Rossi vs. Darden developments [CASE CLOSED]

Do you think he would not have intervened if a report was brought up bearing his name and he did not have anything to do with it?

I know he has not in the past done this in such a case. Rossi stated that this, in the case of the egregiously bad Penon test report from a few years ago published on Rossi's blog. Otherwise, if Penon had had anything to do with it, it would show Penon to be totally incompetent at testing. For example, it mentioned voltage and current measurements without specifying the equipment used to make them (not even whether these were average or true RMS meters). The difference was highly relevant in this case because it would explain a false positive result.

Now, Penon did not complain at that time nor for many years afterwards.

So, yes, he has history doing what you think he would not, as a serious professional, do. Or, if Rossi lied, than he has shown himself incompetent as a tester.

Woodworker, your argument is concise, clear, reasoned. Thanks.

Do you put any weight behind the argument that IH actively pimped Rossi's technology to investors during the time period IH claims now to be unsure the tech even worked, shows IH isn't beyond stretching the truth for profit? IH also filed a patent on Rossi's technology in that time period when they could not replicate LENR, much less the patent, which patenting Rossi claims was a breach of contract (this is my memory of Ross's claim, am too lazy to find you a source). Will Rossi try to make the case that IH are the frauds? What is Rossi's best case?

Quote from SSC

It does not make much sense to show the Doral plant to investors and then ask them to pay money for other projects. Darden used the Doral test as a showcase to raise funds, and it is useless to deny that Rossi and his E-Cat have long been more famous and promising than the competition reactors. It's Rossi that has attracted Woodford's attention, not the rest of the portfolio.

Penon is a serious professional, with years of experience behind him and a solid reputation. Do you think he would not have intervened if a report was brought up bearing his name and he did not have anything to do with it? Be serious ...... the report is his.

It makes perfect sense - They (Peter and Henry) traveled around the US visiting most of the researchers supported by IH. It would be hard to say they could not visit Rossi. Your assertion that Darden used Doral as a showcase is not correct. I think the "showcase" was elsewhere (possibly the work by Cooper and that by Miley).

You keep on discounting all the other work and the visit on the same US trip by the Woodford group to all the other places. Rossi (I think) was the last place the visited on the way back to the UK.

You assume way to much.

Quote from nobody

Woodworker, your argument is concise, clear, reasoned. Thanks.

Do you put any weight behind the argument that IH actively pimped Rossi's technology to investors during the time period IH claims now to be unsure the tech even worked, shows IH isn't beyond stretching the truth for profit? IH also filed a patent on Rossi's technology in that time period when they could not replicate LENR, much less the patent, which patenting Rossi claims was a breach of contract (this is my memory of Ross's claim, am too lazy to find you a source). Will Rossi try to make the case that IH are the frauds? What is Rossi's best case?

notice the patent (as seen in the claims WO2015127263 ) are only on a device (the reactor tube) and there is no claim that it produces excess power beyond input and no claims on the material to put in the device. Perhaps they were thinking that they might find or develop a usable material for the device since other research in LENR has shown that various materials (say Pd black) could be made to work at some level. Also Dameron might have contributed in ways that you do not expect. For example in claim 15, perhaps he developed the spiral grove (we know that IH made the tube).

Replicating the excess heat and making a vessel for material that would work should a good material be found are two different things.

Yes, you do aprear "too lazy". Rossi had signed over future improvements and developments to IH. I do not see anywhere where they patented any claims on production of excess heat. Your argument fails.

Quote from woodworker

As to what are the terms of the Agreement, I expect some fighting over whether or not the Florida test itself is the test required by the Agreement, but at the end of the day I don't think it will matter, i.e., that whatever the terms and conditions precedent were, Rossi didn't satisfy them. I haven’t reviewed the documents in enough detail to predict how that issue will play out other than to say that the Florida test, if not completely bogus, might have been considered to be the test required by the Agreement. However, as the Florida test was bogus, e.g., fake customer, fake invoices, sketchy “performance” reports, I don’t think the Florida test will be found to have satisfied the test requirements set forth in the Agreement.

