IH considering counterclaims

1st Official Post

    New document in Rossi v. Darden: https://groups.yahoo.com/neo/g…nsion_of_time_to_file.pdf


    Plaintiffs are asking for three more days to prepare their Answer and counterclaims. This is stated as an unopposed motion, meaning that Rossi's attorney has verbally accepted it.


    One aspect of the news here is significant:


    Quote

    2. Currently, Defendants’ answer to the Complaint is due on August 2, 2016. In addition to filing an answer, Defendants intend to file counterclaims against Plaintiffs and are
    currently considering potential claims against third parties. As a result, the undersigned respectfully requests an extension of three days, up to and including August 5, 2016, to prepare
    the answer and counterclaims and to consult with his clients regarding the answer and counterclaims.


    Counterclaims, not a surprise. However, "potential claims against third parties," not a terrible surprise, but I'll confess I did not think of it as arising at this time. I consider it fairly obvious whom that might be.


    There is a witness necessary to Rossi's case, critical for it.


    There are layers of possibility here.


    1. Fabio Penon was claimed to be an expert, and allowed that claim to stand, so he would become professionally responsible for what he wrote as a report, and he was paid. If his report was incompetent, he could be subject to suit for damage done, like any professional.
    2. If there was evidence of deliberate falsification, there could be civil fraud claims with triple damages, and there could be criminal prosecution.


    We have not seen the report, but, obviously, IH and Rossi and Penon have. There are rumors here from one who has allegedly seen data and confirmation that this was the same as in the report, and incompetence is claimed. Usually these claims fly back and forth and it's fluff. But when there is a lawsuit for $89 million on the table, the "usual usual" isn't. The Lugano professors could be complete doofuses, and, unless they were paid or deliberately created evidence used in a fraud (hard to prove!), they would not be liable.


    As soon as Rossi was dealing with a Licensee with depth, his habits could get him in deep trouble, whereas, before, he was largely immune.


    We should know by August 5. I did pick up the files directly from PACER, this is not yet on Pacermonitor.

    Quote from Abd Ul-Rahman Lomax

    The Lugano professors could be complete doofuses, and, unless they were paid or deliberately created evidence used in a fraud (hard to prove!), they would not be liable.


    I know little about the law, but if you were to hold academic professors legally responsible for their claims, academic science would collapse. This would be like fining TV political pundits for wrong predictions about who will win an election. There wouldn't be any pundits. They would be bankrupt, driving Uber cars.


    Penon is a different story. He was listed in a contract as the go-to-guy expert. I doubt Levi or any other academic scientist would allow their names to be added to a business contract.


    There was an incident in Italy, in which six academic scientists were jailed for making an incorrect prediction about an earthquake. See:


    http://www.dailymail.co.uk/new…d-309-people-cleared.html


    Quote

    Six scientists who were each sentenced to six years in prison because they failed to predict a deadly earthquake in Italy which left 309 people dead have been cleared.


    The group, which includes some of the country's most respected seismologists, was jailed for manslaughter after underestimating the risks that an earthquake posed to the town of L'Aquila.


    This is an outrageous violation of academic tradition and academic freedom. It is beyond the pale. Schwinger described the rabid opposition to cold fusion as "the death of science." Holding scientists responsible for earthquake predictions would also be the death of science. In the distant future, perhaps earthquake prediction will become a science, the way weather prediction is today. If that happens, and an incorrect prediction is issued, you might fire the staff members who made the mistake, or shake up the organization. But you would never put them in jail!


    The Italian scientists were later cleared:


    http://www.theverge.com/2014/1…r-laquila-earthquake-fear

    Quote from barty

    We should get excited now...

    Well, I was a bit excited when I saw that there was a document 27. Then I saw that we were not going to see anything until August 5. Phooey! Who do they think they are, making us all wait like this?


    psst psst.


    Oh. It's their lawsuit, not ours. They are paying for it. It's expensive.

    An interesting but, in my opinion, likely development. Aug. 5th is not far away, but as with everything connected to Rossi, waiting seems to be standard!


    I suppose Jones Day, using tried and true practices may have influenced this decision. Sometimes the best defense is a strong offense. If Rossi and his lawyers see a counter claim that they know is backed by documented data and the claim would apply a very high cost, they may quickly withdraw the suit. This tactic could save IH much legal expense.


    It could be that IH is looking for much or some portion of the $11.5 million back. Showing a strong case that they will not have to pay the $89 million and likely would win a counter suit for more than the $11.5 million back, may again be a tactic to get Rossi and his lawyers to settle quickly.


    Darden does not seem to fit the mold of one who lashes out in "vengeance", but perhaps he really believes Rossi is greatly harming LENR research and wants to put the "eCat Saga" to a final conclusion.
    A resounding defeat in this case would almost certainly end Rossi's chances of obtaining large investments from other companies, if not even put him in jeopardy of criminal conviction. This lawsuit in itself is likely to eliminate any chances of major funding for Rossi.


