Rossi summary flim-flam

I am starting study of the Motions for Summary Judgment. I decided to start with the Rossi motion first, so as to avoid some level of bias coming from getting fired up by the IH Motion. At this point I am compiling a study document, a page copied from the motion, in blog format, and intended to create both internal and external links for references. And what I immediately have discovered is that every Rossi exhibit reference I have looked at is incorrect. The motion is a mess. However, what about the intentions? They may not be much better.

This is just one example of many I have noticed. (Edit: I start to note more, below.)

From the Motion:

46. In fact, Defendants told their own purported witness, Mr. Rick Smith, that they agreed to the GPT Protocol. See Smith Depo. Tr. at 108:13-22, appended hereto as Composite Ex. 27.

It is not Exhibit 27. It is Exhibit 28. What did Smith actually say? Is “GPT” mentioned? No. This a Rossi deception, present from the beginning of the complaint, equating a “test” with the very specific contractual “General Performance Test,” and is repeated many times in the Motion.

There was a Penon test plan, it has been mentioned many times. It is unclear if IH ever agreed to it, but they did allow it to proceed. From the deposition:

Q. I’m going to stop you for a moment. You said in discussions with Mr. Murray, he felt it was deficient. Did you do your own evaluation of the test plan? 
A. Oh, yeah. Oh, yeah. 
Q. And that evaluation was done for what purpose?
A. To determine if it was a proper way to test a device of this sort.
Q. Okay. And did anyone ever tell you in this case that the defendants, Ms. — I’m sorry, Industrial Heat and IPH International B.V. agreed to that test 
A. They have, yes.
Q. They did tell you that?
A. They did, yes.
Q. Okay. So you were aware that that was an agreed-to test plan?
A. I am aware of that.
Q. And your opinion is that it is somehow deficient?
A. Correct, it is deficient, yes, sir.

There is no doubt that a test plan was submitted to IH by Penon. I think IH has later claimed that the plan was not followed in some aspect or other, but that is not important here. As well, I have not previously seen evidence that Darden or someone from IH actually agreed to the plan, but given what I know about how IH was treating Rossi at that point, still, and if they had objections, I’d expect them to largely sit on them and to agree or at least not to strongly object.

However, none of the discussions we have seen, so far, refer to the Doral plant as a Guaranteed Performance Test. However, the Penon plan did call itself a 350-day test. That would not make it a “Guaranteed Performance Test.” What was required for that was clear signed agreement to the start date (which would presumably then also cover any conditions, such as the identity of the ERV for the GPT).

In the context of this discussion, Smith would not necessarily have “Guaranteed Performance Test” in mind. Just a test protocol that he’d been shown.

This is appalling in a Motion for Summary Judgment, a waste of time. The MSJ also appears to violate the page restrictions issued by the judge the day before. IH exactly met the restriction (30 pages, not counting front matter, signature and certification). The Rossi motion is 39 pages. The judge ordered no more than 30. A separate Statement of Facts is allowed, however, 15 pages. Exhibits are not counted. Rossi included a “Statement of Undisputed Material Facts” within the Motion, starting on page 3.

There is another issue here. Smith is an expert, but this bit of testimony is hearsay. It does not identify who told him the alleged fact. It could have been anyone “connected with the case.” I do think it quite possible that someone from IH or IPH (which are really the same for almost all purposes, as IH is sole owner of IPH) told Smith that they had accepted the Penon plan, whether or not they had reservations about it. However, this is not fundamental to the case, like much of what Rossi claims in the MSJ.

Rossi’s attorneys would know that their chances of succeeding in an MSJ on their claims are somewhere between zero and tiny. So why are they trying? Grandstanding, my sense. This is for a broader audience. Some of these arguments will seem plausible. Remember, these motions will not be shown to a jury. So if not to convince the judge, they are for something else.

Update 3/23/2017

The source of the exhibit reference errors may be seen in the draft study. A piece of a Vaughn deposition was cited, in the section Statement of Undisputed Material Facts, Ex. 2, to establish the URL of the Cherokee web site, and then photos and information from that page was cited as “Exhibit 2A.” However, it was actually Exhibit 3. All later exhibit numbers, then, AFAIK at this point, are bumped up by one.

The MSJ was dated as signed March 22, 2017, along with the certificate of service for that date. However, the page we have was actually filed March 23, the extended deadline. I assume that this was the document actually filed March 22 with a motion to seal, which the judge rejected without comment (DE 213, no document), so it was reposted.

The MSJ relies heavily on the legal theory that IPH is estopped from asserting whatever the corporate representative did not confirm, as if the Rossi Motion for Sanctions, DE  179, filed 3/17/2017, might be granted. In fact, the Judge rejected this Motion, 3/20/2017, as improper. This was a discovery dispute (and the Rossi Motion for Sanctions shows the nature of the dispute, IH had objected to the corporate representatives being asked questions where the source of the information would be another witness also being deposed, so this was fishing for exactly what Rossi was asserting, some defect in the representative testimony. It was a trap.

