The 16 point Liebowitz fax PART ONE (that was to have been release last week):
Selective disclosure is if not illegal, in the very least immoral. I find it surprising that Thermo Tech, after years of public relations blunders involving dissemination, is at it again. I received a copy of the 8 page Liebowitz fax today, from "Bigbuck" on Yahoo! -- which was faxed to him directly. Apparently, according to all the wire services, it has not yet been disseminated (not to mention that no one whom I know personally to be a TTRIF shareholder has yet received this document).
With selective dissemination we see the childish acts I thought most people grew out of in elementary school. Like little school girls (and boys) teasing each other, we have certain shareholders of TTRIF who seem to participate in their own little worlds thumbing their noses at other shareholders with vague references like "if only you knew the truth", as if trying to protect a well guarded secret. Those of you who have stated that you have already received a copy of this fax, you know who you are.
Through the use of selective arguments, Mr. Liebowitz weaves a very interesting tale. His mode of argumentation is very unique, but fortunately/unfortunately flawed.
Mr. Liebowitz does not address the very basis and nature of the arguments put forth by Trooper Technologies. He builds his points one on top of the other. Like a tower built on sand, upon examining some of his initial points, his tower of "facts" comes tumbling down because of his careful ommissions that he was hoping that others would miss. I do not consider myself incredibly intelligent by any means, but with such obvious mistakes in logic and argumentation any student can identify, I have to say that I am insulted by the level of intellect he feels I, as a reader and potential shareholder, has.
While I cannot hope to overcome Mr. Liebowitz's years of legal experience and eloquence, what I will do is refute his claims purely on a level of logic and argumentation. It would seem to me very few points of law are actually raised, but instead he bases his points purely on logic and "facts".
Call me an idealist, but for some reason I was expecting a plain documentation of what the facts are, where the flaws in their argument are and a balance of why they should win. This document is nothing more than a political play of "spin" designed to appease shareholders in the short term. It is unfortunate, but if the objective of TTRIF of bringing Mr. Liebowitz aboard was to add credibility, they failed miserably if this document is evidence of his work.
To quote my law prof, what you try to do in any court case is "throw everything on the wall and see what sticks" -- no matter how remote. Well, I have to hand it to you Mr. Liebowitz, you threw everything on the wall, and didn't even forget the kitchen sink. Perhaps next time you will find something that sticks.
Incidentally does anyone know if Mr. Liebowitz can practice in Canada? Is that why Mr. Bowes is still lead counsel?
In any event, here is the document with <ahem> commentary. It is there in its entirety with alterations as to format. There may be typos (OCR is great but not that great):
> Thermo TechTM Technologies, Inc.
> Office of the General Counsel
> Vancouver Corporate Office
> 20436 Fraser Highway
> Langley1 D.C. V3A 4G2
> 604 514 4300 (Phone)
> 604 514 4090 (Fax)
> re: Shareholders
> From: Laurence B. Liebowitz, Esq., General Counsel
> Re: Update Summary of Trooper Situation
> Date: May 28, 1998
> As Trooper's most recent press releases demonstrate,
> there is continuing misrepresentation from that camp;
> untruths and half truths continue to be their weapon of
> choice. They are an effective weapon because no
> single distorted issue fairly captures the larger picture.
That homily comes to mind: people living in glass houses shouldn't throw stones.
> To present the larger picture, but in response to the
> recent public statements of Trooper, One must focus
> on sixteen (16) specific, step-by-step issues. Together,
> these 16 steps accurately and fully present the larger
> picture. We appreciate the opportunity to present
> them to you,
> Trooper continues to misrepresent:
> 1. What Trooper licensed;
> 2. What the flicense Agreement entitled Trooper to get;
> 3. What Justice Cohen ordered Thermo TechTM
> Technologies Inc. to turn-over to Trooper;
> 4. What Justice Cohen refused to order Thermo
> TechTM to turn over;
> 5. Which part of its lawsuit Trooper lost on January
> 20, 1998;
> 6. What Thermo TechTM has turned over to Trooper;
> 7. What can be done with the Design Criteria Manual
> by anyone serious about doing so (even Mr, Lunny
> knows this);
> 8. How this Manual complies with the License Agreement;
> 9. What Dr. Dan Cumming did testify to in court on
> May 21st;
> 10 What Dr. Dan Cumming did not testify to in court
> on May 21st;
> 11. What Mr. Ross and Mr. Kelly testified to on May 21st;
> 12. Why Trooper is in violation of the License Agreement;
> 13. Why Thermo TechTM'S lawsuit for a ruling
> declaring that Thermo TechTM has validly terminated
> Trooper's License Agreement is a winner;
> 14. Why International Eco-Waste Systems Inc. has no
> nghts whatsoever to build Thermo MasterTM plants;
> 15. Why Thermo TechTM's present initiatives will put
> an end to disputes about the "plans" of anyone
> connected with Stan Lis to build Thenno MasterTM
> plants in Eastern Europe.
