InPower Movement and the “Notice of Liability”

April 28, 2020

Time for an update on this page.  The overall critique of the “Notice of Liability” has not changed since I created this page 2 years ago.  This update seeks to present the issue a little more clearly.

It originated with Josh del Sol and Cal Washington of Take Back Your Power fame. Josh wrote it and Cal made a series of videos explaining it and how to use it and so on. At first I was interested because I fought smart meters here in the Sacramento area for several years. I am still fighting them in the Superior Court for the County of Sacramento.

The NOL promises to give every smart meter customer significant legal leverage over the electric utility, whether it is publicly owned or investor owned. It promises to give the customer a way to create a legally binding contract enforceable in court with a value of $10 million that the customer can use to cause the electric utility to change its smart meter policy. Josh and Cal claim that certain directors on the boards of directors of some utilities have resigned after receiving the NOL because they did not want the liability that it supposedly placed on them. It all sounds very rosy, like an angel from heaven bringing the smart meter customer an extremely powerful weapon to use against the big, bad electric utility that has knowingly forced smart electric meters on all of its customers, exposing them to 24/7 EMF in their homes, causing a myriad of health effects and doing it all with impunity.

Presumably the NOL would work just as well with smart gas meters and smart water meters as it works with smart electric meters.

As the saying goes, if it sounds too good to be true it probably is. That is the case with the NOL and the supposed contract that it creates between the utility customer and the utility.

Two years ago I read all of Josh and Cal’s Notice of Liability documents, every page, and watched all of their videos about how to use it. I had several questions after reading and watching, which I emailed to the InPower Movement website and maybe also to Josh. Josh never replied but Cal did. My main question was, “What is the legal basis for claiming that the NOL creates a legally binding contract between the utility customer and the utility?” It seemed too good to be true; that by sending a document to the members of the board of directors the directors and the utility would be liable to the customer for $10 million (the “joinder fee”). Didn’t a contract require agreement by the utility? Isn’t that what a contract is, an agreement? I understand breach of contract and that’s basically what Josh and Cal were claiming; that once the customer creates the contract the utility would violate in (breach it) if the smart meter caused any health effects, or maybe if they didn’t remove the smart meter on the customer’s request.

Also, I asked if Josh and Cal were aware of any examples where people had used the NOL and caused the utility to do any of the things the NOL would supposedly cause them to do, such as pay $10 million or change their smart meter policy or remove the smart meter.

Cal replied to my email. He never really answered my question about the legal basis. Josh and Cal are not attorneys. Neither am I. With all due respect I don’t think either one of them really understands what a contract is. I humbly maintain that I do understand what a contract is. It is an agreement between 2 or more parties where each party promises to do something, to give up something (called “consideration”) in exchange for the other party or parties doing something or giving up something. Parties to a contract have to be at least 18 years old and mentally capable. A contract can be verbal or written but some kinds have to be written. A contract that somebody is pressured into is not valid, (mental duress or whatever the term is). The most essential requirement for a contract is that the parties agree to it, they consent to it. That is the missing element in the contract that the NOL supposedly creates.

The NOL is really a proposal. It’s a proposed contract between the utility customer and the utility. As with all proposals the party that receives it can either accept it, reject it, or make a counter proposal. A proposal is an offer. In real estate it’s common to make a counter offer when selling a house. The person who received the proposal or offer can also ignore it. If he or she ignores it then it has no effect.

I created a web page with my analysis of the NOL 2 years ago. Unless the NOL has significantly changed, like by admitting that there is no contract unless the utility agrees, my critique of the NOL is the same today as it was back then.

You may be surprised to read the list of documents that the NOL cites as a “legal basis”. That list includes such far fetched things as the Old Testament, the Federalist Papers, the Declaration of Independence and the Oath of the Queen of England.

None of those is a legal basis in United States courts. Although I am not familiar with any other country’s courts I can’t imagine that any of those would serve as a legal basis in any other country either. Besides, do you really think that the Federalist Papers or the Declaration of Independence anticipated that 200+ years later we would have smart utility meters? Do the Federalist Papers or the Declaration of Independence say anything about electric utilities and electric meters?!

