Rossi v. IH Case — Judge Upholds, Dismisses Counter-Suit Counts

A new document has appeared in the ever-increasing docket of Rossi v. Darden et. al. in which Judge Cecelia Altonaga has ruled on some of the motions to dismiss that Andrea Rossi and his third party defendants had filed in the case.

Document 120 at this link (https://drive.google.com/drive/folders/0BzKtdce19-wyb1RxOTF6c2NtZkk) 9 provides the text of the ruling and the judge’s reasons for doing so.

Specifically:

1  The count of Industrial Heat against Andrea Rossi of Fraudulant Inducement remains intact.

2. The  count of violation of the Florida Deception and Unfair Trading Practices act is dismissed “as to all third party defendants.”

3. The count of breach of contract by Fulvio Fabiani and his United States Quantum Leap company is dismissed.

In addition, in document 121, Judge Altonaga also rejected Industrial Heat’s request that the discovery period in the case be extended for sixty days, and deadlines already set in the case are to be observed. In another document it was mentioned that Andrea Rossi submitted documents required of him in the discovery process this last weekend.

 

  • sam

    Karl
    January 29, 2017 at 8:31 AM
    Dr Andrea Rossi
    All the papers deposited in Court recently are very difficult to be understood: can you explain what is going on?

    Andrea Rossi
    January 29, 2017 at 9:00 AM
    Karl:
    I strongly suggest not to lose time reading documents produced in this preliminar period, because it is like to understand a big painting observing one square centimeter of it here and there across the canvas, abstract from the global context that gives the meaning to every particular. What is really going on and the related situation will be understandable only at the end of the trial. Persons talking of it now are just displacing air with their tongues.
    Warm Regards,
    A.R.

  • Bob Greenyer

    Stanford Energy Club : Nuclear Energy Community Kickoff: LENR Panel
    https://goo.gl/bKy5RQ

    • sam

      Hi Bob
      Now that Stanford has found
      out that Lenr research is done
      by real persons did anyone
      offer to assist MFMP.
      Too be serious it is good to
      know 356 is still doing research.

      Regards
      Sam

      • Bob Greenyer

        Yes – there was approaches made to both Alan and I respectively, we’ll see if it goes anywhere but there was interest in supporting the Vysotskii / Kornilova experiment.

        • Stephen

          Great Bob. Your doing really great things getting the knowledge out there and involving these people. I wish you really good luck with this you deserve it move forward.

          • Bob Greenyer

            Doing what we can – it has only been possible with contributions from people like you.

            Your scintillator is going to be one of the star components in the imminent GS 5.4 and 5.5 experiments. I also hope it will be our best instrumented experiment to date and clearest presentation. I hope you can play a role in the analysis!

        • sam

          If Steve Jobs was alive and had been there he
          probably would had you
          set up with funding,lab,
          materials and research team ready to go next month.

          • Bob Greenyer

            When I was in my early 20s, Steve jobs wrote to me via his minions, and asked me to go to California to interview for director of animation on ‘up coming’ CG animated cartoons. At the time I apparently had a quite high profile in animation and production.

            Unfortunately, I had just signed a 1 year project lead with my company creating animation for Price Waterhouse (PriceWaterhouseCoopers now) – so I could not go.

            It is a very different mindset here in California / Silicon Valley – there is many reasons why much of the new technology that is driving innovation is coming from this area. It is good to see that the business end of Stanford is starting to take LENR seriously, these will be the money making decision makers of the future and if the project can help move the narrative forward to get support to the right people sooner, then it has done its job.

            • sam

              Steve Jobs hired people sometimes without interviews.
              I read that he ran into a young fellow who
              had got nervous at his job
              interview at Apple and was turned down for the job.
              Jobs asked him a few questions about what he had to offer and he hired him on the spot.

    • sam

      How many people would you estimate were at the S.E.C.
      meeting Bob.

  • Cordon

    And yet nobody can say if the technology works yet.

  • Michael W Wolf

    Yes it does.

  • BillH

    Paperwork?

  • BillH

    Why give up some legal right when you don’t have to, even in the end it’s worthless? Clearly in the start IH had some prospect that the technology would work, maybe they have since found out better and are merely trying to recoup some of there losses, which could well exceed $10.5M

    • Omega Z

      This will be dealt with by a jury. However, if I were the judge who had to decide, I wouldn’t have an issue of Rossi refunding the $11.5m and require Darden/IH relinquishing all claims to the IP license.

      There is actually a passage in the agreement to that effect which may be why Rossi supposedly made said offer.

    • I believe the technology works

  • wpj

    As for below, why would they want him to back out of the test when they claim it was not the test (GPT)?

