You don't see because you don't want to see.
Ele: please provide specific concrete examples of commercialization in Europe.
woodworker
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Posts by woodworker
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If IH were to get that supposed offer of Rossi into the docket and tell the judge they want to accept it, the $89M thing goes away. And has been posted upthread, the most likely scenario is both sides pay their own legal costs.
IH's lawyers should be all over this. But they aren't. The expression that comes to mind is a lawyer who bills his client twice when he sleeps with them.
Maybe the reason they aren't "all over this" is because it was bullshit.
As for payment of legal fees, that depends on the outcome of the case. Even if they split the baby, that doesn't mean there is no allocation of legal fees. Jones Day would assert that the majority of their fees related to defending the principal complaint, and they would show billings to support that. Assuming the agreement has a legal fees provision, that means that IH is entitled to making Rossi pay for that portion of the legal fees relating to the defense of the principal complaint, on which, if the jury splits the baby, IH prevailed. Any such amount would be offset by the amount that Rossi spent defending on the counter-claim, again which would have to be supported by the lawyers billing records (and believe me, all of the lawyers here are keeping detailed records, probably billing in increments of 1/4 hour or less) showing the amount of time spent on the cross-defense. Given that, IMHO, the majority of both sides' legal bills will relate to the principal complaint, IH could recover a significant portion of its legal fees. Also, as an FYI, this issue is not decided by the jury but by the judge.
But I suppose we should all defer to your extensive legal expertise and experience.
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That makes no sense if they accept the supposed offer. Rossi claims he offered a refund in order to get his IP back. IH gets their money, Rossi gets his IP.
But where it does make sense is if you're an IH lawyer and you see this
supposedly bullshit claim by Rossi. If the judge knows about it, the legal proceedings end in 20 minutes and there goes your meal ticket.
Jones Day had estimated revenues of just under $2 billion in 2015. Do they like the legal fees from this case, yes. Would it break them or the partner involved if it had settled? I don't think so. "With $1,941,000,000 in gross revenue in 2015, the firm placed 6th on The American Lawyer's 2016 Am Law 200 ranking. On the 2014 Global 100 survey, Jones Day ranked as the 10th highest grossing law firm in the world."
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I see 4 possible outcomes.
1) Rossi loses both suit and counter suit and ordered to pay lots of $$ to IH. Likely much more than he has.
2) It is a split baby case with no one wining either case and neither side getting anything of merit.
3) Rossi wins but IH appeals costing Rossi lots of legal fees and if IH looses either directly or on appeal IH declares bankruptcy and he gets nothing or very little.
4) Rossi "wakes up" mid trial and leaves the country with whatever is left of his IH money.
I just don't understand Rossi's rational.
What scenario am I missing that is good for Rossi?
He thought IH would settle early. But once you start an expensive litigation, it takes on a life of its own and, just as with a bad hand in poker, you often keep chasing trying to buy the pot. Once IH filed the counter-claim, Rossi could have proposed a settlement with mutual walk-aways, and maybe IH would have taken that. I am not privy to any inside information, but if I were IH's counsel and Rossi had made a serious (show me the money) offer to refund in exchange for the IP and then settle, hell yes, I would have recommended IH take that offer. After all, it is the equivalent of them winning outright on everything in this action and Rossi losing on everything. But Rossi losing on everything is why I don't believe there was ever a serious offer from Rossi.
What scenarios are good for Rossi? Three: first, the jury splits the baby, I put close to even odds on that; second, hung jury, nobody can afford a retrial - essentially mutual walk-aways (also good odds on that); third, crazy jury that decides in Rossi's favor (IMHO, unlikely as hell) .
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"Whether or not the alleged settlement offer is credible is immaterial. By allowing it into the docket as evidence, the judge can use his authority to make it a credible offer."
I don't know what planet you live on, but it is emphatically not the same one Federal judges inhabit. That is not their job, it is not their function, it is not within their purview and it would be grounds for an appeal, as well as a bitch-slapping by the appellate court. This is why I asked about your litigation/legal experience. THE JUDGE DOES NOT HAVE THAT AUTHORITY TO MAKE SOMETHING CREDIBLE.
