of a container for pennies. It was the container and its contents I hoped about — not Rossi’s Wall Street cred.

Frankly, I wish this little weasel would just disappear with the few
millions he did get his hands on — and leave Science alone. If he DOES
finally ‘make a better mousetrap’ — well, then so be it. But no thanks to
his secretive, proprietary anti-REAL-Science bullshit.

I find no credible sign that he’s made anything useful of late. Bottom line, his statements, given his history, cannot be trusted at all. Some of them might be true, but which ones?

Jones Beene Thu, 27 Jul 2017 06:38:22 -0700

Anyone who thinks Rossi “won” is living in fantasy land.

Indeed. It’s called “Planet Rossi.”

The only big winners were the attorneys for both sides.

Well, there are three “games”? (1) The License Agreement (2012), (2) The lawsuit filing (2016), and (3) the Settlement Agreement. A case may be made that both sides won something in the first and third games, but my sense is that Rossi lost — big — by filing the lawsuit as he did. I think he believed that IH would settle for some substantial sum to quickly settle. Bad Idea. Didn’t happen.

Both sides submitted bills to the Court of about $7.5 million each, hoping the judge would assess those costs to the other side. This similarity of bills looks like collusion on their part – but there is no reason to believe that they were paid substantially less by their clients.

I do not recall seeing those “bills.” If someone knows where it is, I hope to see it.

That means most of the initial $11 million which Rossi got from IH was lost to him in the filing of the lawsuit. But he is not home-free. Rossi gets to keep his junk IP and apparently the Swedes love him, so he may resurface over there if he can stand the winters.

He could have done that without the lawsuit and the Settlement. The “IP” — i.e., the License Agreement — only really matters if there is product being sold, and reasonable delay would not have harmed Rossi’s interests. As soon as he filed, it became, I suspect, very difficult to raise more money. Look what he does to his investors! Did discovery reveal evidence that IH had abused him? Not in the least. Zilch.

Rossi was not charged with perjury for his deposition – at least not yet. IH believes he should have been charged – and that could still happen. No agreement with IH will protect him from perjury.

I don’t know that IH “believes” that. It could still happen, though I’m told it is not likely, not because he didn’t commit perjury (he obviously did) but because prosecutions are rare. Dismissal of RvD probably reduced risk to him.

As for the legal fees of IH plus the other money they paid to Rossi up front – that is probably over $20 million, BUT they offloaded all of that expense and more to a British Investment firm – which has actually gone up in value since they made the $50 million investment in IH/Cherokee.

IH spent, probably, about $20 million on Rossi technology. Some part of their legal expenses may have been paid by IHHI, and most of the capital of IHHI did come from Woodford. Woodford is, I suspect, thoroughly aware of how risky LENR is.

If you are “following the buck” in all of this, here is how it stands:

1) Rossi has a net of about $4 million ($11 million minus attorneys fees)
2) Darden has a net of about $30 million ($50 million from Woodford minus $20 million)
3) The attorneys have a net of about $15 million
4) Woodford Patient Capital Trust is up about 14% from when they invested in IH

This relates to cash position and asset values. Through the Woodford investment, Darden did not gain anything personally, but he did gain more money for the declared purposes of IH. So that is “ahead” in a sense. Rossi’s position declined from the suit. From the settlement, he avoided substantial risk.

In a way, it looks like Darden is in fact the biggest winner here … but in one of the never-ending mysteries of capitalism – the big loser is not apparent… other than the vorticians who wasted hundreds of hours posting and reading a “show about nothing”

The truth about Rossi behavior became very visible from the case documents (not merely from accusations). I’ll call that a gain for “us,” i.e., the LENR community. We needed to know the reality. Discovering that was also IH’s goal in investment. They knew the risks, they were not nearly as naive as some have made them. They were also, at times, hopeful that Rossi would honor his agreement and that he might actually have something, in spite of obvious appearances. That, by the way, remains at least theoretically possible, but what has become clear is that Rossi is far from a trustworthy business partner.

bobcook39…@hotmail.com Thu, 27 Jul 2017 12:19:33 -0700

Living in fantasy land is like living in the desert with head in the sand
IMHO—not unlike the land where religious dogma is prevails.

My wondering did not take long to be resolved.

The Confidence Game points out that “trusting people” are generally more successful, that confidence games have not been common, with a result that many of us are relatively defenseless. It also points out the similarity between confidence games and religion. It proposes, in the end, a defense, which it calls “reason.”  I would disagree. Reason doesn’t work, because it is highly vulnerable. However, underneath reason is observation; the failures of reason arise when we attempt to apply reason to “good and bad.” To me, what is truly of interest is what actually happened. It is in the search for meaning, for judgments and interpretations that we can readily be fooled.

But anyone can be fooled, at least for a time.

Lennart Thornros Thu, 27 Jul 2017 14:34:36 -0700

Jones, yes lawyers are big winners as in all lawsuits.
Agree that Rossi got what he wanted and paid for it. If it is junk it
remins to be seen. IMHO he could retire on 4 mil also.        

“Junk” is a judgment, an opinion, never a fact. The likely fact here is that IH came to a position where they did not value the “IP,” nor the 1 MW Plant they had bought.

