Okay, it’s tomorrow! It is fascinating to me to see the discussion on lenr-forum. There are users who have been paying attention, some who have not, some who simply don’t understand (and it is easy to misunderstand legal procedure if one doesn’t have experience with it) and some who seem deliberately clueless, a more advanced state than merely ignorant. I’m continuing this examination here for a while. And by the way, I find commenting like this far superior to commenting on lenr-forum. If someone doesn’t like my “verbosity,” they are utterly and totally free not to read it. On lenr-forum, there is at least one moderator who really doesn’t want to see anything to do with Rossi v. Darden, and who doesn’t want to allow free speech, and who has acted consistently with that. And it is the privilege of the site owner to allow that. And of the public to decide whether to participate or not! I’d much rather kibbitz these brawls than be wrapped up in them. Occasionally I learn something, and occasionally so do others.
So THH went on:
(1) There are (effectively, in terms of these documents) three separate actions:
(a) Rossi vs IH (very weak, it seems)
(b) IH vs Rossi (could be strong, but much uncertainty because of information not revealed)
(c) IH vs third parties Fabiani, Bass, Johnson (weak, it seems)
Obviously, Dewey disagrees. So do I. The 3rd party complaint is strong enough, for sure, to require a trial on at least some points. For Johnson, the evidence seems particularly strong, and from the history of the Rossi MTD (which raised some similar points, and which was rejected by the judge), 0076-0_order_on_rossi_mtd
, the Judge is very, very unlikely to dismiss the complaint in toto, and probably won’t dismiss any of it. But see below.
Then, the documents we see are either Motions to deny (MOTD), or initial complaints or answers to them. the compalints and answers contain evidence (in fact they must contain a rough overview of the evidential arguments, though not necessarily all the evidence that will later be unearthed). The MOTDs contain only legal arguments and cannot address facts (except to say that they not claimed, which is one of the possible legal arguments).
Yes, more or less.
Wyttenbach gets (a) and (c) confused when he thinks this MOTD has any direct relevance to (a). It might have indirect evidence only inasfar as it gives an indication of the likely future evidence from the third parties, and it does not have much even of that since an MOTD contains legal arguments not facts. So, basically, the MOTDs have very little interest unless you want to know which claims (on purely legal grounds, facts irrelevant) are likley to be dismissed.
However the MOTDs (if upheld) can cause the case to be revised and strengthened so they resulkt, down the road, in juicy new facts emerging.
Right. Some sources suggest that even though an MTD is tempting — it can avoid much and more expensive later process if successful — it can have the effect described, the strengthening of a complaint, so attorneys should carefully consider the advisability.
Bob, in an MOTD denying an allegation would do no good. All they can do at this stage in the legal process is to argue that even if all facts alleged are true, the complaint is vacuous and so must be dismissed. But it is true that they cannot lie so there might be some slight info to emerge. I actually think that the IH case at the moment against these 3rd parties is weak on purely legal grounds. They have not made much of a case yet. The strong third party case would be against Penon, who seems to have gone to ground, and of course there is a strong case against Rossi himself. But who can tell? I guess IH reckon if they can get the 3rd parties involved they will spill beans pretty effectively, so these MOTDs actually matter.
For an attorney to deliberately lie to the court would be unethical, and sanctions are possible. However, the client may lie — or simply present what is false, “on information and belief,” which is slightly different — to the attorney. So an attorney might present a lie, and there are no sanctions. Pleadings are not testimony under oath. All evidence to be used in the trial must be presented under oath. The exhibits are included, they will be, if I’m correct, entered with an attestation that they are true copies. At this point, we can assume, at least pending, that all exhibits are what they seem to be, as to the fact of the document being presented correctly. It might, however, be taken out of context.
Eric will correct me if I’ve got details wrong in this summary from memory (am I right that the MOTDs are answered only by the complaints being revised, which happens after the judge has ruled on the MOTDs? Or is the order different, so that the judge rules only after MOTD and revised complaint?)
