Rossi-Blog Comment Discussion

Quote from SSC

Abd Ul-Rahman Lomax wrote:

Why did Rossi sue IH???? For 89 million good reasons.....

Great. For the money. However, he's not going to see that money, because he did not actually lay the legal foundation for it. So he is wasting a lot of money going for what he won't get. Did he have some other purpose? That could be a more interesting question. If you believe someone owes you $89 million is suing them the first thing you do? That's not what a sane business person would do, not without a lot of preparation and negotiation. Rossi actually sued IH the day *before* the payment became past due according to his claims. He was obviously champing at the bit. Yet less than a month earlier, he was claiming that there was no problem with IH. Let's be brief about that. He lied. We now know that in early December, IH wrote to Rossi (probably an actual mail, probably certified or the like, and possibly from their attorneys) that the Doral plant was not a GPT and Penon was not an agreed ERV for it. At that point, sane business would indeed have attorneys involved, but attempting to negotiate some agreement. Given that what Rossi filed was incredibly one-sided, assuming what he already knew was a major and fundamental controversy, I am not convinced that his attorney knew all the facts, or if he did, Rossi still firmly decided to go ahead with a rushed and defective filing. Losing four out of eight counts to a Motion to Dismiss is pretty poor. Some of those counts, though, were Rossi's Favorite Stories. He kept repeating them, and Planet Rossi continues to repeat them. An attorney I talked with took one look at them and said they were preposterous errors.

I'd say that any deep explanation of why Rossi sued will have to look at his personality and history. Some have thought that his goal was to intimidate IH into settling quickly, on the idea that they would hate the publicity. If so, it was a miscalculation. IH seems to be doing quite well, as to their public image, recently winning the right to host ICCF-21 in North Carolina in 2018.

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"... though IH has not stated why they did what they did".... In fact I really don't understand their motivations, even if you find them so plausible.

It took me a lot of study and consideration to come to what I've found. What I've suggested has not been explicitly confirmed, it is merely consistent with what I know (from public record). Dewey Weaver has made noises like "smart guy" that somewhat confirm it. I don't have high blood pressure, so I take that with salt. I like Dewey, he's straight-on.

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They were waiting for a GPT, and Rossi began a test that they did not consider a GPT. But they stayed quiet, and had some visitors and raised money from investors. At the end of the test they didn't give a penny to Rossi, saying "Your test is not the GPT".

You have swallowed the Rossi narrative. It's simply not accurate. The sequence, apparently, with sources, DE refers to the RvD case documents:

• 2014. Rossi proposes a sale of power in Florida, arguing that it will make money ($30,000 per month from a plant cost of $200,000, not bad at all!) and be a demonstration to show investors. (29-16)
• 2014. A Terms Sheet was negotiated with IH, Rossi, and Johnson for a sale of power, with IH having the right to bring visitors. (29-17)
• 2015?. The Plant was moved to Florida and installed.
• 2015, February. A measurement procedure was submitted Penon. (70-1 at the end) We do not know if this was the actual protocol used, or anything about the IH side of this communication. However, Penon was paid for this work.
• Operations began. Visits began. Woodford rep or reps visited in February. (70-1. pp. 10-12).
• 2015, May. IHHI was formed in England, and apparently purchased IH, paying with stock. Woodford then purchased preferred stock for $50 million. (The statement of allotment of shares.)
• 2015, August. Woodford visited again, having already invested in IHHI. There is no sign that Woodford was intending to invest in Rossi, other than Rossi's confused claims.

You can find all the Rossi v. Darden case files, except for some early procedural boilerplate, indexed and annotated at http://coldfusioncommunity.net/rossi-v-darden-case-files/.

In no document we have seen, until December, 2015, was "Guaranteed Performance Test" mentioned. The documents setting up the power sale don't mention "test" at all. Penon, in his proposed protocol, did call himself ERV -- and he was! for the Validation test) and mentioned a 350 day period, but this may merely have been, say, thought of as a dry run, preparing for a later GPT, since it was blatantly obvious that the Doral conditions would not be suitable for a GPT, being totally managed by Rossi, and explicitly so, with concealed power usage (and later, July 2015, the IH engineer excluded. -- doc. 29-19).