  • wpj

    IH never had any ownership of the IP; just the rights to use it in certain (but quite a few) regions. AR basically had Europe and Australia to sell into.

    The “transfer of IP” was basically the knowledge of how to get the thing working.

    • Omega Z

      Don’t forget Rossi also retained India, Africa, most of the middle east and a long string of Asian countries and pacific islands.

  • wpj

    From Mats Lewan (interview with AR when he was in Sweden)

    During summer 2015, IH offered Rossi to back out from the test and cancel it, with a significant sum of money as compensation. Rossi’s counter offer was to give back the already paid 11.5M and cancel the license agreement, but IH didn’t accept.

    Agreed, it was said later on a public forum.

  • Stephen

    Thanks Abd for your reply. I missed it earlier. I do agree with you that this is about compatibility with the legal process rather than judgement. Although I would not be ready to draw the conclusions you make with out seeing much more of the real evidence.

    I think interpretations really depend on your initial standpoint which comes from experience. As you know mine differs somewhat from yours but I respect your arguments when they are aimed to inform and not to push one point of view.

    In a way we are all inspecting different parts of the proverbial elephant, but are complicated by the fact it’s standing in deep legal fog. Some times I wonder though if some people are tweaking each other’s noses and pulling each other’s hair thinking they have the elephant, whereas the elephant is actually standing of to the side of them. 😉

  • wpj

    Not quite true; Rossi says that he made that offer. We have no other independent evidence. DW denies it.

  • wpj

    It is said that the $10m was his own money, but that came from DW, so it may or may not be true.

    I have no idea if any of the AR stuff is true (like the rest of us), but I don’t know why anyone would enter into a lawsuit if they didn’t have everything to back it up.

    • BillH

      As I recall IH was set up with $11.5M from more than one private investor, names unknown.

      • Omega Z

        When Industrial Heat was created, they pulled together $11,555,050 dollars. $1.5m went for the 1MW container and $10m was paid to Rossi after the ERV validatied COP>6 in the 1st test of (30) 10KW e-cat units in operation. So there was some change left over.

        Industrial heat listed a total number of Investors(14) while naming Tom Darden(president) and JT Vaughn (Vice President) and S. H. Fogelman as Treasurer & Secretary.

        Darden has implied he has shouldered the majority of the funding. However, I’d be surprised if Darden hasn’t already recovered his investment plus from the other investment entities since then in return for shares.

  • Zephir

    /* As most of us know, Rossi made a public offer to return all of IH’s money as long as IH gave up their rights to Rossi’s IP. All IH had to do is take Rossi up on his offer and if Rossi didn’t return the money, we’d know Rossi was a fraud. Period. */

    Or Rossi just found an even better technology (Quark-X) – so he just wants to keep all E-Cat related licenses for himself. Which interpretation is more correct?

    Well, the future will tell us, but I could provide a hint: A.Rossi sued IH IMMEDIATELY after IH delayed its payment. So we can be sure, he just wants his license back. Lugano test demonstrated his technology works, even in the lawsuit, references to COP>50 is by referral of the ERV report. It is not Rossi’s claim.

  • Zephir

    The ECat license that belonged to Ampenergo Inc. was signed over to Industrial Heat in exchange for a promised of three payments to Rossi and Leonardo. The payments totaling $100.5 million were to be made in three installments. One of $1.5 million at the start of the agreement, a $10 million payment after the successful completion of an ECat validation test. $89 million to be paid after a 350 day test Guaranteed Performance Test.

    First of all, the agreement did not give Industrial Heat the intellectual property of A.Rossi and
    ECat technology. Instead it gave the company the right to commercialize the ECat technology in North America, Central America, South America, the Caribbean, China, Russia, Saudi Arabia and the United Arab Emirates. An ECat unit was shipped from Fererra, Italy to Raleigh, North Carolina for the Guaranteed Performance Test in August 2013. Industrial Heat paid Leonardo $1.5 million on October 26, 2012 but it failed to carry out the test; requiring the agreement to be rewritten. The guaranteed performance test was finally carried out in Miami, starting in February 19, 2015, at the facility of an unidentified company. Industrial Heat paid $1,000 a day to conduct the test.

    The Guaranteed Performance Test was successfully completed on February 15, 2016. A. Rossi claims that “The ECat operated successfully for more than 350 days during the test. By
    all accounts, the amount of energy produced by the E-Cat Unit during the test was substantially greater than fifty (50) times the amount of energy consumed by the E-Cat Unit during the same period,” and these results were verified by Engineer Fabio Peron, who is described as
    the “expert responsible for validation” or ERV. Peron and two experts hired by Industrial Heat Barry West and Fulvio Fabiani monitored the test and helped operate the e-cat during the testing. On March 29, 2016, Rossi therefore demanded that Industrial Heat pay him $89 million to comply with the license agreement.

