Leonardo's Motion to Dismiss

I get the feeling that both sides are trying to stall the whole process. Neither side is presenting one speck of new evidence to support their case.

Quote from Eric Walker

Leonardo's Motion to Dismiss just filed. See doc. 56:

drive.google.com/drive/folders/0BzKtdce19-wyb1RxOTF6c2NtZkk

Planet Rossi complained severely that Jones Day was delaying the matter by filing their Motion to Dismiss (which was a perfectly legitimate motion, albeit a difficult one, most motions to dismiss are not granted), I wonder if they will think the same when the table has been turned around. This buys time for Rossi to Answer the countercomplaint.

Annesser is claimingg that IH doesn't have standing to sue, because of the assignment of the License to IPH. That's going to be "interesting." Perhaps Jones Day should say, "Okay. No rights of IH, no responsibilities." IPH is a co-counter-plaintiff, so WTF?

(IPH is a wholly owned subsidiary of IH, so for many purposes, they would be considered the same. I have not studied this in detail yet. I'm wondering whether I should bother. After claiming that IH has no rights, because they were all assigned to IPH, Annesser then claims that IPH has not right to pursue a claim over the fraudulent customer business, since IPH was not a party to that, IH was.

Basic word comes to mind: estoppel. IH routinely continued to deal with Rossi, not IPH as such. IPH is merely an intellectual property holding company, the property in this case was managed by IH. Rossi continued to deal with IH, and IH owned the original $1.5 million Ecat -- which went to Florida, with other IH property.

Mendax, mendax, braccae in ignis, again.

IH has laid out a plausible story of fraud, with evidence (and Annesser actually admits a piece of it, the "email"). It is extremely unlikely that except for some relatively minor details, this Motion will do much damage to the IH case. The claim of fraud is far more plausible and provable, on the face, than the Rossi story of Darden and Vaugh misrepresentation that contradict the Agreement Rossi signed and relied on for years.

Quote from Paradigmnoia

Shane D.,
I think the email referred to is the Hydrofusion blow off magnificence.

That is "supportive" of the IH narrative that Rossi is willing to be deceptive (one way or another, either deceiving Hydro Fusion -- what he claimed -- or deceiving IH about what actually happened there), but this is not the strongest evidence of fraudulent representation. That would be the email flogging the Doral move. Since it is not all that long, here it is:

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Sent: Saturday, July 05, 2014 at 10:36 PM
From: "Andrea Rossi" <[email protected]>
To: "Tom Darden" <[email protected]>, "Joe Pike" <[email protected]>, "John Mazzarino" <[email protected]>, "JT Vaughn" <[email protected]>, "Elizabeth Darden Wooten" <[email protected]>, "T. Barker Dameron" <[email protected] >
Subject: Andrea Rossi- next important step

Dear All: In the incoming meeting we will have next week, please allow me to encourage you to take a decision regarding where to put at work our 1 MW plant. I really and strongly hope you will consider the solution I found, to rent it to JM, in its factory in Florida where they will use it to process their chemical products. Please think carefully before losing them. They are positive to us, but in September must start and they must know asap if they have to use our plant or provide otherwise. This solution will:

1- allow to Industrial Heat to say to the Investors that they are getting 360,000 dollars per year of rental, with a payback of a plant like this, whose construction cost is 200,000 $, in less than 6 month
2- allow to your Customer-Investors-Visitors to hear from a real Customer that he is making money with our plant
3- allow us to start in September the operation of the plant, with no further loss of time
4- allow us not to expose the know how, since the maintainance of the plant is made by us and the plant remains our property: a rental is not a sale
5- allow us to make all the Authorities make all the measurements necessary to get the Authorizations for the next plants
6- allow you to get orders to supply for rent thousands of plants
7- allow the plant work for 24 hours per day for 360 days per year, while if used as a room heater it could work only 4 months, not per 24 hours per day, with obvious loss of profit.

Your proposal to put the plant in a factory owned by yourself at least until recently is dramatically less convincing.

Let me do this and I will make a masterpiece ( half masterpiece has already been done finding the Customer as a Chemival Industry and getting the authorization from the Florida State Radiation Control Office).

Fulvio is completing the control system, made by 110 computers interconnected. Also that is a masterpiece.

Warmest Regards to all,
Andrea

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In his Complaint, Rossi presents this as a setup of the GPT. It obviously was not discussed that way. If it was, we have seen no evidence for it.

In the Motion to Dismiss, Annesser, (or maybe in the Motion to Strike) while acknowledging that this is a evidence for fraululent representation -- he calls it an "alleged email" his recounting of the history confirms the deception.