The only plausible legal basis that the NOL cites is the Uniform Commercial Code. The UCC describes a contract and it clearly states that for a contract to exist there must be agreement by the parties.

When I pointed this out to Josh and Cal by email 2 years ago as I said Josh did not reply. Cal chose to evade the question.

In response to my question of whether any person had actually used the NOL and succeeded Cal said no, not yet. He said that the reason people had not achieved success using the NOL is that they did not believe in it enough. There are detailed instructions for how to deliver the NOL. Something like it has to be certified mail to each member of the board of directors, and more complicated than that. Cal didn’t say that people failed to follow the instructions. He admitted that people had followed the instructions but they did not believe that it was going to work and that was why they had not achieved success with it.

A friend of mine in Canada said she knows several people who got all excited about the NOL and sent it to everybody they were supposed to send it, exactly according to the instructions, and gotten absolutely nowhere with it. She and I agree that the NOL is an exercise in futility. It is a big waste of time.

There is no good answer for it except for the truth, which is that there is no legal basis and the NOL is an exercise in futility.

I encourage cell antenna opponents and smart meter opponents to investigate all options and decide what to do with the limited time we all can devote to the issues. I wouldn’t tell anybody not to learn about the NOL but I would tell them what I have described here.

The End.

March 2, 2019 update

I have updated the links to the InPower Movement website.

Also, somebody who believes in all this stuff (but not Josh) emailed me after I sent a link to my critique to a list serv that I am on.  She claimed that the contract that the IPM videos and “Notice of Liability” refer to is the contract that the electric utility makes with the customer, either when they begin providing electricity or when they install a smart meter.  She didn’t say.  However that is not true.  That is not the way an electric utility works.  That is not the basis for the electric utility’s power to do what they do.  The electric utility does not need a contract with the customer.  They are authorized by state law, usually a public utilities commission, to provide electricity and charge certain rates and charges.  Here in Sacramento the Empire is a “municipal utility district”, which is publicly owned and has no stock holders.  They are governed by a 7 member board.  The district was created in 1923 pursuant to the municipal utility district act, which is part of the California Public Utilities Code.  They are hopelessly corrupt and dishonest to the core but the fact is they do not need a contract with a customer.  Imagine the difficulty in getting 600,000 plus separate contracts, one for each customer.  It would never happen.  They could probably get 90-95% just because people would not understand that they have a say in any contract that involves them, would not pay attention, and would just sign on the dotted line because they thought they had to.  But the intelligent and aware people, whatever the percentage is (it’s low) would say this is what I want and this is what I don’t want in a contract, and they would hold out.

Josh and IPM don’t promote the idea that the utility has or needs a contract to provide electricity service, as far as I know.  This came from one of their fans.  A misguided fan.

OK that is all for my update.  Caveat reader:  before you spend any of your hopes and time on the InPower Movement and their so called “Notice of Liability” please read this entire page and ask the IPM whatever questions you have.  I have contact information for them in case you want it.

March 7, 2018

Friends and allies,

In another email list a fellow anti EMF activist mentioned the InPower Movement and the “Notice of Liability” (NOL).  I will tell you of my recent correspondence and investigation into it.

A couple of days ago I watched Episode 2, the video of Cal Washington explaining each part of the NOL.

 

Episode #2: Notice of Liability (NoL) Walk Through

 

I read the NOL carefully.

InPower’s Notice of Liability (NoL) Document Templates

The premise of the NOL, in case you are not familiar with it, is that a smart meter customer can send this 12 page document called “Notice of liability regarding trespassing technology” as a “Claimant / Libellant” along with a 3 page Affidavit to the members of the Board of Directors of an electric utility, for example, thereby creating a contract between the sender and each recipient individually.  The terms and conditions of this alleged contract are extremely harsh, one sided, and unreasonable.  Nobody would ever agree to them.

There is a “Joinder fee” on page 3 that supposedly makes each recipient liable to the sender for $10 million.

