Rossi vs. Darden developments [CASE CLOSED]

  • Hi Rigel.


    Since the whole RvD story is in limbo until the due date (not long now) there is a certain amount of meandering/back-tracking going on. In the absence of meat, people will sniff gravy. So long as it is polite, I see little reason for strict moderation at the moment. However, if the topic gets 'hot' again, higher standards will be applied.

  • Shane D. ,


    I actually agree. Even beyond the term sheet, the agreement was so lopsided in IH's favor when it came to what IH could do with the know-how, and what it had to keep confidential (basically nothing), that the deal was bound to fail from the start. Successful and fruitful deals require carefully balanced and fair agreements from the start, especially when there are large amounts of money on the line. Otherwise, both parties are asking for a dispute, and that is what they both got.


    I agree about the agreement being bad. But it is not just bad in IH's favour. It gives Rossi a very large cash sum up-front based on a single test without very clear criteria for validation. Given Rossi's past behaviour with tests that is asking for trouble, but whoever signed it the reward up-front instead of being aligned with commercial development sets inventor and VC against each other and is contrary to VC 101.


    So, which in your view is more likley? IH insisted on the up-front payment? Or Rossi insisted on the up-front payment and IH added enough conditions so that Rossi could not get it if he did not transfer IP? IH seems to have underestimated how much Rossi would be prepared to twist contracts, and also how unclear IP transfer could be. For example, if there had been a clear protocol in the agreement for what constitutes transferring the IP we would be in a better position.


    But... Rossi is on record as resisting any independent testing of his devices. The few apparently independent tests we now know to be far from that. Do you think he would ever have been prepared to sign a version of this agreement that had precise and rigorous independent testing of his device as a precondition?


    If, as many here think is overwhelmingly likely, Rossi has a non-working device, then this agreement is exactly what he would want, and strongly in his favour. Now IH could not know he had a working device till they had tested it themselves - though I think they unwisely half-believed some of Rossi's tests - so the badly validated up-front payment was bad for them.


    I think their main problem was a lack of technical expertise. They believed the terms of the GPT were such that it would indeed constitute proper validation. It could never do this without much better technical oversight and independence from Rossi. They did not reckon Rossi's ability to sue regardless. He has the money to do this (they gave it to him) and he has shown himself non-rational when it comes to his claimed inventions.


    A second IH problem was complacency. They reckoned, because the 1 year test so clearly did not comply with the legal terms of the GPT, and Rossi asked for it as a customer demo, not a GPT, they were in the clear. They could keep Rossi happy by letting him run it. If the device did work they had made sure (Casserino notes) they could pay whatever was needed to keep Rossi happy. If it did not who cares, Rossi is in no position to sue.


    They found to their cost that was a miscalculation.

  • A second IH problem was complacency. They reckoned, because the 1 year test so clearly did not comply with the legal terms of the GPT, and Rossi asked for it as a customer demo, not a GPT, they were in the clear.

    This is not a matter of complacency. If things really were so, IH would be composed by incompetent people. You can not leave important things implied when talking about millions of dollars (among other things, money from others). IH knew from the start that Rossi considered Doral's test to be GPT but they overlooked it.

  • This is not a matter of complacency. If things really were so, IH would be composed by incompetent people. You can not leave important things implied when talking about millions of dollars (among other things, money from others). IH knew from the start that Rossi considered Doral's test to be GPT but they overlooked it.


    SSC. That is a false statement directly contradicted by the license agreement which leaves many important things implied, specifically how to conduct the GPT. Go check it. And since it was signed by Rossi and IH they are both responsible.


    As for whether IH are incompetent. They were surely technically naive. I'm not sure we have enough information to know otherwise, in their dealings with Rossi, they were incompetent. After all, the license agreement was rumoured to be (and given its VC-unfriendly terms is likely to be) what Rossi required to give access to his technology. If IH made a judgement call they had to have this, whatever the difficulty in dealing with Rossi, to settle the matter of whether his stuff works, it makes sense.