    Industrial Heat is now claiming that ECat did not pass the tests so it is under obligation to pay the money. But for what the IH needs the intellectual property of A.Rossi, if it cannot / doesn’t want to pay for license and this IP allegedly doesn’t work? Such an IP would be useless for IH anyway. Industrial Heat was formed on October 24, 2012, without Rossi’s knowledge. Darden and Rossi signed the ECat license agreement on October 26, 2012, before most of us were aware of it. A. Rossi is alleging that Industrial Heat was set up with the express purpose of stealing and commercializing his technology. Darden and Vaughn intentionally misled Rossi with claims that Industrial Heat and Cherokee were the same company; when in reality they were separate organizations.

    The IH did pay for testing E-Cat unit and portion of money for independent one-year standing Guaranteed Performance Test of it. But Industrial Heat broke a license agreement when they refused to pay Leonardo Corporation $100 million for the rights to ECat, illegally copied Rossi’s technology, and has illegally obtained a patent for Rossi’s intellectual property.

    • BillH

      And that as they say is for a judge to decide. However, expression opinion as fact isn’t really helpful.

    • wpj

      I like the DW comment on LENR Forum that the $89m was a “bonus”. The man is definitely strange (the times that he posts are as well- he must be up all hours if he is in NC).

      • Andreas Moraitis

        Maybe he anticipates a margin call in case that this “bonus” becomes due…

        • wpj

          Looks like we are now in an “alternative fact” world

      • Zephir

        The license agreement speaks about $1000 a day explicitly – IMO IH did pay it neither – so I dunno
        how he could still want some license or even expect to win some court with such an attitude.. 😉

        http://www.sifferkoll.se/sifferkoll/wp-content/uploads/2016/04/Rossi_et_al_v_Darden_et_al__flsdce-16-21199__0001.2.pdf

        • Brent Buckner

          No, the License Agreement does not reference $1,000 a day.

          • Zephir

            You’re right, the I confused $1,000 payment with beneficiaries from IH in return for heat produced with ECat in Guaranteed Performance Test. My mistake and apology goes here. I just borrowed this info from the discussion here https://animpossibleinvention.com/2016/04/07/andrea-rossi-sues-industrial-heat-for-89m/

            On the other hand, if this payment was real, it would also allow to estimate the amount of heat produced by 1 MW ECat unit.

            /*
            part of the ‘long test’ agreement was that the customer would pay IH (not Rossi) $1000/day for heat during the period of the test. Supplying 1MW of purely electrical heating around the clock at 12c/Kwh would cost close to $3000/day – a big difference.
            */

            • BillH

              Supposedly JML sent requests for billing for the energy supplied, there are emails sent from “JML”. However there is no paperwork yet that shows JML was actually billed and that IH received payment. Since AR appears to have been finance JML anyway it could all be a red herring.

      • Omega Z

        That Darden inc considered the $89m as a “bonus” gives you an idea of their train of thought. They Misled Rossi. They NEVER intended to pay up.

        • wpj

          This is the DW “alternative fact” version, which goes against what is written in the contract.

          The man appears slightly deranged in his comments on LENR Forum (which I occasionally look at for different version of events- but Ab has been banned, so he now has his own site- or that is how it appears)

    • Zephir

      Siferkoll and another sources say, Rossi offered to buy the license back for $11M, but IH refused. So I can be quite sure about what A. Rossi wants.

      http://www.sifferkoll.se/sifferkoll/is-joseph-murray-the-establishmentdodapco-operative-assigned-to-slow-lenr-down-and-trash-rossi

      I can be also quite sure, that ECat device works, because otherwise IH wouldn’t want to keep the license so obstinately, if it would be useless.

      At the very end, Rossi was offered a couple of millions to stop the test. It wouldn’t happen if the test wouldn’t work as intended – on the contrary…

      • BillH

        Have IH indicated that there was any such offer? Is there paperwork? a reply? If so, was there any reason given for rejection? Have IH even been asked about this?