    I would doubt that the latter is the case. While Rossi garners attention on a few blogs, the world in general is ignorant of his existence. Other than IH, I do not think he has siphoned much funding.


    IH & Company are probably wanting to :
    1) end this quickly
    2) reclaim some or all of the $11.5 (the second payment of $10 million would be my guess)
    3) Establish the fact that they are willing to "risk" investments in controversial new energy fields, but are not to be trifled with. Establish the reputation that they do know what they are doing.


    or as certain people with wishful thinking claim, it could simply be a defensive diversion, but I really doubt that.

    Quote from barty

    I find it interesting that IH now needs extra time, after Dewey repeated each time he posted something, how simple and obvious it is to prove Rossi as fraud

    They give as a reason for extra time that they are working on claims against third parties, i.e., to be added to the lawsuit, and that they needed to communicate with their clients.


    Claiming that fraud is obvious is not the same as proving it in court. Fraud claims can be very difficult.


    August 2 was only two weeks after the Motion to Dismiss was resolved, So now the deadline is August 5. Three more days.


    Annesser had no problem with it (nor would I expect one.) This is all routine.


    And Dewey Weaver is not Industrial Heat, nor is he their attorney. assuming the Judge grants the Order. I should check. ... not yet. But I cannot imagine a Judge not granting an order like this, even if Annesser had opposed.


    What is interesting here, as a question to sell popcorn, is "third parties"? Who? I have two predictions, one somewhat strong, one weaker, and then two wildly speculative. Wanna hear them?


    By the way, I have zero inside information on Rossi v. Darden at this point.


    In a civil case, the standard is preponderance of the evidence. If there is an appearance of fraud, it may not be necessary to absolutely prove it.

    Hi all


    IH Counter-suing would be great News!


    At that point any secondary party can use Document Discovery to publish the ERV. :)


    I am sure Rossi's Lawyers are rubbing their hands with glee, at the possibilities.


    Kind Regards walker

    Alan


    Very interesting, particularly this:


    Fraud as a human activity can be hard to get a handle on, but the legal elements of a fraud are more readily defined. Generally stated, these include:


    • Misrepresentation of a material fact
    • Made with knowledge of its falsity
    • Made with intent to induce the victim to rely on the misrepresentation
    • The victim relies upon the misrepresentation
    • The victim suffers damages as a result


    The key distinction between fraud and other types of theft hinges on the first element: the perpetrator acts by misrepresentation, as opposed to larceny, in which the perpetrator uses force or stealth to secure another’s property.


    From the point of view of IH, for the fraud charge to stick Penon's ERV report must not only be discredited but proven to be constructed with falsity and misrepresentation as its purpose. I think now the report will quickly become 'discoverable' if this is the case. So the plot thickens!!


    This of course could backfire in the face of IH et al (if of course Penon is the target, it may be just bluster, perhaps a mediation ploy).


    Best regards
    Frank

    Quote from Alan Smith

    Abd: there is a link now.

    Thanks.


    Quote

    On the topic of proving fraud in a US court, this pdf is a good source of information.Published by the 'Association of Certified Fraud Examiners'. I bet that club is a bundle of laughs.


    acfe.com/uploadedFiles/Shared_…-2011-Chapter-Excerpt.pdf


    Nice source on civil and criminal fraud.

    Edited once, last by Abd Ul-Rahman Lomax ().

    Quote from frankwtu

    From the point of view of IH, for the fraud charge to stick Penon's ERV report must not only be discredited but proven to be constructed with falsity and misrepresentation as its purpose. I think now the report will quickly become 'discoverable' if this is the case. So the plot thickens!!

    As has been pointed out, fraud can be difficult to prove. However, Penon is subject to something else, the possibility of malpractice. As well, there is the possibility of a conspiracy claim. These are all possibilities that can come to mind readily for anyone with an understanding of law and legal process.


    We do not know what kind of contract Penon had. If he had one, and if it was as defective as the Rossi/IH Agreement, he could be in big trouble.


    Further, there are other issues. If IH can raise doubt about the Guaranteed Performance Test, even if they cannot prove fraud, but only *possible incompetence*, that test might be set aside. A sane Agreement would have provided for dispute resolution procedures, such as binding Arbitration, these are very common. A single expert to determine $89 million? The expert chosen by the inventor? (Sure, "proposed," but ... it was obvious, give Rossi what he wanted or go away.) However, Rossi does not seem to be legally sophisticated. Perhaps he thought that he could hold IH to the letter of the Agreement, while ignoring the underlying purpose of the Agreement, which was not to obtain a "demonstration." That was just a detail.