    I certainly would not make your assumption here that everyone must be competent because of the money. For example, Rossi is known technically incompetent (read Mats' book which in spite of being written from a pro-Rossi slant has horror stories like the misuse of average V & A meters and continued claims this was correct. Or, more recently, Rossi's amazing claim that clamp orientation in a 3-phase power meter does not matter because AC is not polarised. These address directly a few of the more obvious ways that Rossi can show > 1 COP in his demos simply by misinterpreting measurements. IH have no technical background and are now known (Dameron) to have been technically incompetent to validate test protocols till they got in extra personnel. Convenient for Rossi.

  • I am a noob to this site (sort of). I spent the last month or so catching up to this point and still have another 12 or so pages to fully catch up. I have held off replying/commenting on posts so far because I thought it best to wait to see if comments I might respond to had already been addressed. But I have to respond to Mr. A. Smith's comment "Deeply untypical. And whatever happens it will be appealed by one side or the other. That's when I expect to see rebuttal evidence, not before."


    No disrespect to Mr. Smith, but this is total nonsense. I am not a scientist nor an engineer. I am an attorney who has practiced for over 25 years, including opposing Jones Day (a/k/a Jones Day, Night & Weekends for the amount of billable hours expected of their associates and Jone, Day, Reavis, Pogue & Satan, also by their associates). I started with a "small" firm called O'Melveny & Myers and then spent time with Hughes Hubbard & Reed before going inhouse.


    First, absent EXTRAORDINARY circumstances, new evidence is not admissible upon appeals. Examples of extraordinary circumstances: proof of actual innocence in a death penalty case, and many times not even then. Civil case like this, with plenty of time before trial - ain't gonna happen.


    Second, I have read many comments by scientists, engineers, etc. on what will happen at trial, would the trial be dismissed, etc., but shockingly few comments by lawyers. IMHO, Rossi is fucked. Jones Day is going to destroy any and all credibility that he has and will force him to say, under oath, that the "customer" never really existed, that he controlled the customer, etc., etc. This is a civil trial and Jones Day can force him to take the stand. Yes, Rossi could plead the 5th Amendment, but this is a civil trial not a criminal trial. In a criminal trial, pleading the 5th or not taking the stand cannot be held against a defendant, but in a civil trial the rules are different. When a witness or a party pleads the 5th in a civil trial, the judge will instruct the jury that they are entitled to draw all the negative inferences they want from that and Jones Day will take full advantage of that. It is not certain, but the judge may also allow Jones Day to introduce evidence of Rossi's prior alleged fraudulent acts, not to show that he is fraudulent this time, but to address his credibility, or lack thereof. Jones Day is going to (rightfully) crucify Rossi on the stand over the false invoices, the fake company, his history, etc.


    And no IHFB, lawyers and even laypeople in the real world understand the difference between a natural person and a legal entity such as an LLC, corp or partnership and no, what Rossi did re the fake company is pure unadulterated fraud AND JONES DAY IS GOING TO HAMMER HIM.


    I have not read all of the motions in limine yet, but I suspect that if Penon is not present in court that Jones Day will attack any introduction of reports made by him as hearsay and therefore as inadmissible. Hearsay is an out of court statement being introduced to prove the truth thereof, which is what the reports would be used for, to prove that Rossi had satisfied his contractual obligations. But there is nothing preventing Penon from testifying in person, except that he doesn't want to, so his reports could be excluded as hearsay. Now, while there are many exceptions to the hearsay rule, I don't see any that Jones Day couldn't beat.


    As to the validity of the contract itself, I don't see any real chance of the court saying that no contract existed just because there may have been missing signatures. An agreement may be inferred by the conduct of the parties. However, what the terms of that agreement may still be subject to dispute, especially if the conduct of the parties differed substantially from the written agreement.


    Last point for now, the dueling experts. Dueling experts may be discounted by juries to a degree, but jurors do listen to them. And in this case you don't have dueling experts. Read the court's order re: Wong's testimony (IIR his name correctly). He can testify, on direct by Rossi's lawyers, only that, if the equipment claimed by Rossi to be on the customer side was actually there (which equipment he didn't see any proof of), then something something. How, let's imagine the Jones Day cross-examination:


    JD: Dr. Wong, do you any technical training in evaluating the operation of systems such as e-cat?