It is possible for a plaintiff to revise the complaint, and we have an example of this. As a result, the judge mooted a pending MTD, purely because the complaint had been revised, quite possibly without paying any attention to whether or not the changes were moot. The Judge doesn’t want to worry about that, but to look at complete and accurate documents. If it wasn’t important, the parties can simply refile their motion, the objection, and the reply. Or they can modify them on refiling.
On the other hand, the Judge can order a complaint to be revised, being very specific about what is to be revised. We have an example of such a revision, resulting from a motion to strike, and it was that motion to strike that led to the revision of the IH Answer and countercomplaint.
If one is in a big hurry for Answers!!! the process may be frustrating. This, however, is a process that was developed over centuries, both through common law and practice, and through legislation and regulations. It is step-by-step, each step requiring and increasing clarity, generally, with adult supervision.
I guess IH reckon if they can get the 3rd parties involved they will spill beans pretty effectively, so these MOTDs actually matter.
I agree. I would assume that IH is not really that interested in going after Bass and possibly Fabiani. They probably are filing this with the intent of adding enough concern to them that they might turn friendly witness. After all what would they have to lose if they did? They might go after Johnson a bit more, but who knows. They are probably trying to set the table to entice the third parties to “come clean” and thus strengthen the IH defense.
But who knows?
Dewey might know. Or he might not. We do not know if IH legal strategy is disclosed to him.
Dewey has indicated that the 3PDs may be able to settle. That would be Bass most easily, then Fabiani, then Johnson, then Penon, in order of difficulty. (I suspect Penon has been served, so if he doesn’t show, at least through an attorney or in some fashion, he could face a default judgment, which could be enormous. With the fraud penalty, it could be upwards of $60 million.)
LENR Calender wrote:
[quote=’LENR Calender’,Who is responsible for confirming the Guaranteed Performance, Penon or Dewey Weaver? …[/quote]
Who is responsible for confirming that what was done in FL was an agreed to Guaranteed Performance test and not just a test of power delivered to a “commercial customer making some product”?
The Guaranteed Performance test was agreed upon in the contract. The test was supposed to start after delivery of the plant, but was delayed with IH’s approval. I haven’t seen anywhere that Rossi needs IH’s authorization to turn on the plant and for Penon to start taking measurements.
Which shows that LC either has not followed the discussions and has not read 0001-4_exhibit_d (the Second Amendment to the Agreement), or has difficulty noticing and/or remembering disliked fact. IH did approve the delay, but with a new condition, an obvious one, Section that the GPT is “commencing on the date agreed to in writing between the Parties.” Rossi has not alleged that there was such a written agreement, so his complaint was actually a non-starter, and I don’t know why IH did not insist on this point in their own MTD.
Who is responsible for confirming that the ERV report and all its data was indeed measured and approved by the ERV?(i.e. where is Penon?) – IH or Rossi?
I’d say Penon is responsible for his report. While we haven’t seen the report, I’m assuming it exists since otherwise IH could just say they haven’t received a written confirmation of the Guaranteed Performance by the ERV.
I don’t think anyone needs to confirm the data was measured by Penon. All we need is a piece of paper written by Penon that says “I confirm Guaranteed Performance of the plant as defined by […]”
This is an opinion that was popular when the lawsuit was first filed. It results from a naive reading of the Agreement. The problem.
1. The context is ignored. There must be, first, a setup for the GPT, either an actual setup, or one ready to go on approval. This includes what is to be tested. The 2nd amendment says “Six cylinder unit,” but it would be whatever the parties actually agree to, which would need to be in writing. While it is possible to establish an agreement without a writing, the evidence would need to be clear, not vague, that such an agreement existed.
2. Then an ERV must be selected. The Agreement is vague on this point: the intention is obviously mutual agreement, but it could be implied that Penon will be the ERV unless otherwise agreed. Because of the horrendous inadvisability of having the ERV depend on the same “expert,” imported from Italy, and obviously Rossi’s friend, this intepretation would probably not be supported by a court, the obvious intention would be followed, in spite of certain vague language.
3. Then there must be a written agreement signed by all the parties (this includes Ampenergo) to an actual start date. While, again, if IH actually agreed to the start date, it would be difficult for IH to deny the test started even if Ampenergo did not sign. Ampenergo could protest.
