Judge ALTONAGA quotes ERV reports in her ‘background’ summary.

Quote from frankwtu

Abd Ul-Rahman Lomax

Are you saying the ERV report is likely to contradict what the Judge has reported and is in fact garbage as Jed suggests?

Generic answer, I have not said what I did not say. Jed's comment is not relevant here. Whether or not the report is garbage (did Jed say that?) is irrelevant. The judge simply quoted the Complaint. You are looking for meaning where there is none. There is no information in the Order that tells us anything about the Report, other than what Rossi said in the Complaint. And "Garbage/Not-Garbage" are not legal terms. The report is relevant to the Complaint because without that report being alleged as it was, there would be no $89 million due. And that is really all that we have. The claim of Rossi. We have no other public information about the Report.

Jed claims to have seen data that may have been from the Report, and from that, he has come to some conclusions. That's Jed's right, and he can tell us what those conclusions are, but none of this is of great weight, unless one decides to simply trust Jed and his assessement of evidence that we cannot see and know not the provenance of.

It is possible that we will never see the Report. That will depend on details that are not a matter of public knowledge, AFAIK, and choices that the parties make. I pointed out that Rossi could formally and publicly request IH to release the report, and that would put the shoe on the other foot, so to speak. He has not done that.

However, neither party is highly motivated by "how things look." Neither one is your ordinary blogosphere junkie.

Quote from frankwtu

But with the 'Judges report' of the ERV confirming 'success' will this require the ERV report being placed in the court docket at some stage and being challenged by IH, or are there reasons this might not happen.

The "Judges report" is just her summary of what seemed relevant from the Complaint on this. It is not any kind of confirmation. Rather, this is an allegation in the Complaint and would presumably need to become evidence in the case to be used to establish Rossi's alleged right to payment. However, this might simply be stipulated by the parties, that the ERV certified performance. If they disagree on that point, the ERV Report becomes highly relevant.

Planet Rossi (and many others!) seem to believe that the main issue in the case is whether or not the device actually performed at the specified level. That is Rossi's point of view, perhaps. It is not the IH view, I suspect.

However, on the face, the legal issue is only, Did the ERV certify or not? If he did not, this will be a very short case! (Unless IH counterclaims.)

My operating assumption is that he did.

At that point, then, barring a claim of fraud or expert incompetence (which is possible), the case then turns to the underlying and fundamental issue, the IP transfer. Planet Rossi is claiming that IH is lying about their inability to make devices that work when independently tested. Rossi himself has not claimed that (AFAIK).

Because the defendant will likely pursue multiple independent lines of defense, they may well also go after the ERV Report as being based on Penon's incompetence, corruption, or alleged vulnerability to Rossi fraud.

Jed has focused on incompetence. For the rest of us, this cannot be confirmed without seeing the Report!

As to Rossi fraud, there are various rumors that may become allegations in court, and then be pursued through the presentation of Exhibits (as with the Answer, coming shortly, most likely unless IH appeals the Order), through Discovery, which includes depositions, i.e., sworn testimony, or testimony in the trial itself, if it comes to that.

In one comment somewhere, a writer imagined Jones Day presenting complicated and boring testimony to a jury, with their eyes glazing over. This is essentially thinking of one of the top legal firms in the world as being utterly incompetent. I rather doubt it!

Quote from frankwtu

Abd Ul-Rahman Lomax wrote:

Abd Ul-Rahman Lomax wrote:

Abd Ul-Rahman Lomax wrote:

So the IH people are contemplating this may not come to trial. I can understand why if imagination and rumors is all they have to go on.

From a series of snippets Frank derives an unrelated conclusion, about what "IH people" are contemplating. I am not an "IH person," and I've said this again and again, to apparently deaf ears.

A high number of federal court cases do not come to trial, because sanity prevails and they settle. That was merely pointing out that this might not come to trial, and if it settles, we may not get to see all the juicy bits.

As to "all they have to go on," no, IH obviously has far more than that. I was referring to what we, the public, are looking at. They will not make claims in court based on rumor and speculation or imagination. Rossi has, already, in the matter of Woodford and the $50 million.

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PS:
Abd Ul-Rahman Lomax wrote:

What is an 'operating assumption'? Are all other assumptions not so categorised 'non operating' That explains a lot.

An operating assumption is a theorized or inferred fact or declaration that is used in routine thinking. Here, my "operating assumption" is that the ERV Report did certify performance, as Rossi claims in the Complaint.

What is different with an ordinary assumption from an operating assumption is that the latter is very consciously an assumption, call it a rule of thumb, or something to be temporarily relied upon, and to be dropped upon the appearance of any contrary information.

I have seen no evidence at all that the ERV report was not positive. So I assume, pending further evidence, that it was. IH and Rossi and Penon presumably know the truth. The document itself, if it were to be challenged, would probably need support by testimony, presumably by Penon. If that cannot be obtained, because he decided to take a long vacation in Cuba -- nice place! -- then they might find another way.

There is another example of "operating assumption" above. "IH and Rossi and Penon" presumably know the truth. Very likely, they do. There is a tiny possibility that one or more of them don't. Clear? (A raccoon ate the IH copy and Rossi and Penon did not return phone calls. Impossible? I reserve impossible for stuff that is *actually impossible,* not merely very unlikely. Even then, "actually" in that story is invented.)

Quote from JedRothwell

I doubt Penon will be allowed to testify.