Dumb Swedes, maybe future will tell. How you KNOW is mindboggling to me. He is an entrpreneur, a risktaker and he does search for an answer. not many of us can live up to that or you show me your contribution in those regards.
i admire your theoretical knowledge *cannot judge the quality. That is good
for the discussion. your simple negative opinion about the person is
misplaced, to not use stronger djective.

Jones Beene’s comment was reasonably neutral. What is Lennart reacting to? How one knows what? I could write what I see in Lennart’s comment, but am not sure it would be useful. It do see the comment as itself not being useful; rather it appears, itself, accusatory. Have I misread it?

Randy Wuller Thu, 27 Jul 2017 15:30:06 -0700

The firm Rossi selected typically does work on a contingent basis. So they
don’t collect fees unless they win. Typically the contract calls for the
payment of expenses.

Which firm? There are three involved. Rossi was working with Annesser from Silver Law Group, before there was any lawsuit. Then Annesser left Sliver (and Ruth Silver withdrew and then died), and moved to PBY&A. That’s where Chaiken came from, as new lead attorney in the lawsuit. Then Chaiken and Annesser left PBY&A and formed their own firm, Annesser and Chaiken. Bernstein, a former attorney from Silver, also joined them, and the other attorneys from PBY&A withdrew.

The, just before trial, Lukacs appeared in the case. Extremely unlikely, again, that he was working on contingency. He had represented Penon in the Dominican Republic deposition, my guess is that he was hired by Rossi. One of sis specialties was meditation and dispute resolution.

Where is this information about “contingent basis” from? Given the facts of the case, this seems entirely unlikely,

That wouldn’t prevent them from seeking fees from the other side but if there
was no recovery, Rossi may not have paid any fees just costs.

Just an FYI.

No, not information at this point. Speculation and probably incorrect.

Kevin O’Malley Thu, 27 Jul 2017 15:00:20 -0700

Both sides submitted bills to the Court of about $7.5 million each
***I find that surprising, Jones. I expected IH’s legal bills to be
at least double that of Rossi’s. I wonder how they got their top
notch firm so cheap? What does this mean: This similarity of bills
looks like collusion on their part…

I’m not seeing anyone on vortex show or request evidence. Jones Day was representing not only IH (and IPH, wholly-owned by IH) but Cherokee Investment Partners, usually called a “$2.2 billion corporation,” and Darden and Vaughn personally. It is not impossible that Jones Day was on retainer, plus there may be officer’s insurance. (Johnson believed that he was indemnified from any claims by his contract with JMP.) I find it possible that Rossi was paying for those attorneys (including for Fabiani and Bass, plus Penon) as well. But I don’t know.

Maybe I missed some “bills,” somewhere in the pile of documents. That’s not impossible.

Lennart Thornros Thu, 27 Jul 2017 04:22:23 -0700

I agree with Bob. [about the “anti-Rossi claque” “eating crow.”]

It has been a lot of name calling here on Vortex during the last year.
Especially AR has been given very demeaing epithets.

“Demeaning,” presumably. Missing: noticing that calling critique of Rossi a “claque” with criticism being “demeaning epithets” is demeaning and disrespectful. However, there is a lot of name-calling, but not just on the part of people called “anti-Rossi.” How about the attitude of Rossi himself toward Smith, the IH expert witness and his misrepresentations of what Smith actually said (and the implications)? How about Rossi attacking ordinary science as paid FUD?

I still don’t know how well his invention works.

Apparently nobody knows. That’s part of the problem. Rossi has never allowed anyone to actually find out … or he did, for a while, and when they found out that it didn’t work, he sued them.

I know he is a true entrepreneur.

What does that mean? Rossi is an entrepreneur, that’s obvious. There are different kinds of entrepreneurs.

He believes in his ideas. One overwhelming proof is that he
settled for just freedom from poor bed fellows to persuade the ideas.

Proof of what? That he believes in his ideas? I have absolutely not problem accepting that as an operating premise. However, I also know that Rossi has been seriously mistaken about his measurements, look at the Mats Lewan description of the Hydro Fusion test. And then I know that he lies — or invents explanations post-facto. Again, the Hydro Fusion test as he described it to Darden and Vaughn. If I imagine that Rossi is honest, I then am forced to imagining that he is delusional.

He could have retired before filing and had enough for the rest of his life.

But his personality type rarely does this. What is completely missed here is that his desire for a divorce from IH was not based on any sane business purpose. It was based on jealousy and hatred and suspicion. He also lied about it: as he was preparing to file the lawsuit, he announced that there was no problem with IH, whereas we know that the problems were in full bloom by July, 2015, when he refused admittance to the IH engineer Murray. Then he claimed that IH only complained “when it was time to pay,” which was another lie. And there were many of these.

Che could learn about benefits in free society isn’t always driven by Money.

Learn from whom? Rossi filed a lawsuit asking for triple damages for an alleged fraud costing him $89 million. That certainly resembles being “driven by Money.” It was insane because he was going to lose — the lawsuit was founded on a set of misrepresentations, half-truths — and then he would be unable to raise what he’d need to move forward. He has enough money to play with this or that, now. Had he not settled, he might have lost it all.

Jed could learn that things get done without government is involved and
that unortodox methods can be used.

