Rossi vs. Darden developments [CASE CLOSED]

  • LC - getting a judge and jury to award Rossi $89M is going to require more than a paperwork trick.Then there is the recent unpleasantness that Rossi still has to face around the fake customer, the glorious "factory" pictures, the IR data, reps and warrants, test and measurement deception, etc..., etc....


    I moved your quote here as you replied in the wrong thread.



    I am not a lawyer, but to me the words in a contract is more than paperwork trick.


    Now if IH manages to uncover fraud, that could change everything.



    Does the contract mention the need for a customer?


    Who is responsible for confirming the Guaranteed Performance, Penon or Dewey Weaver?

  • [quote='LENR Calender',Who is responsible for confirming the Guaranteed Performance, Penon or Dewey Weaver? …[/quote]



    Who is responsible for confirming that what was done in FL was an agreed to Guaranteed Performance test and not just a test of power delivered to a "commercial customer making some product"? Who is responsible for confirming that the ERV report and all its data was indeed measured and approved by the ERV?(i.e. where is Penon?) - IH or Rossi?

  • The only evidence admissible in a motion to dismiss is evidence already found in an earlier document. A motion to dismiss looks at questions of law and does not deny allegations by introducing new, contradicting evidence.


    Thank you for your clarification. However, did not IH present evidence in their motion to dismiss Rossi's suit? I could very well be incorrect on this and there is now 90 documents submitted! Keeping this straight would take a full time job.


    Suits, counter suits, motions to dismiss, answers, etc. As I have stated before, I would never choose the legal profession as a career! I will stick to engineering. (Although with many government regulations, sometimes even engineering is becoming a legal profession! :S )

  • It seems that this legal stuff is easy to misunderstand: though Wyttenbach above goes beyond the call of duty in doing so.


    (1) There are (effectively, in terms of these documents) three separate actions:
    (a) Rossi vs IH (very weak, it seems)
    (b) IH vs Rossi (could be strong, but much uncertainty because of information not revealed)
    (c) IH vs third parties Fabiani, Bass, Johnson (weak, it seems)


    Then, the documents we see are either Motions to deny (MOTD), or initial complaints or answers to them. the compalints and answers contain evidence (in fact they must contain a rough overview of the evidential arguments, though not necessarily all the evidence that will later be unearthed). The MOTDs contain only legal arguments and cannot address facts (except to say that they not claimed, which is one of the possible legal arguments).


    Wyttenbach gets (a) and (c) confused when he thinks this MOTD has any direct relevance to (a). It might have indirect evidence only inasfar as it gives an indication of the likely future evidence from the third parties, and it does not have much even of that since an MOTD contains legal arguments not facts.


    So, basically, the MOTDs have very little interest unless you want to know which claims (on purely legal grounds, facts irrelevant) are likley to be dismissed.


    However the MOTDs (if upheld) can cause the case to be revised and strengthened so they resulkt, down the road, in juicy new facts emerging.


    Bob, in an MOTD denying an allegation would do no good.


    All they can do at this stage in the legal process is to argue that even if all facts alleged are true, the complaint is vacuous and so must be dismissed. But it is true that they cannot lie so there might be some slight info to emerge. I actually think that the IH case at the moment against these 3rd parties is weak on purely legal grounds. They have not made much of a case yet. The strong third party case would be against Penon, who seems to have gone to ground, and of course there is a strong case against Rossi himself. But who can tell? I guess IH reckon if they can get the 3rd parties involved they will spill beans pretty effectively, so these MOTDs actually matter.


    Eric will correct me if I've got details wrong in this summary from memory (am I right that the MOTDs are answered only by the complaints being revised, which happens after the judge has ruled on the MOTDs? Or is the order different, so that the judge rules only after MOTD and revised complaint?)

  • I guess IH reckon if they can get the 3rd parties involved they will spill beans pretty effectively, so these MOTDs actually matter.


