Rossi v. IH Case: Protective Order Issued, Judge Strikes, Upholds Affirmative Defenses

Some new document has been published in the court case. One is an “ORDER granting Motion for Protective Order. Signed by Magistrate Judge John J. O’Sullivan on 10/14/2016” in which materials considered to be confidential by any party involved can be covered by a strict order of secrecy.

The full order can be read here:

The document states that: “This includes, but is not limited to, trade secrets or other confidential research, development, commercial and proprietary information”

So this entire court case could turn out to be rather boring for people watching from the outside, since almost anything connected with this whole case could be covered by this phrase.

Another document just posted is: “ORDER granting in part and denying in part54 Motion to Strike;Please see order for details. Signed by Judge Cecilia M. Altonaga on 10/14/2016.” This is a response to Rossi and his affiliates filing motions to dismiss IH’s counter-complaints.

Judge Altonaga has ordered the following items to be upheld or stricken:

1. The Motion [ECF No. 54] is GRANTED in part and DENIED in part as follows:

a. Affirmative Defenses 1 [Standing], 4 [Unclean Hands], 6 [Unlawful Actions], and 9  [Merger, Integration and Ratification], as well as Paragraphs 126–33 of Count II of the Counterclaims and Third-Party Claims in Defendants’ Answer remain intact.

b. Affirmative Defenses 2 [Failure to State a Claim] and 10 [Speculative Damages] are STRICKEN.

c. Affirmative Defense 3 [Estoppel, Waiver, Laches, “And Other Applicable Equitable Doctrines”] is STRICKEN in part. The phrase “and other applicable equitable doctrines” is stricken.

2 d. Affirmative Defense 7 [Fraudulant Misrepresentation] is STRICKEN in part. Defendants shall clarify Affirmative Defense 7 to specify the corporate entity alleged responsible for particular acts of fraudulent misrepresentation


  • Obvious

    The judges will have to sit on thier opinion. A jury will decide unless IH et al and Leonardo et al come to an agreement themselves.

  • Ophelia Rump

    Can someone petition the court to have the trial televised?

  • Ged

    Also part of the ruling on the MTS was the Judge ordering “[d]efendants shall show proof of service on Third-Party Defendant, Fabio Penon by November 14, 2016, failing which he will be dismissed without prejudice.” So, that is why Penon hasn’t appeared, he apparently hasn’t been served yet (maybe IH was too focused on getting Bass, which they did). I am sure IH won’t let him get dropped, so should happen fairly soon.

    A ruling on the MTD against IH is still forthcoming as IH still has till Monday to reply to that before a ruling is made (probably we’ll have that by end of next week). Then the third party MTD will be ruled on in a number of weeks (mid November is possible). That seems to be the current time table of events. Will be interesting to see what comes after all that is done, before Mediation on 1/12/17, and Discovery is due on 2/27/17.

    • Omega Z

      Maybe T.D. and friends aren’t sure they want Fabio Penon to testify. Also wonder what they want to keep secret. You’d think they would want everything out there if the E-cat doesn’t work. You know. Like proprietary information and secret sauce is worthless. Right?

    • Abd Ul-Rahman Lomax

      It can be very difficult to serve process.

      18. Third-Party Defendant Penon is a citizen of Italy with a primary residence in
      Abano Terme, Italy.

      Yes, Penon has not been served, that’s obvious. However, the dismissal if there is no proof of service is without prejudice. And refiling could stand as a possibility for years. It’s been said (by Alan Smith) that Penon intends to appear, but if he does, he would be immediately subject to service of process.

      It does appear that Bass was found; at least the attorney filing the MTD for Johnson also shows that he is representing Bass. That’s an appearance.

      • I found Penon’s house on Google Maps street view a couple of months ago after about 30 minutes of poking around. Can’t be that hard.

        He’s lives in a modest home BTW, not one that screams millionaire scammer.

        • Barbierir

          Not that hard, he’s on the Yellow Pages

  • cashmemorz

    I need a lawyer to get to understand all this. I’m partial to having LENR work. Is that prejudicial to understanding what they are doing?

    • Ged

      Right now the focus is on legal wrangling, with nothing really data or LENR related being tossed about. Maybe once the jockeying is done, we’ll get more of the meat we’ve been after. But now that IH and all moved and filed that joint protective order, we may not see nearly as many LENR/test related details as we hoped. Who knows though–discovery isn’t due to finish till the end of February.

