Plaintiffs/Counter-Defendants’ Motion to Dismiss Defendants Amended Counterclaims against Plaintiffs and Memorandum of Law

Quote from Eric Walker

Abd Ul-Rahman Lomax wrote:

I don't know why you can't visit that link. It works for me in Chrome and Safari. I haven't tried Firefox. I wouldn't know about IE, Edge, or Opera. Do you have a browser plugin installed that might be interfering with Google Drive, or do you have JavaScript disabled?

Using Chrome. No plug-in AFAIK. No, Javascript not disabled. Weird is that some files show and not others. Okay, I just checked it again, copying the URL into the browser bar. The files showed. WTF? From the browser bar

https://drive.google.com/drive…Ktdce19-wyb1RxOTF6c2NtZkk does not show the files. this URL was loaded by clicking on the link in the first post in this thread.

Another window open in the same browser session

https://drive.google.com/drive…Ktdce19-wyb1RxOTF6c2NtZkk shows the files. I am totally mystified....

Going to my post, Plaintiffs/Counter-Defendants’ Motion to Dismiss Defendants Amended Counterclaims against Plaintiffs and Memorandum of Law and extracting the URL from the code quoted in that (which was simply a copy of the actual link from the first post, I think) this time did not work. I don't know what the difference was.

Okay, I removed all google cookies. It worked. I can see all the files. This is definitely a google problem.

Quote

The files added today are:
41 - Motion to dismiss - Leonardo.pdf
42 - Order on informal discovery conference.pdf
43 - Motion for judgment on the pleadings - count 1.pdf
The name for 42 is derived from the Pacer query results: "ORDER on informal discovery conference. Signed by Magistrate Judge John J. O'Sullivan on 9/2/2016. (tro) (Entered: 09/02/2016)".

Ah. I don't look at the Pacer Docket, and this document is not yet on Pacermonitor. How many pages is the docket? The document itself does not mention "informal discovery conference" The notice (doc 37) calls it a "hearing." Those notes are added by a clerk, I think.

Quote from IH Fanboy

Abd Ul-Rahman Lomax wrote:

To be precise, it would have not invalidated any patent. Potentially, though, it could be used as prior art in an attempt to invalidate a patent.

I don't think this has been understood. It is correct that the patent in question would not have invalidating any existing patent. Rather, the Lugano report would invalidate a later-filed patent for technology used at Lugano. Rossi apparently later filed patents around the world that were actually invalidated from the Lugano report, I was told by that attorney. By the way, some people do not see the original filing, but look only at the later amendment. It was the original filing that was time-crucial.

To the lawyer, that patent looked like it was clumsily filed, and what was all this Lugano data dumped into it (in the later version)? It was a mess, last time I looked at it. My explanation was that they just needed to get something on file, it didn't need to be ready for prime time. He eventually accepted that, I think. Still grumbling about lousy patent work. It sucks to be an expert.

Quote from MrSelfSustain

Why could file 40 not be displayed?

What was file 40?

Was file 40 something confidential? Was it the ERV report?

No. It is not available for download, but not because it is confidential, apparently.
From Pacermonitor there is
"PAPERLESS NOTICE of Hearing on 39 MOTION to Strike Affirmative Defenses MOTION for More Definite Statement: Motion Hearing set for 9/27/2016 10:30 AM in Miami Division before Judge Cecilia M. Altonaga"

Quote from IH Fanboy

Maybe it was cited as prior art against one of Rossi's patent applications, but I haven't seen any evidence of that. Can you point to that and I'll take a look?

No. I was told this by the attorney, and checking it would take much time with little value, Rossi has filed, apparently, a huge pile of world patents. Yes, it would be cited as prior art, that's it exactly.

There is a plausible business reason for filing that patent as they did, and it did Rossi no harm and might have protected him to some degree -- or it was useless. How this gets converted into some nefarious act is ... simply evidence of the paranoia behind Rossi's world view, and the resulting reflection of that on Planet Rossi.

Here is what the attorney told me, so you now know everything I know on this point:

Quote

The Lugano Report damaged Rossi's world filing of his PCT application because the authors guessed in writing that Lithium Aluminum Hydride was a key component of the reaction. It did not damage the IH US and PCT filings because the first IH priority filing was made before the Lugano Report was published, and the second filing probably was too.

Quote from Jack Cole

MY, I can understand how you might think IH deserves it, but I find this to be blaming the victim. Certainly they have, and will continue, to suffer significant consequences from trying to trust and help AR. He is quite experienced in long-haul legal processes, and is probably equally comfortable in the lime-light as a protagonist or villain. IH had better not pull any punches--he probably won't.