> 16. How Trooper is -- and is not -- like IBM.
I still don't understand how this comparison to IBM has any relevance whatsoever.
> For the sake of simplicity and clarity, we deal with each
> issue one at a time.
I couldn't agree more.
> 1. WHAT TROOPER LICENSED. Trooper licensed, with
> respect to four specified patents, "the technological process
> not construction plans) described in [the section listing the
> patent numbers and describing a process, not a building or
> configuration]... relating to the digestion of biodegradable
>..... . such technological process [not construction plans]
> together with the related trade-secrets, know how and trade
> names...." Trooper was to get, and has gotten, "the standard
> certified engineering specifications in the possession of the
> Company at that time reasonably necessary to enable the
> Licensee to utilize the Process and construct plants." Not
> "required"; not "indispensable"; not "all documents in the
> Company's possession related to thermophilic plants. Just
> "reasonably necessary" to use the patented process and
> build plants, just as Trooper's own expert witness, Mr,
> Harlan Kelly, testified he could do as a competent
> engineer from Thermo TechTM's Design Criteria Manual
> as produced to Trooper in 1992 and updated for a third
> time In 1998.
Forgotten or <gasp> purposely ommitted in that "..." is the following: "Thermo Tech [is ordered] deliver to the plaintiff all "standard certified engineering specifications", including design drawings, regarding thermophilic plants" as per paragraph 16 of the original ruling.
Funny how he does not go as far to suggest how TTRIF in the past mistakenly identified Trooper Technologies as having licensed the Thermo Master Plants in Eastern Europe in securities filings and newsreleases (that is if they are to be believed). Either TTRIF is lying or made a mistake. Here's a minor suggestion: you cannot have it both ways, fess up to either for consistency's sake.
> 2. WHAT THE LICENSE AGREEMENT ENTITLED
> TROOPER TO GET. The Design Criteria Manual. See
> point 1 above.
Using your own points to prove your points. Circular? I think so. If only Point 1 were a little more factual.
> It is worth keeping in mind that in 1992,
> no thermophilic processing plant had ever been built, as
> Trooper well knew. To put the Process into a plant and
> to make Implementation of the Process commercially
> viable was a journey on which both the Company, and
> Trooper, were embarked. No plant was in operation
> until 1994. The License Agreement even required
> Trooper to disclose to Thermo TechTM any improvements
> that Trooper might make to get the process
> into commercial usage. Has Trooper ever taken any steps
> to explore how to get the Process to be commercially
> viable? There is nothing in the License Agreement
> which grants it the right to sit back and wait to see if
> Thenno TechTM figured out how to make the Process
> profitable, particularly so where Thermo TechTM has
> learned how to use the core thermophilic process,
> combined with several other proprietary and now
> patented processes, to create profitable organic waste
> recycling plants.
This is where I find his argument most flawed. The section that "required Trooper to disclose to Thermo TechTM any improvements that Trooper might make to get the process into commercial usage" was reciprocal (ie works both ways) -- section 7.03 of the agreement.
What he states on one hand is: Trooper was "required through the license to disclose imrprovements that Trooper might make to get the process into commercial usage" -- yet what he omits is the fact that this part was RECIPROCAL. TTRIF was "required through the license to disclose imrprovements that TTRIF might make to get the process into commercial usage". As per section 7.03. The he makes this gargantuan leap of logic as follows:
> Given that this is new, patented
> technology, Trooper is not entitled to be awarded that
> technology for having sat back and done nothing for
> six years to learn and to implement the Process it
> licensed in 1992. Nothing in the License Agreement
> gave Trooper the right to get everything that Thermo
> TechTM might ever develop using thermophilic aerobic
> bacteria.
While nothing in the License Agreement gave Trooper the right to get everything that Thermo TechTM might ever develop using thermophillic aerobic bacteria, it comes close. Again, we see how wonderfully manipulative Mr. Liebowitz is. Trooper is only entitled to using the process as it relates to waste and excluding
"aquaculture, and marine industries and the use of the Process or Equipment in connection with the treatment of municipal sludge or waste water" (s1.01f). They have claimed no more no less. I would note with more relevance that no where in the agreement prevents Trooper from being "entitled to be awarded that technology for having sat back and done nothing for six years to learn and to implement the process it licensed in 1992." In fact, the judge seems to have affirmed Trooper's position in this regard.