      • SG

        And there is always the trial, where much of the information will come out regardless of the joint protective order related to discovery.

        • Omega Z

          Months and Months and Months of legal wrangling and the trial will last only days or a week or so.

          • Ged

            The beauty of the legal system!

            • Abd Ul-Rahman Lomax

              It is designed for depth, not for satisfying internet curiosity. It is, in fact, beautiful, at least in parts. It filters evidence by quality and verifiability. It filters arguments in a similar manner. Discovery has, over the years, become more and more a critical part of the process, so that trials are not a matter of one side or the other springing some Surprise. The process becomes more a matter of weighing filtered evidence.

              It is still a social process. The believability of witnesses matters, i.e, how they present themselves. In-person testimony is greatly preferred, because of the visibility of witnesses.

              My sense is that the primary case in Rossi v. Darden is unlikely to go to trial, but Rossi could surprise me by introducing evidence and argument currently missing. Absent that, I expect IH to again move for Judgment on the Pleadings before trial; Rossi will have a last chance, then, to counter what does, at this point, appear from the evidence. If he does not, the primary case will be dismissed. And that, by the way, will have nothing to do with whether the “Rossi Effect” is real. It will be entirely about legal and contractual issues, and will be very simple..

      • Abd Ul-Rahman Lomax

        The motion was joint and there is no clue who wanted it the most. This was expected, in fact. Parties under discovery may move that disclosed information be kept confidential, and it would be normal to grant those motions, but they will then clog up the docket for no particular value except raising legal costs in case anyone wishes to contest them. The joint motion simply allowed the declaration of Confidential (or a stronger category, Attorney’s Eyes Only) to be made by a disclosing party, and to be binding, unless the court rules otherwise. This simplifies process for everyone.

        • Ged

          I believe rather usually whichever party initiates the process is the one that does the filing, but I am sure it doesn’t have to be that way. You’re absolutely right that this isn’t a surprise, though it is still too bad that it is necessary despite the limited context of this case; and it seemed like it was not going to happen given how far along everything already is for this to now occur. A great deal will still have to be revealed for the purpose of trial, and as you say, the court can always force reveals if deemed necessary.

    • Rossi Fan

      What is there not to understand? This is the end of LENR. Rossi sues for $100M. IH settles for much less with a keep-quiet clause to avoid embarrassment. The lawyers get their share. Rossi retires in style. Then it will be I want to but I can’t because of the keep-quiet clause. Enjoy the headlines while you can. After the deal to settle it will be ride off into the sunset for Rossi.

      • SG

        I can’t tell if this is sarcasm. But even if this happens, it certainly will not be the end of LENR. Not with the Wizkid, me356, MFMP, and others continuing to experience what they are experiencing, and (with the exception of me356 so far) being open with their procedures, materials, and results.

      • Jas

        Remember that the court case is a battle over the existence of the Ecat. We still have the Quark X or whatever Rossi will end up calling it.

    • Abd Ul-Rahman Lomax

      Not if you take certain precautions. “LENR” is a broad topic, studied by hundreds of scientists worldwide for 27 years. There is a real LENR effect, with palladium deuteride, that’s clear from the scientific journals, overall, the evidence is direct and overwhelming; but PdD LENR as most studied (electrochemically, necessarily at relatively low temperature) has little or no commercial potential. NiH has obvious possible appeal, but, setting Rossi claims aside, there is little clear and confirmed evidence of NiH reactions, though what has been seen is of interest and worthy of investigation. That’s the LENR situation. Rossi v. Darden is much more about business, and. speaking from a purely legal point of view, the case hinges heavily on legal and contractual issues.

      The precaution is to keep what you want about LENR separate from fact and legal issues. It is within the bounds of possibility that Rossi really has devices that work, but will also not be paid, at least not in the near future, because of failure to handle legal necessities, and even possible that in an attempt to force IH to pay him, he committed fraud (as IH is claiming with some so-far uncontroverted evidence).

      If you try to understand what is going on within a framework that identifies fact, or normal human behavior (as in what attorneys do) as good or bad, you will likely be confused. I’ve been in a hospital and may get to covering the recent events tonight, or not, but it’s not terribly complicated.

      • Ged

        Hope you are feeling better and recovering well.