Jed is not particularly pro-government. What I’m seeing is that Kev is anti-expert, “doesn’t know” but still believes he knows better than others.

I hope his invention has a great value.

It would be a tragedy if it does, because application will have been delayed by many years through his behavior. However, the community is moving on. Rossi has become irrelevant.

Adrian Ashfield Thu, 27 Jul 2017 06:28:54 -0700

I agree Lennart.
Vortex is not the worst offender. lenrforum.com is worse. People there write
hundreds of pages of insulting, unproven waffle/speculation. Apart from Jed
most are anonymous armchair critics who do nothing themselves but apparently can’t stand the thought of someone actually doing what they can only dream about. Many are so arrogant they are certain they have all he answers when they  don’t.

All open fora suffer from this. Here, the pot is calling the kettle black. This comment contributes nothing, but, to be sure, the entire topic is other than creative. My interest was aroused by seeing the varieties of opinion, often blatantly ignorant, placed in a context where I am reading about scammers and their marks. I mostly stopped reading Vortex long ago, so thin did it become in redeeming value. LENR Forum has its problems, for sure, but Planet Rossi badly assesses it.

bobcook39…@hotmail.com Thu, 27 Jul 2017 12:10:59 -0700

Adrian and Lennart—

I wonder who after Che will be the first to defend their former anti-Rossi
“claque”?

This is trolling.

Che Thu, 27 Jul 2017 17:08:39 -0700

[incoherent comment, spinning out, perhaps turning to Favorite Topic]

Eric Walker Thu, 27 Jul 2017 06:22:32 -0700

Hi Bob,

I’ll propose another reason for the recent silence: disappointment at an
extractive settlement and a realization that it is a mostly futile
excercise to continue to debate with what remain of the hard core of
Rossi’s followers who haven’t yet decamped after becoming familiar with the
contents of the lawsuit docket. No need to postulate the eating of crow,
except in those instances where someone made a prediction about the outcome of the lawsuit. Few people that I recall expressed much confidence in any particular outcome.

So we are left with two groups of people following developments, even more
divided than before the lawsuit, with each somehow further confirmed in
their impressions.

Eric is a LENR Forum moderator. This is definitely a more cogent analysis. Quite a few who had trusted Rossi, reading the documents, flipped. Mind you, it wasn’t accusations from IH that did that, it was Rossi’s own emails. Normally, it is very difficult for people to admit that they were fooled (and there are sound evolutionary reasons for this, but what may work most of the time can also fail spectacularly.)

Kevin O’Malley Thu, 27 Jul 2017 14:55:21 -0700

You’re one to talk, Eric. You are among the most unreasonable
moderators over at LENR-Forum with your acknowledged “Yes some farm
animals are more equal than others” and other bullshit you throw on
top of Pro-LENR enthusiasts and all the outright insults you allow by
the skeptopath crowd.

Okay, an explanation. Kev is a troll, who has, on occasion, been temporarily banned on LENR Forum. The trolls there commonly focus on a single administrator. I’ve seen a problem with a single admin there, but it is even more true recently that ban decisions are collective. Who actually pushes the button matters less. Eric is active, more than some others, so gets blamed more. The “more equal than others” is a reference to consideration of redeeming value or level of useful contributions, as distinct from simply throwing shit. There are some people who have long played a role in stimulating conversation. There are differences of opinion on how to handle “pseudoskepticism,” which is a real philosophy-of-science term, distinct from “skeptopath” which is insulting and degrading. Kev has been insulting and degrading and off-topic on LENR Forum, so he is carrying that controversy here. Trolls do that. It’s all very personal.

You should just post that your forum is so heavily biased and one-sided.

That’s ridiculous. First of all, the complain is about how incivility is handled, and the core idea is that some uncivil users get more of a pass than others. Maybe. But you have to work pretty hard and ignore warnings to get sanctioned on LENR Forum. Kev has done it, as have some others.

Right now I’m in trouble with you over there because you’re allowing
the skeptopath Shanahan to derail the basic Peer Reviewed Replications
thread that I posted. You engage in mind reading, you assign a
motive that I make it personal when anyone can review the comments on
that thread and see that it is not personal.

Very personal. Kirk Shanahan is an actual published scientist who has criticized cold fusion. LENR Forum doesn’t have good tools for focusing discussions, but calling Kirk a “skeptopath” contributes nothing. I wouldn’t allow it here or would confront it.

This is ironic, here. Kev is making it personal with very personal accusations against Eric, while denying it’s personal, and “anyone can see.” The premise Kev was promoting in the thread in question is largely useless, because statistics are being presented ripped from context. What’s the goal?

Kev does not appearl to recognize the right of an owner of a forum to regulate it. The owner of LENR Forum appears to be a Rossi supporter (or was) , but trusts his administrative team. Kev is not supporting them.

Eric Walker Thu, 27 Jul 2017 15:07:03 -0700

On Thu, Jul 27, 2017 at 4:55 PM, Kevin O’Malley <kevmol…@gmail.com>  wrote:

You engage in mind reading, you assign a motive that I make it personal when anyone can review the comments on  that thread and see that it is not personal.

https://www.lenr-forum.com/forum/thread/5271-clearance-items/?postID=67028#post67028

Eric showed high patience here. Kev was pushing it. If he keeps it up, I won’t be surprised to see the lock symbol with his user avatar. Eric does explain the issues.