The Magistrate issued an order, March 24, ruling that the depositions for Cherokee and IPH were “insufficient,” and ordering that new testimony be arranged, and with costs awarded to Rossi. Whether IH will decide that this is worth appealing (they could, easily, based on what appears of the circumstances, but the public cannot see the details of the hearing, so this may be incorrect.) This deficient testimony, then, cannot be used to estop the IPH claims, so very much of the Rossi MSJ is blown out of the water, it will need to be rewritten and resubmitted, if the Judge allows (and I think she would). If IH handles that testimony properly, they now know exactly what Rossi will be claiming, and will presumably offer testimony as needed. And if Rossi does not ask the necessary questions, too bad. He won’t be able, then, to claim IPH “failed to answer” questions he did not ask.

Meanwhile on Planet Rossi, the principal party is smug and satisfied, claiming to believe he’s winning, directly or through a sock.

A. Mikhail
March 25, 2017 at 4:28 PM

Interesting: IH figured the 1 MW plant test had failed because it started late, so they didn’t have to pay him (Rossi)** “But they never told him this”. And … Woodward’s $50 million only bought 5% of IH’s shares, when IH had only the IP of Andrea Rossi in its portfolio (eventually they bought toilet paper pretending it is IP from Rossi’s competitors, to be able to say to their investors that they still have an IP even if they have no more the IP of Rossi.

Andrea Rossi
March 25, 2017 at 5:16 PM

The more you read the discovery documents, the more you understand why we are satisfied of our position in the litigation.
Warm Regards, A.R.

Echoing Rossi’s arguments in the case, “A. Mikhail” misrepresents the IH-Woodward facts. Woodward received preferred shares, roughly $45 each, giving them certain priority rights. The preferred shares have the same voting rights as ordinary shares, which have a par value of $0.01. These documents have been public since May 2015. The percentage of shares is correct (I think), but it is like treating items of currency as all equal, such that a penny is counted the same as a $50 bill. This is a device for maintaining routine operational control of a company with the founders while allowing a large equity for an investor. Woodward controls the equity in the company, by a large margin, and if IH did not consider Woodward’s interests, well, this is probably why IHHI was formed in the United Kingdom! They could sue locally. Rossi’s bringing this up in the lawsuit was completely irrelevant, it is not an issue in the case, but exists in his own deranged thinking as Very Important.

I have not yet seen clear evidence for this, but only some hints in the vast pile of evidence dumped into the docket last week, but IH, until the middle of the Doral Year, was still acting as if they hoped Rossi might actually demonstrate major heat. Given Rossi’s history and propensity for walking away from investors and tests at the slightest hint of any suspicion or lack of total surrender to the Rossi Plan, IH probably did not confront him with all the details that were starting to appear, to become more and more obvious. Until they did, which was not, as Rossi claimed later, only when the payment was due, it was long before that. The breakdown can be seen clearly by July, 2015, when Rossi refused admittance to Murray, the IH Engineer, clearly violating the Term Sheet. Rossi hid behind JMP necessities for this, but he was JMP, de facto. Johnson deferred to Rossi, claiming that Rossi’s attorney had advised him not to deal with IH, but only with Rossi. So Johnson violated the Term sheet, refusing admittance, in effect.

I am spending a lot of time with the study page for the Rossi Motion. It might be radically changed, and most of the work is actually formatting and cross-referencing, which could become obsolete. So I may turn to a study of the IH MSJ, and return to the Rossi one if it does not become moot. (As it stands, the Study document is neutral.)

Standard in the current version, though, is that Rossi uses the terms “ERV” and “GPT” and reads them into any mention of a test. It is not just the example cited above, it is heavily woven through the MSJ, and that practice, then, if allowed, converts testimony not intended by the witness to be a confirmation of the fact of a GPT, into testimony that appears to do so.

I was not happy when the Judge refused to allow additional time for discovery and Daubert or MSJs. It created major time stress, which then leads to errors and confusion. This became a massively complex case, with multiple counterclaim defendants — and plausible claims of fraudulent inducement, spoliation of evidence, etc. How can a Motion for Summary Judgment be in order if there remain significant discovery disputes?

Author: Abd ulRahman Lomax


25 thoughts on “Rossi summary flim-flam”

  1. Tom – I read a bit over half of the Rossi SJM before having to go have a bath. I have no idea as to whether the legal arguments will work, where the lack of IPH knowing the answer can be taken as “no evidence” even though that question may well have been answered by someone else on the IH side.