He does not have a history, AFAIK, of attacking through lawsuit. His prior legal escapades ended with some time in jail. Yes, it was for relatively minor stuff, but he lost a huge business in Italy, and apparently passed up opportunities to work with large corporations, which he did not trust. Had he done so -- and I'm assuming he had a real processing technology for this, not fraud -- he'd have had huge resources behind him when he needed it. Instead he was basically screwed, read An Impossible Invention, which tells the story, mostly from his perspective.

IH is attempting to shut the lawsuit down as quickly as possible. They have just filed a Motion for Judgment. That motion could fail, but then there is a further one, based on accepting the Second Agreement (which they did, arguendo, to argue that the GPT did not exist because it was the wrong device, an argument which Rossi has not yet answered. Rossi may answer to avert the Motion for Judgment -- which would shut the whole case down.

And then they pull out the apparent fact that there was no actual written agreement to the test date as very expllicitly required; Rossi's claims about it were entirely conclusory, yet this is central to the case. Estoppel was not alleged as to the missing agreement, and I don't think it would be possible without some sort of actual evidence, not just calling Penon the "ERV" and measurement methods "determining the GPT."

At some point Rossi's lawyers may notice that the more he defends, the deeper in he gets. It looks like Rossi tried to set up a faux GPT, crafting communications to try to create the appearance of consent to it. This, then provides more evidence for "deceptive practices."

I don't think IH is going to pull punches. They are being focused.

One amusing piece of business in the Motion to Dismiss the counterclaims. Annesser takes about two and a half pages to argue that the payment of taxes by Rossi is essentially none of their business, but is merely an attempt to defame him.

From the Answer, Counterclaim section, referring to the Agreement:

Quote

43. Sixth, the License Agreement requires that Leonardo and Rossi “file all necessary documentation and returns with respect to any applicable sales, use, transfer, real property transfer, recording, gains, stock transfer and other similar taxes and fees pertaining to the respective revenues derived by the Parties in respect of the E-Cat IP (such as taxes and fees), including any interest or penalties thereon.” Id. § 13.5. The License Agreement also requires Leonardo and Rossi to keep the E-Cat IP “free and clear of any Liens.” Id. §§ 12(a) & 12(e).

Then they argue:

Quote

Failure to Pay Taxes
126. Prior to Leonardo and Rossi entering the License Agreement, it was well known that Rossi had taxation issues with the Italian government, which even led to him facing criminal
tax charges in Italy.
127. As a result, the License Agreement has several carefully crafted provisions to ensure that Leonardo and Rossi would comply with their tax obligations as they relate to any payments from Counter-Plaintiffs.
128. First, the License Agreement (Section 12(j)) required a representation from both Leonardo and Rossi that each has filed all necessary “tax returns or reports” and “has paid all taxes required by any jurisdiction or subdivision or agency thereof” prior to entering the License Agreement. License Agreement § 12(j).
129. Second, the License Agreement (Section 13.5) required each party to file all necessary documentation and returns as to any tax applicable to its or his “respective revenues derived . . . in respect of the E-Cat IP.” Id. § 13.5.
130. Third, the License Agreement (Section 12(a)) required Leonardo and Rossi to keep the E-Cat IP “free and clear of any Liens.” Id. § 12(a); see also id. § 12(e).
131. Fourth, IPH had Leonardo and Rossi provide it with a signed certificate certifying that all of their representations and warranties from the License Agreement, which included their representations as to compliance with their tax obligations, were true and correct as of the date of the certification (April 29, 2013) and would continue to be true after Leonardo was paid $10 million under the License Agreement. See Ex. 8.
132. Notwithstanding the foregoing, on information and belief, Leonardo and Rossi
have not paid their federal taxes on payments made to them from Counter-Plaintiffs, and have not filed all tax returns or reports relating to payments made to them from Counter-Plaintiffs.
133. As a result of Leonardo and Rossi’s failure to file or pay their federal taxes, Counter-Plaintiffs have suffered harm because the value of the E-Cat IP is diminished by the likelihood of it being subject to or encumbered by a Federal tax lien, which in turn diminishes its alienability and marketability.

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Much of Annesser's massive attack on this is over the word "likelihood," as iof it means "likely." How about "possibility"? Further, this is just one example of possible harm to IH from a Rossi failure to pay taxes and avoid encumbering the IP.

Bottom line, IH placed that provision in the Agreement (or Rossi did to assure them there would be no problems), to allay a reasonable fear, and it appears that Rossi may have violated it.