Kevin O’Malley Thu, 27 Jul 2017 15:14:34 -0700

Eric:
Thank you for sending that PM to Kirk.

Like I said over there, maybe I’m wrong about you after all.

Try to “suffer” through that compliment, ok?

“Maybe I’m wrong” is not an apology, and the problem there was that the objections were garbaging up the site, and there is no equivalent moderation on vortex, you have to go to totally insane lengths to get banned on vortex. Heh, heh! This is a general problem with “free discussion.” There are many who seem to believe that whatever they think is appropriate to say, regardless of connection.

bobcook39…@hotmail.com Thu, 27 Jul 2017 15:44:39 -0700

I would agree that the court documents were significant. I particularly
thought that Darden’s email to Rossi regarding the successful production of fuel and reactor performance using the super confidential fuel mixture , known by only 4 individuals, was deterministic.

From Mats’ recent interview with Rossi it was noted:

“During the discovery phase, emails from Darden were provided and made public,  where Darden himself confirmed to have replicated our process successfully. We also have testimonials from persons who have assisted at such replications.
Woodford [Investment Management] assisted at one of those replications, after which it invested USD 50M in Industrial Heat, even before the [one-year 1MW] test started in Doral [Miami], at a time when IH obviously had nothing but our IP in its portfolio.”

I guess Eric Walker does not know about this are thinks it is not true.

I have written about this, in a page studying the Lewan interview.

Eric Walker may or may not know about this, but this is pure Rossi Says. It’s highly misleading. At what replication did Woodford “assist”? Rossi is very sloppy about the word “replication.” Rossi, historically, did many demonstrations. Some of these involved known faults in measuring either input power or evolved heat. Rossi is here contradicting sworn testimony from Darden, and no such actual contradiction was shown in the case arguments. However, Rossi did make the general claim without any evidence other than showing that at various times Darden was hopeful.

Woodford did not invest $50 million in IH. That’s, again, a common trope on Planet Rossi. They invested $50 million in IH Holdings International, specifically, my opinion, to insulate that from any possible Rossi claims. IHHI bought IH, but did not assume debts (which is completely legal if they don’t drain the assets, which, by this time, was only the License.)

Rossi, as is normal, does not point to the actual emails. In his pleadings, he often cited documents that did not support the claims he made about them. Cook clearly is accepting Rossi Says as truth without investigating.

Eric Walker Thu, 27 Jul 2017 16:10:52 -0700

Hi Bob,

My understanding of the details around that email about the positive test
is vague. In your quote from Mats Lewans, he is is quoting Rossi, whose
testimony I do not at all take at face value or assume to be accurate.
What I do know is that at one point early on IH thought they had replicated
Rossi’s technology. That early positive replication was later called into
question by at least two events later in the timeline:

– IH claim to have gotten a significant COP using Rossi’s methods but
without any fuel in the reactor.
– IH claim that as they tightened up their testing after that initial
period, they no longer saw evidence of excess heat.

What Rossi often does is to find a piece of evidence that can be asserted to create an impression he desires. He does not look at the full body of evidence, nor even at evidence very specifically related to what he is claimed. He just finds something and claims it as if it proves his point. Here, he is pointing to some early emails — we think — where I expressed an idea that they might be getting positive results. To be clear about this, we’d need to look at the exact mail. I do intend to create a timeline for all the mails and other evidences, with very brief summaries, which might make it easier to find these things, but I don’t have that yet.

There is further corroborating evidence to suggest that IH were sincere, including the fact that they began to diversify their portfolio,
essentially demonstrating in monetary terms that they didn’t want to put all of their bets on Rossi. (That was Woodford’s money, by the way, not IH’s, and they were and are responsible to Woodford for how they spend it, at the risk of incurring a lawsuit to have it clawed back if they improperly enrich themselves.)

Well, technically, it was IHHI money, but nearly all that did come from Woodford, which bought preferred stock (and that detail is important. Rossi, in court, and Planet Rossi, has claimed that this stock sale, about 5% of total shares, at $50 million, valued the company at $1 billion, which is a major error. Preferred shares are very different from ordinary penny stock in a company like this. They are more like a loan that doesn’t have to be repaid unless the company makes a profit. In valuing a company with preferred stock, the preferred stock should be separated out first. Had 5% of ordinary shares been sold for $50 million, yes, that would have shown such a valuation. But that is not what happened. Rossi’s counsel was attempting to mislead the jury.)

Now, what do we learn about Rossi from the court docket? Too many things to be worth mentioning at this point, at the risk of forever plowing over old ground. Enough, though, for anyone who has followed the details, even those who are strong supporters of Rossi, to no longer take at face value what he says.

He, ah, “creatively interprets” fact. Far beyond ordinary “optimism.” The statements are designed to create misleading impressions, the behavior is far too consistent to be accidental misunderstandings, poor English, etc.

I should probably create a page that collects these deceptions. It is not just one or two minor misunderstandings. Mats Lewan appears clueless, not aware of what is actually in the docket.