Only then does the test come into existence, and then the Penon report matters. Is that the end? Suppose evidence develops that Penon was in collusion with Rossi, or evidence surfaces that the Penon report is blatantly incorrect, even without any fraud. (example: the temperature inside the warehouse, with no visible cooling fans — and a blatantly dumb Rossi explanation about endothermic reactions!) Is there no recourse, must IH pay? This question betrays the silliness of that early Planet Rossi position. Of course not! When events happen that were not contemplated in an Agreement, and they affect the equity of the Agreement, a dispute arises for the parties to settle, either directly or by referring the matter to a court.
Bass might find it hard to avoid the litigation. As for the other two, you got to find them first.
We will see below why Alan is so clueless about the case. There are four third parties; in order of significance: Penon, Johnson, Fabiani, and Bass. All but the first have appeared, they are involved in the litigation and have, at this point, entered a Motion to Dismiss, being discussed. Penon has not appeared, but has probably been served, since the Judge did not dismiss Penon as a defendant in November. So they have all been “found,” legally. Alan may be referring to collecting a judgment. That would probably not be difficult for Bass (his home!), Johnson (probably ditto, and he’s an attorney in practice in Florida, and he is risking disbarment), Fabiani is living in Florida; he might flee to escape collection, and Penon may be more difficult to collect from as well. But not impossible. In particular, both could be sued in Italy, especially Penon. Rossi owns real estate in Florida. If he tries to sell it, he might find a lien slapped on it, which would, if nothing else, delay the sale. If he put everything in his wife’s name, the same. Then a court would sort it, and if it were shown that the transfer were to avoid a possible debt, it might be voided. The most difficult to collect from in this case could be Industrial Heat. Only if Rossi succeeds in piercing the corporate veil (violating so many precedents it isn’t silly!) could Rossi then have a target with serious assets. What he could collect from IH would be the License and perhaps the Plant. Everything else is likely vapor, the Woodford investment being in IH Holdings International, Ltd., which is thoroughly safe here..
I’m just going to throw this out there. . .if all this drama is getting you down, you might think about taking another look at Mills and his twenty-five years of litigation-free R&D. Yes, he’s gone after a couple of folks over the years for libel and interference in the IP process. But to date no one has ever tried to sue him regarding his research and claims. Just sayin’.
optiongeek is obviously a Mills supporter, using this thread to promote Mills. Mills is also not claiming LENR, but something else not accepted by the mainstream. So the similarity is that both Mills and Rossi are claiming the generation of heat, but this is, on the face not about LENR, the topic of lenr-forum. Rossi has only been countersued, having sued a major investor, so the parallel would start with Mills suing an investor. Which is generally a bad idea, if you want others to invest. Investors look at such a thing and decide they don’t need the headaches, they can put their money elsewhere without such a high risk. So one would sanely do this not only if the investor screwed the inventor over, but winning in court is likely, because that’s the end of other major investor funding! even if you are right, and worse, to be sure, if you are wrong.
[a post where he attempts to write doggerel like Shane and fails miserably. However, one of his little failed rhymes betrays a major legal misunderstanding.]
“If they never had the money, then all they’ve got is baloney.”
This is a Rossi trope, he’s been promoting it and is obviously attempting to establish it in Court. The misunderstanding is that having available cash — or even credit — is legally not required, to make an agreement to pay. I once signed a mortgage requiring a $100,000 balloon payment in 15 years. Did I have the cash? Of course not? Did I have the credit? Well, it would be probable in 15 years that the property could be refinanced. In the case of the Agreement between Rossi and IH, if IH had been able to independently verify Rossi results, with reactors that they made or owned and controlled, I don’t think there is anyone knowledgeable who would claim they could not raise the money. Darden is CEO of Cherokee Investment Partners, a $2.2 billion LLC that invests in speculative — but lucrative, when they work — partnerships that do environmental remediation. To develop the Rossi technology would take, if it worked, hundreds of millions of dollars. That would be easily within their reach. This is a complete bonehead argument, and obviously so, so that it’s popular on Planet Rossi tells us what? They came up with $20 million to start, and they raised $50 million from Woodford with no seriously operational technology, but credibility sufficient to allow Woodford, which had apparently been researching LENR (i.e., due diligence) for some years. With a technology ready or close to ready for production? Not a problem at all.
