Badger, right. True intent sometimes gets lost in transation when writing. As I just noticed that my response appeared a big hawkish. It wasn't intended that way...
Badger, keep in mind we're on the same side. We believe ESPH has a great product that just needs to be 'discovered' by industrial businesses.
And I agree with all you say about Hal's offer to buy ESPH and their technology. Where there's smoke, there's usually fire. However, (in the words of Tom Cruise in A Few Good Men), 'It doesn't matter what we believe, it only matters what we can prove.'
In reading the filing, it seems they've made a lot of generalities about Hal got over on them, but I haven't seen any specifics. It's possible that they're saving that info for the final hearing (March). That would make sense as it's mentioned, a few times, that the burden of proof for the evidentiary hearing is less than at the final.
In respect to the confidentiality agreement between Hal/ESPH. Below is a reference from the filing...
'With respect to the issue of the purported failure by Claimant to mark information as confidential or otherwise comply with confidentiality notification requirements in the Joint Confidentiality Agreement (“JCA”), the Panel at this time does not believe that such contractual requirements necessarily preclude the assertion of unlawful conduct by Claimant in this arbitration with respect to Counts I or II in the Demand for Arbitration. The Panel anticipates further evidence on the issue at the final hearing.'
The part of the ruling that scares me most is this...
'In connection with the Dispositive Motion, Claimant has asserted that the trade secret in question is a “combination” or “balance” that “can exist in a combination of characteristics or components each of which, by itself, is in the public domain, but the unified process, design and operation of which in unique combination, affords a competitive advantage and is a protectible secret.” Claimant has the burden at the final hearing of showing with specificity exactly what combination or balance constitutes the purported trade secret and that Respondent received it and used it in violation of law in the filing and/or publication of the patent applications. Broad assertions that such a combination or balance exists are not likely to be sufficient to meet that burden.'
I just hope we have specifics to present at the final hearing.
Also, wondering why this preliminary ruling has had zero affect on the stock price?
Badger, the quote is 'diminution of market value'. I believe that relates to the loss of potential business, which in turn has had an adverse affect on the market value of the company (stock price x no. of shares).
It does appear that ESPH is able to go after $$ related to patents published/filed by Halliburton. See below:
'The Panel grants Claimant’s request to present evidence and a theory of liability based on Respondent’s use of trade secret information in assembling the Halliburton patent applications and will not limit Claimant to “publication” alone. Claimant’s narrowing of its claims in its letters to the Panel in November and December 2013 specifically referred to allegations relating not only to “publication,” but also the “filing” of the patent applications. The Panel concludes that filing of information requires the use of information, thus hearings related to Respondent’s ‘410, ‘363 and ‘369 patent applications may address the information contained within them, not only the mere act of filing or publication of the patent application. Claimant will bear the burden of proof as to its allegations concerning the patent applications as discussed above.'
After reading the fling in a bit more detail, I'm a little concerned. ESPH had to issue a Narrowing of Claims Letter' where they state they are 'narrowing of its claims and stating that it was withdrawing claims relating to commercial use.' I don't understand that. This is all about commercial use. If we can't include that, what's this all about?
It appears to me that ESPH can't point to any specific contracts or business they lost out on (due to Hal stealing/using their secret technology), which I think is required. I get the feeling, in the claim, ESPH only approximated business/revenues that they may have lost out on.
I do find it a positive that the Panel suggested 'the element of causation as it relates to a theory of damages based on diminution of market value' be considered. That's referring to market value (stock price). Maybe there is hope.
There's too much legalese in there for me to determine what is really going on. Given the lack of movement/volume in the stock, I'm guessing the filing doesn't give any insight as to what the result will be. At least we now know things are moving and a result is imminent.
Hurst, would love to hear your take on the ruling. Seems good at eye level, but when I dig in it doesn't seem as promising. I'm sure you got the filing, so I didn't include the whole thing...
Pursuant to inter alia Procedural Order Nos. 1 and 3 in this arbitration and the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), Respondent Halliburton Energy Services, Inc. (“Respondent” or “HESI”) submitted its Dispositive Motion on November 27, 2013, together with supporting appendices, exhibits and affidavits. On December 19, 2013, Ecosphere Technologies, Inc. (“Claimant” or “Ecosphere”; Claimant and Respondent each being referred to herein individually as a “Party” and collectively as the “Parties”) submitted its Response to Halliburton Energy Services, Inc.’s Dispositive Motion, together with exhibits and affidavits. On December 23, 2013, Respondent submitted its Reply in Support of Dispositive Motion. Both Parties provided legal authorities to the Panel, as well as engaging in correspondence related to the Motion, Response and Reply.
If anyone would like to see the ESPH Arbitration filing, google: Ecosphere Halliburton Arbitration. It's about 5 or 6 lines down. The first PDF doc.
When the arbitration was first filed, last year, I remember everyone on the board reading/commenting on it. It's full of great information. Gives the background/history of ESPH & Halliburton.
Check it out
I generally avoid responding directly to postings of sgi, but to aleve anyone's concerns. This is item 24 from ESPH's Arbitration filing:
24. The Agreement Further provides that it shall be construed in accordance with the laws of the State of Texas, and that any dispute arising thereunder would, after a good faith effort to reach a "just and equitable" resolution, be "finally settled by binding aribtration adminstrered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules."
Please go find something else to complain about...
Meo you're right, the contract (between HAL & ESPH) stipulates binding arbitration to solve disputes.
Giacomo, I completely understand your frustration and don't blame you for getting out. Often ESPH feels like a ponzi scheme. It seems we're always so close to getting over the hurdle but never make it. Then, another carrot of possibilities arises just when all hope is lost.
I've been in for about 2 years now. I've throw (to me) a good bit of money into ESPH. My approach now, is to keep what I have in there but not to throw in anymore. I consider this my retirement 'lottery ticket'. If it hits, I'll be well taken care of.
I respect the guys who keep adding (Hurst/Loxomo/Badger/etc..) and hope it comes in. I believe in the technology, which is why I can't sell.
Good luck to you and with mixed feelings I say, 'I hope you regret pulling out' (laughing)...
It was my understanding that ESPH (ET) manufacturers the machines (EF80, EF10, etc...) and makes money on the manufacturing and royalties. Is this right?
I'm not understanding why it matters to ESPH's bottomline if Hydrosphere Energy Solutions is a subsidiary of FNES? Sgi, can you explain...
Glad to see you guys are buying more. I hope, once again, I regret not doing it. Of course, I won't be too upset. I've got plenty.
There are lots of possibilities out there right now. Exciting time to be a shareholder...
Glad to hear Hurst. You're probably the sharpest mind on the board. Like to hear you're confidence is growing.
Like you, I find the powercube very intriguing. I would think they'd have had discussions with the military/government during it's design/construction. Certainly won't be selling it to individuals.
Eagle, please do. You're a good resource. I won't be attending, but I'd like to get as much info out of teh ASM as possible.
I'm hoping they'll add the transcript to the the ET website or on Yahoo. Like all of us here, I'm looking for any kind of info I can get.