Alain Sepeda Thu, 27 Jul 2017 23:41:39 -0700

This is a key point to rule out the theories of Rossi’s defenders.
If IH was sincere, and enthusiastic as it is clear, this remove the
theories that they tried to fake a negative result. What was fake was the
methods, like in Lugano.

IH stood to make billions if they could get the technology to work. If it didn’t work, they stood to lose $20 million. Rossi, in one of the later pleadings, claimed that Darden was committing perjury, but I have seen zero evidence of this, it may have been about the “replication” claim, which is a matter of interpretation, not fact. Darden, if he actually lied under oath, would be risking prison, for what? The Planet Rossi conspiracy theories would have him be trying to protect investments in solar energy, which would be colossally dumb, throwing away billions for a small delay at best. Nothing in the documents Rossi found in discovery showed the slightest hint of anything other than trying to help Rossi be successful.

Even if you swallow the theories that it works, the way the test was
conducted would have been manipulated to deter the investor, and defraud
him of his intellectuel property.
As Rossi said about the way he pretend to have deterred a Swedish team, it
would be a “magnificence”. I don’t swallow that theory, but even if true,
it is even more disgusting.

Insane is the word I would use.

I have been fooled, and the skeptic can play it easy to say we were warned
by past results and never coming serious test. I don’t regret as it was to
verify, but we have the verification, BASTA!

only thing more painful than to be fooled is to be attacked when you face
reality, by more fooled than me, and by friends and respected people, among.

It is very difficult to admit error, especially if one developed relationships, community, based on the error.

LENR is a fractal tragedy. a fractal fiasco.
Some LENR supporters are not more scientific and realist than Huizenga or
Parks.

Huizenga was getting quite old and probably dementia was developing Park developed an identity as a debunker (“Voodoo Science”). Tragic, actually.

I have been noticing signs that Rossi might be losing it. What I find fascinating is that his supporters appear to be enabling it. He fails to recognize what someone allegedly so quick and intuitive would recognize. He’s making blatant errors in recent posts.

What is an appropriate response if one cares about someone like that?

It have to stop.

as you can read elsewhere I see the only exit in making PdD research with
modern instrumentation as used in accumulator technology research.
This is my model for what woudl be a good LENR research:
https://www.nature.com/articles/ncomms14020

I have few doubt we can move to NiH for industrial applications, and I even
hope we can move to biological LENR, graphene, or many metal alloys, but
first need to to have a theory, and my sad opinion is we need to
temporarily throw out theorists and physicists, until there is much data
they can work on. Urgency is for chemists and nanoscience experts.

My sense is that IH has abandoned NiH, the evidence is too weak. NiH may come back, The anomalous heat investigations at Texas Tech are studying Pd and NI and D and H. Yes, practical applications with PdD may not be possible. But it is where the science is, still.

bobcook39…@hotmail.com Fri, 28 Jul 2017 12:25:18 -0700

Alain–

You suggest that the poor Swedish and Italian professors doing the Lugano test ash evaluation were fooled by a mysterious swap of “ash” by Rossin or an accomplice at the end of the test.

He said nothing of the kind. This is classic Planet Rossi. Find a way to present the arguments that are believed to be “winning.” They aren’t. I will, however, suggest that the most likely explanation for many Lugano results were that the “professors” were duped, as others had been before them. The test was obviously not truly independent, it was not as represented in the report. The report, crucially, relied on Rossi Says. As to the ash sample, it was taken by Rossi. Why? This was far from “independent.” It doesn’t have to be “mysterious,” the simple fact is that the taking of the sample was contaminated by the involvement of the inventor. Once we know that he can lie and be deceptive, and we do know that if we read the evidence, he could be deceptive about anything. Spiking a sample would be easy, and affordable.

With all due respect I do not agree.

With due respect, which isn’t much, you have no standing such that your agreement or disagreement matters. That report was supposedly going to be published in a peer-reviewed journal. What happened? It’s obvious.

To prepare a fake ash sample would be very difficult with known technology IMHO. This conclusion reflects the highly skewed isotopic ratios of Ni reported by the professors..

This is pure ignorance. There was, as well, another sample provided by Rossi to Bo Hoistad. The original wasn’t stated, but the timing was after he shut down Doral. The sample resembled the Lugano sample, when analyzed. Confirmation? No. The opposite. Doral ran for a year, Lugano for a month. If a running reactor produces isotopic shifts, it would be expected that there would be 12 times the shift from a year compared to a month. Again, only samples provided by Rossi. Those cannot be trusted.

There is yet another problem. Lugano didn’t work, that test used a method of measuring reactor power dissipation that was based on defective IR thermometry. So what was the cause of the isotopic shift? Without heat, the default answer becomes fraud. Is that proof of fraud? No. Basically, Rossi’s deceptive habits mean that any “proof” involving him is unreliable.

Alain Sepeda Fri, 28 Jul 2017 13:41:21 -0700

no need to swap powder, just need to put some other before the test, that
will be mixed. anyway the behavior of Rossi during the test, shows either incompetent fraud, or incredible manipulation to look as a fraudster, and deter the investor.

The important point about Lugano is not the evident mistake on emissivity (band vs full), but that it was not seriously answered, by credible explanation, by other tests… against either it is just a fraud, or a
manipulation to look like a fraud.

In both case I’m sad.