However:

• December, 2015, IH sends Rossi a letter objecting to GPT and ERV. (Requests 30-31, 70.3 p 23, see also )
• December, 2015, there is followup. (Requests 33-34, 70.3 pp. 24-25)

I assume as likely that IH objected to GPT and ERV when Rossi brought it up; I suspect that, as there were only two months remaining in the "350 day test," Rossi asked IH iif they had the $89 million ready; after all, it takes time to raise that kind of money. As far as we know, this may have been the first time Rossi raised "Guaranteed Performance Test." In Filing his suit, Rossi implied consent but the consent required was explicit, and IH did consent -- obviously -- to a demonstration usage of the Plant with a sale of power to an alleged customer, and not clearly to a GPT.

Now, Planet Rossi wants to create a story of IH unfairness, "why didn't they object before"? Companies do not pay $89 million because someone claims they were unfair. Suppose they did suspect that Rossi was going to try to trick them with this faux GPT? What should they have done? I find it difficult to assess. They clearly would have been suspicious, from their efforts to confirm the Rossi Effect. They knew Rossi's prior behavior (see 29-12, Rossi's explanation of the Hydro Fusion test in 2012, and see Mats Lewan's account of the same test, An Impossible Invention, pp. 243-249.) They knew a great deal, but they had elected, in 2012, to give Rossi every benefit of the doubt. As Darden put it in 2015, "within reason." Paying $89 million for a suspicious test totally controlled by Rossi simply was not within reason.

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They could say it from the beginning, but they chose to shut their mouths. And you find this attitude "very reasonable"? Well, if you are right I must be a very irrational man....

Perhaps merely incompletely informed. There was nothing to "say" until Rossi claimed it was a GPT. As far as we know, they may have objected immediately.

Quote from Paradigmnoia

If anyone is concerned about the generator capacity, they can review the videos from the event by Stirling and NyTeknik. The model numbers are there for all to see.

Personally, I think that the nameplate capacity of the generator is a red herring.

I agree that it proves nothing other than the possibility of rapid power storage, if observers made sure that the generator was not running during the "self-sustain" stage or made independent measurements of power input. Bottom line, though, this was a demonstration, not any kind of independent test. In a demonstration, it is possible to fool any expert. In an independent test, with conditions fully under the control of the tester, it is much more difficult. It is an ironic coincidence, though, that the generator capacity matched the claimed power output. I would wonder, if Rossi were claiming such high COP, why he didn't obtain a much smaller generator, it would have been much cheaper! (And more impressive if he did show the high COP, with at least double the generator capacity.)

Quote from SSC

The 5th of April Rossi sued IH . From that document you can read:"Pursuant to the License Agreement, on March 29,2016, LEONARDO demanded payment of the remaining Eighty-Nine Million Dollars ($89,000,000.00) due and owing under the License Agreement, but such demand has been refused and the requisite payment has not been made."So Rossi did not sued before the deadline....

This particular zombie keeps coming up, so it is time to drive a stake though its heart, which is a simple and obvious error in interpretation that keeps being repeated. The License Agreement provided

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Within five business days following 350 days of operation of the Plant during which Guaranteed Performance has been achieved, as required by Section 5 below, the Company will pay to Leonardo, Eighty Nine Million dollars ....

See the Agreement, 3(c). Section 5 was, we may consider here, superseded by the Second Amendment, which has this:

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Guaranteed Performance will not be deemed achieved unless such written confirmation is received or waived.

Notice: Not "five days," but "five business days." This is usually one week, seven days, never shorter, but could be longer. (This depends on local "business holidays.")

From the Complaint, we have

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72. On or about March 29, 2016, the ERV published his final report regarding the operation of the E-Cat Unit during the Guaranteed Performance test.

No evidence is alleged that IH actually received the report, as required. However, assuming that it was actually received by the the same day (which is unlikely (unless it was issued the day before, which "on or about" could allow. Why the sloppiness? When did Penon actually publish the report? Would email notice have been adequate?.... No. See below.