Jed is focused on calorimetry, and then the legal issue of who is competent to testify as an expert witness. It is unlikely that Penon would be called as an "expert witness," because he is involved. He may be called as an ordinary witness. His analysis of performance, per the Agreement, was legally controlling, on the face of it. Assuming that, then, his report was "positive," i.e., certifying performance as required by the Agreement, his competence is not of primary relevance. because the parties agreed on him back in 2013. (Before the Validation test).

Again, this is all prima facie. IH's strategy, then, will be to first claim that the test was invalid per the missing signatures, etc., or other evidence, on the extension amendment, and they may have evidence on that which we do not know about, specifically communication with Rossi (and the judge's ruling on their Motion to Dismiss Count I does not negate their arguments, it merely means that a factual issue was involved), then they may argue that the report was corrupted in some way, but the ultimate and fundamental argument is that the underlying purpose of the Agreement was frustrated by Rossi's failure to transfer the IP. So even if the test was a full-blown megawatt, and all the suspicions about it are unfounded, nevertheless, the underlying purpose of the Agreement being frustrated by something that Rossi could, presumably, remedy -- unless he is a fraud --, the argument would be that nothing should be done. Status quo remains.

On the other hand, if they counterclaim for fraud, Katie bar the door!

Quote from frankwtu

The E-cat is not a boiler, its a reactor. Besides the Judge has said Rossi got all the necessary permissions.

What are we to think when you keep making the same mistake over and over and over? The judge has not said that. Period. How would she even know?

The judge did not rule on any question of fact in her Order. Rather, she recited what would be assumed as true for the purposes of a Motion to Dismiss. If Rossi said it, it was recited as if fact. Hey, does that make her a denizen of Planet Rossi?

No. Just a federal judge doing her job. Quite well, I'd say.

In this case, what the Judge wrote did not assert that Rossi obtained approvals. She wrote, following the Complaint that "Rossi took it upon himself to locate and secure a location to conduct the Guaranteed Performance Test, as well as obtain the requisite regulatory approvals for the operation of the E-Cat Unit." That was based on the Complaint, which has:

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63. Despite IH's and IPH's continued failure to secure an adequate testing facility, ROSSI took it upon himself to loeate and seeure a location in which to conduct the Guaranteed Performance Test, as well as obtain the requisite regulatory approvals for the operation of the E-Cat Unit.

Does this state that he actually obtained approvals? I'm hoping to encourage more careful thinking. It does not claim that. Rossi was i this paragraph declaring his intention at a point in time. After that, he found a customer and the test was set up. It was done with full regulatory approvals or not, and so what? This is all fluff. Rossi would not lose $89 million if he failed to get a boiler permit! Water under the bridge.

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The E-cat is not a boiler, its a reactor.

It's a boiler. No reaction occurs so it's not a reactor. It's a boiler, heated by a huge electrical heater.

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So imagine this. Rossi gave IH all the IP (as Rossi will claim) but IH say they have not received it. How does IH go about proving they have not received it? Perhaps they are lying. How will the court find out?

One can hope that the court will find out by requiring that the ecat or a subunit of the so-called power plant, be tested independently by agreed upon experts. That happened in the Sniffex explosive detector case and when it did, Sniffex dropped their defamation suit. The test never happened.

In any case, it is up to Rossi to prove that he delivered a working device and all the infrastructure and directions referred to in the contract. It is not up to IH to prove that he did not. Indeed, to do so would be essentially impossible.

Right. It's just an electrical heater then. Sort of a glorified (or not) home water heater. Assuming, of course, that the pressure report is correct.

Quote from frankwtu

Abd Ul-Rahman Lomax wrote:
What are we to think when you keep making the same mistake over and over and over? The judge has not said that. Period. How would she even know?

This is what the Judge said on page 4:
Despite IH and IPH’s continued failure to secure an adequate testing facility, Rossi took it upon himself to locate and secure a location to conduct the Guaranteed Performance Test, as well as obtain the requisite regulatory approvals for the operation of the E-Cat Unit.

yes, the judge wrote that and was paraphrasing Rossi. This is not a "factual declaration" by the judge. Period. I quoted, then, her source, Rossi's actual declaration in the Complaint, and Rossi did not claim that he obtained approvals. He says that he "took it on himself" to find a customer and site and obtain necessary approvals, in the narrative, this happened when the device was in North Carolina. What approvals were later obtained, if any, are not stated. Essentially, the assumption is being made that because he set out to do something "requisite," that he actually did it. It might be that the operation of the device simply escaped attention. No approvals have been shown, anywhere. And, as I point out, this is actually moot. It is of practically no consequence unless someone wants to fire the thing up again.

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Abd Ul-Rahman Lomax wrote:

So imagine this. Rossi gave IH all the IP (as Rossi will claim) but IH say they have not received it. How does IH go about proving they have not received it? Perhaps they are lying. How will the court find out?

IH would, I assume, show what they did to attempt to make devices and, remember, they made the devices used in the 1 MW test (I think). They will then show that these were independently tested and did not work. That will involve expert testimony. They will show their correspondence with Rossi, pleading with him to help, and they will show, we suspect, that he refused. That is a "rumor," from Dewey Weaver. What would be shown in court would not be rumor, but actual evidence supported by testimony under oath.

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But as you are fully aware, this is only half of the complaint, the other half revolves around the non payment of $89 million which became due when the ERV published his 'positive' report.

Nowhere in the Complaint does Rossi claim to have fully delivered the IP. He ignores the issue entirely. We will know much more within, I think, two weeks.