Since IH signed away their motion to dismiss grounds, what now for IH?

  • Hi all


    My thanks to Engineer48 for bringing to my attention the following
    Section 5 of the contract see image states it only requires the signature of IH to grant an extension of time to the Validation period. Since IH signed said extension Rossi and Leonardo completed the contract in the stipulated time. The argument that other signatures are required is invalid.


    As always to verify the image text here is the original source via the court docket is here:
    https://www.pacermonitor.com/p…ossi_et_al_v_Darden_et_al
    So that you can peruse the originals ;)




    Kind Regards walker

  • Hi all


    The contract part 5 clearly states the following:


    "...Guaranteed Performance will not be deemed achieved unless such written confirmation is received or waived by the Company. In the event Guaranteed Performance is not achieved within the time period set forth in this section (as such time period may be extended by the Company in its sole discretion)..."


    My use of bold in quoted text


    IH via Darden as the company signed. Did not even need Rossi's Signature.


    Kind Regards walker

  • A comment of Matt Lewan :


    "Ok, so this is what I heard from sources having visited the plant and talked to the customer (who could of course be an actor, playing his part in a scam...) – that JMC set up a production unit of the same kind that they already have in UK, although smaller. Given the experience from their units in the UK they knew perfectly well how much energy should be consumed and how much energy was needed to run the unit. At least one engineer was sceptical in the beginning, but soon found out that the consumed electric energy was much less than expected, using the E-Cat plant as energy source for the hot steam. And the customer was happy as a lark with this.
    I don't know which the UK based company is, but I understood it's not Johnson Matthey (which would have been a nice coincidence, since Johnson Matthey apparently once provided the working palladium samples to F&P), and as far as I know it has absolutely nothing to do with Hydrofusion."


    So it seems that the customer is alive and well, and also very happy about the performance of the 1MW e-cat :-)

  • Hyperman

    With origins similar to Superman, he was rocketed from his dying homeworld of Zoron to the planet Oceania where he is found and adopted by loving parents, the Kings. As with Superman, he would become the greatest hero in his new home.


    Naaa, no resemblance whatsoever!! Its not the same planet!


    Best regards
    Frank

  • Hi all


    In reply to Tom Paulsen:


    IH's own Motion to Dismiss characterise the extension as such, and their argument against it was that it needed other parties to sign, when in fact clause 5 makes clear that only IH needed to sign, as it was a right and benefit of the contract to IH not Rossi. IH chose to exercise that right and so signed away the grounds of their motion to dismiss.


    Kind Regards walker

  • A question for planet D'eaver



    How could IH very expensive lawyers miss this?


    Best regards
    Frank

  • @barty
    This is probably the effect or sincerity, because any professional community manager would avoid that :D


    Sadly this thread frighten me. Dewey is behaving like an unhappy enthusiastic investor, owning insider data laughing nervously at people proposing alternative positions because they don't have the same level of information.
    And yes, Mats have talk to a happy client, who if Dewey is sincere, is thus an actor.


    I don't know what is the most frightening...
    That Dewey, that I've seen at RNBE2015 as an enthusiastic VC, making some communication "maladresse" with even more enthusiastic players, is just an actor paid by oil conspiracy through APCO agency...
    or that Rossi, known for his permanent sincerity, his precision in communication, his flawless demo, have hired an actor to play the client...


    I prepare the rope to hand someone by his B***s
    have to find who to hang. In theory we have to wait for the judge.

  • I find it very interesting/funny to see how childish <a href="https://www.lenr-forum.com/forum/index.php/User/1580-Dewey-Weaver/">@Dewey Weaver</a>'s reactions become if someone is challenging his claims.


    It feels like he has a lot on stake to loose.


    I'm still waiting for that flying egg he so boldly announced as a "response" to my question why IH won't give up Rossi's worthless and fraudulent IP. His reactions are so psychologically telling that it is almost cute. I just wonder why IH still allows him to post here. Or maybe they don't even know about it?