While the fake customer casts a shadow on Rossi's character, there isn't a requirement for a customer in the Agreement.

You doxxed yourself, remember? And yes, I do have better things to do, such as explaining the real meaning of the expressions you throw around when trying to appear credible, or explaining the pitfalls of your unlawful divulging of patients' medical information.

...And you're the one that's been banned twice for insulting people you wazzock.

Quote from LENR Calender

While the fake customer casts a shadow on Rossi's character, there isn't a requirement for a customer in the Agreement.

While that is true, I think it is important for woodworker to note that the ruling Agreement (aka 2nd Amended License Agreement) explicitly specifies the '6 cylinder' unit for the 1 year performance test. That unit is not the unit used in Florida: the 6 cylinder unit is currently and always has been in North Carolina. It uses oil as the heat transfer fluid instead of water. It was never part of any 1 year performance test. The 1MW plant is a completely separate device from the 6 cylinder unit. The only substantial similarity is that both devices are housed in shipping containers. The 1MW device is the unit that IH purchased for 1.5 million from Rossi after a 23.5 hour test in Italy. Rossi proposed to IH to rent that unit to the (fake) Doral customer for 2 years and the written agreement for that is named the Term Sheet. The Term Sheet makes no mention of any General Performance Test - it is explicitly only a Rental Agreement. IH agreed to ship that 1MW (water/steam plant) to FL and that is what Rossi is claiming met General Performance Test (GPT) performance.

My understanding is that this fact alone (that the 1MW unit 'tested' for 1 year in FL is not the unit specified in the agreement) is grounds for dismissal of Rossi's $89M performance Breach of Contract claim. But it centers on the question of how far can you 'stretch' estoppel. Rossi seems to be hoping that swapping units is OK via estoppel. Since I am not a lawyer, it would be great if woodworker weighs in, given that both parties agree that the 6 cylinder unit specified in the 2nd Amended License Agreement (signed by Rossi and Darden but not Ampenergo) was never tested for 1 year performance by Rossi, and that the contract explicitly states that any changes to the agreement must be made in writing and agreed to by all parties (and this change of GPT hardware was never done or even proposed by any party).

Thoughts, woodworker?

Quote from LENR Calender

While the fake customer casts a shadow on Rossi's character, there isn't a requirement for a customer in the Agreement.

Quote from oldguy

you may want tor read the agreement. It specifies (as signed by Johnson) that neither he nor Rossi had any ownership or where agents of any kind to the UK formed company.

These two statements don't seem to tally?

And how would estoppel work if there are three parties that were to agree to any changes. It is unclear that Ampenegro gave any indication of approval of any changes to the agreement.

It's actually pretty clear; the Ampernego representative said in his deposition that he didn't approve the second amendment.

Quote from Bob

The should not "tally"

Let's see if we can get this clear and agree......

There are TWO contracts being spoke about.

1) 2nd agreement commonly called the GPT, that requires the 6 unit reactor, all three signatures (Rossi, IH, Ampenergo), starts within a certain time fram and some performance characteristics.

2) There is the RENTAL and Sale of Heat agreement that Rossi drew up for "Sale of Heat and 1 MW plant rental" for 3 years to a UK customer. This was to be signed ONLY by IH and Rossi. Ampenergo had nothing to do with this contract.

#1. The 2nd agreement "GPT" was made void by at least (3) major contract requirements.

A. Ampenergo did Not sign. An explicit requirement.

B. The 6 unit reactor was NOT tested. This was an explicit requirement.

C. The test did not start within the time frame of the written agreement. This was an explicit requirement.

***** Thes above were all for the "GPT" or 2nd agreement. None of the above was about the Doral test nor was the Doral test about the above agreement! It is clear.

#2. The Doral test was a completely separate contract that WAS signed by IH and Rossi. Ampenergo had nothing to do with it.

A. It called for selling heat to a customer, presented by both Rossi and Johnson as being a UK based company and that they had no relationship to this company.