    I agree. I would assume that IH is not really that interested in going after Bass and possibly Fabiani. They probably are filing this with the intent of adding enough concern to them that they might turn friendly witness. After all what would they have to lose if they did? They might go after Johnson a bit more, but who knows. They are probably trying to set the table to entice the third parties to "come clean" and thus strengthen the IH defense.


    But who knows?

  • That's Bass ackwards. Rossi needs to prove his machine works. . . .


    You can only blow so much smoke up the judge's ... uh... robes, before you get messed up.


    The judge does not decide issues like this unless there is a trial by judge (rather than jury). At this stage, the judge only rules on legal issues, not matters of fact.


    The readers here, on the other hand, can decide whether they believe Rossi or IH based on the evidence presented to the court.

  • [quote='LENR Calender',Who is responsible for confirming the Guaranteed Performance, Penon or Dewey Weaver? …[/quote]



    Who is responsible for confirming that what was done in FL was an agreed to Guaranteed Performance test and not just a test of power delivered to a "commercial customer making some product"?


    The Guaranteed Performance test was agreed upon in the contract. The test was supposed to start after delivery of the plant, but was delayed with IH's approval. I haven't seen anywhere that Rossi needs IH's authorization to turn on the plant and for Penon to start taking measurements.




    [quote]Who is responsible for confirming that the ERV report and all its data was indeed measured and approved by the ERV?(i.e. where is Penon?) - IH or Rossi?[/quote]



    I'd say Penon is responsible for his report. While we haven't seen the report, I'm assuming it exists since otherwise IH could just say they haven't received a written confirmation of the Guaranteed Performance by the ERV.


    I don't think anyone needs to confirm the data was measured by Penon. All we need is a piece of paper written by Penon that says "I confirm Guaranteed Performance of the plant as defined by [...]"

  • I'm just going to throw this out there. . .if all this drama is getting you down, you might think about taking another look at Mills and his twenty-five years of litigation-free R&D. Yes, he's gone after a couple of folks over the years for libel and interference in the IP process. But to date no one has ever tried to sue him regarding his research and claims. Just sayin'.

    • Official Post

    Bass might find it hard to avoid the litigation. As for the other two, you got to find them first.



    Fabiani and Johnson live there in Miami. The only one I know of playing hard to get is Penon. Am I missing something? And, if Penon -being the main witness, does not show, his ERV report most probably will not be admissible, and Rossi's chances of getting the $89 million all but disappear.


    I already took the liberty of writing up a little saying for the JD lawyers to present to the jury: "If the company ain't real, there is no deal". Referring to JMP of course. Another I now provide: "If Penon don't talk, IH must walk". These things just come to me. A gift I guess. :)

  • Shane D.


    You are seriously channeling Johnnie Cochran (may he RIP).


    Here are a couple for Leonardo to possibly use:


    "If the e-Cat works, then time for IH to twerk."


    Or maybe...


    "If they never had the money, then all they've got is baloney."


    Okay, I admit, I'm not as good at this exercise as you are.

  • [quote='LENR: The test was supposed to start after delivery of the plant, but was delayed with IH's approval.…[/quote]


    Can you point to where IH "approved" of the delay? I cannot find that.


    ....
    the agreement does specify that "to make this measurement the ERV will measure the flow....."


    It is clear from the agreement that the ERV must make the measurement and not just simply take data values supplied by Rossi.
    I am not sure the report would be a valid fulfillment of the agreement failed to take the measurements.


    It sure seems like if Rossi postulates that the ERV is real and a fulfillment of the agreement then he must show that the ERV took the measurements. That will be hard without Penon being accessible.


    If happens that Penon hides, then Rossi will loose his hide.

    Edited once, last by oldguy ().

  • Quote

    I'd say Penon is responsible for his report. While we haven't seen the report, I'm assuming it exists since otherwise IH could just say they haven't received a written confirmation of the Guaranteed Performance by the ERV.I don't think anyone needs to confirm the data was measured by Penon. All we need is a piece of paper written by Penon that says "I confirm Guaranteed Performance of the plant as defined by [...]"