  • Read the first sentence. The GPTs (1 year test) success, was predicated on matching, or exceeding the prior "validation tests" performance. If the validation test failed, the deal was dead. That was IH's DD. It was executed by Penon, as he was the ERV. It took place in Italy, and after "successful" completion, to be shipped to IH...at Leonardo expense. It was shipped, as IH claimed taking delivery.


    The validation is described as it had already happened..."GPT contingent upon plant operating at (or better) at which validation WAS achieved".


    So what I am saying is that it appears the validation was successful. The "30 unit plant" worked >6 COP. Yes, sometimes afterwards, as Abd and others surmise, IH had second thoughts obviously as they state they have been unable to substantiate Rossi's technology. But initially it was considered successful and allowed the agreement to go on to the GPT. Here is all you need to know about the validation:


    https://animpossibleinvention.…sdce-16-21199__0001-3.pdf


    Does not change a thing, but interesting to know.

  • IH's own Motion to Dismiss characterise the extension as such, and their argument against it was that it needed other parties to sign, when in fact clause 5 makes clear that only IH needed to sign, as it was a right and benefit of the contract to IH not Rossi. IH chose to exercise that right and so signed away the grounds of their motion to dismiss.


    From §5 original LA:

    Quote

    as such time period may be extended by the Company in its sole discretion


    A time period may be extended ...

    From the MTD:

    Quote

    Compl. ¶ 59. Plaintiffs’ purported “Guaranteed
    Performance Test,” however, was not commenced until “on or about February 19, 2015”


    I hope, that you agree that the extension of the time period for an already running test (that's also very clear by using "time period" not "point in time") is not the same as a delay of the start date for the test.


    Therefore, your argumentation is pointless.

  • Is it really possible that someone cannot differentiate between the extension of a test period and the commencement of a test?

    This is obvious and is not unsurprising for human beings. We believe what we want to believe, then we look for proof of it. It actually takes high training to move out of this. The scientific method is designed to step out of this deep habit. And scientists still fail to practice it, all the time, and become caught in belief.


    The Agreement in the section cited is about extending the test, not about commencing it. The circumstances invovled would be obvious. Something goes awry. A hurricane hits. IH can give more time to get the device up and running again. One of the flaws in the Agreement was rigidity, by the way, it bristled with opportunities for breakdown. Who wrote this beast?


    There is a reason why we don't hire Walker as a lawyer and why Walker can't get published in a peer-reviewed journal or any reasonable edited publication. Notice that the title is not a question asking about this. ROA assumes his sweaty conclusion and asks how this will impact IH> Answer: Not in the least. It's irrelevant.


  • You often require evidence from Dawey. Do you have any evidence that you interpretation of the agreements are the correct one? Or is this just your personal opinion? And if so do you have any relevant education or experience to back it up.


    Everyone is entitled to express their opinion but you seems so certain both above and in the title of the thread that I have to ask.

  • This is getting downright hilarious and is confirmation that better schools are needed on Planet Rossi.


    I find it very interesting/funny to see how childish @Dewey Weaver's reactions become if someone is challenging his claims.


    It feels like he has a lot on stake to loose.

    "It" doesn't have feelings, people do. This is what Dewey wrote:


    Quote

    This is getting downright hilarious and is confirmation that better schools are needed on Planet Rossi.

    This is an expression of Dewey's own response, in turn. It's utterly unsurprising, given his clear and acknowledged position. Underneath this is amazement at the shallow understanding shown in the thread topic here. Lack of depth and clarity is very, very common, and he's pointing it out. It's not all on one side, but most skeptics don't show up here. Joshua Cude is right about one thing, the mainstream mostly ignores LENR. People interested in LENR who are not actually involved in the research often form quick and shallow opinions. To truly understand the LENR field can take months of study. Who has time for it?


    Studying the Agreement and the Complaint and the Motion to Dismiss also takes time. Why take the time if one can just shoot one's mouth off with a few minutes of "study"?


