Rossi vs IH: (Update: Sep. 9 20– James A. Bass now a Third Party in IH’s Counter Complaint)

  • Your lawyer puts something in writing, and it turns out to be totally wrong and misleading, but that is not fraud/deceit?



    Do we know what Rossi's lawyer said is wrong?


    We know because Rossi admitted as much. He agreed the lawyer lied, but he said -- in effect -- that one lie in one e-mail does not constitute enough deception to be considered deception. He said I.H. has to come up with more proof of deception. It is a strange argument, but that is what it boils down to.

  • Document 54 is up now on the Rosi suit. Again, thanks to Eric for providing.


    Hmmph. I put this document up Saturday and started to analyze it at https://www.lenr-forum.com/for…s/?postID=37462#post37462


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    To put it simply, Rossi is telling the judge that IH needs to provide "specific" proof they were misled into believing JMP fronted for another company from the United Kingdom.


    They are not that specific. They do refer to "With the exception of one email alleged to be made by Rossi," ,,, then claim an absence of specificity. The issues here may be complex. I find this motion a legal fog. I have been analyzing it and I have not gotten to this section, which is on the seventh affirmative defense. The rules about striking affirmative defenses are similar to the rules about motions to dismiss: the defendant's claims must be given every possibility. From this glance, they are just taking a stab at it with little chance of success. "With the exception of one email..." One email could be entirely enough! But there is much more.


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    He notes that the one "email" IH provided is not enough for a charge of fraud. I think this is the email Rossi is referring to:


    "in August 2014 Johnson on behalf of JMP even warranted in writing that JMP “[was] owned by an entity formed in the United Kingdom, and none of Leonardo, Dr. Andrea Rossi, Henry W. Johnson nor any of their respective subsidiaries, directors, officers, agents, employees, affiliates, significant others, or relatives by blood or marriage [had] any ownership interest” in JMP. See Compl. Ex. B. (last page of Plaintiffs’ Exhibit)."


    No. That reference is not to an email. It is to a certification made by Johnson that was inadvertently included as the last page of the document cited: Rossi's complaint, exhibit B (the agreement). This is document 0001.2 on Newvortex. It was signed by Johnson, about two years after the Agreement was signed, we can tell by the name of the "customer" and incorporation dates. What IH is claiming would be that ownership of JMP was with Johnson or Rossi, or that Rossi or Johnson or relatives, etc., were owners, instead of what Johnson certified.


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    In otherwords, he is saying this quote from Johnson is not enough to prove fraud. That IH should have to show more than that, or their motion struck. All I can say is wow, because that seems enough for me. Your lawyer puts something in writing, and it turns out to be totally wrong and misleading, but that is not fraud/deceit? Hmmm.


    Johnson was not here acting as a lawyer for Rossi, though he is, in fact, a lawyer and may have been Rossi's real estate lawyer. He also was the registered agent for Leonardo Corporation, a job often done by lawyers. He is the President of Leonardo. In this affair, though, there is no attorney-client privilege for his communications with Rossi. They will certainly be a target for discovery. Johnson was acting as the President of J.M. Chemical Products, later called J.M. Products.


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    It sure is looking as if Rossi is tacitly admitting that yes, he was JMP, therefore his own customer, and will probably deny he lied to IH about it. Maybe say that he told Darden personally that JMP was the customer, so Darden knew all along, and only now when the $89 mil is due he gets amnesia. Set it up as he said/she said, and hope the judge, or jury buys it, and conveniently forgets that damning email.


    I don't see any thinking like this. Annesser is just shooting at the Second Amended Answer and Counterclaim and hoping something hits, or at least convinces Rossi he's trying. The Darden Affirmative Defenses are somewhat vague; they were expanded in the revision with specific references. I still found them irritatingly vague. But I'm working on it. Most of the Annesser claims are legal bullshit, but not all, and this is the most tedious to read of any of the documents so far, for me.


    And in spite of Planet Rossi claims, nobody is paying me.