    Wong: No.


    JD: Dr. Wong, did you ever examine the e-cat in operation?


    Wong: No.


    JD: Dr. Wong, did you ever perform any analysis or examination of the technical workings of the e-cat or the customer side equipment (objection, compound question - rephrased as two separate questions)?


    Wong: No.


    JD: Dr. Wong, did you ever actually see the customer side equipment?


    Wong: No.


    JD: Dr. Wong, so would it be correct to say that, in rendering your opinion, you have relied entirely, completely and solely on the promise by Dr. Rossi that the customer side equipment was there? That you never verified it, that you never saw it, that you never spoke to anyone else who saw, etc., etc., etc.


    Jones Day will make Wong's testimony look like dog crap. I would even consider not putting him on the stand if I were Rossi's counsel except for the fact that letting IH's expert testimony be unrebutted also kills Rossi.


    Lastly, for real this time, Jones Day is going to have a field day with the Rossi witnesses. And no, I am not affiliated with any of the parties, their lawyers or anyone else in this fight, just a very amused observer.


    I predict a bloodbath at trial.

  • I am an attorney who has practiced for over 25 years, including opposing Jones Day

    Wow. Thank you for your expert input. I cannot make head or tail of the legal issues, so I appreciate it.

    Lastly, for real this time, Jones Day is going to have a field day with the Rossi witnesses. And no, I am not affiliated with any of the parties, their lawyers or anyone else in this fight, just a very amused observer.


    I predict a bloodbath at trial.

    I hope you are right.



    You should contact Abd. He plans to attend the trial. I am sure he would appreciate your expert info. See:


    http://coldfusioncommunity.net/

  • Well, as I am already in the water, let's continue:


    People have commented on the inevitability of an appeal: Well guess what, if you lose and want to appeal, then Federal Rule of Civil Procedure 62 requires you to post a bond for the amount of the judgement, plus costs. Here is a good link to an article on appellate bonds, prepared by those nasty folks at Jones Day, of course.


    Also, for those of you who want to know who I am, my name is Howard Michael Appel, California state bar no. 158674. I post on and am a member of the The Fogbow and Quatloos, as well as too many to count woodworking forums.


    http://www.jonesday.com/files/…_2008_The_Appeal_Bond.pdf

  • IMHO, Rossi is fucked.


    I concur. Jurors may hold "facts" however they wish. They can completely ignore them or base the entire case on a single fact. They are instructed to rely on their gut to evaluate the facts of the case (based on my personal experience on a jury). Rossi has no credibility given his JMC ruse and his long history of specious business practices. If Jones Day executes correctly they will annihilate Rossi's credibility. Add to that Rossi's revolutionary claims of commerical performance of a revolutionary new energy source--we'll it's just too much. Short of a miracle disclosure, like a QuarkX powered smart phone, Rossi does not have a chance.


    Still strange things can happen in a jury trial. Rossi supposedly has binders and binders of data backing up his case--maybe we'll see something from them but so far we've seen only an amateur attempt to defraud.


    As usual I want to add that I am not a lawyer and have no personal or financial interest in this trial. My original interest was in the E-Cat as a new source of energy and my interest now is in seeing that justice is served.

  • woodworker ,


    I enjoyed your analysis. You may be right. But if so, LENR will march on, and probably Rossi too.


    I am not expressing any opinions or LENR or CF, I am merely saying that IMHO Rossi is fucked and justifiably so. Based on the admissible evidence (an important word and concept) proffered so far, he is a liar, a cheat and a conman (and if he thinks I am defaming him, remember, truth is an absolute defense).

  • I concur. Jurors may hold "facts" however they wish. They can completely ignore them or base the entire case on a single fact. They are instructed to rely on their gut to evaluate the facts of the case (based on my personal experience on a jury). Rossi has no credibility given his JMC ruse and his long history of specious business practices. If Jones Day executes correctly they will annihilate Rossi's credibility. Add to that Rossi's revolutionary claims of commerical performance of a revolutionary new energy source--we'll it's just too much. Short of a miracle disclosure, like a QuarkX powered smart phone, Rossi does not have a chance.