Shane D. pointed out what brilliant lawyers can do.
This was a criminal case, where the defense lawyer has a simpler task. But, yes, good lawyers know how to communicate effectively with a jury. Notice that when the same case (involving O.J. Simpson’s alleged murder of his wife) became a civil case, the decision was the opposite. Preponderance of the evidence, not “beyond a shadow of doubt.”
Fabiani and Johnson live there in Miami.
Only if you believe everything the documents say. You might be right 50% of the time.
Typical Alan Smith comment, essentially content-free, with no evidentiary basis. It’s true, Fabiani, by now, may have moved back to Italy. But it’s also irrelevant. Johnson is a real estate attorney, that is apparently how Rossi met him. Such commonly end up owning quite a bit of property. Johnson is certainly a Florida resident and has filed many documents asserting this. When Fabiani and Johnson Answer — within a month, maybe a bit longer — we will know how they respond to the claims by IH as to their addresses. We know that Fabiani and Johnson were living in the Miami area. So the Smith answer is pure smoke.
So now you want me to believe your gossip, and not what I read in the documents?
Come on man, get it out. Enough of this “I know something, but can’t tell, because it’s a secret”.
This is the result of many discussions which ended with Alan saying “I can’t tell you. Secret.” or something like that. Basically, Alan passes on rumors as if they were fact; in some cases he may actually know something more directly. But he doesn’t disclose his situation in the original comment. He doesn’t say, “I have it from a confidential source that.” Thus it takes some back-and-forth to elicit something deeper from Alan. Wasting time and space in the Forum.
Can you point to where IH “approved” of the delay? I cannot find that. ….
the agreement does specify that “to make this measurement the ERV will measure the flow…..” It is clear from the agreement that the ERV must make the measurement and not just simply take data values supplied by Rossi.
I am not sure the report would be a valid fulfillment of the agreement failed to take the measurements. It sure seems like if Rossi postulates that the ERV is real and a fulfillment of the agreement then he must show that the ERV took the measurements. That will be hard without Penon being accessible. If happens that Penon hides, then Rossi will loose his hide.
(The second amendment, section 2) agrees to postponement. IH then argued this was invalid because the presented document was not signed. That was, possibly, a defective argument. That was Rossi’s copy, and there may have been another signed. This objection would not be enough for a dismissal. They also argued that it was not a “6 cylinder unit” as the 2nd amendment required. The judge indicated that she might rule favorably on this if evidence developed that 6 cylinder unit was not just another name for E-cat. I do not find the language quoted in the Agreement, Exhibit B
, as referring to the GPT. It refers to the Validation Test.
We do not know if Penon followed this protocol, nor if IH approved that document. If they approved it, however, it does allow Rossi to install the instrumentation and to take the measurements, with Penon popping in every four months. It does not mention “Guaranteed Performance Test,” so approval might not indicate acceptance of the Doral installation as a GPT, and certainly doesn’t agree to the starting date (as required by the Second Amendment).
If the test is legally viewed as a valid GPT then IH have enough circumstantial evidence of dirty dealings (we don’t know the strength of the direct evidence) to make the matter of how Penon generated his report crucial. He will not, we presume, be there to defend it. It it likely can be proven that he was not on the ground much. So: this is a weak point in Rossi’s case. Like most stuff here we don’t have enough info to know how weak, and personally I think the legal argument about this not being the GPT, from evidence already disclosed, is very very strong. In that case this does not much matter.
More or less, it is one among many weak points. IH has to be prepared for the case to go to trial, so they have covered more than may be necessary.
it is interesting that the agreement (page 4) says:
“At their respective election, the Company and Leonardo may have representatives present to observe the Validation process and discuss the testing and results with the ERV.” If Rossi barred Joe from the FL location, did he violate the agreement to have allow IH’s representative to observe the process?