    What is most remarkable to me is that the only part of the Countercomplaint that Annesser goes after is the matter of failure to pay taxes. This is a claim in a list of contract violations by Rossi. It is based on "information and belief." Because the tax issue is a contractual requirement, a claim of violation seems in order. Originally, I may have seen a statement from Annesser that any delinquent returns were filed. By the way, Leonardo New Hampshire was delinquent in filing annual returns, and had been terminated as a corporation for failure to file. This was cleaned up by Rossi a few days before filing Rossi v. Darden. That is not exactly a tax, though. There were penalties and a reinstatement fee paid.


    What is revealed here is a hypersensitivity. Jones Day can and will use that later. Again, there are some technical issues I will want to review before making any prediction about the disposition of this motion to strike.

  • IH Fanboy wrote:


    Do we know what Rossi's lawyer said is wrong?


    Quote

    We know because Rossi admitted as much. He agreed the lawyer lied, but he said -- in effect -- that one lie in one e-mail does not constitute enough deception to be considered deception. He said I.H. has to come up with more proof of deception. It is a strange argument, but that is what it boils down to.


    This is, unfortunately, confused.
    The "something in writing" was from "Rossi's lawyer," but he was not acting as Rossi's lawyer in this instance. He was issuing a certification regarding J.M. Chemical Products to Industrial Heat. This was not an email, it was a signed document. It claims that the ownership of JMC is not Rossi, Johnson, or anyone related to them.


    This is a reference to Document 54, the Rossi Motion to Strike. staring on page 11.

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    VI. Defendants’ Seventh Affirmative Defense (Fraudulent Misrepresentation) Is Insufficient as a Matter of Law.


    Defendants’ seventh affirmative defense must be stricken because it is not alleged with the requisite specificity and lacks any factual support.


    and then Annesser has:

    Quote

    ... With the exception of one email alleged to be made by Rossi, Defendant IH fails to specifically state (a) the specific alleged fraudulent statements that were purportedly made, (b) to whom such statements were made, (c) which individual and/or entity
    made such statement(s), and (d) what each such individual and/or entity obtained as a consequence of the fraud.


    To understand this, I will need to study the test of the IH affirmative defense. This does not admit that the email was fraud, only that IH did allege this email as an element of evidence, showing the four elements. This is probably a reference to Exhibit 16, the Rossi email flogging the reactor move to Florida. However, the Affirmative Defense is pled by reference:

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    7. Plaintiffs’ claims are barred, in whole or in part, as a result of Plaintiffs’ fraudulent misrepresentations. Those fraudulent representations are pled infra. See id. ¶¶ 1-11, 32-92, 134-148 infra.


    I will eventually get around to studying that reference. Remember, these are defenses, and it's important that they be there. AD 7 is meaningless if there are not fradulent representations pled elsewhere, but Annessser has essentially admitted that one is pled. And that would seem to be enough. I will study this more in covering the Motion to Strike (the coverage is linked above). It seems to me that this motion to strike AD 7 is useless, given the one admission.


    I will take the opportunity here to explain the legal issue. Affirmative Defenses "admit" -- for argument -- the plaintiff's complaint, the alleged misbehavior on the part of the defendant -- and then alleged that it is excusable or equitable because of the defense. So an example of this would be, in this case, the claim that the Doral plant was a GPT, that IH had accepted this, there was an ERV report approving the test, but no payment.


    Nevertheless, Rossi, allegedly, fraudulently manipulated the conditions of this test to make it impossible for IH to be certain of the results, as substantial doubt was created when the truth was known -- and as the "test" conditions were developed, such as "secret customer area." Therefore the withholding of payment until satisfied is reasonable and to be allowed. Therefore the withholding is not evidence of fraudulent intent, as Rossi claimed. Etc. The claims are barred, until and unless conditions arise in the future that are free of such contamination by fraudulent representation.


    Rossi faces a steep hill in attempting to strike these defenses. It is similar to a motion to dismiss: it must all be interpreted in favor of the claim. Only if there is no specified basis could this succeed, and the most likely outcome then is that the judge would require the defense to clarify.