Tuesday, March 29 Report issued
Wednesday, March 30. 1st business day after.
Thursday, March 31. 2nd business day after.
Friday, April 1. 3rd business day after.
Saturday, April 2. Not a business day.
Sunday, April 3. Not a business day.
Monday, April 4. 4th business day after.
Tuesday. April 5., 5th business day. Rossi filed lawsuit.
Wednesday, April 6. Payment past due.

The expression "business days" and generally "days" refer to calendar days. If a payment is due on a business day, it is considered paid on-time if paid at any time during that day up until midnight. There are some details I'm not getting into, but what I've stated so far is not in the least controversial. It was not raised as an issue by IH probably because it would rapidly become moot with nothing being gained.

(I once quashed service of a summons because it was based on a defective notice; but, there, my objective was to gain time, and this was a very effective way of doing it. It succeeded. Time was really of the essence, the true issue at stake, and this move forced the plaintiff to negotiate, which was all we wanted. He had been completely intransigent).

Rossi filed a day early, which itself would normally be considered an insane hurry. Maybe hire the best lawyer possible and negotiate? It could be a lot less expensive! Didn't happen. And then the lawsuit opened up a huge can of worms.

I looked further at the Agreement, and it is highly likely that the effective day of receipt of the Report was not the day the report was "published," but, depending on how it was sent to IH,
See the Agreement, Section 16.3, Notices. (like, duh!). The fastest delivery could have been same-day courier service, but it would have to be received during business hours. Far more likely, overnight courier, delivered the next business day. So one day or more could possibly be added to the above. The point is not some contractual failure but that the suit was filed in haste, and if intended to be filed on the first day of delinquency, premature.

(But Rossi knew they were not going to pay, that is a practical certainty.)

Quote from Alan Smith

The early filing was not delinquent if Rossi had been informed by IH that payment would not be forthcoming - which seems likely. The 'due date' becomes merely a number then, of no or very little significance.

A "filing" would not be "delinguent" -- unless running into a statute of limitations, i.e., years down the line. The only question addressed in my post was whether or not the payment was delinguent. It was not. That does not mean that Rossi could not sue. You can sue for just about anything, including something you think is about to happen. As I stated, there is no particular legal significance, rather, it tells us something about the people involved and how they might be thinking. There is no question that the filing was rushed, lots of mistakes were made that have been pointed out, unlikely to have been made without a rush.

And to repeat myself: Rossi would have been certain that IH was not going to pay him. They had already informed him in December that they did not consider the test a GPT. I linked to the evidence for that.

For me, a mystery at this point is how Rossi's attorney could believe the GPT was legally valid, if he does, if he's not just taking Rossi's money and doing what Rossi says. There are some signs of this. The attempt to strike the allegation about tax delinquencies, which was something with almost no legal effect, but pages were wasted trying to get the Judge to order that striken. That was a Rossi sensibility, not a concern about the major issues.. "You have to stop them!!!!"

@Abd: Other than Rossifiction, there is nothing to suggest anyone by the real name of "Fioravanti" and somehow acting for an anonymous *military* "customer" ever existed. Google has nothing about any such military officer. It's almost certainly just more bullsch*t from the master of bovine excrement. And as usual, you go whole hog to explain, defend and otherwise elaborate on the BS.

Rossi's behavior follows bizarre but consistent patterns. His sockpuppets tend to have famous names, often from the ranks of world renown athletes. There is a real Domenico Fioravanti and he is a world class swimmer:

https://en.wikipedia.org/wiki/Domenico_Fioravanti

"FredZ777" wrote about this trend of Rossi's to use athlete names as participants on his JONP blog:

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FredZ777 • 5 days agoThe Andrea Rossi celebrity sock puppet list (since Nov. 14):