  • HS61AF91

    Please excuse me Frank but I want to get this to interested posters:

    I know this is not an appropriate place to submit the following but events lead me to this. “submit a post to ECW” is a little dubious of effect. Anyway I think we all ought to send recommendations to the new WH website (which has big time interest in energy) to encourage looking into Dr. Rossi’s E-Cat and LENR generally. I submitted the following to the site:

    Yeah President Trump!
    New tech in energy is the solution. Get someone on the E-Cat that Doctor Andrea Rossi down in Florida is making. It already has a US Patent on this process that produces more energy out than in. It’s called LENR (Low energynano-scale/nuclear reaction) and it’ll revolutionize energy for the
    American citizen worker/investor/patriot. If you want to kick start our greatness, as I do, then get somebody on this NOW!
    best regards
    Al S
    CMS, USAF, Ret

    • Timar

      Sure, go ahead and tell the fox where he can find the hen…

      With his and his administrations massive investments in fossile fuels and their complete denial of any environmental issues, let alone global warming, they will be the first to make sure LENR technology gets burried deeper than any hole you can dig.

    • Alan DeAngelis

      I would assume that National Security Advisor Michael T. Flynn briefed President Trump on LENR. http://disq.us/p/1dkx6z8

  • LilyLover

    It seems that dear Dr. is happy.
    Looks like, the obviousness of Rossi’s E-Cat’s success has become well known and unkillable enough that the likes of Woodford, through their reputation, are baring it all to the industry that TD and Cherokee are second rate people. To avoid sinking the Cherokee mothership through loss of reputation/clients, they might have decided to pay off 100M plus losing the IP is better than losing the IP and ALSO losing the 2B + personal reputations.

    This is another way, the competent Brits influence the investment market and “keep’em honest”.

    I.e. The investment community assigns more weight to Woodford’s ‘due-diligence’ than the purchasing power of 2B by an American investment fund / the cabal of T Dirtyden.

    Summary: To avoid the backlash that would swiftly eradicate the Cherokee, the Cherokee is coughing out 100M for the mistake of hiring TD.

    They wanted to eliminate Rossi, not knowing the power of truth that could down the goliath and the US Patent-Lawyers.

    Graceful Rossi, good. Fake charity Cherokee and Tardy Dirtyden, bad. Good wins by the grace of Rossi’s goodness.

    Call me delusional! That’s OK!!

  • Remember that the documents we see are only the tip of an iceberg, at least as far as I have understood. Little can bee concluded before everything is presented in court—if a settlement is not reached before, that is.

  • clovis ray

    This all good news. I hope for the best knowing Gods finger prints all over this device. The E-CAT is coming and her name is quark x very george jetsonish.

  • Rheulan

    It seems that Rossi is at Raleigh, today. Maybe Rossi & Darden intend to make a deal to end the litigation.

    Andrea Rossi
    January 18, 2017 at 10:12 AM
    JPR:
    Today I am in Raleigh, N.C., with my Attorneys, but from my Team the update id good.
    Warm Regards,
    A.R.

  • Zephir

    ​My high-level impression about IH vs. Rossi case is, USA government realizes the practical importance of the ECat finding and it doesn’t want to lose grip and profit of cold fusion, especially at the case of foreign, i.e. italian technology. Just from this reason the US patent application of A. Rossi has been delayed for years, whereas way more vague patents of NASA and others were granted smoothly. Even the famous photo of A. Rossi bellow USA flag means something: the USA doesn’t want to lose an impression before public, that the ECat is American technology.

    Now, when A. Rossi attempted to lose this grip and to take away the ECat licence from Industrial Heat, he will face prejudiced judge, once the accusation of Fraudulant Inducement will get accepted, because I don’t think, A. Rossi didn’t fool IH willingly in this matter. His weak point is in promises of various “strategical partnerships”, which later waned​, because the investors changed their opinion. This situation with “unknown secret customer”​ did happen with A. Rossi many times before and we all know, that A. Rossi never sold anything.

  • georgehants

    For some of us completely aware of the corruption and lies in this society but willing to give trust first, it could be worth remembering Rossi’s reply from some months ago.
    ———
    jackie
    August 15, 2016 at 4:49 AM
    Dear Mr. Rossi, would you be kind enough to state the words below for us people of a spiritual nature.
    I have great faith in good beliefs and it would be comforting if you would take this oath.
    ——–
    I swear on the Holy Bible that my E-cat works as I have described,
    giving a clear output far above the input in line with a discovery
    outside of any known process.
    ———
    All best wishes Jackie
    ——-
    Andrea Rossi
    Jackie
    I swear on the Holy Bible that my E-Cat works as I have described,
    giving a clear output far above the input in line with a discovery
    outside of any process I have knowledge of.
    Dr Andrea Rossi, CEO of Leonardo Corporation
    http://www.e-catworld.com/2016/08/15/rossis-oath/

    • Zephir

      I think, that EMDrive works as described – but the existence of many secret customers or partners of A. Rossi is far not so certain, simply because people change their opinion and promises often with compare to laws of physics.