  • You blocked me because I asked you to show me an expert review of Lugano, and you couldn't say that there are none available. That would be a painfull concession for you. Sorry again for hurting your feelings.


    By paying the amount they accepted Penon as the ERV. It's not that difficult. Read the first amendment of the contract.


    So they made a bet to become a billion dollar company, So when WF invested 50 million dollar in IH to get 5% of the shares, does that confirm that they made the right bet?


    I didn't see that email where Tom Darden stated to Rossi that the 1 year long test is not the GPT. You?

  • Quote

    ... instantaneous power (and yes, that is a thing as well).



    Maybe so. So define "instantaneous power" please. Mathematically, of course. And what are its standard units, please?



    Quote

    The tech tag of my boiler states 3kWh/24h loss...


    Why not? It means the loss is 3kWh (energy, not power) in 24 hours. It's shorthand. Not dimensional analysis. The "/" stands for "in" or "per". Nothing strange about that. And the average *power* loss, if you care, is 3/24 kW. Not kWh/h.

    • Official Post

    Abd,


    Thanks. I always look forward to your detailed analysis, even though, as you say, it can be a challenge to piece together the legal strategy behind Rossi's latest court filings. IH's strategy seems very clear in contrast. Sticking to the big picture, from a layman's perspective, I will say that with each response, or document submitted to the court, I have expected Rossi' lawyers to present a factual rebuttal to IH's unclean hands/fraudulent deceit allegations, only to be disappointed to find more legal arguing of a technical, not evidence based, nature.


    Maybe I am naive and this is too early in the process for Rossi to show his hand and counter IH with his own evidence? Prove, or simply say, there is a real customer, and that JMP fronted for them, etc. There are some very damning allegations on the table, and it just seems odd to me that Rossi has yet to address them more bluntly, but like I said...this may not be the time for that.


    Possible also that Rossi is purposefully avoiding defending himself against the allegations brought because IH is right, and he has nothing, other than what he already presented, that could disprove them? Like the old legal adage: "If the facts are on your side, argue the facts. If they are not...just argue"? And right now, to me, Rossi seems only to be arguing.


    BTW, could you copy that Exhibit B here? I have been looking through Eric's documents and see nothing that matches.

  • Abd Ul-Rahman Lomax wrote:
    This is, unfortunately, confused.


    Ah. Well the situation is tailor-made to be confusing.


    Right. Being confused is not a moral issue. It's rather normal. In this case, different pieces of evidence or facts were getting mixed up. The case is complex, and I spend a ridiculous amount of time studying it. The result is that I might be a little less confused than normal. It looks to me like Annesser is betting on confusion, and in this case, there was reaction to the Motion to Strike. The Affirmative Defenses were not explicit and neither was Annesser in response. I.e., what "email" was he referring to? So you guessed, that's all. This is also not a scientific paper, it's an informal discussion.


    There is something trolls do: they will interpret what is said in such a way as to make it incorrect, and then state that as "what you said." This can drive normal people crazy. Normal people will also misinterpret, but it is an error and can rather easily be corrected. With a troll, the intention is to attack and to irritate and arouse defensive responses. The real topic is not what you might think you are discussing, but "you are wrong." So if you explain, they then attack the explanation similarly. Or they will attack with "if that's what you meant, why didn't you say it? I think you are lying." Etc.


    Normal writers on Quora, when they come under attack from trolls, may respond with outrage and often get themselves warned or blocked for violation of the "Be Nice, Be Respectful" policy. It has happened to the best. Hopefully, they learn to ignore trolls. When they actually do that, it, in fact, irritates the trolls no end. If the trolls express that, they create reportable comments and get warned and blocked and often banned. A high percentage of those who behave in this way are sock puppets, and when reported, they may be quickly identified and banned. (Most of Quora is a quite peaceful place. However, a young woman who accepted Islam was driven away by haters, who threatened her real-life. It can be a problem with Quora, which requires real-life identity. On the other hand, that makes Quora Answers generally more reliable.)