Ezekiel Elliott (running back for the Dallas Cowboys)
Ronaldo (soccer player for Real Madrid)
Kyrie Irving (guard for the Cleveland Cavaliers)
Lucas Digne (left back for FC Barcelona)
(an exception, actually probably a real person)Pekka Janhunen (Finnish meteorologist)
Hines Ward[y] (former wide receiver for the Pittsburgh Steelers)
Cary Williams (cornerback for the Washington Redskins)
Jonas Gray (running back for the Jacksonville Jaguars)
Mario Lemieux (retired hockey player and current owner of the Pittsburgh Penguins)
Bruce Gradkowski (former quarterback for the Pittsburgh Steelers)
Malcolm Butler (cornerback for the New England Patriots)
Michael Thomas (wide receiver for the New Orleans Saints)
Kenbrell Thompkins (wide receiver for the New York Jets
)Brett Hundley (backup quarterback for the Green Bay Packers)
Kyle Williams (wide receiver for the New York Jets)Roslyn Abrams
(former TV news journalist)Kevin Volland (striker for Bayer Leverkusen)
Carli Lloyd (midfielder for US women's National soccer team)Tyler Bozak (center for the Toronto Maple Leafs)

Quite an eclectic collection. Hard to believe they are all Rossifans.

How much more of this nonsense will it take before the Judge and the lawyers realize that Rossi is nuttier than a fruitcake??

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You can check this for yourself on JONP. Wow! I bet those major players could raise some money for Rossi. If they knew he existed, of course, which they certainly don't. Fioravanti was just the predecessor to all these athletes, each of whom seems to be enamored of Rossi's giant feats. Or so it would seem.

Quote from oldguy

SSC = about suing before the "deadline"
and what evidence do you have for the agreed upon date for the start of the GPT? So far there has been nothing to indicate that a signed dated agreement was made for a start date of the GPT.

I would have expected to see that in the Complaint as an Exhibit, so crucial was it. The original Agreement had the GPT begin at delivery of the plant. If the Plant had been a mature construction, that could have been possible, particularly if arranged.

However, either Rossi wasn't ready for that, or IH wasn't ready for it, or both. This part is fairly easy. The Second Amendment was drawn up to deal with it, postponing the test to a date agreed in writing by all the parties. Given that this was safe for IH, and probably benefited Rossi, that we have not seen the full signatures is not a large problem, estoppel can be asserted in this case. Unless Ampenergo denies ever having agreed, in which case, trouble! Still, if there had been a fulfilment of the Second Amendment requirement, estoppel would indeed have sufficed.

The Second Amendment.

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The agreement called for the test to be started well before the research testing in FL. If there was an extension then there must be some signed agreement that the work in FL was actually was the GPT and the date agreed upon. So far nothing verifies your assumed start and end dates for the GPT:.

Right. The Second Amendment established an indefinite extension. Some have though this unfair to Rossi, what if they refused to agree? The equity would be fairly obvious to me: a court would have ordered specific performance (or some other remedy). That did not happen. There is no sign of an actual refusal. Rossi claimed "failure," but the email suggesting the Florida installation more or less contradicts that. Rossi provided no evidence of a refusal or failure, simply his assertion.

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In short the deadline for payment was to be after the end of the GPT with signed agreement of its start date and fulfillment of other criteria COP, receipt of a report from an agreed to ERV, verification of 350 continuous days/ not parts there of, data taken by the ERV- (i.e. not Rossi) and other items.

Right. The apparent lack of a signed agreement is a major problem for Rossi. That could be overcome by a clear showing that Darden or IH accepted the Doral plant as a Guaranteed Performance Test.

I find it utterly astonishing that someone of intelligence would work for a year to earn a payment of $89 million without making sure that the preconditions were set up, the i's dotted and the t's crossed. Very simple. Get an agreement in writing as provided! If they won't agree, hire an attorney and get this resolved before investing a year of your life. It's not like he was broke.

Let me assume that Rossi believed that the E-cats work. There are just some problems here and there, details, not to mention all the unfair criticisms. Why, the Lugano professors! Who could doubt that team?

He wanted a megawatt plant because it could allow units to fail but still there would be output. Of course, it might take a lot of work, but, hey, $89 million!

So his goal was to get the megawatt Plant in action, and that wasn't happening in North Carolina, because they wanted to fuss with all those stupid tests. So he had this bright idea, and he went to work on it immediately, and thus the Doral chemical factory was invented. Maybe they even had an idea to use the steam, but it was too complicated and this did not actually happen. His first goal was just to get the plant in action. But then he wanted Penon to measure it. At this point the idea formed to make this a GPT, it might not have been the original plan -- or it was. But he know that if he said "GPT," it would spook IH and they probably wouldn't let him install the plant there. So he kept quiet about it. However, he did what he could to set up the Penon protocol to look like the GPT, thinking that later he could claim it was, and by this point he had forgotten all about the legal requirements. He wasn't good with those picky details, this goes back to Italy and his troubles there.