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Whether or not the alleged settlement offer is credible is immaterial. By allowing it into the docket as evidence, the judge can use his authority to make it a credible offer.
As far as the sidenote case that if Rossi doesn't pay, he ends up in trouble with the court, which is nothing new to Rossi. But if he does not pay he would not end up with his IP.
This is a battle over what Industrial Heat calls worthless IP. Rossi wants it and claims he is willing to pay for it (at least on his blog). His claim is admissible in evidence because other claims on JONP have been admissible as evidence.
Please explain how said "evidence" is relevant as to the issues of whether or not he satisfied the conditions precedent to IH's obligation to pay or his alleged fraud. His offer, if it happened, clearly occurred after the deadline for him to satisfy the conditions precedent, so how would it be relevant to the satisfaction thereof. Ditto on the fraud. His alleged offer may be relevant to a proposed settlement, but that is not an issue at trial. So please, explain the relevance of after occurring events to whether or not an event that was supposed to occur prior in time occurred (this issue has particular meaning to me as on my contracts final exam, I cited an after occurring fact in support of a prior condition precedent - my professor noted in the margins, "nice trick, time travel - do you pull rabbits out of hats too?).
As Mike D has pointed out repeatedly, something sought to be admitted as evidence must be relevant to the issues at hand. I don't think his offer (alleged) is. Additionally, as I have said, the touchstone for admissibility for me has always been does the probative value (the value of the proposed evidence in deciding a material issue) greater than its prejudicial value). As noted above, I don't believe the alleged offer has any relevance and therefore has no probative value. I think its prejudicial value is great: it would be used to sway the jury by showing that Rossi is a good guy. IMHO, the Judge won't allow it in.
As to my question about your litigation experience, I asked because you seem to often opine on what will/should occur and how the judge should rule on evidential issues and and how the lawyers should strategize. Just as we tend to evaluate a certified pipefitter's experience when he is talking about piping issues, IMHO it is relevant in considering your legal judgments just how much experience (legal) you have.
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I think you're right as far as disclosure is concerned. But that probably wouldn't prevent them from calling whoever nominated him.
Nominations are not disclosed by the Academy for 50 years. Procedures for nominators for the Physics Prize are as follows (Chemistry is similar):
Qualified Nominators
The right to submit proposals for the award of a Nobel Prize in Physics shall, by statute, be enjoyed by:
1. Swedish and foreign members of the Royal Swedish Academy of Sciences;
2. Members of the Nobel Committee for Physics;
3. Nobel Laureates in Physics;
4. Tenured professors in the Physical sciences at the universities and institutes of technology of Sweden, Denmark, Finland, Iceland and Norway, and Karolinska Institutet, Stockholm;
5. Holders of corresponding chairs in at least six universities or university colleges (normally, hundreds of universities) selected by the Academy of Sciences with a view to ensuring the appropriate distribution over the different countries and their seats of learning; and
6. Other scientists from whom the Academy may see fit to invite proposals.
I believe that historically nominators have kept their mouths closed about nominations, but I could be wrong.
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That was Henry Johnson. He put it in writing too. Johnson has been Rossi's personal lawyer since he set up shop in Miami I believe. He also I think, did Fabiani's "USQL" incorporation, or was that Annesser? . Anyways, Johnson was also "director" of JMP. Not too impressive a guy judging by his depo.
And yes, Dewey at one point mentioned Johson's professional jeopardy.
My thoughts related to Johnson's testimony. Does he get on the stand and say he lied (which exposes him to professional jeopardy), say he didn't lie but based his statements on Rossi's assurances (throws Rossi under the bus), pleads the 5th (plays badly with jury) or asserts that someone told him but that statement is privileged (plays badly with jury). I don't see any good responses for him.
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My recollection is that basically anyone can nominate anyone for a Nobel. So there's probably some evidence for that, but it's easily explained as the meaningless thing that it is.
IIRC, nominations are publicly disclosed for some significant time, if at all. Only winners.
Also, on another issue: does anyone immediately recall what lawyer told IH that Rossi had no involvement in the fake company (a/k/a JM). That lawyer may have issues with his state bar.
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Is that how it works? Are you sure? I wouldn't know, but I think a lawyer said the counter-suit would call for another trial.