    Dewey's response was not "childish." It's more about, possibly, adolescent in-your-face defiance, perhaps. Most adults drop this, most of the time, but something about internet debate brings it out.


    So if the response is thought "childish," this says more about the writer than about Dewey. Dewey has more information about this case than probably everyone else here, put together. He has an actual investment at stake, in a private fund, an LLC. He is not a principle in the LLC, AFAIK. (Nor is he an authorized representative). But he is far closer to the case than anyone else writing here, unless RB0 is Rossi. That I decided to treat RB0 as Rossi was just an assessment of probabilities and effects. I kind of hope RB0 is Rossi. I could probably investigate and come up with something more objective, but, frankly, it's not worth the time, and nobody is paying me to do this.


    We could say that for Dewey to participate here at all is "childish." One could say that about me, as well. Except that at my age, to do something "childish" is a positive value. Yippee! I live with a self-expressed teenage girl, who doesn't take shit from anyone.



    http://www.directlyrics.com/bi…fuck-with-you-lyrics.html


    I asked her about this song when she played it in the car. "I like the tune."


    Times have changed.

  • Start date is moot, that is what the clause of extension is for, only that the date from required test commencement to finish of test is within the extended period is relevant.

    This is not what the clause in the Agreement is about. It is about a test that has begun already being extended by consent of IH. Now, it's true. If IH agreed to extend the test to, say, March 2016, the start date would be not so relevant. What would that mean? That 350 days of operation would be enough for a test lasting almost three years? I don't think so, so start date is also relevant.


    That consent, to be relied upon, would have to be in writing. The Complaint does not allege that this writing exists. What is alleged is the 2nd amendment, which explicitly requires the signature of all parties. It is enough if one copy has the signature of all parties. Does that copy exist? It was not so alleged in the Complaint. And so the defect stands unless it is repaired. This was a mind-boggling defect, and it is simply no surprise that IH attorneys pointed it out.


    And it stands no matter how many dance and shout on the internet that IH is Wrong. Rossi, now, needs serious legal help, not fluff on the internet. Anyone want to start a Rossi Defense Fund? He went up against people with, shall we say, ample resources. So if people really believe that Rossi is for real and is being unfairly cheated, to the detriment of the Energy Future of Humanity, how about putting your money where your mouth is?


    I think it would be great if Rossi is skillfully and effectively represented. Just because his attorney, so far, appears to be a dolt, doesn't mean that Rossi is wrong, just that he is eccentric and reactive, which makes him a sitting duck. IH massively called his bluff, we could say. In the end, we will all benefit from this, I suspect, however it turns out.


    In my view, the field was not ready for venture capital. Basic scientific research was needed and is still needed. That is much less expensive than development efforts, and possibly hundreds of millions of dollars have been poured, already, into LENR from that point of view, which has failed. The basic science is solid and needs better exploration of the parameter space, starting with what is known. If that is done privately, it is far less powerful and efficent than it being done publically. We need nonprofit support of the field, from government, from charities and corporate charitable giving, or from the public directly.


    However, this sense of "not ready" wasn't so clear because of all the Rossi claims. So it was necessary to address that, and the only way to do it just might have been what IH did. Cooperate with Rossi, throw some money at him. Then see what happens. When we are talking about a trillion dollars a year in lost opportunity cost, $11.5 million is not even pocket change.

  • So Ampernago didn't sign the amendment. Are they upset that the test got moved? Or maybe IH thought the test would never happen because Ampernago didn't sign?


    IH didn't seem to have any issue starting the test even though they didn't get Ampernago's signature.



    My prediction is that this won't be the "gotcha" that the IH lawyers think it is.