That language refers to the Validation Test, not the GPT. The contemplated GPT was to be in the IH facility, and IH control would be assumed. They might or might not allow Rossi to be present, but someone would have to set up and operate the Plant so that it works. (like, “Be sure to allow the inlet pipes to become half-full…”) I will resist the temptation to make a sarcastic comment. Excluding IH representatives, of their choice, from being present at the Doral plant, would certainly violate the apparent intention of the GPT. The exclusion of Murray violated the Terms Sheet; IH could have nailed him immediately on that, but apparently elected to let it slide because this was not a GPT. After all, they hadn’t signed anything agreeing that it was, I assume (since Rossi has made no reference to such a piece of evidence.)
They were following their original plan, which was not what Rossi claimed, to defraud him, but to give him every opportunity to fairly teach them how to make devices, and …. what if the Doral plant were actually working? While in hindsight, the first visit of Darden or Vaughn would have nailed that it was not working — surely they could report room temperature and the lack of apparent ventilation equipment to an engineer, though this is not rocket science — hindsight is so excellent because it knows much more. Often we don’t think of the obvious until later. It’s that way in my life!
If Penon is not forthcoming, did Rossi violate the agreement to allow them to discuss the testing and results with the ERV?
No. This would not be a Rossi problem, but a Penon problem. I assume there was an agreement between Penon and IH. If no formal agreement, IH was paying him for his assessment, and Rossi would not have the legal power to prevent Penon from discussion the matter with IH, and, in fact, at the test end, there was obviously a discussion with Murray. Penon didn’t respond, that’s all. That was his choice, not Rossi’s. If Rossi were seen prohibiting Penon from discussion, and Penon complied, that would itself be evidence of collusion and probable fraud. The apparent lack of response, itself, is bad enough!
There is more to the agreement than the ERV just turning in a report and then vanishing. who had to do the measurement, being able to discuss the results, the measurement of the heated fluid and not the chilled return, the level of heat, the exact days of operation, exact agreed to date for start, ….. and so on. This has yet to be discussed.
The point is that this all looks quite suspicious, and juries will readily look for suspicious behavior.
with the same assumptions that opened the door for IH Fanboy (see above).
All case files are indexed and annotated on Rossi v Darden case files
so if you are looking for a file, that’s a good place to start. I do intend to write a case overview, but … not yet. The Merge documents already created are part of that project, they would be referenced.
The 3rd link, aka second amendment, removes the “requirement the Guaranteed Performance Test period commence immediately upon delivery of the E-Cat Unit, and instead required the period to commence on a date agreed to in writing by the parties.”
So the delay was approved by IH. I forget if we’ve seen an agreed upon start date, (but I thought we did), so maybe you have a point there.
No, there is not one piece of evidence that has been introduced or made available to us that there was a written agreement on a start date, or, in fact, any agreement at all, other than Rossi says that they agreed, without saying when or where or how. However, LENRC gets bonus points for
- Reading case documents instead of just reacting to what others have said.
- Quoting material from a case document that might be disagreeable to him.
- Agreeing that others might have a point.
Yes, all case files are hosted there as well. Originally, I was hosting all files on the yahoogroup newvortex filespace, because it was handy. However, that required signup, and then the yahoogroup file facility broke. So, in November, I copied all the files to CFC.net and created an index and annotation page: Rossi v. Darden case files.
Readers are free to use whichever they choose, but… if you are looking, say, for an exhibit with the letter about Hydro Fusion, see if Eric’s compilation helps find it! You can create a link to the googledrive docs, once you find it. You can easily link to pages here, and linking is, of course, welcome. I’m not so thrilled with an LF administrator copying my file from here to LF, to avoid linking. In fact , I could call that copyright violation. The documents themselves are public domain, but I just might start watermarking them. Until then, I know the admin did this because he kept my idiosyncratic file name.
It’s 10 cents per page, with a limit of $3.00 for a multipage document. There is also a charge for accessing the docket, but that’s optional. I haven’t figured it all out, it may be that by limiting the docket search, one can reduce the charge to maybe 10 cents per access. I probably get more reimbursement than Eric, I’d suspect, though it hasn’t actually arrived yet (from an anonymous donor, and, no, *not* Industrial Heat.) My PACER fees for the third quarter were a tad over $50. Donations to Infusion Institute, Inc., gratefully accepted.