    It is pretty obvious from the evidence so far that Rossi did not tell the truth and that the Doral test was known to fail (by Rossi) before Rossi even set it up. He did not install sufficient cooling to remove the 1MW from the Doral site because he knew it wouldn’t be needed. I’m sorry I can’t refer you to where Rossi said that “the dissipation of the heat was the customer’s concern” or words to that effect, but of course he was also the customer. The Doral test, therefore, was under false pretences from the start. Whether that has any legal standing is something I don’t know, but as natural justice it’s plain that Rossi knew it wouldn’t produce any large amount of heat. The sudden appearance of the piping and heat-exchangers (with no photographic evidence of them having been there) is a belated attempt to explain where the heat went. As I understand it, that explanation is sworn testimony, and so the IR survey data can absolutely prove that this is perjury.

    I agree that it seems likely that IH were taken in by the Lugano report, and only later found out the truth about the measurements. Then again, the Swedish professors were fooled, too, and they were scientists and not VCs. I also agree that IH were likely not expecting Rossi to sue them, since that would not be a logical thing to do. Rossi knew it didn’t work, and IH would have known he knew. Rossi is thus betting on his ability to sow confusion, which seems a highly-developed ability.

    Until the data on the Doral test came out, I was still sitting on the wall as regards whether Rossi had anything real or not. I couldn’t be sure. I would think that IH might have been in the same quandary, and if they were willing to bet on a 1% chance of it being true then their actions make sense.

    I’d expect Dewey to have been following the blogs and the “replications”, where Parkhomov’s tests (though imperfect) may have raised the perceived chance of Rossi having *something* which put out more energy than was put in, even by a small margin. In the meantime, IH took the time to thoroughly test what they had. I agree it looks like they weren’t bothered about the Doral test, and I see that as reasonable. They had all the data, and had built the Lugano reactors, so they had all that was available.

    To me, it is obvious that Rossi knowingly lied to IH about what he had, and that the Doral test was not intended to prove that anything worked but instead was a way for Rossi to put off the final reckoning. Though in the Ferrara test the optical measurements were backed with thermocouple measurements of dots of known emissivity, and thus I can’t be certain that the data was wrong there, the Lugano test was not thus calibrated and was obviously wrong. There is thus a further quirk in the explanations – was the Ferrara test successful and for the Lugano test did Rossi give IH false information of how to make it work? Did Rossi forget how to make it work, was it intentional, or was there never any excess heat at all? At the moment I’m tending towards the “never worked under public test” explanation, though of course there may have been some working ones among the multitude of experiments.

    It gets pretty complex trying to work out what was lies earlier on. This time, however, with Doral it’s pretty clear-cut.

    1. I agree with all that. And, of course, the Rossi lies which are transparent. I’m hoping the Court will see things the same way but will preserve strong skepticism wrt what any Court confronted with scientific issues will or will not do…

      The next big issue to be resolved will I guess be the spoliation complaint which must surely go to the Magistrate?

    2. To my thinking, there were never any devices which generated any significant excess heat. In fact, in all probability, no excess heat at all, significant or otherwise.
      The only difference is that the deliberate errors in some of the tests have taken longer to expose than others.
      If it had remained that no knowledgeable people took an interest in the Lugano test, the error which gave the appearance of excess heat would have probably remained undetected to this day.
      At the time, I well knew it was rigged but I didn’t know how, except that I later knew it had something to do with Rossi’s presence at the start of the test when he swore blind that he never took part in any of the test procedure and knew nothing about its progress. It was the breaking of that promise that made the whole thing stink and removed any credence of it being reliable, even though, as already said, I did not know what he had manipulated by his presence. But it was obvious that his presence must have been seen by him to be so important that he considered it was worth the serious negative impact of him being found out breaking his word rather than him not being there and the test failing due to his non-appearance. I guess he rightly assumed that a significant majority of believers would be happy to overlook this glaring inconsistency rather than to abandon their belief. He was right in this assumption. I think very few took that as a significant warning sign. They should have because that point alone indicated a significant subterfuge.

      The validity of the Ferrara demonstration is not proven by the fact that we might not know exactly how the deception was carried out. The validity is proven false by the deception and trickery surrounding all the other tests and demonstrations, which were necessary for the purpose of creating the deception that the ecat worked. For the tests and demonstrations to be consistent we would have to conclude that none of them ever worked, even though we might not know exactly how one or two of the tricks were performed. Had even one of the devices worked, Rossi would have been aware of it and thus, that would be the device he would have allowed to be independently tested and validated, even if it had a relatively low COP.
      But as we all know, he never did. If ever he does, we will know that he has something which actually works. I should add, I’m not expecting that. Not even a little bit.

      I fully understand that this is not a scientific argument, but scams and the pilfering of money from others are not described or proven by science, but by the psychology of human behavior, and in this present case, we now have a truckload of that to go on, collected over a very long time.