(this is now proven false as Johnson created the company and Rossi was the sole operator of it)

B. Rossi stated this company would use the heat to make production of their existing product and pay $1000 per day to IH for the supplied heat.

(this is now proven false as there was no production nor customer)

C. Rossi stated that IH had to sign the contract quickly or that the customer would have to use their existing heat source as production could not wait.

(this is now proven false, as there was no customer, no production nor no urgent time frame. Clearly fraudulent enticement)

D. There was no articles or mention in this agreement about GPT or other test. Simply a sale of heat.

*****

So people need to understand. 2nd agreement test (GPT) was void and obsolete when the time frame elapsed. IH told Rossi this early on. It is true that the

GPT required no customer. IH did not care about a customer for it, they wanted a true and accurate test for the GPT. They had setup the GPT test in NC and Rossi

refused to do it there! People need to understand this very important point. IH had the GPT setup and Rossi would not do it. He kept stating IH did not find a customer.

A customer was not needed. He simply was not going to let a test be done under independent verification.

So after the GPT time frame expired, he then presented the Sale of Heat to a "customer" in Florida. IH thinking, why not? It is not the GPT but perhaps it will show something.

They never viewed it as the GPT and there was a SIGNED contract stating it was simply a SALE of HEAT!

So people need to quit mashing these two contracts together. They are completely separate and have NO RELATION to each other! It is not that complex if people will simply

read the entire story instead of reading what supports their desires.

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Yes, excellent analysis Bob!

BTW, just for clarification for newbies regarding Bob's terminology: his '2nd Agreement' is actually officially named the '2nd Amendment to License Agreement' (links point to the same document). It includes the (amended) terms of the 1 year GPT and $89M payment. It is the second amendment to the initial License Agreement which is the most essential agreement (or contract) regarding Rossi and IH. It describes the terms and financial charges for and of the 1MW unit, the transfer of Rossi IP to IH, the regions where IH can use Rossi's IP, and the performance requirement for the $89M GPT performance. Also, there is also the '1st Amendment to License Agreement' which is relatively unimportant, as it merely changes the dates of the initial performance tests for the original 1MW unit.

And what Bob calls the 'Sale of Heat and 1MW Plant Rental' is a rental agreement for heat production which on the Docket is titled simply the 'Term Sheet' (links point to the same document). This is the agreement Rossi cooked up much later in the game (long after any GPT requirement could be achieved according to the 2nd Amendment to License Agreement). In July 2014, Rossi claimed he had an urgent opportunity for IH to rent the 1MW plant to a customer in Florida affiliated with Johnson Matthey (A UK-based platinum sponge manufacturer, among other things), named JM Products. This, of course, is the fake customer, and then Rossi operated the 1MW device for one year claiming that this met performance for the $89M GPT in the 2nd Amendment to the License Agreement.

Finally, the best place to find and refer to all the filings on the Docket is at a site created by Abd Lomax called coldfusioncommunity.net This is because you can direct link to citations (as I have in this post) and you can search for things using his search facility or simply using Ctrl-F in your browser. Also, Abd has done a lot of work to organize claims and counterclaims for the early filings which is really helpful for understanding the background of the case on his page 'Rossi Answer Merge with IH Claims'. Additionally, Abd has some helpful neutral analysis and in depth commentary regarding the case. And finally, Abd is planning to travel to Florida to be present for the trial and presumably will blog about his experience.

And back to the legal basis for Rossi's claims, I don't see any legal argument that Rossi can apply to overcome Bob's points #1) A, B and C above other than estoppel (and in the case of C, some 'bad faith' mixed in).

Now estoppel itself can mean a few different things legally, but in this case, the applicable common practical application is that even if the letter of the contract/ agreement was not complied with, since both parties acted like they were in agreement, this implies that they both were informed by and agreed to the overall intent of the the contract/agreement. (I'm not a lawyer, so I'd welcome a better definition/description).