If they can do them both at the same time that reduces expenses and saves time.
Is that how it works? Are you sure? I wouldn't know, but I think a lawyer said the counter-suit would call for another trial.
If they can do them both at the same time that reduces expenses and saves time.
Mike is correct. Generally (with some exceptions that don't apply here), if the causes of action arise from the same set of facts and are related, you must file a counter-claim, not a separate complaint.
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Good. If they have been allowed as evidence then other JONP Rossisays items should be allowed as well. If I were the judge I'd be focusing on the Rossisays "I would refund IH if I got my IP back" and this whole trial could get wrapped up in 20 minutes rather than 5 weeks.
Settlement discussions are often not admissible at trial. But let's say Rossi gets in, what then when IH says fine - bring a cashier's check for the $11.5 million. Does Rossi have the cash or will that be another instance of Rossi coming up with an excuse? And, if Rossi and IH settled mid-trial on those terms, Rossi could arguable be worse off. With the trial, he stands some chance, however small, of winning on both the principal complaint and the counter-claim. If he settles and then doesn't pay, IH has a slam-dunk case against him for the $11.5 million. What would his defense to non-payment of that be - I didn't mean it or didn't understand it? And given that such a settlement gives IH everything they want originally, I suspect they would have accepted a genuine offer. Remember, if they win on the counter-claim, they will likely be deemed to have rescinded any claims they have to the IP (once they are fully paid). Based on the above, I don't find the alleged settlement offer credible. To plagiarize, "show me the money."
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And you're not alone, although you're the first Real LawyerTM to weigh in with a prediction.
Awhile back in the thread (here) I made the same prediciton in a Bold Prediction Challenge (link) that I'm personally bank rolling to the tune of 'millyuns of Quatloos'!
In a relatively rare occurrence, IH Fan Boy and I are in agreement regarding your prediction, and so we've bet 'all our Quatloos' (up to a millyun) that no parties are awarded any monetary damages or court costs. (BTW, Allen Fletcher is the all time Bold Prediction Challenge winner so far, because in a previous bold prediction challenge, he correctly (and boldly) predicted that all Motions for Summary Judgement and other motions for sanctions would be tossed by Altonaga at a hearing prior to trial.
(In that previous challenge, I predicted incorrectly that at least one count of Rossi's breach of contract claims would be dismissed on Summary Judgement based on Joint Pretrial Stipulation of uncontested facts (Doc. 280).)
But this still leaves an open question regarding what would likely happen in such a court ruling regarding the license agreement. Since IH has paid the $11.5M for the license and '1MW' E-Cat, would they continue to own that E-Cat and rights to Rossi's IP in the designated 'territories'?
Maybe IH could donate the 1MW E-Cat to quatloos.com, as their first physical specimen in the 'cyber museum of scams and frauds'?
Presumably, under the assumption of this predicted outcome, the court would rule that Rossi failed the $89M performance clause of the agreement, but that purchased E-Cat and license to IP are still valid, right? As a lawyer, do you have any sense as to what the court might rule regarding the existing License Agreement assuming that neither party is awarded any damages?
(I put you down for a millyun quatloos on your bold prediction).
Once again, I am not a real lawyer (fyi, I made predictions a while ago).
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You mean Rossi couldn't even OFFER to do the demo? I think he could offer, and then the pissed off judge could "instruct" the jury to disregard such remarks. That is sometimes how court cases are won. It is also how you will never have the same lawyers again because those lawyers have to practice law before that same judge again, whereas there is not much chance a defendant will meet up with the same lawyer and pull the same shenanigans.
But they are intended to be considered by the jury.
Yes, and they can bite you in the ass. You use an opening statement to tell the jury your story and how you are going to present evidence to back it up. But let's suppose you say that you are going to prove a, b and c. but then don't present persuasive evidence as to "c". You can be sure that the opposing counsel, in their closing, will stress repeatedly to the jury that your promised to give them "c" and, just like Rossi, you failed. Be careful about what you promise in your opening statement, especially if you can't deliver.