Apparently the judge felt that did entitle Trooper to "all "standard certified engineering specifications", including design drawings, regarding thermophilic plants." A point most carefully ommitted by Mr. Liebowitz. I'm beginning to wonder if it is that Mr. Liebowitz doesn't think that we can read rulings ourselves -- them being complex legal rulings only lawyers can understand and all... According to Liebowitz, things that apply equally in the agreement (s. 7.03) apply more equally to Thermo Tech than Trooper. Unfortunately you can't have it both ways. Again, that little thing called consistency.
> 3. WHAT JUSTICE COHEN ORDERED THERMO
> TECHtm TECHNOLOGIES INC. TO TURN-OVER
> TO TROOPER. In his Reasons for Judgement, Justice
> Cohen noted in paragraphs 2 & 3. just what the
> requirements of the License Agreement are, as
> quoted above: 'standard certified engineering
> specifications ... reasonably necessary to ... utilize
> the Process and build plants." It clearly was not his
> intention to require production of every piece of paper
> in Thermo TechTM's possession relating to
> thermophilic plants, particularly those at that time
> within weeks of receiving new patent approval.
"It was clearly"? Actually no, it was not clear at all. Again, Mr. Liebowitz leads the reader to believe that aha! how could I have been so stupid? Especially when he says things thus. But again, that little sentence that Mr. Liebowitz ommitted is perhaps more telling than the entire sum of this entire diatribe:
!! all "standard certified engineering specifications",
!! including design drawings, regarding thermophilic plants
> Even
> if one could argue that Justice Cohen ordered production
> of just such complete pieces of paper in paragraph 3
> of his Order, although still restricted to "standard
> certified engineering specifications [building or
> construction plans, not blueprints, but specifications
> for a technological process]", such a broad reading
> does not jibe with the very next paragraph of the Order,
> which specifically excludes from production by Thermo
> TechTM "all environmental assessment reports
> regarding thermophilic plants, all cost assessment
> reports regarding thermophilic plants and all
> documentation regarding the specifications and sourcing
> of the equipment used in the construction of thermophillic
> plants in the possession or control of "Thermo TechTM
> Technologies Inc. That sounds more like excluding the
> Dick Engineering drawings than the paragraph ordering
> that we do produce something.
I see... legal speak again -- "sounds like?" Not to me. And not, according to Justice McFarlane, the courts when he mentioned that Thermo Tech had not yet handed over the required documents yet and was in contempt of Justice Cohen's ruling.
> This paragraph of the Order
> clearly says that Trooper's request for these documents as
> somehow being required under the License Agreement
> is "dismissed." As Mr. Lewis of Stothert Engineering
> testified on May 21st, if this means anything, it means
> that construction
> drawings & drawings specifying the configuration and
> sourcing of equipment in the plant are not included within
> the documents required to be furnished under the License
> Agreement. Justice Cohen very clearly drew this distinction
> in his Order on January 20, 1998.
Selective interpretation of the ruling? I think so, especially when the interpretation omits probably the most substantive part of the ruling.
> 4. WHAT JUSTICE COHEN REFUSED ORDER THERMO
> TECHtm TO TURN OVER. See the preceding paragraph
> Justice Cohen expressly dismissed so much of Trooper's
> lawsuit as sought "all environmental assessment reports
> regarding thermophilic plants, all cost assessment reports
> regarding thermophilic plants and all documentation
> regarding the specifications and sourcing of the equipment
> used in the construction of thermophilic plants in the
> possession or control of" Thermo TechTM Technologies Inc.
Mr. Liebowitz versed himself more with Canadian law, more specifically BC law, he would know that the hearing was not a lawsuit, but a hearing to determine whether the issues were even triable. However because of the overwhelming evidence (as required for a Rule 18 aka slam dunk) certain issues were not considered triable and certain things were to be awarded immediately to Trooper Technologies. If Mr. Liebowitz were versed in our judicial system, and if he were reacting in an honest rational manner he would not have stated "Justice Cohen expressly dismissed so much of Trooper's lawsuit..." The lawsuit has not yet begun. And as any compentent lawyer will tell you, the burden of proof is less for a lawsuit.
> 5. WHICH PART OF ITS LAWSUIT TROOPER LOST
> ON JANUARY20, 1998. See the foregoing paragraph.
> Trooper lost the part of its lawsuit by which it would have
> been able to grab for itself a brand-new, patented process
> for recycling organic waste, or reward itself for doing
> nothing after it licensed then untested technology.