    If the test is legally viewed as a valid GPT then IH have enough circumstantial evidence of dirty dealings (we don't know the strength of the direct evidence) to make the matter of how Penon generated his report crucial. He will not, we presume, be there to defend it. It it likely can be proven that he was not on the ground much. So: this is a weak point in Rossi's case. Like most stuff here we don't have enough info to know how weak, and personally I think the legal argument about this not being the GPT, from evidence already disclosed, is very very strong. In that case this does not much matter.

  • it is interesting that the agreement (page 4) says:
    "At their respective election, the Company and Leonardo may have representatives present to observe the Validation process and discuss the testing and results with the ERV."


    If Rossi barred Joe from the FL location, did he violate the agreement to have allow IH's representative to observe the process?


    If Penon is not forthcoming, did Rossi violate the agreement to allow them to discuss the testing and results with the ERV?


    There is more to the agreement than the ERV just turning in a report and then vanishing. who had to do the measurement, being able to discuss the results, the measurement of the heated fluid and not the chilled return, the level of heat, the exact days of operation, exact agreed to date for start, ..... and so on. This has yet to be discussed.

  • it is interesting that the agreement (page 4) says:
    "At their respective election, the Company and Leonardo may have representatives present to observe the Validation process and discuss the testing and results with the ERV."


    Agree, that is an interesting passage. Looking at this from a different angle, does the fact that IH representatives exercised this right in accordance with the agreement multiple times indicate that they acquiesced to the 1 year test being the GPT / Validation process?

  • The other side is that they visited several time. As long as Rossi did not claim it was the GPT, they were welcome to see the possible production of power for a "customer". Then then as soon as Rossi said he considered it to be the GPT, he did not want the to check it from that perspective.


    Another way to look at it is that Rossi did not accept it at that time as the GPT or he would have abided by the agreement.


    Anyway you look at it, it seems that his denying Joe as a representative of IH to entry and observe, he violated the agreement of " At their respective election.." if it was in force at the time. IH had the right to observe at their own "election" but Rossi acknowledged the fact that his fears made him revoke that right at his own choice in violation of the agreement.

  • I do not have the link at this time, but it can be found in IH's answer.


    Rossi presented the Doral facility as a sale of heat to a customer who was using it. For $30,000 per month! This was Rossi's written in writing proposal. It had nothing about the GPT, the test parameters, the testing method, etc. etc. It can be beat around the bush, but Rossi himself stated it was a sale of heat. He has presented nothing else but "Rossi says" in the court documents to prove otherwise. "Rossi says" does not fly in court proceedings with $89 million x 3 at stake. You can bet there will have to be evidence other than "Rossi says" .


    IH has a document, written by Rossi, that says the test was for a sale of heat. What does Rossi have?.... nothing presented yet. What is there to argue?

  • it is interesting that the agreement (page 4) says:
    "At their respective election, the Company and Leonardo may have representatives present to observe the Validation process and discuss the testing and results with the ERV."



    I think the Validation is the $10million test not the GPT.



    [quote='LENR: The test was supposed to start after delivery of the plant, but was delayed with IH's approval.…[/quote]Can you point to where IH "approved" of the delay? I cannot find that.



    I just found the links for the whole licence and amendments:


    https://animpossibleinvention.…sdce-16-21199__0001-2.pdf


    https://animpossibleinvention.…sdce-16-21199__0001-3.pdf


    https://animpossibleinvention.…sdce-16-21199__0001-4.pdf


    The 3rd link, aka second amendment, removes the "requirement the Guaranteed Performance Test period commence immediately upon delivery of the E-Cat Unit, and instead required the period to commence on a date agreed to in writing by the parties."


    So the delay was approved by IH. I forget if we've seen an agreed upon start date, (but I thought we did), so maybe you have a point there.

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