Rossi v. IH Case: Protective Order Issued, Judge Strikes, Upholds Affirmative Defenses

My "forecast" when the lawsuit was first announced that the following was what I would place my bet on.

1) That the lawsuit would be settled out of court.
A) I now think that Rossi will try to settle before the end of the year. The question is whether IH will drop the counter suit!

2) As with "everything Rossi", all will be under strict NDA's. Especially if he settles. He will not allow the real story to be made public.
B) I do not know if IH will also follow suit with NDA's of their own, if they continue the counter suit.

I have seen one of the two "prophecies" so far, with the non-disclosures now in place. I am sure that everything about this case will be confidential according to Rossi.
Such as whether there really was a UK customer involved. Whether there really was any production involved. Whether there really was access by IH
engineers. He will will want this all to be kept under wraps so he can continue this drama with his supporters. Unless a judge comes out and states :
"This was all fraud, no customer, no production, etc. etc." there will continue to be a core group of people who believe there is a major conspiracy to
cover up LENR and particularly Rossi.

There will be a smaller group that will continue to believe that even if the judge dismisses Rossi's case and makes that statement. They will say something
like "this proves the courts are corrupt and in the pocket of big oil!".

Now if the judge comes out in favor of Rossi, it will be interesting to see what the commentary of the uber skeptics such as Mary Yugo will be!

I wonder if the bookies in Las Vegas have a line running on this outcome?

Quote from JedRothwell

IH Fanboy wrote:
Is there any evidence, anywhere, that an affiliation with Johnson Matthey was ever claimed?

Yes. I.H. stated this in their Answer, and Rossi's lawyers have not disputed it. Plus it is obvious from the misspelled name and assertions about nickel materials.

It is important to understand that at this point, there is no vetting of evidence, other than a possible claim of forgery of documents or the like. At this point, there is no Answer from Rossi on the Counterclaims. In that Answer, he may deny allegations. If he goes too far, denying the obvious, he may damage his perceived position with the judge, so the norm is to admit what could easily be proved if necessary. Notice what happened when IH claimed that Vaughn was not a "manager" at Cherokee. There was a firestorm of ridicule, based on, say, Vaughn's own Linkedin page claiming to be a manager there. But the word, it turned out, has a specific meaning in Delaware law, where Cherokee was registered, and I suspect it is an important meaning to the case. My suspicion is that only a "manager" can commit the partnership. If Vaughn was not that kind of manager (and apparently was not, but merely was a manager of some specific projects, perhaps), then he had no authority to commit Cherokee as Rossi was claiming he had done.

The allegation about the meeting in 2014 where Johnson or Rossi claimed affiliation with Johnson Matthey would be based on "information and belief," and specifically the possible testimony of an eyewitness or witnesses. That is entirely enough at this point. This is a verbal report, and, two years later, could easily be incorrect in some way, but these are issues a jury would sort out. Was there a memorialization, i.e,. meeting notes or other record? Will parties be willing to perjure themselves, in order to push or avoid a fraud claim? The Johnson Matthey claim is supported by that first "Johnson Matthew" letterhead.

This is all subject to possible alternate interpretations. They were just joking, heh, heh! In fact, the whole thing was an elaborate practical joke.

Did Johnson, an attorney, know that $89 million was hanging on it? If so, at what point? I can be fairly sure that Johnson will be asked what he knew and when. If he did not know, he might get off the hook for fraud, just maybe, but it would probably require his opening up and testifying as to what actually happened. It is not going to help Johnson that he is also President of Leonardo Corporation and would thus normally be presumed to know about the Agreement. However, he could claim that Rossi never informed him.

(And, of course, if JMP is fully legitimate and was actually manufacturing a product there, that will be easy to prove, and it can be shown in confidential discovery. We won't necessarily know. Again, Johnson has not Answered, but has instead moved for dismissal. When IH moved for dismissal, Planet Rossi extensively accused them of avoiding the truth and simply trying to increase Rossi legal costs. Now that the tables are turned, somehow all that disapproval of relatively normal motions to dismiss disappeared. I predict that the Johnson motion for dismissal will not be granted, and then Johnson will be required to formally Answer.)