      1. You noticed.

        Now, consider this: IH has proven their commitment to “crushing the tests.” If and when they do come out an announce a successful technology, will they be credible?

        The publicity from Rossi v. Darden is possibly worth more than all the trial expenses. If and when they have that technology available. While Rossi is claiming that they were ballyhooing his technology everywhere, they weren’t. They were very quiet about it. They did bring in Woodford, and I’m certain that Woodford knew the risks, even if he was “disappointed” to find that the Doral situation was a total fake. At this point, IHHI still has many millions available to allocate, and openly expects to spend it all, and to need more. And Darden has shown that he can raise money. They could have paid the $89 million practically without breaking a sweat, if it was appropriate, Woodford had committed $150 million more. It wasn’t.

        If, very long shot, Rossi has a real technology, it’s now up to him to prove it. He has always said that the market was the real judge. Okay. It is. So sell it, if you can find buyers. He will need massive investment, almost certainly public funding, i.e., share sales or the like. And … people go to prison for deceptive share sales. He had the opportunity to do it all directly, all he’d have had to do would have been to be fully honest. And that is the test that he truly failed. If he had a real technology, but it was unreliable, it wasn’t the spectacular heat he was claiming, by not admitting the truth to IH — he could have!, and as long as his results, so far, were better than the rest of the field, IH would have worked with him. Gladly they would have worked with him. But his lies kept getting him deeper and deeper into a trap that he constructed. It was quite visible from the Hydro Fusion affair, I’m sure IH noticed.
        Yes. I noticed the lies about his involvement with Lugano, early on — I was watching his statements before the Report was published. They were typical Rossi deception, a reasonable construction from what he said, clearly intended to create an impression of independence. And then the reality began to appear when the Lugano report was published, that he was there at start and end. The middle is just paint drying, watching the thing sit there. Except that one point where input power was increased. Who allowed that? Who actually adjusted the power? And now we know that Rossi was actually there the whole time, and Levi, maybe Fabiani, maybe Foschi, but not the Swedish team, the most credible element. (Not any more, Weaver’s implied warning to Hoistad was not a threat, but an approaching reality, a freight train coming down the track that they were sitting on.)

        Had Rossi lied? Go back and review his comments, document them, and compare. Mostly they can be seen as creating a desired impression, but allowing plausible deniability. He sold lots of Plants, from Rossi Says. Well, actually, those were impressions from some discussion, various “customers” were “going to buy” a Plant. And then it fell apart. Can’t blame him for that, can you? But once we know about misleading comments about sales, how about heat? Reliability? And all the rest.

        1. I, as you, remarked this quite some time ago. Rossi is very very clever in how he misdirects. Very seldom caught in a direct lie while at the same time he strongly misdirects people towards interpretations very far from the truth and to his advantage.

          1. The case is full of examples. There were many documents filed Saturday and Monday (yesterday). Rossi is posting documents to make narrow points, trying to win on them, which expose his deceptions. I’m astonished that his attorneys are not restraining him but, obviously, going along with a suicidal strategy. The biggest revelation that came out in the MSJs is that Ampenergo willfully did not sign the Second Amendment. This was deliberate and Rossi knew it. So the Second Amendment was, as IH has claimed, invalid. Period. If it is ruled valid, then IH could raise the issue of a signed agreement between all the parties for a date for the test to begin. There is no requirement that they raise all issues in an MSJ. Rossi must know of the problem, they can’t whip it out of their back pocket, but as long as Rossi was on reasonable notice that this was a problem, it could be raised at trial. Personally, I’d have preferred to see an explicit raising of the consent problem, I’m not sure it was clearly done. But, of course, I have not seen most of the information provided in Discovery.

          2. Planet Rossi complains that the “IH faction” believes the IH depositions, as sworn testimony, but not the Rossi depositions. But similar statements are not being compared. Rossi’s depositions are not full of lies, though some answers are evasive. He has admitted much. Rossi, with his attorney standing there, is much more careful in his depositions than what he has written in the past, or his sock puppet claims on JONP and elsewhere.

            This is the legal principle. Testimony is presumed true unless controverted. If IH testifies to X, under oath, it is “truth” unless shown to be otherwise. The same is true for Rossi. And if we are careful, we can often find “harmonizing interpretations,” i.e., an imagined set of facts that makes both testimonies true, though it may make one or more of the misleading. Motions for Summary Judgment can be difficult. Rossi’s MSJ is largely based on the idea that all IPH claims are to be thrown out, based on an allegedly defective 30(b)() deposition. In context of the objections that IH had made, that were not taken to the Magistrate, I don’t see that deposition as defective, as Rossi could have asked the questions of Darden or Vaughn, who would have actually known the answers. Instead the rep for IPH and Cherokee was Fogelman, who was actually the best witness. Was he properly prepared for all the questions? I have seen no examination of this, the Magistrate’s finding that the deposition was defective, which was to be remedied, and that IH would pay costs, is based on a hearing for which we have no transcript yet. But it looks incorrect to me. That new depositions would be scheduled was a good result, but does the Magistrate have the authority to extend discovery? I think that the discovery deadline must allow for remedies to address unresolved issues. That’s how I’d take it. If a party doesn’t like that, then, they could take it to the Judge.