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You mean Rossi couldn't even OFFER to do the demo? I think he could offer, and then the pissed off judge could "instruct" the jury to disregard such remarks. That is sometimes how court cases are won. It is also how you will never have the same lawyers again because those lawyers have to practice law before that same judge again, whereas there is not much chance a defendant will meet up with the same lawyer and pull the same shenanigans.
Kev: how many trials, jury or otherwise, have you litigated as lead counsel or associate counsel?
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Some details of the initial shots fired by IH & Rossi:
https://www.law360.com/tria...
Law360, Miami (June 30, 2017, 9:57 PM EDT) -- An Italian inventor suing over an $89 million licensing agreement for an energy catalyzer patent opened trial Friday in Miami, telling jurors that the licensees had repeatedly touted the technology and said it had "potential to change the world" before reneging on the agreement.
Brian Chaiken of Perlman Bajandas Yevoli & Albright PL, who represents Italian inventor Andrea Rossi, told the jury that Rossi and his Leonardo Corp. are owed $89 million from licensees Cherokee Investment Partners LLC and related entity Industrial Heat LLC, which boasted about acquiring the technology for a low-energy nuclear reactor called the E-Cat through a 2012 agreement but failed to live up to their end of the deal."They wasted no time telling investors and potential investors that E-Cat actually works and that they were in possession of the technology," Chaiken said.
At one point, in an investment memorandum, International Heat said the future success of the company was dependent on one key individual: Rossi, according to Chaiken.
"They're (Industrial Heat ) telling their investors they've got LeBron James on their team and if they're going to the NBA Finals, they're going to ride him all the way there," he said.
But International Heat changed its tune in May 2015, he said, when it successfully sold 4 percent of the company for $50 million. After that investment, Chaiken said the narrative changed, and the company began to say that Rossi was unreliable and that the test results of his E-Cat technology were unreliable.
The case is Andrea Rossi et al. v. Thomas Darden et al., case number 1:16-cv-21199, in the U.S. District Court for the Southern District of Florida.
Display MoreSome details of the initial shots fired by IH & Rossi:
https://www.law360.com/tria...
Law360, Miami (June 30, 2017, 9:57 PM EDT) -- An Italian inventor suing over an $89 million licensing agreement for an energy catalyzer patent opened trial Friday in Miami, telling jurors that the licensees had repeatedly touted the technology and said it had "potential to change the world" before reneging on the agreement.
Brian Chaiken of Perlman Bajandas Yevoli & Albright PL, who represents Italian inventor Andrea Rossi, told the jury that Rossi and his Leonardo Corp. are owed $89 million from licensees Cherokee Investment Partners LLC and related entity Industrial Heat LLC, which boasted about acquiring the technology for a low-energy nuclear reactor called the E-Cat through a 2012 agreement but failed to live up to their end of the deal."They wasted no time telling investors and potential investors that E-Cat actually works and that they were in possession of the technology," Chaiken said.
At one point, in an investment memorandum, International Heat said the future success of the company was dependent on one key individual: Rossi, according to Chaiken.
"They're (Industrial Heat ) telling their investors they've got LeBron James on their team and if they're going to the NBA Finals, they're going to ride him all the way there," he said.
But International Heat changed its tune in May 2015, he said, when it successfully sold 4 percent of the company for $50 million. After that investment, Chaiken said the narrative changed, and the company began to say that Rossi was unreliable and that the test results of his E-Cat technology were unreliable.
The case is Andrea Rossi et al. v. Thomas Darden et al., case number 1:16-cv-21199, in the U.S. District Court for the Southern District of Florida.
A quick note to everyone: opening statements are not evidence.
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@anotherTroll . I've deleted the whole of this post, for bad language, ad homs and general nastiness. Not even fit to be put into 'clearance items'. I'm also banning you for 2 weeks. Alan.
Oh, now I really want to see it. Clearance items, pretty please.
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Reading Lewan's epic tome is mostly a waste of time. Almost everything he says about Rossi is what Rossi told him or published on the internet, in other words, Rossifiction. Lewan does not have a single critical bone in his entire body. It would be hard to find a more gullible person unless it were Sterling Allan, but you won't be able to find him for a decade or so because he is in jail for self-admitted child molesting. The bulk of Lewan's book, when not reciting Rossi fables or his own mis-measured incompetent experiments, is a charming travelogue. Don't waste your time. I regret that I did.