So let's look at applying the estoppel principle to the issues Bob summarizes in A, B and C:\

A. Ampenergo did Not sign. An explicit requirement.

As LENR Calendar noted, not only did Ampenergo not sign, there is evidence on the docket showing that they refused to sign because they did not agree to the terms of the contract. There is also evidence on the docket that Rossi knew this at the time, and he stated that he didn't know why Ampenergo wouldn't sign. (There is no clear answer to this non-signing by Ampenergo on the docket, though there is some speculative evidence as to why, but that is moot).

So it seems to me that estoppel cannot be applied, at least regarding Ampenergo. However, I suppose that Rossi's lawyers might argue that yes, Ampenergo didn't sign, but that doesn't completely invalidate the contract because IH and Rossi did sign, and they behaved accordingly, and so as far as the agreement between Rossi and IH is concerned, those terms can and should be estopped. I don't know if this is a reasonable argument, and I'd love to hear a lawyers opinion on this. It seems like a weak argument to me, but I also think this it is probably the best argument for estoppel of the three issues A, B and C (weak as it is).

B. The 6 unit reactor was NOT tested. This was an explicit requirement.

This is the point I was making in my post, and so I will only briefly summarize: There were two shipping container heaters: the 1MW water/steam-based E-Cat that IH purchased initially from Rossi under the terms of the License Agreement that eventually was shipped to Florida, and the 6 cylinder oil-based E-Cat that was built and stayed in North Carolina. The 2nd Amended License Agreement specified that the 6 cylinder unit was the unit for which 1 year GPT was required. It never underwent any 1 year test of any kind.

I would think that trying to establish estoppel for this is nearly impossible. In my mind, the conditions necessary for applying estoppel in this case would be clear evidence that IH explicitly communicated to Rossi that they 1) agreed that the 1 MW plant could be swapped with 6 cylinder unit for GPT performance testing and 2) that the Doral setting was an agreeable setting for establishing GPT performance.

The docket has sworn testimony by IH/Darden that they did not accept Doral as the GPT and that they told that to Rossi explicitly (verbally) multiple times in NC. They don't seem to have that in writing, but neither does Rossi have it in writing that they did accept it as GPT. And it is Rossi's burden to disprove Darden's statements. It is not Darden's burden to disprove Rossi's statements. So if it boils down to 'he said she said' Rossi loses (according to my understanding).

So I don't see any way that Rossi can succeed with this second issue. But I am not a lawyer, so I'd really like to hear someone who is weigh in on this.

C. The test did not start within the time frame of the written agreement. This was an explicit requirement.

And it wasn't even close to being on time (it was more than a year late). I suppose Rossi's lawyers would try to accuse IH of purposefully dragging their feet. This is more of a 'bad faith' defense then an estoppel defense, but Rossi will no doubt argue that IH behaved like the Doral test was a GPT in order to claim estoppel regarding the grossly delayed time frame. In order to prove this, Rossi has the burden of providing evidence that IH was intentionally dragging its feet in bad faith. On the Docket, IH has sworn testimony that they were doing everything they knew how to get the E-Cat to work, and to get it tested (e.g. by Boeing), and they couldn't get it to work. Because the burden is on Rossi, if all he can produce is "he said, she said", Rossi loses this argument, according to my understanding (though I am not a lawyer). Regarding estoppel, IH explicitly communicated in writing to Rossi that the Doral test was not a GPT in December 2015, a few months before the required 350 days occurred. So Rossi's only hope is that somehow he can claim estoppel applies retroactively, even though IH clearly communicated in writing that they did not accept Doral as the GPT prior to it's commencement. Again, I'd love to hear from a lawyer as to how likely this kind of defense is to succeed.

And Regarding Bob's point #2, yes, the Term Sheet is completely silent regarding any GPT, so this will not help Rossi at all, I think, but his clear deception in setting it up will most likely destroy any and all credibility he might try to bring to trial.

Quote from THHuxleynew

Kevin.

I can see how you get your weird views. Ecat-world is not a reliable legal information source - nor vortex. Try reading the Court documents for sworn testimony from the principals.