There are many ways the ash could be salted. I was writing by 2011, I think, that Rossi was either a con artist or wanted to look like a con artist in order to deter competitors, as I think Alain is suggesting here. There is no way to distinguish the two, unless Rossi finally hits the market. With the passage of time, that possibility declines. If his claims were real, in 2011, he could have been selling thousands of million-dollar Plants a year by now. Or more. Planet Rossi will come up with endless excuses for why this hasn’t happened, and that is standard for the followers of swindlers, it has happened so many times in history.

Kevin O’Malley Fri, 28 Jul 2017 17:16:49 -0700

The ash-swapping accusation is one of those continental
divide/watershed issues. Either he swapped the samples or there was
evidence of transmutation. There is no middle ground.

The problem is that there is no way to know about the tests already done. Further, “evidence of transmutation” is not absolute, and this kind of either-or analysis is blatantly defective. There are other ways to salt the samples without “swapping.” It would be invisible to observers, unless they knew exactly what to watch out for, and with a single test, even then it would be very difficult. Magicians can fool people, it’s not all that difficult. They can fool experts. That’s why definitive confirmation must be fully independent.

These kinds of no-middle-ground issues are good for determining the
truth of the scenario, because it is easily testable the next time
around. Just inspect the box before the test and don’t let Rossi
anywhere near the black box during testing, ever. Camera on it the
whole time. If Rossi can swap samples under those conditions then he
truly deserves the title of Greatest Conman/Magician EVER.

Not necessarily. He would simply need to know a good trick. One small problem with Kev’s proposal. Rossi would almost certainly not allow it. Rossi doesn’t allow others to set up the conditions of tests. One might think that would have been noticed by now….

Jed Rothwell Fri, 28 Jul 2017 20:36:13 -0700

 

Error might be another possibility. I do not know about this instance, but
I know that mass spectroscopy is difficult and prone to error. Irregular
samples produce bogus results. Two labs looking at the same sample
sometimes come up with different results. These samples would have to be tested in 2 or 3 labs before I would have confidence in the results.

Jed is correct. A single test is an indication, suggesting follow-up. If the claim is that a nuclear reaction is responsible for anomalous heat and that isotopic shifts are being produced, one would want to see many tests, with varying levels of heat generated. As well, then, independent groups. A single report is always suspect (even if the work is very well done). That’s science. The rules of science do not apply on Planet Rossi. (Nor for some overenthusiastic “supporters” of LENR.)

Eric Walker Fri, 28 Jul 2017 21:22:17 -0700

Another possibility brought up by Bob Higgins in 2015 was that the two
analyses that were carried out in connection with the Lugano test were
thought by the authors to be of the ash but ended up being of the fuel
instead, due to how the samples were obtained:

https://www.mail-archive.com/vortex-l@eskimo.com/msg104910.html

This is of course consistent with the understanding that Rossi may have
purchased some 62Ni at some point.

The point is that there is a practically infinite universe of possibilities. Magic depends on, generally, unconcious assumptions. Higgens pointed to the assumption that the fuel tube was initially empty, but there is no evidence that this was checked. The stonewalling by the Lugano authors absolutely doesn’t help. That report is basically dead, useless. IH made that reactor, and claimed they could not get it to work, beyond initial hopes, probably based on the same calorimetry error as afflicted Lugano.

bobcook39…@hotmail.com Sat, 29 Jul 2017 15:26:52 -0700

With all due respect to Higgins, I concluded at the time he was grasping at
straws. This was based on the detail in The following links:

lenrftw.net/assessing_ecat_report.html

https://animpossibleinvention.com/2014/10/08/new-scientific-report-on-the-e-cat-shows-excess-heat-and-nuclear-process/

It’s fascinating to see in the first link discussion of how the fact of Rossi working with Industrial Heat makes it nearly impossible that he’s a charlatan…. that report doesn’t take the place of the Lugano Report. Higgiins’ suggestion remains possible. (There is a lot of data on that page, pointing to a whole page like that without any specifics is common trolling practice, it wastes time.) Again, Cook’s conclusion is just that: conclusory, not evidence of anything other than his state of mind.

 

 

 

 

Author: Abd ulRahman Lomax

See http://coldfusioncommunity.net/biography-abd-ul-rahman-lomax/

5 thoughts on “Who won?”

  1. It seems to me that for both sides this lawsuit was a loss of time and money, and the longer it went on the more time and money was going to be lost. For Rossi, the chance of getting anything out of it was pretty low, with the risk of some big losses and maybe jail time if the perjury was prosecuted. For IH, I think they would have “won” the lawsuit, but then Rossi would have been bankrupt and unable to pay anything, and I’d expect that IH’s time was far more valuable to them than the money they might have actually got. The settlement was therefore a benefit for both sides, but it would really have made more sense to have not started it in the first place. It seems to me that IH would have just cut their losses and walked away rather than start a lawsuit themselves, if Rossi hadn’t made that impossible.

    There is however now a large body of evidence as to Rossi’s approach to both science and business, as well as evidence of IH’s approach and intentions. We also know that IH tested various other Ni/H ideas and found nothing where they could replicate the claimed results (I’ll need to find the links for those, but later…) and so there are also some other non-Rossi experimental claims that are possibly a result of either bad measurements or unknown variables in the materials/treatment.