            There are many documents that have now been provided by Rossi that place him in a very poor light. However, Planet Rossi has strong rose-colored glasses.

        2. Quote from above;-
          “Now, consider this: IH has proven their commitment to “crushing the tests.” If and when they do come out with an announce of a successful technology, will they be credible?”

          My answer is, unfortunately not, no matter how well-intentioned they are.
          The reality is, I never placed much weight on their involvement as being an indication of whether Rossi had something workable.
          Had they been someone of the likes of the many large and reputable companies which the Rossi cheer squad were proposing as being his new, all powerful American partner, such as Siemens or National Instruments and many others, I would have taken that as a far greater endorsement of his supposed technology.
          However, I argued that the most likely partner would be some relatively small enterprise with little or no in-house scientific knowledge and abilities. As we now all know, IH were exactly that. They had very little ability to examine the ecat with their own staff and were totally reliant on others for advice. They were the perfect target for Rossi because all he needed to do was to perform one of his well rehearsed and closely controlled performances in front of some well-lettered names, and then ride along in the wake their report for as long as possible, until the wheels fell off due to the non-production of a working reactor.

          So, with respect to the credibility of IH, I don’t think much has changed. They are venture capitalists, not a scientific research facility.
          Thus if they ever announce they have a working LENR device, I will place no more credence on their claim than I did on the claim that their involvement with the ecat confirmed it’s validity.
          However, if they add to their claim that it has been independently tested by a reputable third party organisation, and it has been proven to be real, then I will hold that in much greater esteem, provided of course that the name of the organisation is made public and their report is also made public. Even more so if it is tested and proven by multiple authorities.
          Even now, I would apply the same condition to Rossi.
          Even though I regard everything he says as suspect, if anything he produces ever comes with a report of validity from a trustworthy third party, my opinion and position will change in a day.
          However, from this deep down the rabbit hole, I find that most unlikely, because I believe the main focus of his research is into methods of deception rather than methods for producing LENR.
          Just my opinion of course, but so far it has been far more accurate than those with a less critical view.

      2. @Pweet. That is my view too. But will it be the Court’s? Though it looks like it is not relevant what is the Court’s view on that specific issue at the moment.

  2. I’ve just read the Rossi SJM through. It is interesting.

    As I see it there are a whole load of legal issues – what you might call technicalities – the contract status, whether the test was the GPT based on 6 cylinder unit, etc. I’m not competent to say whether any of these will hold, or be viewed as waived due to IH not obviously objecting.

    Then there is whether the test was considered the GPT by IH and Rossi. Rossi’s case is that it is similar to the GPT (same period of 350 or 400 days) and was referred to as a (350 or 400 day test) by IH. Further IH stated they did not care about the customer. On the other hand the documentation on the test does not mention GPT, nor does IH ever call it that, further Rossi’s letter asking for it makes it clear that the purpose of the test is customer testing – not the GPT. I view this matter as unclear. In fact deeply unclear.

    Then there was the matter of FDUTPA. Rossi’s SJM dismisses this as follows:
    Test being wrong – no evidence
    Customer – no need for customer and IH put no reliance on this. Therefore no need to consider Rossi’s lies in this area.
    Consumers – IH & IHP not a consumer therefore this does not apply. these is a legal point and I’m not qualified to judge it. Morally of course it should apply.

    This, I think, is the heart of the issue (though I might well be wrong legally). A lot of the no evidence statements from Rossi’s SJM state that IPH has no evidence. But that is ingenuous – IPH deferred to IH for everything and there may well also be other evidence from discovery. I’m a bit unclear about this. Do IH get the chance to answer or challenge these SJMs? If not is the Judge supposed to wade through all the evidence and see whether “no evidence” statements are correct?

    WRT the customer I think (at least morally) the Rossi SJM is correct that directly IH did not much rely on the customer. I don’t think they much cared about the whole test. But, indirectly, they would have relied on this in a number of ways – to allow testing under Rossi controlled conditions – to (perhaps) be positive to investors, etc. And Rossi lying so blatantly about this shows some intent from him to deceive. You’d hope that counts legally, though I’m not sure whether it does.