  • Based on the below, it looks like Rossi will lose this case. Count III states that “Rossi & J.M. Products fraudulently induced Industrial Heat to enter into the agreement to move the plant to J.M. Products in Florida by falsely representing that J.M. Products was a manufacturing company with real commercial use for the steam power generated by the Plant.”

    Count III remains intact.

    • Zephir

      This is rather funny evasion: IH originally dismissed the case with evasion, it doesn’t believe in ECat technology. Now, when it realized, he may lose the reason for keeping of licence in this way it completely changed its reasoning and it doubted the A.Rossi promises regarding the partnership.

    • Gerard McEk

      The fact that the plant worked or not should be judged, not if the customer was independent and/or fraudulent or not, the later should be another process, if needed. Obviously, if the customer is is not ‘independent’ or ‘fraudulent’, they have no value in this process.

      • Brent Buckner

        I think it’s reasonable for the count to remain intact. For instance, IH may have regarded an independent customer as an additional check on the ERV and signed the amendment in part relying upon that additional check.

        • Gerard McEk

          I agree, but if AR has not complied with one of the aspects, then that should not not dismiss the whole case.

          • Obvious

            A contract fulfilled by illegal actions is void. In pretty much every jurisdiction on Earth. Fraudulent inducement, if sustained by the Court, will put a quick end to the complexities of the case.
            I think that the Judge has decided there is enough proof to demonstrate that fraudulent inducement may have occurred, but it may be up to a Jury to decide that ultimately. Unless IH files for a summary judgement and gets one.

            • Ged

              No, don’t forget what an MTD means. Denying a claim by MTD means that even if one assumes all accusations by the party are completely and entirely true, there is still no legal basis for the claim. That means even if IH is 100% correct, their Claim V is not valid by law in this case. Not denying Claim III means that if IH is 100% correct in all its accusations, then it had a legal basis for recourse under that law.

              This does not mean there is any valid evidence for the claim, or that the Judge thinks IH is correct. How long did we all talk about this when IH made the first MTD?

              • Obvious

                I am not suggesting that the evidence is sufficient proof in itself. Simply that the Judge can see that the claim of inducement was supported by IH enough to continue (and, yes, the Count meets the necessary level of legal requirements for the definition of inducement). The Judge cannot make a ruling on whether IH is correct or not, unless a Motion for summary judgement is entered. Based on the very limited evidence entered as Exhibits, so far, I doubt the time is right for IH to attempt that.

              • Edac

                What is meant by “MTD”?
                abbreviations.com suggest “Maximum Tolerated Dose” or “Month To-Date”, but they make no sense.

                • Brent Buckner

                  In the context of a post about motions to dismiss I expect that Ged is using “MTD” to mean “motion to dismiss”!

    • US_Citizen71

      It is premature to make any judgments on how the case will turnout as a whole, it is still in the discovery phase. Until the facts of the case are presented in open court it still can go any direction. Points 2 and 3 above were dismissed because of lack of evidence provided by IH. Point 1 may go either way depending on how the court/jury weighs the evidence presented by both sides.

    • Stephen

      I’m not very good at reading legal materials, but its interesting to read the details of the statement regarding Count III in the Document 121.

      If I understand correctly some part of the evidence supplied by IH for Count III was discounted because it wasn’t sufficiently clear to meet the criteria to be considered.

      On the other hand the Count III up held due to the IH’s representation of the meetings held in August do meet the criteria necessary to be considered as previously agreed by the court.

      I’m not sure if this means judgement on the count III though or just that the evidence in that part meets the specific criteria to be judged?

      I wonder if the LC account of the August meetings has also been considered in this Count III yet or of that is awaiting further discovery.

      This is becoming quite a story. Im sure that is plenty more to be told.

      I’m glad the third party defendants have had the heat turned off them though.

    • Omega Z

      Fraudulent inducement would be Industrial heat/Tom Darden having Rossi come to the U.S. where Darden would setup a 1 year test with customer. Then not doing so according to the contract.

      Fraud would be Darden claiming no excess heat while his own engineer says otherwise. No COP>1 when the Patent they filled claimed COP>10 under oath.

      • Vinney

        Omega Z, you can be counted on for lateral thinking. Needs some reworking before it can be presented as a case, but lawyers are surprisingly good at this.
        Look what Jones Day pulled out of the hat.

  • For non native English/Lawyer speaker :
    What is Fraudulent inducement
    https://definitions.uslegal.com/f/fraudulent-inducement/