    Still strange things can happen in a jury trial. Rossi supposedly has binders and binders of data backing up his case--maybe we'll see something from them but so far we've seen only an amateur attempt to defraud.


    As usual I want to add that I am not a lawyer and have no personal or financial interest in this trial. My original interest was in the E-Cat as a new source of energy and my interest now is in seeing that justice is served.


    A QuarkX powered smart phone would not be relevant to the issues of this case and as such would not be admissible. As to his binders and binders (shades of Romney), he better have turned them over to JD in discovery or they will be ruled inadmissible. Real trials are not like Perry Mason or even Law and Order, they have rules you have to follow: no surprise witnesses (with a very few exceptions), no surprise documents (ditto), you have to disclose your experts, their opinions and what they base their opinions on, you don't get to ask leading questions on direct (you do to a certain degree on cross) and stuff that is not relevant isn't going to be admitted, period. I look forward to daily reports from any boots on the ground, but I live in NorCal and have no interest in traveling, unless I am being paid to.

  • Howard:


    Both Rossi and IH set things up so that an independent 3rd party would test his device and write that ERV report. IH accepted the report. How is that going to play in court?

    What is your source to the statement that IH accepted the report. I have not seen any such acceptance from IH.

  • A QuarkX powered smart phone would not be relevant to the issues of this case and as such would not be admissible. As to his binders and binders (shades of Romney), he better have turned them over to JD in discovery or they will be ruled inadmissible. Real trials are not like Perry Mason or even Law and Order, they have rules you have to follow: no surprise witnesses (with a very few exceptions), no surprise documents (ditto), you have to disclose your experts, their opinions and what they base their opinions on, you don't get to ask leading questions on direct (you do to a certain degree on cross) and stuff that is not relevant isn't going to be admitted, period. I look forward to daily reports from any boots on the ground, but I live in NorCal and have no interest in traveling, unless I am being paid to.



    We don't know all the evidence Rossi has turned over during discovery. There may be some things that Rossi chose not to disclose in the case files during the pre-trial phase. Given what we've seen so far, I'm not expecting much.


    And as to real trials, jurors despite the best intentions of the attorneys and the criminal justice system, do not always follow the rules. (Again based on my personal experience only). I can't speak for the attorneys. Still I think Rossi's chances are daunting especially since he needs a unanimous decision. I think Rossi's thinking is that if he's going down so is Darden/Vaughn.

  • Also, for those of you who want to know who I am, my name is Howard Michael Appel, California state bar no. 158674. I post on and am a member of the The Fogbow and Quatloos, as well as too many to count woodworking forums.

    Welcome Mr Appel. Just for curiosity, what leads a lawyer to read the LENR Forum? Are you interested in cold fusion or in general in alternative sources of energy? How did you find the dispute between IH and Rossi?

  • It does not seem to me that objections have been raised to the first three reports he has provided. I would say that at least three have been accepted.

    How do you know IH didn't object to the first reports? I think it is incorrect to claim that IH have accepted the Penon report. That fact that IH didn't complain in public doesn't automatically mean they accepted.

  • woodworker


    Thanks for the expert *legal* analysis, something long lacking here, including Abd's feeble and scattered, verbose attempts at it.


    I am curious why you are paying any attention to this case. Is it of consequence, somehow, in the real world? Reputable scientists and technologist who took an early interest in Rossi (starting with his claims in 2011) have long known that he is a crook and his claims are wrong at best and most likely grossly idiotic and fraudulent. His one accomplishment in his entire life is learning how to chose marks.


    But I digress. Can you say why you are interested and how you found the case? And thanks again, profusely, for adding legal sense to the discussion.

  • How lucky this forum is to have real verified lawyers with no interest in the affair, coming out of the woodwork (eh) to state that Rossi is a doomed liar and hack.


    Case closed I guess :) better tell the swedes, they might be unaware of whom they're dealing with!

  • But I have to respond to Mr. A. Smith's comment "Deeply untypical. And whatever happens it will be appealed by one side or the other. That's when I expect to see rebuttal evidence, not before."