Insight into who Rossi is? ROTFWL! You don't need much insight to know who Rossi is. Just examine his past record in newspaper reports (not Rossi web pages). It's entirely composed of failures, lies, broken promises, impossible projections, implausible behavior and scams -- at least three rotten, expensive scams, each of which cost honest people and governments millions of dollars each. THAT is who Rossi is. And it's pity the jury won't know it because nobody took the time and effort to charge him with those crimes except the Italian government, which did not do it very well.
Hey Woodworker, I don't suppose Rossi's Petroldragon scam, the one that polluted an entire Italian province, could be entered into evidence? Anyway it was probably too long ago and it is too complicated and argued over for a jury to sort out. Apparently, under Italy's legal system, Rossi was convicted, then sentenced, served time, then partly acquitted on appeal, then recharged, then statues of limitations expired, But he was indeed convicted of felonies -- illegal gold trading and tax evasion, IIRC. Krivit has all the details on his web site: http://newenergytimes.com/v2/s…al-Criminal-History.shtml
So in a civil trial, I am curious to know, can you bring in prior convictions for criminal activity that might be related to the case at hand? How about prior scams, even if they did not result in criminal charges or lawsuits?
I know this is repetitive to the regulars but new people brought in by the trial activity may not know.
Bringing in evidence of past crimes is always a bit tricky. Why is it being sought to be admitted as evidence, that he is a liar or that he committed a crime? Let's say a party had been convicted of a DUI - should that be admitted? It has very little relevance to a person's credibility, but it is likely to prejudice the jury against the person. Prejudicial value outweighs probative value, likely not admissible. Now, as to Rossi's alleged prior acts: I don't know enough about the status of the criminal charges that were brought against him Italy - was he convicted, reversed on appeal, etc. I think the court will be very careful about letting that in. However, the history of his business ventures - his frequent claims to success that were actually not successful, that might be admitted to show that he is a serial fabulist (liar). Evidence as to his character, likely not admitted, evidence as to his credibility, more likely to be admitted.
Conclusion: I won't predict how the court will rule.
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Rossi, nor IHFB, have enough practical knowledge to understand that fabricating such a large heavy heat exchanger is not like the Home-Depot small pipe, tubing, insulation and tape-mummified crude tabletop "demos" and "prototypes" that Rossi concocted. In addition to your excellent outline above, they did all that installation, and removal (requiring some significant rigging to manage pipe that heavy (unless the cut it all up into 3'sections (a big job in itself))) in a cramped, limited-access, un-airconditioned second floor, with Rossi and some day-laborers, with nary a bit of evidence left behind--not even a hole or dent in the wall!
If I were the lawyer, I'd haul a 3' section of that pipe into the courtroom and have the jurors (and/or Rossi) try to pick up the 60 pound short piece, and then have them imagine dragging up pieces 10 times as long and heavy into their attic in the summertime, manipulating, cutting, welding etc with Rossi and a couple of helpers. Rossi should have made his story more believable by stating that the pieces were rigged thru his invisible quick-change glazing system on the windows.
Give him time!!
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Speaking as a nationally certified pipefitter. low pressure pipe will use A105 carbon steel piping. High pressure would use A106 (seamless) carbon steel piping. You would not need stainless steel for a short duration system (3 years is short for industrial piping) unless your heat exchanger was exchanging heat with a corrosive chemical. The piping should be welded where possible because steam leaks will quickly cut steel. From what I saw in the deposition, I would assume that it is a low pressure system. Flanged connections should be with a metal gasket. Valves should be flanged gate valves. You could have a ball valve for quick stopping and starting of flow but it needs to be a specialty valve rated for steam usage and should have a gate valve backup. Contrary to what others have said, Home depot would not have any of this material but all of it except for any control valves in the system would readily available at an industrial pipe supply although there might be a couple of month lead time on the 180 degree elbows because they are rarely used and might have to be preordered. Although not exceptionally large, the total order would be two or more 40 foot trailer loads and need a significant staging area. Including prefabrication, the job would take more than a month for a crew of 10 working 40 hours a week*. If I were planning this job, I would have a crew of 1 supervisor, 1 expeditor, 1 laborer, 1 fork lift/crane operator (on this small of a job, frequently the supervisor will also perform this task), 2 pipefitters, 2 helpers, and 2 welders. The exchanger is listed as being encased in a wooden insulated box so you would need to hire 2 carpenters and 2 insulators after the piping is finished. Note that this does not make any sense because that would keep you from losing the heat that you built the exchanger for unless it is a weird design using enclosed forced ventilation. I find it impossible to believe that IH would not notice that kind of duct work and fan system along with the accompanying high velocity air flow. The system is supposed to be computer controlled but Rossi and the other 2 engineers could probably hook up any control systems.
