Hearing transcripts are available to the public 90 days after the hearings, and I just downloaded two. These give a glimpse of the attorneys in action, and also the judges.
Here is all of them that we have so far, with the judge presiding:
09/16/2016 0048.0_Hearing_transcript O’Sullivan
12/05/2016 0084.0_Motion_hearing_and_status_conference Altonaga
12/09/2016 0088-0 Hearing transcript (no access) Duplicate of DE 84.
12/28/2016 0097.0 Transcript of Magistrate Hearing O’Sullivan
01/10/2017 0106.0 Hearing Transcript
There are some quite interesting discussions, you get to watch attorneys make mistakes, and we find that Rossi was wearing a wig — a “piece on his head,” — December 28.
From the January 10 hearing, we find that Fabiani’s story of being rejected by Rossi was … ah, maybe not entirely consistent with fact. According to his attorney, he was still working with Rossi.
16 THE COURT: I mean, why are we arguing — if he’s off
17 the project and he doesn’t have anything, then we don’t have to
18 worry about anything after February 2016 because he went to
19 Russia and he’s doing something else.
20 MR. NUNEZ: Well, he’s off the project, he’s off the
21 project, he’s doing something else, but he hasn’t stopped
22 working with Mr. Rossi. And they continued some relationship
23 with regard to E-Cat, E-Cat development, it’s my understanding,
24 and to the extent that those documents and any work that he’s
25 done for Rossi after February 2016 are not relevant to this
Mr. Nunez may not be clear that further “E-Cat development” would clearly be relevant to the lawsuit. That was covered by the Agreement between IH and Rossi.
And it is represented that Johnson requested that the Plant be restarted
12 . . . that scam didn’t end on February 2016. They continued it
13 afterwards. In fact, Mr. Johnson sent a letter to me or — I’m
14 sorry, to Industrial Heat saying — in April of 2016 saying
15 “hey, we want this plant to be re-started”, and we called their
16 bluff on it and said “okay, we’ll re-start the plant”, and then
17 they came back and said “oh no, you know, there’s — you know,
18 Rossi and Leonardo are saying there’s a dispute between the
19 parties so we can’t really go forward with opening the plant.”
This is downright weird. It makes little sense. “We” here would presumably be JMP, so Johnson is still pretending that there is production, needing power. In fact, JMP was entirely operated by Rossi, even though he might have had some hat that said “JMP” on it, and another with “Leonardo.” So why did Johnson make that request? I can only imagine that Rossi asked him to do it, quite for what Pacer thinks, perhaps to set up some violation of the Term Sheet. We have not seen, to my knowledge, this mail from Johnson, but it would be strong evidence of Johnson’s continued participation in the pretense of an independent customer, even into April. The $89 million payment receivable was triggered by the ERV report on March 29, 2016, that payment was to be due 5 working days after the receipt of the report. Assuming receipt the same day, the payment was then due April 5. The suit was filed that day, even though the payment was not yet past due. But Rossi knew they were not going to pay. I have not seen a copy of that Johnson letter nor the IH response.
4 thoughts on “Hearing transcripts!”
I am interested in your or THH’s thoughts as to why the spoliation was rejected. This was a bit of a shock to me.
There appears to be nothing in the Doral facility that the “heat exchanger” could have been turned into (many meters of pipe etc.) and the data seemed to be a no brainer. Yet the magistrate denied it.
The Magistrate rejection says that the reason was given in open court. So anyone could go to the public terminal and read it. IH has a pending motion in limine: 04/18/2017 0264.0_IH_Motion_to_Exclude re spoliation. There is a technical problem: this was two days before the Hearing where the Magistrate denied the motion. When the parties agreed on more time, I consider it was a judicial error not to grant it and to insist on the original schedule. The 18th was the deadline for motions in limine. The Judge could deny the motions based on not being presented to the Magistrate, with appeals being premature. It’s a bit of a mess.
The IH motion re spoliation is clear enough that if denied, it could be an appealable issue. I’d expect to see responses and rebuttals proceed, and then perhaps a hearing before Altonaga. One attorney said “spoliation” immediately on hearing that Penon had removed the measuring equipment. That was without the removal of the piping, and the whole heat exchanger flap.
Good catch Abd. It is indeed additional evidence that Johnson was complicit in the fake customer scheme, although he will no doubt say that he thought this was all genuine (a genuine need for JMP as directed by Rossi for more power). The change of direction by Rossi is difficult to explain, but Johnson can put that all onto Rossi.
He can. He can say “Rossi fooled me.” But he is not saying that. And what he did was to act in ways to confirm Rossi’s deceptions about the customer. He is not — yet — on trial for criminal fraud, where mens rea must be shown. He could have been totally deceived, but, nevertheless, he participated in ways that a reasonable person would have known were deceptive, so civil liability can be established. Same with Bass. Easily, Bass could have been duped and was merely incautious.
Fabiani is starting to smell bad. Apparently the refrigeration failed for the load of carp, he had been carrying for a long time. Was Fabiani fooled as well? Maybe. But his apparent destruction of evidence, when he knew that a lawsuit was pending or actually filed, when he had been warned that if he did not cooperate as his contract with IH required, he would indeed be “involved,” and he went ahead and deleted the evidence, he made a serious mistake. Did he consult an attorney? He had certainly been paid enough to consider it.
His attorney (probably later retained when he was sued) claims that he had not been paid, so it is reasonable that he did not comply with what he had promised to do. But he had been paid, the contract was not expired, and the last payment was apparently not past due. He was promised prompt payment if he completed the work. If it turned out that more work was required to complete his report, he could have offered to provide what he had, his work product for that full month, with a small extension on the contract to finish it. This would all be normal business practice for a consultant, and being a consultant was what I did for some decades before moving to being a writer (and, technically, I still am a consultant, my business still operates with a subcontractor for all the work). I would never withhold work because of some temporary payment glitch. Let’s put it this way, I would continue for at least a month or so. Customers need the work ASAP, generally. Payment glitches can be resolved with good faith negotiations. Only one time in about two decades did I end up not being paid, a situation where the engineer I was working with left the company, the invoices probably fell through the cracks, and the company itself was sold, a big mess. The loss was a tiny fraction of my overall billings and even a small part of my total billings to that particular company, and my subcontractor agreed to waive his payment for that part. That is how business goes when one deals in good faith, expecting (and giving) fair treatment and thus generally receiving it.
Refusal to consider the client’s needs can easily lead to a far more serious problem. Fabiani had a sweetheart contract, with generous provisions, and he royally screwed up. Why? Probably out of loyalty to Rossi, who had gotten him the job. What we see is that Rossi might even be paying him, ongoing. Nice, eh? So he may go down with Rossi, loyal to the captain who refuses to leave the helm even though the ship is doomed and nobody but he and those who stay with him are at risk.