    I was not thinking of evidence being produced in court at all. I was thinking of evidence being produced via Rossi's favourite vector, the internet. Though currently I am favouring the idea that there will be a settlement. Italian geese are difficult to cook.

  • Quote

    I will not bother to answer your technical questions either, for the same reason. You have said, again and again, that you have no interest in reading the papers I recommend. You don't want to know anything about what you call "low powered" cold fusion.


    I hate to rehash all this again but since you [Jed Rothwell] insist on restating the same nonsense and misquotes. The REASONS I have no interest in reading papers you recommend are first, that I read some in the past, skimmed others, and could find nothing of value in most. The second reason is that you refuse to do the obvious. I asked to provide the single BEST and CLEAREST and BEST WRITTEN paper which is the most persuasive that cold fusion is real. I have yet to see that recommendation. Anyone?


    Quote

    (Your definition of "low power" might mystify readers. Let me explain how it works. You define "low power" as the highest power level you happen to know about. So if I inform you there is a result 50 W hotter, you will add 50 W to the definition of "low power" so that you can continue to dismiss all results.)


    Nonsense. I have said many times, what is impressive depends on the power out to power in ratio and how long it is sustained without refreshing the fuel and of course, the mass of the original fuel. For a ratio of around 6 (Rossi's old claims), a gross heat output of between 10 and 100 watts and a mass typical of the original ecats, 24 hours would be impressive but since the process is said to proceed from conversion of mass to energy, it should run much longer than that. Ideally, by now, there would be at least ONE experiment in which excess output heat is returned to the input making the device "self sustaining." But there isn't even an effort to try, far as I know. What there is constitutes lame excuses for not doing it.


    Quote

    You said you have no interest in the literature and you will not read it. You said that here, explicitly, and you were quoted by Zeus46. That's okay. Neither he nor I care whether you read these things or not. It is a free country. HOWEVER, it is annoying when you demand that we tell you this or that detail, you arrogantly refuse to look at what we recommend, and then you kvetch that we don't bother to recommend anything.


    I don't even know what that means, exactly. What I did say is that I have no *further* interest in experiments with low output power, low power ratios (out/in), short duration, questionable methods, poorly written sections on materials and methods, and confusing result graphs with graph axes displaying arbitrarily normalized or complicated sets of units. I have no time for that sort of crap and neither do most reputable scientists and technologists. Yet, that was the sort of papers you recommended that I read. Having looked at 10 -12 or so some time ago (when these discussions started), I will not waste more time that way.


    Quote

    You can't have it both ways. If you are going to dismiss the evidence without reading it, you cannot expect us to politely point you to it again and again. You are not the only one who does this, needless to say. The editors of the Scientific American and Naturehave been doing it since 1989.


    You keep saying nonsense crappola like this but that doesn't make it true. The mainline journals (and me) would accept with delight any clear and convincing demonstration of LENR performed by reputable researchers, preferably properly replicated. The same old crap claims, badly documented by the usual suspects doesn't cut it.


    Finally, I have to remind you that you believed Rossi's claims to be valid based on experiments you read and heard about and you said this was "irrefutable" and "based on first principles". I take no pleasure in rubbing your nose in this because I think you are well motivated if easily fooled. Like Lewan is. And probably G. Levi as well. Nonetheless that is what happened for several years until Rossi's verbiage became so incredibly outrageous that you finally saw the truth, bathed as it were in the QuarkX light, LOL.


    I also have to restate that the organized opposition supposedly against cold fusion isn't that at all. It's an opposition to wasting more resources (especially the tax payers'), money and work time on research which lacks high quality evidence of being worth while. Nobody would enjoy LENR being real more than me. And Nature and Science would be delighted to publish any papers showing LENR real, could they withstand peer review processes. For Cripe's sake, Nature even published complete garbage from self-styled psychic Uri Geller! (https://www.nature.com/nature/…1/n5476/abs/251602a0.html ) Of course, they later had to retract the paper because it was con man hogwash, just like Rossi. But if they will provide a forum for psychics, you don't think a credible report showing sustained low temperature fusion would be published? Wow! What a crackpot conspiracy theory!