That Trooper has allegedly "done nothing after it licensed then untested technology" is irrelevant to the issue at hand -- as it has no bearing whatsoever on the agreement in question. Looking at the "foregoing paragraph" and looking at the rulings, and the agreement, it does not appear Trooper lost any such a thing.
> It's as
> if IBM now laid claim to WindowsTM 98 because more
> than ten years ago it licensed DOS from Microsoft and
> failed and neglected to develop DOS into the next
> generation operating system, as Microsoft, like Thermo
> TechTM Technologies Inc., had enough drive, ambition,
> and dedication to do.
<yawn> I could jump up and down saying that I was abducted by aliens, and therefore TPP must be correct in this issue, but not only is irrelvant, but it is silly -- just as Mr. Liebowitz's analogy comparing TTRIF with Microsoft is amusing but irrelvant.
> 6. WHAT THERMO TECHtm HAS TURNED OVER
> TO TROOPER. In 1992, the Design Criteria Manual, a
> technical manual providing all details "reasonably
> necessary", and then quite some more, to enable a
> driven, ambitious, or dedicated company to take this
> then-commercially-unproven technology and use the
> Process and build plants, which is precisely the language
> of the License Agreement. When Thermo TechTM
> received Justice Cohen's Order, it hired Ross Lewis,
> President of Stothert Engineering, which in 1992 had
> created the Design Criteria Manual for the purpose of
> transferring the Process covered by the License
> Agreement to the licensee. Mr. Lewis was given a copy
> of the Court Order, which Trooper withheld from its
> expert, as is discussed at point 11 below and was asked
> to be certain that Thermo TechTM was in compliance
> with the Order. Thermo TechTM even provided Mr.
> Ross with its most current know-how regarding the
> Process licensed by Trooper.
I guess our first problem would be that Mr. Ross was not provided with all relevant and current information. Based on the manipulative nature of the entire document, the problem with Mr. Liebowitz's statement is that Mr. Ross was likely not given Thermo Tech's most current know how. What he was given however, was TTRIF's most current know how regarding the process licensed by Trooper. A distinction that Mr. Liebowitz is very careful in making.
> Mr. Ross conducted his
> own independent due diligence, and even updated
> sections of the Design
> Criteria Manual to reflect the most current know-how
> related to the Process licensed to Trooper. That updated
> Manual was itself provided to Trooper in March, 1998,
> even though Mr. Lewis concluded that the 1992
> turn-over of the Manual had fully complied with the
> License Agreement. As he testified in court, Mr. Lewis
> assured himself, and Thermo TechTM, that the Company
> was in full compliance not only with the License
> Agreement, but specifically with the Court Order.
Mr. Liebowitz is very selective in his time frames. TTRIF only broke the terms of the agreement in recent history -- not in 1992. So of course, TTRIF was in full compliance in _1992_ -- but that does not make it in compliance now -- the assumption that Mr. Liebowitz seems intent on making.
The second problem with Mr. Ross's testimony, is that only a week after his signing the affadavit, he was appointed to be project manager at the Richmond site -- one of those things that make you go hmmmm....
> 7. WHAT CAN BE DONE WITH THE DESIGN
> CRITERIA MANUAL BY ANYONE SERIOUS
> ABOUT DOING SO (EVEN MR. LUNNY KNOWS THIS).
> One can utilize the process and build plants. It was Mr.
> Lunny, after all, Trooper's lawyer, in his partisan conference
> call on Trooper's behalf in February, 1998, who stated:
> "Construction drawings as opposed to standard plant design
> drawings are site specific. In other words, construction
> drawings I don't think really are part of the problem here
>... obviously construction drawings will encompass a lot
> of the infrastructure which is totally site specific." Mr.
> Ross and Mr. Kelly testified to the same effect. Mr. Lunny
> went on to distinguish between what Trooper licensed and
> what it still needed: "[The] plant itself, and by that I mean
> operating plant, has to be constructed in accordance with
> the standard engineering specifications and design
> drawings [AND design drawings! That's Mr. Lunny
> talking]" Trooper's license provides for the first; it's
> initiative would have provided the second. If Mr, Lunny
> were to read the License Agreement, he'd see that no
> "design drawings" were ever required either, and they
> were expressly excluded by the fourth paragraph of Justice
> Cohen's Order.
Perhaps it would do well for Mr. Liebowitz to read Justice Cohen's ruling in its entirety which seems to agree with Mr. Lunny's statements. Mr. Liebowitz should also read the Agreement while he is at it for it states:
!! The Company shall, upon execution of this Agreement,
!! fully disclose the Process including the engineering
!! specifications and fully disclose any Improvements,
!! when made or developed from time to time hereafter,
!! to the Licensee.
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