    You have to be truly outrageous to be banned from lenr-forum, as far as I can tell. But I'm save a lot of time by suppressing the visibility of trolls and the like, the bottom line being people where I have concluded that, as matters stand, there is no use in discussion with them. I used to discuss anyway, because, after all, the readership! More and more, I am moving into a position of trusting the readers. They do not need me to explain everything. I am narrowing my focus.


    If any regular user wants to know why I blocked someone, I might be able to explain. There is no log that I could annotate. It is also a reversible action that, in itself, does no harm. I tell the person I'm blocking only so that they do not expect me to respond. I consider that a courtesy.

  • Abd,


    Thanks. I always look forward to your detailed analysis, even though, as you say, it can be a challenge to piece together the legal strategy behind Rossi's latest court filings. IH's strategy seems very clear in contrast.


    Your acknowledgement is appreciated and helpful.


    What I have always done, with any field, is to become familiar with the material before any sort of push to understand it. What I will call genuine understanding arises naturally when there is sufficient data for intuition to function. There is a danger of premature reaction, but once one recognizes that and keeps going back to familiarization with fact, this can be handled.


    Quote

    Sticking to the big picture, from a layman's perspective, I will say that with each response, or document submitted to the court, I have expected Rossi' lawyers to present a factual rebuttal to IH's unclean hands/fraudulent deceit allegations, only to be disappointed to find more legal arguing of a technical, not evidence based, nature.


    I get it. However, this is, after all, a lawsuit, and the technical matters, all for generally good reasons. The goal of legal process is, in fact, to clarify, to distinguish the decisive from the fluff and irrelevancies. The lawyers from one side may want us to pay attention to one set of facts, those from the other, to a different set of facts. Mixed in with all this is what is not fact, but conclusion or interpretation, and even mixed in may be some deception. At this point, what is presented is not under oath.


    I never did analyze the Second Amended Answer as to the Affirmative Defenses, especially, except to agree with Annesser that they were vague. I'm under on the requirements, how specific must they be. Annesser is reciting what is required to prove a claim of fraud, for example, but how much of this must be in the AD section?


    Quote

    Maybe I am naive and this is too early in the process for Rossi to show his hand and counter IH with his own evidence? Prove, or simply say, there is a real customer, and that JMP fronted for them, etc. There are some very damning allegations on the table, and it just seems odd to me that Rossi has yet to address them more bluntly, but like I said...this may not be the time for that.


    IH may have given Rossi more time by amending their Answer and countercomplaint. It might be 21 days.


    Quote

    Possible also that Rossi is purposefully avoiding defending himself against the allegations brought because IH is right, and he has nothing, other than what he already presented, that could disprove them? Like the old legal adage: "If the facts are on your side, argue the facts. If they are not...just argue"? And right now, to me, Rossi seems only to be arguing.


    Yes. However, I would not draw firm conclusions from that.


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    BTW, could you copy that Exhibit B here? I have been looking through Eric's documents and see nothing that matches.


    Exhibit B on the Docket is the Agreement between IH and Rossi. It is document 0001.2_Exhibit_B on newvortex. It is really an image file, a scan of the Agreement. This must be in many places, such as on Mats Lewan's blog.

    • Official Post

    As always, thank you Eric.


    So what I thought was the "email" referenced to in document 54, is instead a "letter" as Abd says. Still damning to Rossi's case BTW, but leaves open the technical question of what Rossi's lawyers are referring to when they admit to an "email" that seems threatening to their case?


    So where is this email they refer to? Or did they conflate email with letter? Hopefully no one like Abd already told me...if so, I may have some senior issues to deal with. :)


    That said, I will stick to the big picture from now on. Abd owns the rest. :)

  • Shane D. wrote:
    BTW, could you copy that Exhibit B here? I have been looking through Eric's documents and see nothing that matches.


    I think this is a reference to a file I've titled "01-02 - License Agreement.pdf".