The declaration supplied by Johnson (inadvertently included in the Plaintiff's Exhibit B) lays down a clear case for deception, if there is no "entity in the U.K." which is the "owner" of J.M. Products. This is, as has been mentioned, quite simple.

Johnson may claim attorney-client privilege, but I suspect that would fail here, he was far too involved. We do not know for sure if J.M. Products actually paid IH for the "energy delivered." If so, where did that money come from? There was a discovery hearing on subpoenas to what may be an accountant who worked for Rossi and to two banks, and I suspect this was about this cash flow. It might also have been related to payments to James A. Bass. That subpoena was quashed, because these were issues to be first explored through discovery; answers in discovery are given under penalty of perjury. The system generally trusts parties not to perjure themselves, because of the possible consequences. To steal a phrase from a famous case, "It's the cover-up, stupid!"

Quote from Shane D.

On the whole, IH has provided a lot of evidence. Rossi/Johnson almost none. It would seem very simple at this point for them to lay some of IH's most egregious allegations to rest, but for some reason they won't. Instead they argue legal technicalities. Wonder why?

Lawyers are tasked with defending the interests of their clients. They will argue legal technicalities first, because these create only a little damage (defective arguments can injure how an attorney is perceived by a judge, but that damage would normally require true waste-of-time arguments. Technically correct arguments that are set aside by a judge in consideration of equity, for example, will not harm the reputation.) If they file an Answer with evidence, they are more or less nailed to it, though they may amend, with leave.

Notice that IH filed an MTD and then waited the full normal period before Answering, and even asked for a bit more time (which was, as would be expected, granted, as long as it is not beyond reason). Rossi is now doing the same thing. I can't conclude anything from that other than, as a minimum, prudence. Notice, as well, that IH amended their Answer and Counterclaims twice. This all tolled the clock for Rossi (and the other counter-defendants).

I think that general understanding of this process will increase as people develop an appreciation for legal process as being excruciatingly cautious.

As well, Planet Rossi might improve its understanding by noticing what has become totally obvious: Rossi paid very little attention to legal and contractual requirements, going back to the Agreement in 2012. There is no sign that he actually consulted a competent attorney in signing a $100 million Agreement. In 2013, he signed an amendment fully accepting the original Agreement and then modifying it. It only appears in 2016 that he seems to notice that the Agreement was not with Cherokee, and he claims to have accepted verbal representations from Darden and Vaughn to the contrary, even though an attorney would tell him this was irrelevant and moot and he'd have no case against Cherokee if there was breach of contract. He had no contract with Cherokee. Period. This is face-palm obvious. The MTD re Cherokee as a party was rejected on the basis of a claim by Rossi that IH was a "wholly-owned subsidiary" of Cherokee, which appears to be counterfactual from the beginning. Personally, I think that on that point the Judge misinterpreted the Rossi claim. He didn't actually claim that, but that this is what he was told or thought.

None of this has anything to do with what many here want to know: Real or not-Real?

That, however, is an entirely different issue, only relevant, possibly, if Rossi v. Darden goes to trial, if Penon testimony becomes available, and the actual test details become of importance, all of which I consider unlikely. Rossi would have to "sweat" the heat dissipation issue. Somehow Rossi would have to overcome the apparent lack of a written agreement to the start of the GPT showing the consent of all parties, because if that did not exist, there was failure to follow the Agreement, obviously, and this would be much more difficult to overcome with an estoppel argument based on IH allowing the power installation to proceed and participating in setting up a measurement protocol. GPT consent is a very specific requirement, and fundamental to the nature of the Agreement and its amendment to allow postponement to an unspecified time.

(It has been argued that the consent requirement was unfair to Rossi, since, some think, IH could then postpone the test forever. No. An unreasonable refusal would violate the sense of the Agreement and could be overcome with legal process, rather easily -- or even the threat of legal process, resulting in a fair compromise. But Rossi is, remember, paranoid about "big ccrporations" -- this is very old for him -- so it appears that he tried to create a "masterpiece" to work around the contractual restriction.)