    I also get the impression that IH were, at the start of the test at least, very optimistic that Rossi’s stuff, and therefore the test, might well work as billed. I think they were careless about the possibility of Rossi doing what he has done…

    1. The Rossi MSJ is doomed. Let me get that out of the way. Rossi is wasting tons of money on lawyers. Nice try, though. The IPH gambit was brilliant, but brilliantly devious. In fact, Fogelman was the best person to testify for Cherokee, and apparently also would have handled any transactions with IPH. This was a discovery issue, but the IH objections to the Rossi submission for the IPH deposition did not go before the Magistrate. When they did, the Magistrate ordered IPH to submit to a new deposition and ordered costs for Rossi. One might consider that a Rossi victory. But Pyrrhic. His MSJ depended on there being no new deposition, on the theory that the IPH deposition would be ruled to be a 30(b)(6) default, with then the entire IPH counterclaim being demolished in one fell swoop. A Hail Mary pass.

      And IPH might appeal the costs thing. Rossi wasted his time with that deposition. IH should have, I think, immediately submitted another witness, unless the issues were covered in the other depositions, as Darden and Vaughn. Legally, IPH should be treated as IH, as a wholly-owned subsidiary, almost a legal fiction (but serving possible future purposes).

      I see evidence in the record that IH was suspicious of Rossi from the start, but knew that any expression of it would result in Rossi running away, and Rossi was a fast runner. The mystery to me remains Rossi himself. The obvious story, from the beginning, is “con artist,” but possibly the most sophisticated artist I’ve ever heard of. Not the most “successful,” Jed points out how clumsy his fakery was, and Krivit capitalized on the Obvious Obvious, but … the sheer complexity of the megawatt plant was overwhelming. He built the original one, apparently with his own money (though he did get money from Ampenergo, I think. The Ampenergo people were his long-time supporters.)

      Now Rossi is telling the story of toiling away, long hours, in a sweltering Plant. He puts it in his MSJ, paragraph 51. Rossi’s fingerprints are all over the MSJ. His lawyers are apparently, “Whatever … Andrea, a reminder, last week’s billing isn’t paid yet, but don’t worry, the retainer can still cover it.”

      Now, a hint: that citation to the Rossi MSJ pops to the actual page, and the paragraph reference makes it crystal clear. In the study I am working on — now for the IH MSJ, because I realized that the Rossi POC (pile of c…) may become moot rapidly, and so what if I wasted about two days importing and formatting, it benefits me because I become familiar and can pop up something like that reference to sweltering (actually it was this: “Rossi himself on most days spent over 16 hours per day for over the course of the 350+ day test in an extremely hot and uncomfortable working environment, performing the GPT. See Ex. 1 ¶ 22-23.” And, here and on the study page, I link to Ex 1, adding [#page=[n]” Exhibit 1 is image-only. I can see I’m going to need that OCR’d. Maybe someone will do this for me, proofread or not.
      Exhibit 1, the Affidavit of Rossi, is pure Rossi. I don’t see any clear lies, but there are statements that might be lying by intention, or with plausible deniability. ¶ 15. “Defendants did not advise…” is clearly false, or there is other sworn testimony that was fantasy or deception. But Rossi might well testify, called to account for this, “I don’t remember that conversation.” There is plenty there that I might consider false, but that’s interpretive or conclusory.

      I noticed for years, already, that Rossi created impressions with his statements that were false, but then could, later, point out that he had not actually said the false thing. “Heh, heh, you misunderstood about Johnson Matthey.” Apparently a lot of people “misunderstood.”

      Notice, in the MSJ “performing the GPT.” Right. Rossi was performing. Not Penon and not what was apparently originally contemplated, IH. The impression I have from the Agreement is that IH would perform that test, with Rossi assisting as needed, but under observation, and with an ERV. Rossi’s documents assumed that “once an ERV, always the ERV,” even though it would be colossally foolish to have the same expert review both tests, for $89 million, an expert hand-picked by Rossi, where Rossi refused to allow independent, reputable engineering review. The Agreement was worded to allow that interpretation, though, but the probably IH supervision would have allowed them to have independent experts present. Hence the Doral gambit.

      Also not much noticed yet: Ampenergo deliberately did not sign the Second Amendment. This was not a mere technical failure, it was actual disagreement. Ampenergo was now an investor in IH, and didn’t want any Rossi flim-flam. I have information that they still, after the filing of the suit, supported Rossi, but they knew, I suspect, that a badly flawed test would be suicidal. Rossi knew of this as well, from the documents I’ve seen. To put this on the blog, I’ll need to have it all set up for easy access to evidence. This will take me weeks. So far, I haven’t seen IH making this point, they are focusing on the simple document signature failure plus the Six Cylinder Unit issue. Legally, those may be sufficient. The deliberate disagreement by Ampenergo — not some mere appendage to the Agreement, but essential — totally blows the Second Amendment out of the water. Rossi was going to have to deal with IH in good faith, or they wouldn’t support it. Rossi took another path, and his sweltering in a warehouse sitting next to a 20 KW heater is only the first part of his burning. It is not only liar’s pants which are on fire.