The idea that this was a GPT became so strong in his mind that he forgot he was dealing with other people, with different ideas. That's what he took to Annesser (possibly as early as December or so.) He didn't reveal all the messy little details to Annesser, and Annesser, rushed perhaps, didn't notice the problems and question him about them, so the advice he got from Annesser was, ah, distorted.

Being a good bullshitter convincing talker can be a valuable skill, except when you keep it up with your attorney. (Same with one's doctor. I have a strong and trained habit to put the absolute best construction on what is going on, and as a result, I might have led my doctor to miss years of developing cardiac obstruction.... but, hey, -- (smile) -- all's well that ends well!)

Quote from oldguy

What is the earliest date that anyone here sees for the GPT being mentioned?
To my knowledge, December 4, 2015. See Document 71-3, Requests 30 and 31, p. 24. This refers to a mail of that data which appears likely, to me, to have been a response to some communication from Rossi in which he referred to a "Guaranteed Performance Test."

In Exhibit 5, Murray sets aside the question of whether or not Penon is ERV and just asks technical questions. So it was obviously controversial by then. That document is dated March 25, 2016, as I recall, but this may have come up when Murray and Penon met in February.

That is correct. It might not be notice at all. The "test" was completed, by the way, in February, 2016 and Rossi wrote about that on his blog. He described refueling the reactor on that day, i.e,. removing all the fuel that had been used.

I have searched JONP for any mention of "Guaranteed Peformance." The only mention is in August of this year, about the lawsuit. There are mentions of a "test." However, tests were going on for a long time. The Guaranteed Performance Test was a very specific creation of the Agreement, with specific conditions and requirements. Rossi was able to call the Doral installation a "test" without setting off alarms, but he avoided even that in his 2014 communications. And then the Penon test protocol in February, 2015, I think it was, skirted around it a little, but with no mention of "Guaranteed Performance Test, but of a "350 day test." And, of course, one could run such a test as a "dry run." It would only trigger the payment if specific agreement on a test that would do that were reached. (Or, I have pointed out, were ordered by a court.)

(And we don't actually know that IH read that protocol at the time. Their attitude by then might have been, "Whatever, Andrea. Let us know if it works!" (They were far more concerned about trying to make devices that worked.)

[quote]It would have to before April of last year.

Anyone here find a mention of FL as a GPT anywhere before April last year?
It still would have to be agreed to but it would be a start.

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I have found nothing before the reference in the December 4, 2015 letter. If you find something, please link to it or explain it! This is of high interest.

Quote from oldguy

My guess is that they have not earlier date (much before Dec, perhaps even Aug if they claim it was discussed on the visit) of IH notice that they were thinking it was GPT so even estoppel is not going to help them.

My guess is that sometime before Dec. 4, Rossi mentioned GPT, triggering that response. I find it difficult to imagine that IH agreed to Doral as a GPT, but it made sense as an opportunity for Rossi to get the thing working, sell power, and measure it. For that, they did not need to ride herd on Rossi, they could allow him to take the measurements per Penon's instructions, etc. That they did not see it as a GPT explains what others thought totally foolish, that they allowed him to run that "test." They might have come around, might have agreed to a start date, if there was a real customer process really using steam, if Rossi had allowed Murray to come and see it all. But he didn't. The start date could have been in the past. (Hence if they agreed later, this does not negate the test starting in February 2015. Bottom line, whatever the parties agreed to, being "absolutely correct" doesn't matter. Clear agreement will create estoppel against claiming formal defect.)

By his behavior, then, Rossi totally trashed any possibility of further cooperation. And, of course, all this opinion of mine is based on the preponderance of the evidence at this time. That Rossi has not contradicted it yet with visible evidence does not prove that there is no such evidence. We will know somewhat more when he files his Answer, likely any day now, assuming Rossi does not appeal the dismissed MTD.