    As I have said before, I cannot imagine signing a $100 million contract over something of critical importance to me, without careful consultation with the best attorney I could find/afford. And I've been in court many times in pro per, and I've written legal briefs. I would never try to do something like this alone, unless I had no choice. I think the Agreement was written by Rossi, though with some interaction with IH. And I'm sure that IH was aware of the problems and made a choice to take the risk.


    In any case, Rossi's commentary recently seems to incorporate and assume that he has secrets and is not relying on patents. That indicates his patents are worthless. misdirection. He is still running the old line: hit the market with a flood of product so cheap that reverse engineering is not worth the effort. If it is patented technology that strategy makes no sense.


    All this implies strongly that Rossi did not teach IH how to make devices that worked, whether or not the 1 MW plant worked. It's odd to find on Planet Rossi the idea that Rossi was smart to not teach them, because they wanted to steal it. (Somehow using something that one has paid $11.5 million for and has promised $89 million more is called "stealing" on Planet Rossi.)


    If that is so, and if that was deliberate, then Rossi defrauded them, and he could be on the hook for $11.5 million and more, and triple damages. (And that could be so even if the 1 MW test actually did generate a megawatt.)


    I do not know how much will be revealed in the Answer and counterclaims. I was told by an attorney, though, that filing a counterclaim, making a party a defendant whose participation in discovery might be important, is a common tactic. As a possibly relevant detail, a U.S. subpoena served on Penon might not be able to compel that he come to the U.S. to testify, but as a defendant, if he fails to show, he could be exposed to a default judgment. He might decide to cooperate or not.


    However, if he does not cooperate, it might be difficult for Rossi to assert the ERV report as binding! One of the alleged factoids revealed by Dewey Weaver was that Penon stopped communicating with IH, stopped answering questions about the report, before it was issued. This is not going to look good! However, I don't want to lose sight of the core of the matter, the IP transfer and the alleged failure of that. Assuming that IH and Weaver have not been lying to us, this may not be difficult to show in court.


    If Rossi did not perform on the contract, IH could elect to simply leave it in place, as something that was never complete, but that could be completed. This would allow Rossi to create product that works, in Europe, if he wants -- if he can!


    There are many, many possible details, though, that could move this case drastically in one direction or another, and that we do not know.

    Quote from Gunnar Lindberg

    Walker et al, a Danish proverb: Don't sell the fur before shooting the bear.


    Interesting! The Japanese folk-saying is similar: "toranu tanuki no kawazan you wo suru" (calculate how much you will earn from the pelt of a badger you have not caught yet). Japanese badgers are notoriously difficult to catch, which I know to be true from personal experience.


    In English it is: "don't count your chickens before they hatch."

    Quote from Walker

    IH Counter-suing would be great News!


    At that point any secondary party can use Document Discovery to publish the ERV.

    No. The parties may request confidentiality. Sorry to rain on your parade ... but since I've said this before, maybe not so sorry.


    I am sure Rossi's Lawyers are rubbing their hands with glee, at the possibilities.[/quote]It is not uncommon for people to have very weird ideas about how lawyers think. Professionally, they are trained to be detached and dispassionate. Looks good in front of judges and juries, after all. High level lawyers, the best, would never want to take actions merely to increase billable hours. Yes, there are bad applies, just as there are surgeons who will operate if they can, even if it's not necessary, to increase their billings.


    But it's not the norm. Jones Day did not get to be Jones Day by padding their cases. They get that way by winning, or by advising their clients to settle properly. Every lawyer I've known and have consulted has advised avoiding lawsuits, because generally everyone loses. And then if there is a suit, settling if possible.

    Quote from JedRothwell

    Interesting! The Japanese folk-saying is similar: "toranu tanuki no kawazan you wo suru" (calculate how much you will earn from the pelt of a badger you have not caught yet). Japanese badgers are notoriously difficult to catch, which I know to be true from personal experience.

    I once was with a fellow who decided to trap a raccoon that was raiding our refrigerator, in a screen porch at the back of the house. He grabbed a trash basket and trapped the raccoon between it and the metal screen of the porch. The raccoon went through the screen like it was butter, ran a short distance, and turned around to look at us for a moment. The look was something like "You don't really want to follow me, do you? I will tear you to shreds like that screen." And then the raccoon very slowly and carefully turned around and walked away.


    I think they are fantastic animals. Mammals, like us. And like us, treat them with respect or they will tear you to shreds.

    While we're on animal stories, I suspect that Jones Day is taking its time on the way to squashing Rossi like a cockroach.

    Mary


    Quote from Mary Yugo

    While we're on animal stories, I suspect that Jones Day is taking its time on the way to squashing Rossi like a cockroach.


    A cockroach is an insect Mary not an animal. But then why should we be concerned with facts? I suspect Jones Day is gearing up for a bluff at the mediation.


    But who will blink first?


    Best regards
    Frank

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