      “Lie” is not defined by text, subject to interpretation and reinterpretation, but by intention to deceive.

      1. It is interesting IH don’t go for the signature issue. Either:
        (1) Some legal issue, or consequence of it, makes it a bad idea
        (2) They are severely length limited, had to cut some things out, and went with what lawyers reckoned was their best shot
        (3) For (again) legal reasons they wanted to have additional matters to Appeal the MSJ decision at some point in the future when they would have had more time… (Assuming they can do that introducing new evidence).
        I don’t know…

        IH would no doubt have been suspicious of Rossi. But also encouraged by the Lugano test and inclined to be bullish. What I don’t understand is not the natural justice case – obvious, since Rossi is transparently duplicitous and unreliable in his behaviour – but the legal case. I’m inclined to think Rossi is on a hiding to nothing here since he obviously does not listen to legal advice… But I’m not qualified to judge.

  3. Comment Bob Higgins on Lenr Forum

    Why do you think that Woodford based their “investment interest” on the Rossi asset? Because of the prospect of near term product sales should the Rossi technology pan out. IH was meant to be an engineering venture. They invested the $11M to determine if the Rossi technology could be brought to product. The record seems to show that IH determined that they could not bring it to product with what Rossi had shown or given them. The GPT was meant to demonstrate that the technology had been matured and IH was ready to take the technology to product. I don’t think IH is ready to take any of Rossi’s technology to product now – so the GPT did not happen. The contract was phased like many other such advanced technology licenses with payout milestones based on development milestones.

    Most such contracts reserve the big payout for not when the inventor says, “I did it”, but when he has (with the design team) developed and installed a prototype manufacturing line and built devices like the product to be sold – built by people who will be manufacturing the product. At that point you are demonstrating that the technology is ready for product. This usually means that the inventor will have to work closely with the engineers developing the product prototype design, work with them while observing the prototype manufacturing, work with them to debug the prototypes, and work with the engineers on the design changes required to fix the design/manufacturing problems found in the first prototype run. Prototype runs are normally continued until a build comes back with nearly 100% functional devices. The next step is a larger “pilot” build by the same people with an updated manufacturing process. The pilot products are tested for regulatory and specification compliance, and for reliability, safety compliance, and accelerated life. You go into a pilot run expecting everything to pass. Regardless of what the contract says, this is how new technologies are brought to product. I don’t get the feeling that Rossi was behaving in a manner at any time where he was ardently working to get his technology into a product. Without that, Rossi doesn’t deserve the next milestone payment.

    The time for coming to product phase with IH’s other investments is much farther out than it would be if Rossi had what he claimed and worked as an engineer to get the technology into product. I can understand why Woodward was disappointed.

    1. But in my opinion, Rossi well knew the device was NOT to be sold into the market because right away it would become obvious to all that it didn’t work. So whether IH paid out the rest of the money or not, nothing was going to be produced for the market, and I believe Rossi knew that.
      Although there is the possibility that had Rossi got the remainder of the 100 million, he may have considered that to be the ‘end game’ and simply taken the money and run. A hundred million would last most people their entire life. Unless of course, they gave most of it away to cure children sick with cancer.

      Had IH paid out the remainder, another delaying tactic could have been employed to delay IH going into the production phase. That might have been the purpose of the original announcements of the ‘Curried cat’, later renamed the Quackecat X.
      At the time Rossi said on his blog that the Curried Cat was a derivation of the ‘Hot cat’, and as such, it was part of the IP sold to IH. That angle seems to have been dropped now and the new Quackecat X is claimed to be a completely new and separate technology from the stuff IH bought into.
      I would think that is being said now solely on the basis that it suits the current situation.
      In any case, it hardly matters what it’s based on because I would fall over from shock if there is any more validity to the latest innovation than there is to any and all of the earlier magicians tricks.
      Not that this has any real bearing on the court case, but you have to wonder what would have happened had IH coughed up the rest of the cash.
      One thing of which I am sure, we would still be no closer to ecats on the market for ‘customers to decide’ whether they worked or not.

  4. Sam,

    What about the Doral conditions and work do you think would enable research leading to some very different device?

    For me the clear effect of the test conditions is as Rossi stated in his initial letter to Darden, that it would, if used by IH in that manner, provide wonderfully good PR to encourage ill-informed investment. IH had no interest in this, something that Rossi I think did not understand.

    Of course IH could never use this pseudo-customer who could not be contacted or checked, and who appeared to be a Rossi shell company, as an inducement for investers. But it is exactly what Rossi would do.