The question is not whether IH rejected it. It is whether they ever accepted it - your onus to find this acceptance which you can be certain, if it existed, Rossi will reply upon in Court. Therefore it will be in the mountains of Discovery evidence and also highlighted in the Rossi MSJ (to make your job searching a lot easier - reading the entire MSJ is quite possible to those interested).

The not-so-subtle conflation of accepted and never rejected, which you make in your post above, is typical of Rossi's lawyers who continually try to deny matters of fact by stating counterfactuals which are apparently in contradiction but actually not so. Abd's site has some insightful and very detailed, with references, examples of this. Abd is disliked by many as a pompous self-important windbag (a bit like me) - but his patience at following up this stuff is unequalled - and he provides exact quotes and references to source material (that is Court documents, not vortex or ecat-world) so you can check as you read. I recommend that to you.

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Quote from Zeus46

Woodworker, is there any validity to the argument that because the 'fake' companies which Rossi set up are separate legal entities, these technically did satisfy the needs of the agreement?

To clarify, say I'm the sole director of two companies, and the companies sometimes contract/invoice and communicate with each other, despite the fact it's really all just 'me' writing letters to 'myself'. Assuming I'm not doing this for tax avoidance purposes, everything is legal/standard practice?

I hadn't read this bit yet:

Is that true? If so I guess it makes the above a moot point.

Fo' sure

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Just to point something out: What is the purpose behind you forming separate legal entities that don't actually conduct business - to defraud the counterparty, in this case IH. FRAUD and having formed the separate legal entities won't protect you.

Quote from nobody

Woodworker, your argument is concise, clear, reasoned. Thanks.

Do you put any weight behind the argument that IH actively pimped Rossi's technology to investors during the time period IH claims now to be unsure the tech even worked, shows IH isn't beyond stretching the truth for profit? IH also filed a patent on Rossi's technology in that time period when they could not replicate LENR, much less the patent, which patenting Rossi claims was a breach of contract (this is my memory of Ross's claim, am too lazy to find you a source). Will Rossi try to make the case that IH are the frauds? What is Rossi's best case?

Firstly, IH may have believed/wanted/hoped that Rossi really had something great, so going out and pitching investors is not abnormal, unusual or necessarily a sign of bad faith. Just like many poker players, investors will chase a bad hand, putting more money into the pot in hopes of buying a winner. I know that when I represented companies raising money, ALL of the prospectuses contained many many risk factors pointing out that the technology was unproven, may not be patentable, may not be commercially feasible, etc., etc.

Whether or not IH filed a patent, so what? If the technology works, they have protected themselves, if it doesn't all they have done is paid for orthodontia for the patent attorney's children. See above re: risk factors.

Of course Rossi will claim that IH are frauds: when the law is in you favor, you argue the law, when the facts are in you favor, you argue the facts, when neither the law nor the facts are in your favor, you argue bullshit. Also, Rossi's best case IMHO.

But how did IH's alleged fraud prevent Rossi from satisfying the conditions precedent to their obligations to pay? Their alleged fraud did not cause Rossi to form a fake company, to cause false invoices to be created, etc.

Consider a very simple contract:

I hire you to competently mow my lawn within the next five business day and I will pay you $100. You mow my lawn, do a competent job and do it within the stated time. Then I owe you $100.

Now, let's say you don't mow my lawn, but say that you couldn't because I constantly ran the sprinklers the entire time. Okay, your performance is excused because I prevented you from performing, so I still owe you $100.

Now, let's say that you don't mow my lawn but still say I owe you $100, which is sort of the case we have here. ROSSI HAS THE BURDEN OF PROOF THAT HE MOWED MY LAWN. Did he? Where is the evidence? I see evidence that he pretended to mow my lawn, yes he had a lawnmower, but it was electric and he had no extension cord or it had no blades. And his proof that he mowed my lawn is that he hired someone, a friend and colleague of his, to say that he had hauled away bags and bags of cuttings, although he had no means of removing those cuttings and the trash guys say they never picked up any such trash. Oh, and my lawn is an inch taller that it was a week ago.

Lastly, let's say that you hire someone else to mow my lawn on your behalf, but your subcontractor doesn't perform. I don't owe you anything.