It also says, “Respondents / Libellants accept full liability for any and all harm or loss caused by Trespassing technology (the smart meters), for which remedy may be sought according to tort law, criminal law, strict liability, negligence, and or ultrahazardous activity (sic)”  (page 10)

The supposed legal basis for this contract is the Uniform Commercial Code section 2-201.  But read on because neither the U.C.C. nor any other legal authority serves as legal basis for the NOL.

https://www.law.cornell.edu/ucc/2/2-201

However Josh Del Sol, Cal Washington, and everybody else at InPower Movement who have researched and written the NOL have made a mistake.  According to the U.C.C. (and contract law in every state) one of the essential elements of a contract is that two or more parties willingly agreed to make a contract.  The point is that one party cannot make a contract with another party unilaterally, without the other party’s consent.

I have written to Josh and Cal about this and posted two messages on the InPower Movement website, which they have taken down.

Neither Josh nor Cal responds to comments on the site or to emails.  There is a guy named Nathan Stephenson who responds (he won’t tell you his name unless you ask).  But Nathan is not interested in the legal basis of the NOL.

In the P.S. of this message I will put the specific reasons that U.C.C. section 2-201 does not apply to the NOL.  This means that when you send the leaders of the utility a NOL you are NOT actually creating a contract with them.  It would only be a contract if they agreed to it.

In my opinion I support the idea of creating a legal tool that smart meter customers can use to “take back our power”, the title of Josh’s first movie on this subject.  However this NOL falls short.  It lacks a legal basis.

The NOL quotes many documents as legal basis, including:

the Old Testament
the New Testament
the President’s Oath of Office
irrelevant Amendments of the U.S. Constitution
the Federalist papers
the Oath of the Queen of England (I am not kidding!)
“The Law Merchant”
“The Common Law”, and
the Declaration of Independence

However none of these addresses or provides legal basis for the creation / formation of a contract.

Based on this I would advise anyone considering sending a NOL to a utility leader (board member, President, etc.) to wait until Josh Del Sol has gone back to the drawing board and rewritten it so that it has a legal basis.  Otherwise you will waste your precious time.  Or come up with your own legal tool.  If you want to win and succeed your legal tool must have a legal basis.

Best wishes,

Mark

P.S.  This is what the NOL relies on for a legal basis for the creation or formation of a contract.  (page 9)

  • 2-201. Formal Requirements; Statute of Frauds.

(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within 10 days after it is received.

https://www.law.cornell.edu/ucc/2/2-201

Here are the specific reasons U.C.C. section 2-201 does not provide a legal basis for creating a contract with a utility leader or representative through the NOL.  These are numbered as I had them in my correspondence with Nathan but I have put #6 first.
#6 According to the U.C.C. the required elements of a contract are:

  • 2-204. Formation in General.

(1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.

 

It is essential only that both parties intend that they be bound, and the agreement must be clear enough for a court to fashion a remedy for breach of the contract.

Flowers Baking Co. v. R-P Packaging, Inc., 229 Va. 370, 329 S.E.2d 462 (1985).

http://www.fullertonlaw.com/uniform-commercial-code#n

When a utility provides a smart meter to a utility customer there is no “agreement”. When a utility customer sends this Notice of Liability to a utility (or anybody else for that matter) there is no “agreement”. Nor is there any appropriate remedy. Obviously a $10,000,000 fine, whether it’s called a “joinder fee” or anything else, is not an appropriate remedy. For these reasons the Notice of Liability is not and does not create a contract.

Not to mention the other reasons that U.C.C. section 2-201 does not apply, as I said:
#1 The customer on whose home the utility places a smart meter is not a “merchant”.  (section 2-104 of the U.C.C. defines the term “merchant”.)

#2  The provision of a smart meter is not “a sale of goods”.  (The electric utility provides it for free.  The only time a utility customer has to pay extra is when the utility allows the customer to “opt out” for a special fee.)

#3 Whatever the nature of the transaction it is not “for the price of $500 or more”.  Typically the smart meter is free as I said.

#4  The NOL uses this section of the UCC as the creation or making of the contract but it’s not about that. Section 2-201 is about the statute of frauds. That is a separate legal concept.

#5 The NOL fails to consider § 2-302. Unconscionable contract or Clause.  (The $10 million “joinder fee” is unconscionable and would be stricken by a court.)