    Knowing what doesn’t work is therefore a gain for the field in general, if people take notice of it and drop the beliefs in favour of evidence. I’d argue therefore that the lawsuit itself was useful for LENR in general, and that the settlement was a gain for both sides. Still, with that $15M bill speculated for legal fees, it was somewhat expensive and we might think that the same money put into research may have been better value.

    On Vortex, I find Jones’ speculations intriguing and often very thought-provoking. He often chases further down the rabbit-holes than most people I know, and I suspect that he may think up a way to get LENR working because he keeps an open mind on things (but not so open that his brain falls out). We need more people like him working on the problem. There may be data from some other experiments in another field altogether that will fit into the jigsaw puzzle that is LENR, so someone who reads widely and can correlate the data across disciplines has a better chance of finding a solution. The necessary data is probably already out there somewhere, and we just need to notice it and fit it into the right place.

    1. As to other NiH, it is also possible that conditions were inadequately understood or specified. This is the classic cold fusion mess. My basic stand is that cold fusion is a mystery. What is “cold fusion”? If it is not understood, we can’t really say, we can only notice that there are phenomena reported that appear similar and that may have a common cause. The best and most-confirmed result is the heat/helium correlation, and that’s why I recommended pursuing it, nailing those measurements down, increasing precision, and skeptics often agree with that, perhaps because this is one of the Langmuir criteria for “pathological science,” the alleged phenomenon may disappear with increased precision. That research is unlikely to fail, i.e., to produce inconclusive results (though it could happen).

      Yes, Jones Beene wrote well in that discussion. There is a lot of noise on Vortex, always has been. Absent someone to organize the material, Vortex is basically a bar-room discussion. Someone may occasionally say something brilliant, but conclusions and clarity are elusive. There is no adult supervision. LENR Forum is somewhat better, but still the “bar-room” phenomena persist, whatever process exists there for finding consensus is generally unused, and moderation is erratic and unreliable. (But better than none.)

      Yes, we now have ample evidence about Rossi and his methods, far, far more than before. We may actually review all this information, organizing it, and seek consensus here. Human consensus is not fully reliable, but it’s the best we have. A priori, knee-jerk consensus is very unreliable, it’s essentially mob psychology, and dangerous, but deliberative consensus is far better. It generally takes facilitation, it does not necessarily happen by itself. Consensus is powerful, and the higher the level of consensus (it begins at majority, and mere majority is a sign that genuine consensus has not been found, consensus is not a binary issue, that is merely an organizational heuristic, majority rule being superior to minority rule, with a certain benefit from efficiency) the more likely the object of consensus is to be useful. Utility is the real standard, not “truth.” None of our ideas and theories and interpretations are “truth,” but they are more or less useful. When we miss this, we lose power, getting caught in defending “truth,” and believing that we have no choice.

      My own opinion about the “necessary data” is that it does not exist yet, but I’d be happy to be wrong about that. There have been many very smart people looking at data and thinking about it and trying to find the connections, and so far no cigar. What drives Storms into frustration is that many of these very smart people more or less ignore the experimental data in favor of expressing their own idea of what might be able to “overcome the Coulomb barrier.” I call that “untethered.” Exciting and only very rarely useful. That kind of breakthrough will happen when there is enough data, known to a single person who also has the chops to come up with truly explanatory and predictive theory. And that is precisely why I seek to engage the mainstream. We need the collective intelligence of the full human community, not just some affiliated fraction.

      I look at what IH did and my assessment is that “it was worth it.” They sought to learn, to ‘crush the tests.’ It is impossible to prove, with the evidence I have seen, that Rossi “has nothing,” which is the default understanding of Planet Rossi as to the position of the Enemy. However, what IH found, by deeply engaging with Rossi, was that he cannot be trusted, he is “untethered,” not restrained by experimental fact, and creates and pursues and perhaps believes in appearances, firmly rejecting what seems contrary. The entire body of work connected with Rossi must be set aside as unreliable, unless independently confirmed, and the file drawer effect will be in full operation, so whatever is found in confirmation efforts must be handled and treated as unconfirmed — until and unless it is confirmed, and Planet Rossi — and other LENR enthusiasts — treat “replication” very loosely, giving it a meaning that is often equivalent to “vaguely confirmed, something interesting happened! Maybe. More work is needed!”