    Once I realized the need for a coherent archive, since copies of the documents were appearing all over the place, not in once place, and with erratic filenames, I thought about how to name the files. PACER downloads have weird filenames that vary. But all the documents have a document number and then attachments have an attachment number. The document itself is called "main."


    I wanted the archive to be easily sorted. In hindsight, I should have used a hyphen for the extension (as Eric did here). I did properly use ".0" for "main." On newvortex, I created short descriptive names, like Eric did. I used underscore for spaces to avoid extra characters in URLs. For Exhibits, I called the files by the exhibit number (and "B" would be .2). On newvortex, each file has a description where, for the exhibits, I add what the exhibit is about.


    I have tried to be consistent. Because there are incoming links, I'm not going to correct the dot to hyphen, this is only a formalism, apparently, and not necessary because Windows, at least, correctly ignores that first dot.
    I wanted an alpha sort to work even if we went over a hundred files (which could easily happen in this case). I made the document number, then, four digits. Three might have been enough. So my name for Exhibit B is 0001.2_Exhibit_B.pdf


    To access the newvortex filespace, one must be a subscriber. I am leaving the default box checked, normally, for new files to create a subscriber notification, i.e., a post to the list that the file is uploaded. It is clear that some in the community (including Planet Rossi) are using this to get quick notification of the files when I have them. Mostly, this is same day, but that's not guaranteed for various reasons. In the case of a "paperless hearing notice" that appeared on Pacermonitor today, there is no downloadable document, so I get an error message when I try to download it -- and that is how I check. I am now checking multiple numbers, the next ones available. I don't want to pay for a docket listing and experimenting with this on Pacer could be expensive. (the docket is an exception to the 30 page limit for ten cents per page.) Maybe I will learn a better way, but, for now, I tolerate an occasional short delay. Substantial documents will be downloadable, normally.

  • As always, thank you Eric.

    I absolutely don't mind that Eric also does this work. Some people imagine that their computer will be overcome with cooties if they subscribe to newvortex. Some don't want to hassle the yahoo system. It's fine.


    Quote

    So what I thought was the "email" referenced to in document 54, is instead a "letter" as Abd says.


    Still not quite correct. It is not a "letter." It is a certification signed by Johnson for JMC, presumably when he was visiting IH to arrange the Terms sheet and there were, we think, some confidentialilty agreements as well that we have not seen. This document was included with Exhibit B by mistake, because it is not part of that Agreement, being signed (from other evidence, it has no date) two years later. This was not relevant to a claim of Rossi fraud because this was not an act of Rossi, per se, unless it could be traced to him. It is, on the face, an act and possible misrepresentation of Johnson's, a counterclaim third-party defendant.


    Quote

    Still damning to Rossi's case BTW, but leaves open the technical question of what Rossi's lawyers are referring to when they admit to an "email" that seems threatening to their case?


    "Threatening to their case" is conclusory..." There is an email that obviously satisfies the conditions laid out by Annesser for evidence of fraudulent representation, and it is the email in which Rossi proposes and argues for the Florida move. This is Exhibit 16 attached to all three versions of the Answer. It's a doozy. Rossi has some 'splainin' to do.


    Quote

    So where is this email they refer to? Or did they conflate email with letter? Hopefully no one like Abd already told me...if so, I have may some senior issues to deal with.


    Join the club. I did tell you, above, as I recall.


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    That said, I will stick to the big picture from now on. Abd owns the rest.


    Thanks. However, I do make mistakes. That "senior issue." I'm 72. I miss stuff; I depend on my friends to point it out. (Or "enemies," which I then define as friends in this way. Sometimes our "enemies" will point out things that our friends are too polite to mention.))

  • Thanks Abd,


    I think you missed your calling. You should have been a lawyer...respectfully said.


    Thanks. It's often been said, for many years. By lawyers. However, I'm happy with what I've done, and by the time I understood the possibility of going into law, it would not have been efficient.