*My estimate is based on minimal piping and does not include supporting because I have no idea what kind of supports are needed. A concrete floor could be supported in a day or two. Wooden flooring that needed extensive bracing could add weeks to the job.
*I believe the exchanger would take at least 2 months from start to finish with the crew described. My more than a month estimate involves everything going perfectly. As a rule of thumb, all jobs take about 50% longer to complete than a planners handbook indicates. Something always goes wrong in the job that slows you down. For example, there might not be enough clear space to get a 10 meter pipe in the space. This would suddenly increase the number of welds in the base exchanger piping by 50%.
*Proper piping outside the actual exchanger would probably add 1 to 2 weeks to the job.
Yes, a crew of 3 could probably dismantle the piping in less than a week but it would not be in any condition to reuse afterward. Rossi stated he dismantled the piping for reuse. It takes a lot longer than you think to salvage welded piping for reuse. It also takes a lot longer than you think to field weld 6 inch piping. On average, a pipefitter, helper, and welder is going to get 2 six inch field welds in a 10 hour day, 3 if they are lucky. Even in a fabrication shop setting, you are only going to make 4-5 6 inch welds in a 10 hour day.
Many many thanks for the detailed analysis. I always suspected welding was more difficult that it seemed. I guess Gorilla tape might not have been adequate to the task.
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When I suggested that both sides were hiding balls, I didn't mean from each other. I meant that they are hiding balls from us. And if you think that they don't care about us (i.e., the LENR community), you would be wrong. Each party knows that the eyes of this fraction of the world is on them, and they care. The Lugano report was downloaded hundreds of thousands of times within a matter of days. The number of LENR lurkers far outnumber those of us who make our thoughts expressly known here and elsewhere. The stakes not only for the parties, but for the world, are enormous. I agree with you that by now both parties have a fairly good sense of what evidence each has. And I sure hope we get some clarification during the trial, because those who think this thing is already wrapped up, seem to me (once again) to be jumping to conclusions.
As a side note, this next week is a particularly busy one for me, so unfortunately, I'm going to have to tamp down my participation here for a little while. Best wishes to all, and may the truth prevail.
When I suggested that both sides were hiding balls, I didn't mean from each other. I meant that they are hiding balls from us. And if you think that they don't care about us (i.e., the LENR community), you would be wrong. Each party knows that the eyes of this fraction of the world is on them, and they care. The Lugano report was downloaded hundreds of thousands of times within a matter of days. The number of LENR lurkers far outnumber those of us who make our thoughts expressly known here and elsewhere. The stakes not only for the parties, but for the world, are enormous. I agree with you that by now both parties have a fairly good sense of what evidence each has. And I sure hope we get some clarification during the trial, because those who think this thing is already wrapped up, seem to me (once again) to be jumping to conclusions.
As a side note, this next week is a particularly busy one for me, so unfortunately, I'm going to have to tamp down my participation here for a little while. Best wishes to all, and may the truth prevail.
Of course they are hiding the ball from us and the outside world. The litigation strategy is driven by the lawyers. Their job is to win the case. Why would you think that they give a rat's ass about us or whether or not we should know all the facts. Their audience is the judge and the jury, not us. We may have opinions, but we are not sitting in the jury box. As far the lawyers are concerned, this is not a high profile, ENRON or OJ type case where you are trying to sway public opinion, this is a basic contract dispute that Jones Day handles every day of the year. This may be important to some on this board and to lots of lurkers, etc., but JD doesn't give a damn what we think.