  • Rossi is insisting on strict performance, so ... IH insists on strict performance. The fact is that Rossi failed to get the Ampenergo (get the name straight, eh?) signatures on the document. Even though the signature of all parties was required. I have written that Rossi might be able to recover. As seems to be common on Planet Rossi, LENR Calender seems to believe he can read the minds of legal experts. This much I know about lawyers at this level. They don't GAF. They just do their job. They don't think at all like LC imagines. If they did, they would suck in court. Attachment shows, people can read it. Want to see Rossi take a complete nose-dive? Convince him to fire his attorney and represent himself in court. Inventors have done that, the stories are famous. They do not do well.


    Ampenergo is an independent company. But Rossi also failed to sign for Lenonardo. It was really sloppy.


    IH would not have known that Rossi didn't have the document signed until Rossi filed it with the Complaint. How could they possibly know? It was in Rossi's possession, I assume.


    This is not the only defect. Rossi also did not allege a document signed by the parties setting the date for the GPT. That was necessary according to the amendment. This one, IH may have known about. "So he wants to do this stupid test. Okay, let him. If it works and we are satisfied, fine. If not ... we don't have to pay. Look, I've dealt with a hostile opposing party who was ripping my wife off. But they made a mistake in a calculation that effectively refunded some of it. Did I point out that mistake? What do you think? Years later, they figured it out and asked her for the money. But the agreement they had forced on her, threatening to tie up her money for years, provided that it was a final settlement, as stated. No corrections, no more claims, end of story.


    So, end of story! Not my job to protect someone who is not dealing fairly.

  • LC - the MTD is a technical response to Rossi's very sloppy civil complaint. We'll soon see what parts of Rossi's complaint survive this phase then the real legal war begins. If any of his litigation remains intact after the MTD phase, then Rossi has to survive numerous legal issues to get to a winning position. He essentially has to run the table from break to get to any kind of legal win. Based on his past, the documented deception, the mistakes that he has made and his ongoing inability to understand the reality surrounding him - he does not stand a chance of winning anything and has a much greater chance of losing everything based on his refusal so far to deliver on the $10M paid-up license.

  • Dewey


    If any of his litigation remains intact after the MTD phase, then Rossi has to survive numerous legal issues to get to a winning position.


    Don't forget, Rossi et al has his case judged before a jury who will not be expert in contract law, so while they will be influenced by instructions given by the judge, they will make their own decision, there will be a natural bias towheads David and against Goliath.


    Best regards
    Frank

  • Frank - what do you think the chances are of Rossi's getting the jury instruction phase?
    I really am looking forward to what Rossi's contract law and thermal experts are going to have to say about his contract and "ERV" acumen. He needs to budget about $100k for each expert and both of those are going to be highly entertaining depositions. While we're on the subject, the Rossi deposition is going to be the movie event of the decade.

  • We'll soon see what parts of Rossi's complaint survive this phase then the real legal war begins.



    Dewey,


    Once the war begins in earnest, Rossi may have a few cards he can play that may give IH some troubles:


    -The 30 Apr/1 May 2013 "validation test" was successful for one.


    -Then if the ERV report for the GPT shows COP50 as he claims, and Penon stands by it in front of the judge, that makes two successes IH has to refute.


    -Lugano is a little more tricky for him, as there are several informal internet peer reviews that show it could have been successful...albeit at a lower COP than the testers concluded. But those reviews may not hold the weight the official report does. Especially so if TC and the others refuse to put their reputations on the line by testifying for IH, and against Rossi. I would suppose IH understands how pivotal this could be, and is the reason Darden went to talk with the Swedes. Most likely to try and convince them they were wrong. I would also guess that is why Rossi did the same, but to reassure them they were right. It will interesting to find who was the more persuasive.


    -Fabiani could hurt also, as he still "publicly" supports Rossi , as his recent comments to Lewan attest, and will most likely counter the supposed *damning proof* of fraud you say IH has gathered to prove. If Barry West does the same (sides with Rossi)...well, Fabiani/West will be hard to overcome. Although you have alluded that BW is on your side. We shall see.


    Anyways, it may be a tougher road ahead then you let on. If Rossi is a fraud, and I am 80% sure he is, then I hope you guys win and then take the fight to him.