Comments continued. Most are beating a dead horse. However, there are riders of the dead horse who are still trying to whip it up.
IH has a document, written by Rossi, that says the test was for a sale of heat. What does Rossi have?…. nothing presented yet. What is there to argue?
I don’t get the idea that somehow a sale of heat takes it outside of the domain of a GPT. The ERV was making quarterly reports. IH was making visits and approving of it along the way. A final report was generated by the ERV. I kind of doubt that the judge/jury will go along with this notion that it wasn’t the GPT. But it definitely isn’t a slam dunk–for either side.
This is written as if a GPT is some sort of known thing. It was a creation of the Agreement, as modified by the Second Amendment. It has a very specific requirement that trumps all others: a written agreement, signed by all the parties, agreeing to the test date. ERV is also a creature of the Agreement. That’s a bit more vague, because an ERV could perform other measurements. Nothing in Court is a “slam dunk,” but some things are easier than others. Essentially, *there is no evidence presented, so far, that the Doral test was the described GPT. There is plenty of evidence to the contrary, i.e., circumstantial evidence — which, if reasonably clear, can speak volumes to a jury. Most telling, though, is the lack of a written agreement. Were this some totally fatal event, i.e., if a test could not be repeated, I can imagine a court bending over backwards to allow a test to be considered equivalent. Problem is, the lack of a writing was remediable at any time. All Rossi had to do was get their written consent. There is no sign that he even attempted this. The documents we have show that he presented a completely different set of reasons for the Doral installation. A sale of heat, etc. It is correct that this could have been combined with a GPT. It does not negate “GPT” in itself. But it creates an alternate reason for IH to allow the Plant to be moved there, and to allow operation, and even to allow measurement as suggested by Penon. It then allows us to understand why IH would permit this thing to happen, with Rossi exercising such complete control. It’s because it didn’t matter! That is quite inconsistent with “”GPT.”
And now Alan Smith tells us why he’s clueless:
So now you want me to believe your gossip, and not what I read in the documents?
Come on man, get it out. Enough of this “I know something, but can’t tell, because it’s a secret”.
Hi Shane. I apologise for not being able to take this as seriously as some of you guys. To me this is a squalid little commercial bitch-fest of no importance to the future of humanity, although I am grateful to Eric for posting the documentation. As for listening to gossip and retailing it, not at all, I was just using my common sense. There is an old gag that goes – Q ‘What steps are you taking to avoid getting into trouble? A ‘Great big ones’. Ponder that.
Smith has shown, again and again, that he doesn’t know what is happening. He is one of the people who fill topics with useless comments, and he obviously hasn’t been reading what he’s hacked up with deletions and topic locking.
Rossi v. Darden is a lawsuit involving Andrea Rossi, who has largely dominated LENR news since 2011. The involvement of IH with Rossi had created an impression that maybe Rossi, even though he had never allowed truly independent testing, actually had something, these were serious investors with access to serious money. IH also is now probably the largest single funding source in the LENR field, thanks to the Woodford investment, and their work with many LENR researchers. They will likely be hosting ICCF-21 in North Carolina. There has never been a lawsuit like this, and this suit is forcing into the open what was previously secret.
Part of the effect of Rossi on LENR is that many amateurs began investigating NiH reactions, particularly after Parkhomov claimed to have replicated Lugano. (He didn’t but that’s another story.) This created the demand for what Smith’s company, Looking for Heat, has on offer. Easily, Smith is unhappy with this turn of events, he would rather it go away, disappear, so he calls it a “squalid little bitch fest.” From the Rossi side, he’s been cheated out of $89 million. From the IH side, they have invested maybe $20 million in Rossi technology, with Rossi getting at least $11.5 million of that, plus a lot of fairly sophisticated manufacturing they did, and in return, the ***hole sued them for about $270 million. And this is a “bitch fest”? No, if I want to apply “squalid little” to something, it would be lenr-forum, which is playing a stupid game with me and coldfusioncommunity.net, with no care or concern about actually serving the LENR community. And most of that appears to be sourced with — or defending — Alan Smith.