    Further, I'm lazy as hell, sometimes. It would have been a boatload of work. I can overcome the "laziness" when I'm accountable to someone. Often it's my daughter, but as another example, a lawyer suggested I document and study Rossi v. Darden. And we communicate about it. So ... I don't want to disappoint him! It isn't even that much "shame-based," it is just that there is something about someone else being involved. Alone ... I'd rather do Sudoku and distract myself endlessly.


    Do realize that I have seven children and six grandchildren, so far. I've done so much, it's too much to mention here. I've made a difference in hundreds or thousands of lives. And I'm still learning. I've mentioned I might write a book. It would be about Reactive Attachment Disorder, which is a very dramatic form of what may be much more common. I have the first part of an answer, you could call it a treatment. I don't have the second part. Yet. But with the first part, I've been able to accomplish miracles, turning a 'disorder" into opportunity.


    The first part requires high personal discipline. Not demanding discipline from the kid. It's more or less the opposite of the standard thinking. So the disorder in a child becomes an opportunity or occasion for the parent to develop high personal skill. The child then follows and learns from the parent's example -- and from being trusted and listened to, from the opportunity to take responsibility for her own life.


    Now ... ahem ... this is off-topic here, but I suppose of trolls can rant and rave about me, I can at least respond like this. Most of my general writing is on Quora. There is the ever-popular https://www.quora.com/Could-a-…nswer/Abd-Ul-Rahman-Lomax -- which is both embarrassing and fun. I write a lot of far more serious Answers that are not nearly so popular, though popular enough. It is with relationship and personal questions that I've seen some of the most satisfying response, people who clearly were able to transform the way they looked at life, facilitated by an Answer. And the Quora community includes some truly spectacular writers, and, really cool, some of them follow me. The Quora community generally appreciates thorough responses, and the structure is designed to provide positive feedback. It is a great place to develop writing skills.

  • I didn't see that email where Tom Darden stated to Rossi that the 1 year long test is not the GPT. You?


    Have you seen any email where Rossi state to Darden that the 1 year long test is the GPT? Have you seen any document at all that state the test in Florida is the GPT?


    I have only seen two document about the one year test. The first is an email (exhibit 16, https://drive.google.com/drive…Ktdce19-wyb1RxOTF6c2NtZkk) from Rossi to Darden where Rossi describe it as a sale of power to a customer, a showcase for investors and customers and a way to achieve authorization. Not a word about GPT in that email. The second document is a signed term sheet (exhibit 17). Not a word about GPT in that either.


    Don't you think it's a bit biased to request a document from Darden stating it's not a GPT before you have seen a document that state it is the GPT?

  • a lawyer suggested I document and study Rossi v. Darden. And we communicate about it. So ... I don't want to disappoint him!


    I can't help but wonder whether that laywer who suggested to you to study the case and whom you don't want to disappoint may in some way be affiliated to IH/APCO/Jones Day, and whether it has been part of his "suggestion" to use your writing skills to flood forums such as this with walls of truthy lay-legalese...

  • Abd Ul-Rahman Lomax wrote:
    a lawyer suggested I document and study Rossi v. Darden. And we communicate about it. So ... I don't want to disappoint him!


    I can't help but wonder whether that laywer who suggested to you to study the case and whom you don't want to disappoint may in some way be affiliated to IH/APCO/Jones Day, and whether it has been part of his "suggestion" to use your writing skills to flood forums such as this with walls of truthy lay-legalese...


    Perhaps you can"t help but wonder because this paranoia is endemic. No. He has nothing to do with IH, nor with APCO, nor with Jones Day. His suggestion came after I had begun to comment. As to "flooding forums," well, your forum may be flooded. Mine has one less writer cluttering it, Timar. We are free to select what we read.


    I've been reading back, old Gluck posts, etc. Veritable mountains of drek. People agreeing back and forth over total nonsense. Like e-catnews e-catworld? Feel free to "invest" your time there!


    When I block, I always look at the posting history, to see if I might be missing something of value. Nope. Just distraction, temptations to respond to unreal questions, pokes and prods and fluff.

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