Quote from woodworker

Just to point something out: What is the purpose behind you forming separate legal entities that don't actually conduct business - to defraud the counterparty, in this case IH. FRAUD and having formed the separate legal entities won't protect you.

I assume you are using the Royal "you" in your response.

If for some reason you aren't... It's to limit liability to the side that (potentially) screws up.

Quote from SSC

The timing is a bit suspicious indeed.... but it is said that thinking badly is a sin!

SSC: If you want to say that I am lying when I say I don't have a dog in this fight, say so and don't be a coward. I repeat, I have no dog in this fight, I have no financial interest in it and I have no personal or business relationships with any of the parties, their counsel or anyone on this board (at least as far as I know, as most of the people here post anonymously). But, if you decide you want to say I am lying, please note that statement could be considered defamatory, particularly as I have identified myself, and I can assure you that this board and your ISP will gladly turn over you real identity pursuant to a subpoena. So, at the risk of violating the norms of this board, fold it five ways and shove it where the moon don't shine.

Quote from SSC

Well, it is right to have hope for new sources of clean and cheap energy ..... which is why I was interested in E-Cat. As a lawyer (you, not me), though, I wonder why you have already made such a verdict. Do not you think Rossi can still have a lot to say about the whole affair? Do not you think that some evidence that you find obvious may turn out to be different when Rossi will explain it to the jury? I thought your class of workers was usually more cautious about these issues.

SSC, how does Rossi explain the fake company and fake invoices? Attorneys generally are cautious, but I am a fairly cantankerous old coot.

Quote from sigmoidal

While that is true, I think it is important for woodworker to note that the ruling Agreement (aka 2nd Amended Contract) explicitly specifies the '6 cylinder' unit for the 1 year performance test. That unit is not the unit used in Florida: the 6 cylinder unit is currently and always has been in North Carolina. It uses oil as the heat transfer fluid instead of water. It was never part of any 1 year performance test. The 1MW plant is a completely separate device from the 6 cylinder unit. The only substantial similarity is that both devices are housed in shipping containers. The 1MW device is the unit that IH purchased for 1.5 million from Rossi after a 23.5 hour test in Italy. Rossi proposed to IH to rent that unit to the (fake) Doral customer for 2 years and the written agreement for that is named the Term Sheet. The Term Sheet makes no mention of any General Performance Test - it is explicitly only a Rental Agreement. IH agreed to ship that 1MW (water/steam plant) to FL and that is what Rossi is claiming met General Performance Test (GPT) performance.

My understanding is that this fact alone (that the 1MW unit 'tested' for 1 year in FL is not the unit specified in the agreement) is grounds for dismissal of Rossi's $89M performance Breach of Contract claim. But it centers on the question of how far can you 'stretch' estoppel. Rossi seems to be hoping that swapping units is OK via estoppel. Since I am not a lawyer, it would be great if woodworker weighs in, given that both parties agree that the 6 cylinder unit specified in the 2nd Amended Contract (signed by Rossi and Darden but not Ampenergo) was never tested for 1 year performance by Rossi, and that the contract explicitly states that any changes to the agreement must be made in writing and agreed to by all parties (and this change of GPT hardware was never done or even proposed by any party).

Thoughts, woodworker?

I haven't read the agreement or the test parameters in enough detail to say whether or not the Florida test, if legitimate, would have satisfied the conditions precedent. I do believe that if the Florida test legitimately worked IH would have gladly paid the additional $89 million while skipping and dancing to show to investors. And none of us would be here right now arguing about it. But it didn't work (more on that in a moment). Someone above commented that the Agreement didn't require a customer. True, but once Rossi introduced that factor, and introduced to prove that the test worked, Rossi can't now say "ignore that the customer was fake."

How do I know it didn't work - just a few points: (1) fake customer and fake invoices; (2) Rossi created the fake customer, etc. because he knew it didn't work; (3) Rossi's inability to replicate; (4) Penon taking a hike; and (5) no expert stepping up for Rossi giving an expert opinion that it works/worked.