Rossi vs. Darden developments [CASE CLOSED]

Quote from Alan Fletcher

Note that Vaughn (and everyone else) refers to it as the "365 day test" or the "400 day test" ... omitting the word "Guaranteed".

Then in 214-25 Vaughn provides a timeline

NO mention of telling Rossi they didn't work ... or that the Guaranteed test was off. Early 2014 is spent preparing the Lugano reactors

Again, the word "guaranteed" is omitted, but it sure quacks like the GPT.

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Here's an important point you may have overlooked: Vaughn is now talking about the '1 MW Plant'. This is NOT the 6 cylinder unit referred to in the 2nd amendment that Ampenergo refused to sign.

This matters because per Darden's testimony states that they were willing to pay for a 'test' (that Darden states emphatically was NOT a GPT), which Rossi proposed to Darden to do with the 1MW unit (which of course IH owned) in the form of the Term Sheet (and emails that strongly suggest that Rossi fraudulently represented regarding a 'real customer' who was actually himself).

We now have the evidence on the docket to know (if there was ever any doubt) that the Term Sheet was not and could not have been a GPT. It was a rental agreement. Re-read if you have any doubts about this.

It's important to 'watch the pea' in Rossi's shell game.

Shane D. ,

Oh I think "our" Dewey will find someplace close to home. But whar? Keep your sense of humor today, we need it.

Quote from Alan Fletcher

... In that case it's not MY statement that's untrue, it's Vaughn's.

Actually, I believe it would be Darden, because he's the one who said he had told Rossi that the GPT no longer realizable by 'Oct 2013'. Now, maybe with the 2nd amendment with the 6 cylinder unit, he was willing to give Rossi another chance (there's evidence of that in the 2nd amendment itself as well as Darden's testimony).

However, I think the evidence shows that regarding the 1MW unit, there is no written evidence that there was an agreement (other than the original time-limited agreement that had expired) for any GPT of that 1 MW unit. Only the expressly 'non-GPT' Term Sheet.

But in any case, do we agree that either Darden perjured himself in that deposition or your statement that IH didn't tell Rossi 'that the Guaranteed test was off' is untrue (or both I suppose)?

IF the 365 day test WAS the GPT ... it would STILL have a term sheet between "the customer" and IH/Rossi.

Quote from Alan Fletcher

IF the 365 day test WAS the GPT ... it would STILL have a term sheet between "the customer" and IH/Rossi.

Yes, I agree, but that's a huge 'IF'. Where is that GPT agreement? What we know for sure is it wasn't the original agreement (that expired long, long ago), and it wasn't the 2nd Amended agreement that Ampenergo didn't sign and was for the 6 cylinder unit (because this was the 1 MW unit, completely different then the one in that amendment).

We have Rossi's side of the story now. Rossi has made no mention of any signed GPT agreement other than the these two agreements in this Court case.

I think it's safe to conclude that there is no other GPT agreement that specifically names the 1MW unit and had not already expired long ago. But if you have evidence otherwise, I'd like to see it.

Darden and Vaughn disagree. Vaughn's was contemporaneous (usually given much greater weight, legally), Darden's deposition is recent. I think Vaughn 's is true.

Quote from maryyugo

And if their own money, why was IH a part of Cherokee?

It is not part of Cherokee as far as I know, but I have not looked closely.

I have not discussed any aspect of their business with anyone at I.H., so I may be misinformed.

Quote from Alan Fletcher

Darden and Vaughn disagree. Vaughn's was contemporaneous (usually given much greater weight, legally), Darden's deposition is recent. I think Vaughn 's is true.

I'm not seeing Darden and Vaughn's disagreement. You get the point that Darden could have told Rossi (in October 2013) that the time for performance of the 1MW plant had expired and subsequently (or simultaneously for that matter) agreed in principal to having the 6 cylinder unit (which is a physically distinct shipping container that is currently still in NC) be a 'replacement' GPT, right? We know that IH was OK with this because they signed the amendment which did provide for GPT performance on that (6 cylinder) unit. But Ampenergo didn't. And Darden states that he then told Rossi (AFTER Ampenergo refused to sign) that there was no $89 Million performance option left to Rossi. After that, Darden only talks of a 'test', not a GPT. And there is no written evidence of a GPT subsequent to that time: certainly we have not seen any GPT contract, but also, we've seen no emails from IH (meaning Darden, Vaughn or anyone else who could be considered to represent IH) to or from Rossi about a GPT. We've seen written documentation that IH specifically communicated that Doral was NOT a GPT, but that was later in the game (December 2015).

That's what Darden said in his deposition. I don't see any conflict in that with what Vaughn stated. Can you be specific about what you think is the disagreement between them?

These points are critical to the lawsuit, as I'll explain in a separate post.

In Vaughn's deposition 207-19 he contradicts his earlier emails and his timeline, saying in his deposition that they were having problems in May 2013 and specifically in Fall 2013 (internal page 150-152). His deposition aligns with Darden.

As usual, we are only seeing the tip of the iceberg: fragments of depositions, and none of the exhibits.

Note: this post is regarding the LEGAL aspects of Rossi vs. Darden. It has no relevance to the ROSSI EFFECT or PSYCHOSOCIAL issues.

I believe it is a critically important defect in Rossi's suit against IH that there is no signed GPT agreement and no written evidence that there was any written agreement in Darden or Vaughn's emails.

The reason for this is that we now know (from the exhibit that Rossi just posted, 226-03, with an excerpt of Darden's deposition) that Darden is stating that he told Rossi multiple times before the move of the 1MW Plant to Doral, that all options for Performance on Rossi's $89 Million GPT had expired.