      As far as I know, the “$15 million legal bill” was a meme that was repeated, becoming a “common understanding.” The cost of completing the trial would be how much?
      http://research.lawyers.com/how-and-how-much-do-lawyers-charge.html If I guess Rossi fees at an average over four attorneys of $200 per hour each, and IH over five attorneys at $300 each, and looking at an additional 20 days of trial time and allowing maybe six hours per day, I come up with roughly $100,000 for Rossi and 180,000 for IH. Looking at expected return on investment (ROI), I see seriously negative ROI for Rossi. For IH, I see little chance of recovering the original $11.5 million investment, in itself. Proving breach of contract (i.e., Rossi failed to educate them as promised), quite iffy, much easier, violation of the Florida Uniform Deceptive Trade Practices Act (FDUTPA). Jones Day seems to have properly asserted coverage by that Act, and had a probability of winning this with regard to the conditions of the move of the Plant to Florida. So they might have recovered on that claim, their Florida expenses and associated legal fees, perhaps as much as a million dollars. Positive expected ROI. This does not, then, explain the settlement agreement. It’s been argued that Darden and Vaughn’s time would also be involved. Not necessarily. Darden’s presence wasn’t needed, my opinion, he was there by choice. That final settlement discussion could have been between him and Pace over the phone. I have a different theory, involving the ongoing businesses of the defendants as affected into the future. Just as Rossi clearly damaged himself as to future investment prospects by claiming fraud and suing his investors, individually and personally, as well as the corporation legally responsible for paying him if a claim is established, as well as an independent (and fat) corporation based on vague claims and in contradiction to the License Agreement itself, just by the fact of suit, so quickly (and, as we now see, so emotionally-based, not sensible from a business perspective), IH would clearly be damaged (to a degree) by a lawsuit against an inventor, which might discourage other inventors from negotiating agreements with them. By settling as soon as settlement became available, and on terms clearly favorable to the inventor (all except for that future contingent payment, but returning to status quo ante, the inventor being $10 million ahead), they increased confidence on the part of inventors. That would be not merely important, but crucial to them. If the ROI netted an expected $1 million, that would not be enough to compensate for this damage. The only damage I can see to them from the settlement, other than loss of expected ROI, is that they might look foolish, and, to put it plainly, they DGAF about that. They are not playing to the public, never have. They need to satisfy a tight group of investors who trust them, and eventually and most specially, Woodford. Otherwise, they are headed for running out of money. They could last for a long time on a shoestring, though, waiting for clear opportunities, and probably raise major funding in short order if they need it.

  2. If I could questions I would
    like to ask is to Neil Woodford.

    1 Are you still happy with your
    50 million investment?
    2 Did T.D discuss the Rossi
    situation with you since you
    are such a large investor?
    3 Have you considered working with A.R. now that
    T.D. is not?

    1. You’d like to ask. If I ever have the opportunity, I might ask. However, the investment (like the “original investment” by Darden, Vaughn, Mazzarino, and a small group) was known to be very risky. It obviously did not depend on Rossi Success, it was directed to other aspects of the field. So far, no cigar. That was reasonably expected. At last review (read the full Murray deposition), a couple of possibilities remained for future exploration. This is within the reasonable expectation envelope. Knowledge was gained, essential to move into the future. I expect that Woodford is satisfied, so far. I don’t see any clue that they believe IH made a mistake in not attempting to pay Rossi $89 million (which would have had to come from them, probably, i.e., IHHI would need more money and would solicit additional investment from Woodford, as committed, and would then pay IH for fulfilling a contractual responsibility, and IH would pay Rossi.)

      I am reasonably certain that at some point IH discussed the Rossi situation with Woodford. We have some report on this from the Cassarino handwritten memos.

      I doubt that anyone with that kind of money will ever be interested in working with Rossi. absent conditions that Rossi has never allowed. Obviously, if Woodford believed, on reviewing case documents, that IH had attempted to cheat Rossi, had treated him unfairly, they might consider it. However, Rossi, in the lawsuit, presented highly misleading information about the Woodford investment. That would not be likely to endear him to them.

      I suggest noticing that none of the arguments depend on an opinion that there is no reality to Rossi technology. What was found was that it was not merely difficult to work with him (that was well-known), but effectively impossible and very dangerous. Just imagine for a moment that Woodford decided to go ahead. Suppose Woodford sets up a company to handle the investment, to protect himself and the full assets of Woodford funds. From the precedent Rossi set, then, Woodford might then be personally sued for fraud, and so to the Funds. After all, that’s where the big money is. No real excuse, no actual fraud by Woodford would be needed, and no language in the investment agreement would be needed. Rossi v. Darden shows, among other things, that preposterous claims might be allowed to proceed, in spite of clear evidence. Ixnay, no way, stay away! And this was obvious immediately, from reviewing the filed documents in the Complaint. Instead of this coming into doubt from discovery, it got clearer, and still the Judge ignored it, wrt the IH MSJ, and reading that decision shows how bald-faced lying can keep a claim alive until it gets to the jury.

      Discovery is generally considered the most expensive process in prosecuting or defending a lawsuit. The judge erred in not dismissing the case immediately, though she had a reasonable excuse. Much better would have been a dismissal without prejudice (as she did for 4 out of 8 Rossi claims) — because that would be remediable if problematic. The basis was strong enough that she would not be overruled on appeal; because the plaintiff could simply strengthen the case with what was missing in the allegation. Instead, the Judge imagined arguments that were not made (estoppel was not originally claimed in the complaint). I think at that point that she saw Rossi as the underdog and poorly represented. Her later decision dismissing all the MSJs tossed out the baby with the bathwater. But the cost of that was not, in the end, large, merely a few more weeks of legal expenses, plus four days on her calendar. Her error was obvious, but now moot, it will not be appealed. The error itself was serious, in my opinion showing a misunderstanding of the law, as I have written. I write that with trepidation. After all, she is a Federal Judge and I am what? An opinionated non-lawyer with a blog. But this is what I do, research discussions, discover fact where possible, organize it, and report, as well, analysis and opinion, including but not limited to my own.

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