    So the challenge remains: provide the single best paper showing proof that LENR exists and be demonstrated by clear, well done experiments, proven with well written papers by credible authors and including replication by independent sources.


    Oh... one more thing... Zeus (IIRC) mentioned something about ulcers caused by bacteria in pigs in 1952. Perhaps he/she has a reference other than some web whackjobs? It may be true, I don't know. But what Marshall and Robin did, at their personal peril, was to satisfy Koch's postulates *in humans* for the organism. This is the gold standard for demonstrating that an organism is a cause of a human disease ( https://en.wikipedia.org/wiki/Koch%27s_postulates ) now modernized as the Bradford Hill criteria. Check it out.

  • How lucky this forum is to have real verified lawyers with no interest in the affair, coming out of the woodwork (eh) to state that Rossi is a doomed liar and hack.


    Case closed I guess :) better tell the swedes, they might be unaware of whom they're dealing with!

    "The Swedes" probably already know quite fully who they dealt with. That is why we have not heard a single word from any of them in three years.

    They have not defended their report.

    They have not answered polite questions from reputable sources.

    They have "dropped off the planet" as far as Lugano is concerned.


    I have heard rumors from a few sources here that they are attempting replication. But rumors only and no confirmation from them directly. We have seen evidence that Fabiani was hired by the university, but that is almost beyond imagination. I am unsure if it is real or not. After what has came out in the lawsuit depositions, why anyone would hire him is quite puzzling. My opinion is that if he indeed was hired, it was due to the Lugano team having been unable to get any heat "out of the cat" and hope that he can shed some light. (Hopefully more than how to adjust the measuring equipment!)


    In any case, they do not seem to have followed the normal discourse for an academic endeavor and this certainly seems odd. I have also read (I do not have the link) that their University instructed them to shut the "blank" up about the whole Rossi affair as it was an embarrassment. But this too is only rumor.


    I would be truly excited and happy if they should appear on "the stage" tomorrow and state they stand by Lugano, they have replicated and they produce true independent replications, data and protocol.

    However....... I am not holding my breath. Again, rumor from both views proves nothing. Only the Lugano team making an official statement of their standing will and so far, they ain't doing it!

    :/


  • Woodworker, welcome!


    What a relief to have an actual real lawyer commenting on this Forum about this case! As I've confessed periodically, I'm no lawyer, I just play one on LENR-Forum.:)

    (As you may have read,I trained and worked for 11 years as an electrical engineer before switching to an unrelated field of grant-funded research). I find this case interesting because it's somewhat amazing to me that a scammer like Rossi has made it this far and this case is seems so unusual in so many ways.


    So after reading all of this, you seem to have come to the same conclusion of many of us here, that Rossi has little-to-no chance of winning this case.


    My question for you is regarding IH's counter claims for $11.5M and damages. I've made a 'bold prediction' that IH will not be awarded any of their claims either. Do you have thoughts about this?


    And this leads to another question I've had for awhile: if neither Rossi (and 3rd party) nor IH counter-claims (monetary or otherwise) are granted by the jury, what happens to the E-Cat and the IP license? (And obviously, assuming the losing party appeals, it could be several more years before the legal issues are concluded).


    Presumably, IH retains both the physical E-Cat and the IP license (worthless as they may be). Then this unhappy 'marriage' continues to limp along awkwardly?


    Your thoughts?

  • Another minor note added to the docket:


    Quote

    PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Telephone Conference held on 6/15/2017. Total time in court: 3 hour(s) : 10 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Brian W. Chaiken, Court Reporter: Stephanie McCarn, 305-523-5518 / [email protected]. (cmz) (Entered: 06/15/2017)

  • Welcome Mr Appel. Just for curiosity, what leads a lawyer to read the LENR Forum? Are you interested in cold fusion or in general in alternative sources of energy? How did you find the dispute between IH and Rossi?


    I don't recall what led me here. I may have run across a link on Quatloos or on one of the too numerous blogs I visit. My interest in CF is probably limited to the desire to see clean cheap energy, but I have no familiarity with any of the specific proposals to achieve that.