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Following the conclusion of the validation test, the E-Cat Plant was delivered to a location in Miami, Florida to be operated and for further testing pursuant to a separate agreement between Plaintiffs, Defendant IH and Third Party Defendant J.M. Products, Inc., referred to as the “Term Sheet”. (DE:50, ¶75). During the E-Cat Plant’s operations in Miami, Defendant FABIO PENON (“Penon”) conducted the Guaranteed Performance test. (DE:50, ¶90). Inexplicably, Defendants now make two irreconcilable claims, (1) they deny that the test carried out by Penon was the Guaranteed Performance to which they agreed upon, while (2) complaining that the E-Cat Plant did not “perform up to the standards set forth in the License Agreement” for the very same Guaranteed Performance test. (DE:50, ¶84).]

This account glosses over the long period when the reactor was in North Carolina, and represents that the plant was delivered to Miami "for further testing." There is no mention of testing in the Rossi email quoted above, and there is no mention of testing in the Terms Sheet, and the Terms Sheet agreement was violated by Rossi in a manner that would be completely inconsistent with the contemplated Guaranteed Performance Test. The Rossi email shows that Rossi's story about the need to move to Florida, recounted in the Complaint, was deceptive.

Annessser claims that the two claims are "irreconcilable," which sounds to me like it was written by a non-lawyer. Of course they are reconcilable.

1. The Doral installation was not a GPT (because of lack of written consent as required or even explicit verbal consent)
2. The measurements there (Penon did not "carry out a "test," he monitored Plant performance) were not consistent with the GPT standards.

These are not conflicting claims at all.

Quote from Shane D.

TH,

I agree. The only thing I can think of after putting on my Rossi "Devils Advocate hat", is that he is awaiting trial to show his supporting evidence. Risky strategy, as the judge may rule in favor of IH before then, and dismiss the case.

Or possibly, as Abd speculates, he may present more evidence in about 19 days.

His Motion to Dismiss fully stays the requirement to respond to the counterclaim. However, yes, his own Complaint may be subject to dismissal as matters stand. His Motion to Strike the Affirmative Defenses (most of them) ... I'm not clear on process here. He has not Replied. He has not openly presented evidence needed to sustain his claims, they amount to conclusory statements (calling the Doral plant repeatedly a GPT, which is inconsistent with the presented evidence, nor has he denied that evidence).

I think that he must present something to negate what that evidence shows, because the pleadings must be adequate to establish a case. He doesn't have to actually prove what he presents, but ... at least a piece of evidence! Is he going to claim that Darden explictly accepted "Guaranteed Performance Test" when accepting Penon's proposed measurement work? His reference to that negotiation is the only thing I see supporting his claim. The rest is pure framing, now contradicted by much. He would then face the problem of the missing written agreement by "all parties" to the starting date. It is a steep hill to climb, and a warning to all: when a written agreement is required, get it!

Quote from THHuxley

I'm not sure that everyone here cares, or notices, but the weight of evidence released so far, even though preliminary, points very strongly in favour of IH and against Rossi. This is based on "Rossisays" e-mails and the details of the legal documents so far. OK - they are partial, but the case on one side is coherent and mostly substantive, on the other is flimsy to nonexistent.

I've noticed!

The flimsiness of the Rossi Complaint was observable from the beginning. However, it was possible that Rossi simply did not present all the evidence. The appearance, though, was that his fraud claim was based on his memory of conversations in 2012 leading up to the signing of the Agreement, he ignored the Entire Agreement clause, claiming he was deceived about it, but ... any attorney would have informed him, and he had almost a year before the Agreement became not irrevocable by his personal decision, All he'd have had to do is say, "Sorry, I am not setting up the Validation Test. Here is your $1.5 million back. If you get Cherokee to guarantee the payment, I'll reconsider. Have a nice day. Warmly, Andrea Rossi." His fraud Complaint was in violation of the Statute of Frauds, his subsequent behavior (i.e., estoppel), and laches. Normally, a breach of contract through nonpayment cannot be converted to a fraud claim "They lied when they said they would pay," and this is the first comment I saw from an independent lawyer. There are exceptions, but they would take clear evidence. Rossi's interpretation of conversations that are not exact quotes and that were clearly superseded -- or vague -- won't cut the mustard. The judge did not dismiss on the chance that Rossi could somehow establish his claims.

Notice how Annesser is now attempting to require Jones Day to completely disclose all details and explicitly show evidence and is even effectively claiming that one clear piece of evidence is not enough.

Now here is a problem I face. I am now quite familiar with the Jones Day case. I can see right through Annesser's claims. He's gambling that the judge will not be so familiar. However, this is not necessarily a sound strategy, as I pointed out early on, studying the Jones Day Motion to Dismiss. It can cause the other side to clarify their case, to make it stronger in the pleadings. What is going on behind the scenes? My sense is that Rossi is screaming at his lawyer. "Do something about these lying snakes!"

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This is an entirely separate strand from the technical evidence and speculation. There the details that convince Jed so strongly, while they make Rossi's claims seem very implausible, can't deliver exact information because there is still so much wiggle room. That does not mean that strand of the case is weak, just that it needs loose ends tied up that are currently anecdote or rumour or Jed's analysis of stuff that he cannot fully disclose so we cannot from a distance be certain.