    A big distraction, I’d think, from research. Rossi himself said he could not help IH with getting Lugano-style devices to work since the test kept him too busy…

    1. TTH,
      This is the crux of the problem. While IH blew it with regards to diligence, they sobered up to the point that involving investors that have that ability would be ill advised to use a pseudo-customer.
      I think pseudo-customer is being generous. I also think that the heated argument around the table had more excess heat than the Ecat.

      From exhibit 4
      “one explicit conversation that comes to mind is a
      16 conversation that Tom and I had with Andrea around the
      17 kitchen table at Triangle Drive. Triangle Drive is where
      18 the initial facility where Andrea worked is located. And
      19 the basis of that conversation was to say to Andrea, you
      20 know, Look, you think things are going swimmingly. We
      21 don’t believe that is the case. We can’t replicate it.
      22 You think it’s — the results are fine. We are not seeing
      23 the same results.
      24 And it became a heated conversation. And Tom
      25 eventually, you know, after he kind of pounded the table”

      It is a shame that we do not get the full conversation but $380 plus an hour becomes real money even for deep pockets.

      1. Rigel, I urge you to drop all preconceptions about what IH did, they are confusing you. Darden is not some ordinary venture capitalist. The opinions IH had about Rossi were not uncommon among those with the greatest knowledge of LENR. Basically, “Looks like a con, but maybe he has something.” They decided to find out, and, having made that choice, they then implemented it, and they were willing to spend $20 million to do it. To find out. They found out, at least as deeply as was possible with $20 million.

        I know people working on social transformation, at very high levels, and with power, and … IH has deeply impressed me. To be sure, in studying their MSJ, I’ll put on my skeptic hat, and I don’t like some of what I’ve seen, but I also decided, years ago, that if I met a Perfect Master, I would surely disagree with him on this or that. In the MSJ, though, what I’m seeing is not exactly Darden, but Jones Day. There is a difference.

        Reading the depositions, which is best, of course, when we have the full deposition, not just cherry-picked excerpts, one can get a sense of the being of a deponent, their presence.

  5. Rossi’s lawyers have chosen very carefully which undisputed facts they present, and carefully ignored the central core of the problem. I’m sure they could do a good job in defining black as legally white, by choosing the conditions under which they are to be distinguished (say use a blind man in a coal-cellar). Reading this reminds me that Law is not about finding the truth but instead about winning the argument by careful use of words.

    I see a valid reason for Darden et al not being keen to tell Rossi too early that they’d failed to make anything work using the IP they’d been given, and that instead they’d found that the measurement techniques specified by Rossi over-reported the heat output. As far as I can tell it was Rossi who insisted upon the year-long test as “proof” that the system worked – failure to work would be pretty obvious in the first few hours when correct measurements were used, so taking a year to do it is, to my mind at least, simply a delaying tactic to give Rossi more time to find something that did actually work. Back to the singing horse again.

    1. Hi Simon

      I have thought the Doral test should have been looked
      at as research on the Ecat.
      And indeed AR might have found something that works
      in the Quark X when working at Doral.


      1. Sam – remember the old saying “fool me once, your shame; fool me twice, my shame”? Delightfully misquoted by G.W.Bush at one point. I don’t really expect the QuarkX to be any more real than the others, and if you’ve read Gullström’s paper (written with Rossi as helper) you’ll see why I don’t have much hope for the measurements being correct. Somehow, people seem to be misreading the “current through 1 ohm” measurement as telling you that the thing consumes all of 100mW or so, when in fact that’s what’s consumed in the sense resistor and tells you nothing about the voltage applied to the device itself. The temperature is calculated by looking at the radiated energy over a narrow range and comparing it to black-body radiation. Try this with a Hydrogen-filled discharge lamp with a few other impurities in the plasma and see how hot it gets relative to the blackbody radiation. Not that you’d want to touch it because of the voltage, but a thermometer in contact would show a much lower temperature. We thus have the input power under-reported and the output power over-reported, and I’d lay bets the COP is 1.0 – just as much power comes out as is put in.

        So no, Rossi may have found something to delight his followers, but it’s pretty unlikely that you could use it to make a cup of tea any quicker than a standard kettle of the same input power.

        1. There are a lot of fools on both sides Simon.
          I still hope the gang of fools get there act together.
          If not people will say Universities know best or
          Goverments or big companies should do this work.
          They all know how to cover there foolish mistakes.
          Come on AR and TD. lets show that regular people
          can get this done.

  6. Thank you Abd,
    I have been wondering if you have “been buzying” around reading the documents. As far as I am concerned you have the most readable thoughts based on your ability to slough through this that I have seen so far. Dewey was right in that it was a big week. I admire your ability to drill down then both provide some legal background and some Abd style insight. I wonder how much folks from LF forum hit this place. I would guess often, even though you are a pariah. I would ask them to contribute here some words also.

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