For Rossi to prevail, he has the burden of proof to show that in fact there was a remaining $89 Million GPT Performance option. And Rossi's testimony is insufficient. It is insufficient even ignoring the clear evidence of his demonstrated purposeful deception, because this would just be a 'he said, she said' argument which can not prevail with a contract of this magnitude. Any Judge (and that includes a Judge giving instructions to a jury) will state that for a contract of this magnitude, hearsay is not sufficient evidence of an agreement. Add to this Rossi's character burden and it is just not realistic to believe that Rossi has a possibility to prevail without stronger written evidence of an actual signed GPT or at least some evidence that Darden or Vaughn explicitly (in an email or somewhere) stated to Rossi that Doral was an official GPT.

There are dozens of other reasons that Rossi could fail to win if there were a written agreement (legal standing of Leonardo NH vs. Leonardo FL, evidence that the Doral plant didn't meet performance, etc.). But this lack of a written GPT seems like a critical fatal flaw, in my opinion.

214-23 IH 18-month Business Plan and Confidential Memo to investors, July 2014

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Page 8 (docket) Business Plan

If Rossi is on track to earn his $89M success fee, then IH may seek up to an additional $150M as early as Q3.

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Page 33 (docket) Memo

Rossi returns to work on 1MW ... Rossi has reached a tentative agreement with Johnson Matthey ....

Note : page 33 doesn't mention that this is the GPT (or any kind of test).

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Page 35 (docket) License agreement

Includes "Installment III" and $89M payment for 350 days out of 400, COP 6 or greater.

Rossi has not operated the 1MW plant since it left Ferrara in 2013, and only recently has he begun to focus on preparing the 1MW plant for operation. The 1MW unit will not be ready to operate until Sept 2013 or later, according to Rossi.

You'd think that if the GPT $89M was no longer required, that they'd tell their investors?

Edit : of course, later in the document they qualify all of this, saying that the technology transfer might not be complete, might not work etc etc ... but this is (IMHO) just standard investor covering-their-rear-ends stuff.

228-02 : Filed by IH -- Declaration by Uzi Shaya (the israeli connection) ... that he never threatened Levi, but offered him work.

Correspondence (texts and emails) with Levi attached.

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You'd think that if the GPT $89M was no longer required, that they'd tell their investors?

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Edit : of course, later in the document they qualify all of this, saying that the technology transfer might not be complete, might not work etc etc ... but this is (IMHO) just standard investor covering-their-rear-ends stuff.

Indeed. it looks as though they have not been quite as airheaded as some have claimed, and are well aware that even though, after Lugano, things look good with Rossi they cannot count chickens till they have stuff working themselves. In this situation, faced with a ridiculous contract, they seem to have done the best they can. Let rossi do a test and intend to pay him the $89M but only if the IP transfer is complete. As Darden, under sworn testimony, says he told Rossi.

You may prefer to take Rossi's sworn testimony over Darden's - but I doubt many will...

Regards, THH

Quote from sifferkoll

Reading through the testimonies it is obvious that IH has a carefully chosen (by JD) script to follow to build their narrative (blame Lugano, blame their own stupidity when needed, being knowledgeable when needed, etc.), while Rossi more or less tell stuff like it is.

I don't get the sense that Rossi is telling stuff like it is. But I also got the impression that there is a script IH is following to paint a particular narrative. Another element of the script you didn't mention: "if there was even a 1% chance of this working, we were willing to <insert any harebrained, nonsensical, self-contradictory, self-defeating thing we did>."

Two things I haven't found in the depositions. Perhaps someone here can point them out?

1. A statement from Rossi about what was going on between the time that the ECAT was delivered to Raleigh and the time it was shipped to Florida. He has said on his blog that they dragged their feet with the the test; they say they wanted the test to happen in their workshop in Raleigh. I wanted to hear a first-hand account about that period but didn't stumble upon it (I haven't searched far and wide for it.)

2. A statement from Rossi about why he made changes to the 1MW set-up when it arrived from Raleigh. For example, what is his explanation for why he removed the steam trap and condenser?

Wow the night of a thousand cuts! It's like seeing a ninja in a Turkey Koop the night before Thanksgiving.

Well it's like a witch hunt or maybe pack of hounds in a fox hunt some times here too. I've always detested mob justice. History has shown it's always ugly and usually wrong.

Division needs a crisis of some kind to be created and to build up to wars and conflicts and usually serves one small group of peoples interest but it takes effort to sustain as people are naturally more diverse more intelligent and more interesting. division can't be sustained for ever and time is the true arbitrator what is said here and now means very little. In time real science will reveal it self for what it is or not and what we reflect on when it does will inform us better about what is really happening these days.

In time the purpose of the division and what it is hiding will be clear as day to everyone who cares to look. As I say usually it's ugly.

Personally I respect someone who seeks true justice in a court much more than some one who seeks division and hate in a forum to make his so called "justice".

Looking at the known facts,

first it was 1 year test. JD referred to the test in his communication.

It followed the proceedings Penon had proposed.

IH was happy enough with the setup to use it for marketing purposes.

IH paid Penon, IH paid West an Fabiani.

IH charged JMC for the heat.

Why should the judge not declare estoppel?

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It seems like some commentators really like to point out that "As Darden, under sworn testimony, says he told Rossi". I somehow get the feeling that there is a bias here since Rossi also says stuff under oath. Why don't you point that out instead?

Sifferkoll in my post immediately above yours I say:

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You may prefer to take Rossi's sworn testimony over Darden's - but I doubt many will...

Given that as Sigmoidal points out, one or other of these gentlemen will have perjured himself under oath, you can probably work out on past record which I think is most likely to have done so. It is also easier for Rossi to claim mistake - that he misunderstood - or that he did not remember. Whereas for Darden's statement not to be true it would be a direct fabrication.