I thought the counterclaim was weak, myself, but ... there was an apparent violation of contract there, and they are likely to assert every one they can find. There are quite a few, many of which may be estopped from complaint, because of effective acceptance by IH.

Quote from IH Fanboy

Abd Ul-Rahman Lomax wrote:
Bottom line, IH placed that provision in the Agreement (or Rossi did to assure them there would be no problems), to allay a reasonable fear, and it appears that Rossi may have violated it.

He said he paid the taxes! How can you state that "it appears" that Rossi may have violated it? Please show the evidence of him not paying his taxes!

The affirmation that all taxes have been paid does not state whether or not they were ever delinquent. If they became delinquent at any time, the Agreement was violated. The extent of the harm from that could indeed be minor, to nonexistent in practice. IH may poke Rossi for every violation of the Agreement. They had been quite tolerant, obviously. People who are tolerant tend to become intolerant when sued for almost $300 million, eh?

I stated that this was not a strong claim. I think it entirely possible that IH will simply let this one go, having made their overall point (terminal sloppiness on Rossi's part, lack of care in compliance with the Agreement).

It was not necessary for them to prove failure to pay at this point. I wrote "appears to have violated it" based only on the claim in the lawsuit, because it is unlikely that IH would raise this point if there was no basis at all. A delinquency, even for a short time, would have violated the Agreement. Given that Rossi had plenty of money, there would be basically no excuse for this other than lack of care. When one has this kind of money, this is a task delegated to a tax accountant.

On the other hand, IH may argue to keep that claim, simply to cause Rossi more legal expense. 2.5 pages of argument? It worked already. My sense is that Annesser just convinced the judge that he's an idiot.

I got an attorney to settle a case by filing a pile of interrogatories. They had, very unusually, taken a case from an insurance company on contingency, thinking it was easy money. Wrong. The case was then settled for far less than they had previously demanded. the issues raised by the interrogatories would have involved new law, i.e,. no clear precedents existed. Researching all that would be expensive. If the new law was established as a precedent, a whole series of insurance company recoveries through subrogation might have gone south. Far too much risk for the client.

One thing that this latest event has confirmed.... IH did not go into this venture with Rossi blind on uninformed They knew about his past and went to lengths to
protect themselves from possible tax issues, of which they knew was in Rossi`s past. If they knew and protected themsekves about this, it is most likely they also knew about
questionable test practices and resistance to independant testing. This would seem to support Mr. Lomax`s theory that IH fully knew what they were risking in this venture and that they had a plan in place to address different outcomes \ scenarios· They knew full well what they were doing. This is encouraging to me about thier other LENR reasearch

Bob, why would the fact that IH screwed the pooch investing with Rossi, KNOWING about his deficiencies, be encouraging in any way? They probably made the same identical mistake (not insisting on properly independent and competent testing) with all their other LENR investments.

Quote from Alan Smith

Seems a bit weird to me. If I asked the IRS if you (or Joe's Diner) have paid your taxes I would expect a dusty answer. That kind of information should not be in the public domain. Unless of course accounts have been filed, in which case for a small fee they might be visible, somewhere.

We don't know. IH has not disclosed the source of their information, but the massive Annesser response indicates that they poked a nerve. They probably had information from somewhere. Rossi talks a lot, on-line. He might talk a lot in person, and ... Barry West spent a huge amount of time with him and Fabiani. Long hours. Bored. What does one talk about? I know, the effing IRS!

It is also possible that they simply guessed, from his history. But I rather doubt it.

All of this reminds me not to ever attempt to screw over a $2.2 billion corporation. It's just a Really Bad Idea. If they are nice people, they might not actually kill you. But they could.

Cherokee is not IH, but IH has access to massive assets if needed, through Darden and others. So what if Barry West was actually a highly trained spy, knowing how to get people to open up and reveal secrets? These are skills. I know, because I had some of them naturally, and then was trained in addition. I would never use this to harm people, but there are others who are not so principled about it. Psy ops. Available for not all that much money. Hey, APCO, if you need them, but I don't know that they have the specific skills I'm thinking about. Private investigators would. Some police do.

Or maybe Barry was just handy with a soldering iron, whether or not Rossi told him about taxes. I surely don't know. I'm just a writer, beginning to get out a bit.

Quote from IH Fanboy

Abd Ul-Rahman Lomax wrote:

Your attorney friend appears to be wrong. Rossi's PCT application claims priority to a U.S. provisional patent application filed on August 1, 2014. The Lugano report is dated October 6, 2014.

worldwide.espacenet.com/public…04&DB=EPODOC&locale=en_EP

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Hey, something to ask him about, next time we talk.