Metal Anarchy

Between The Buried And Me’s estranged guitarist Dustie Waring is threatening to file a lawsuit against the band over “unlawful exclusion from the operations of BTBAM, LLC.” Notably, the musician has been absent from the group’s current tour, but he did join his bandmates at the 2023 Furnace Fest. Prior to that, Waring was sitting out various shows due to a rape allegation.

Waring’s lawyer sent the following letter to the band’s lawyer:

“As you are aware, I represent Dustie Waring in connection with his unlawful exclusion from the operations of BTBAM, LLC., a company in which he is an equal 20% member with all other members

For reasons still unknown, your clients have unlawfully prevented Mr. Waring from participating in any shows or tours performed by the band. I say “still unknown” because you have offered me many conflicting, and mostly illegal, reasons for their decision to exclude their equal partner. For example, on January 25, 2024, you stated in a phone call:

‘Are you’re aware of why? I mean it’s unfortunate and he’s been caught up in one of these, you know “MeToo accusations… It’s not for me to say if it happened or it didn’t, but I’m just saying that’s the, that is the motivation why they’re asking him to leave.’

I immediately pushed back on this reasoning, as the allegations against Mr. Waring were proven false. Upon further investigation, digital forensic evidence confirmed that the allegations of sexual assault were made by a man posing as a female as part of an extortion plot. Removing someone from their company because they were a victim of a crime is not a legally permissible reason. In response to my multiple reminders that your clients are not allowed to discriminate against Mr. Waring for being the victim of a crime, on March 6, 2024, you came up with a completely different story:

‘The sexual assault allegations have no bearing on why they asked him, pardon me, asked him to leave. They asked him to leave, and this is all, this is all communicated to him during a four-hour meeting he had with them in North Carolina, North Carolina on January 2nd. And the reason they gave him was that his performance on stage was unsatisfactory. And specifically, they did two full tours where he had to play play from a chair sitting down. So, yup, visually that, that’s unacceptable to the the band especially given the genre, being a progressive metal band that they have a band member sitting in a chair performance the other was.’

This reason too was shocking on multiple levels. First, Mr. Waring has recovered from his injuries and is no longer performing from a chair, so it is a bit disingenuous to claim that he’s being removed for a medical condition after he has recovered from that medical condition. Second, it was shocking to hear any licensed attorney claim that the reason to push him out was due to a physical disability in direct violation of the Americans with Disabilities Act. Third, this reason made no sense because the fans loved that Mr. Waring was able to continue to perform in spite of his disability. Finally, this topic was not discussed at all during the January 2nd meeting that you referenced.

Shortly after this disastrous phone call, you backpedaled yet again in an email:

‘Your client was not removed from the band because of the 2023 sexual assault allegations against him or because he is disabled. Your client was terminated from the band because of: (a) his failure to render first-class live performances; (b) his failure to timely notify the band of his inability to perform at all the band’s live performances; and (c) his overall demeanor and negative behavior with his fellow band mates, their family members, and the band’s crew.’

This too is completely untethered to any facts or any discussion from the January 2 meeting. Thus, we are left to assume that the real reasons are:

1. That Tommy Rogers was upset that Mr. Waring objected to his wife making public statements supporting the extortionist’s false claims against Mr. Waring; and

2. The band members now realize that by getting rid of Mr. Waring, they each receive a financial windfall of 25% of the profits, whereas before they only received a 20% share. This translates to a seven-figure incentive for each member to get rid of Mr. Waring.

As we have discussed, there is no provision within the operating agreement to force any member of the LLC to be involuntarily removed or force an involuntary sale of their interests in the company. There is also no provision that allows some members to unilaterally reduce the percentage of profits to be paid to one of the members of the LLC, yet the financial documents you have provided thusfar indicate that this was unlawfully done. This includes the profits from the current tour that Mr. Waring was unlawfully excluded from.

If your clients are unwilling to either engage in a reasonable, fact-based, settlement negotiation, Mr. Waring has no choice but to file a lawsuit to ensure that his rights are protected. Given the way the discussions have proceeded thusfar, I would strongly advise your client to retain additional counsel with litigation experience to make the discussions more fruitful. However, I need to hear from you by next Friday, April 5, 2024. Additionally, Tommy Rogers and Paul Waggoner may be named as individual defendants due to their personal conduct, so they may want to hire individual counsel as well. If we are unable to reach a resolution, then I will begin preparing to file in the U.S. District Court.”

Waring himself added:

“It’s been a tough year for me and everyone who cares for me, but many of you have been amazing and so supportive, it’s moved me beyond anything I could ever imagine. With that said, It’s also been a really eye opening experience, one that has changed me and the course of my life. To have to go through it without the support of some of my brothers was not only hard but quite the shock. You all deserve answers, I’m sorry you didn’t get them before now. I won’t be commenting on this, all inquiries can be sent to my lawyer @tparlatore”