Right. The apparent fraudulent representation of Rossi does not prove that the Plant did not actually run a megawatt. It is circumstantial evidence pushing toward that conclusion, i.e., if he really had a functioning megawatt plant, why did he need to fully control the "test"? Back in 2013, why would the presence of independent experts have made "big trouble" for him? There are obvious answers to those questions, and this will not be difficult to present to a jury. They will conclude, as long as the case is presented with reasonable skill, that the so-called GPT wasn't a GPT, or if it was, it was run in such a way as to create reasonable doubt about the results, so equity would suggest maintaining the status quo: a GPT could still be arranged.

And as to the year Rossi spent working his tail off -- if we believe the story -- next time don't trash your own work by overcontrol. How about really proving that this thing works by allowing someone independent to run it per your instructions? By negotiating measurement procedures by observing what independent experts do and making suggestions -- instead of demanding everything be done your way. The harm of independent, extra measures? How about practicing basic business sense, or at least following your legal advice, and good lawyer would suggest all this. Good lawyers will never jump to "sue them!" If IH unreasonably withheld consent to a GPT, then, yes, that could be demanded in court. But you'd have to establish that first, through IH refusal to negotiate fair terms.

IH wanted to see simpler tests, apparently, that whole 1-year marathon was unnecessary. Dramatic. If it cannot pass fully independent testing, the technology is next to useless. Even if it is real!

Quote

I do wish this would go to open trial - it would be great fun to watch. But I guess that is unlikey for one reason or anotherl

I'm thinking of the possibility of travelling to see the upcoming hearing on the Motion to Strike. I'm not sure it's worth the expense, but it would be an opportunity to see the real players in real time.

Quote from Paradigmnoia

Rossi should have known if the 6 pack worked a long time ago. It is just 6 standard hot cats stuck in there. Why wouldn't it work any different than any others?

Below is the 6 Pack just after the Validation. Probably that is TD with his face blurred. The photos submitted for evidence (Exhibit 3) are taken in the same location.

Well, I don't think so. The device shown there seems to have a different diameter to height ratio. The tables don't match. And if that photo was taken in Ferrara, the IH photos, they claim, were taken in North Carolina. I think. I had the impression that the 6 Cylinder Unit was built by IH, which would not be true of the Ferrara device.

The point of "Six Cylinder Unit" in Rossi v. Darden is Rossi's lack of care for clear and exact performance of contractual details. With written agreement, anything about the GPT could have been changed. By written agreement, the test was postponed, and the plant to be tested was changed to "Six Cylinder Unit." (And then Rossi simply did not bother to nail the signatures, presumably he could have, and I've pointed out that he could still have signed the thing for Leonardo years later, and so too have gotten the Ampenergo signature. If he didn't lie about it, it would not have been a problem. But I suspect that Annesser didn't notice, being in a rush to file.)

By mutual written agreement, the date could have been set and the device to be tested could have been changed to whatever. But in that agreement, I'm sure that IH would have protected themselves. I doubt that they would have allowed Penon to be ERV. They very much would not have wanted the GPT to be in Florida, with Rossi in full charge, excluding IH experts -- as Rossi had excluded independent experts from being present in Ferrara for the Validation Test.

So Rossi attempted to create a faux GPT, something that would look as much like a GPT as possible, without actually getting that agreement. Hence the whole "independent customer" scheme. He almost certainly asked for Penon to help with measurements, and, not considering this a GPT, IH agreed, still hoping that Rossi would show them how to make working devices. Besides, the "payment for power" was covering IH expenses in Doral. Yes, in Rossi's mind, this was a "masterpiece." Yet for him to believe that IH would be fooled was insane. They were polite and highly cooperative. He mistook that for total gullibility. He went a bridge too far.

The contrary story requires considering IH to be part of a massive conspiracy to suppress LENR. Sifferkoll misreads web evidence to indicate that Darden has billions of dollars invested in solar energy, and supposedly LENR would kill that industry. Maybe it would. But not any time soon. And the "evidence" of massive investment was simply wrong. The entire concept of how business operates is paranoid. (Yes, there are shenanigans. They generally make more sense than this. After his one year obligation to support IH, he could have told them to fuck off and gone to Sweden to set up plants there. He could have waited until he was in a much stronger position. But ... he's crazy!)

Quote from Paradigmnoia

Note the tables, saw, and even the bucket on the left next to the blue bench is the same.

Yes. Looks like the same tables. Same bucket. However, when people with money move, they tell the movers to pack everything up in one place and then unpack it and set it up the same in the new place. We have a number of possibilities here.
Both photos were taken in Ferrara, or both in NorthCarolina, or the goods were all moved.

The device shown does not clearly resemble the 6-cylinder unit. But perhaps the 6-cylinder unit fits inside that taller device. How do we know where the "Ferrara" photos came from? These were clearly not taken at the same time. See the tape or paint on the floor. Rossi was probably in the U.S., more or less continuously, from August 2013, when the "E-cat unit" was delivered to IH and his support responsibility began.