NewsApril 8, 2024 11:00 PM ET6,979 views

BTBAM and guitarist Dustie Waring at odds over tour absence, Waring's lawyer threatens lawsuit

Dustie Waring

During progressive metal band Between The Buried And Me's current Colors tour, guitarist Dustie Waring has been notably absent. Waring, who sat out touring with the band last summer following an anonymous rape allegation, rejoined the band at Furnace Fest, but has once again been replaced by Tristan Auman for this tour.

Waring denied the accusations, saying they came "as a complete shock." In a statement released by his lawyer at that time, Chad Diamond, Esq., he denied "in the strongest terms the malicious and false accusations that have recently surfaced against him," and that "he will take legal action against all parties involved to defend himself and his reputation from this woman's allegations."

Today, Waring shared a letter to Bryan K. Christner, Esq., an entertainment and new media law attorney representing the band. The letter, written by Timothy C. Parlatore, Esq., Waring's current legal representative, alleges that the band had been attempting to terminate Waring from the group in light of the rape allegation. However, the letter claims that these allegations were proven false as part of an extortion plot.

The letter reads:

Mr. Christner,

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 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 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 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, you did two full tours where he had to play from a chair sitting down. So, they, visually that, that's unacceptable to the band especially given the genre, being a progressive metal band that they have a band member sitting in a chair performance the whole time."

My firm utilizes an AI driven note-taking transcription service for phone calls. These quotes are close to verbatim of your words on these calls.

Furthermore, according to the letter, Waring's use of a chair during live performances was due to a previous injury, from which he had since recovered. 

Allegations surrounding the reasons for Waring's dismissal from the band include failure to render first-class live performances, failure to timely notify the band of his inability to perform, and negative behavior toward bandmates, family members, and the band's crew. 

Parlatore also suggests assumed reasons for Waring's dismissal, including objections to public statements and potential financial gain for the remaining band members.

The letter continues:

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 you levied strong/my claims 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 facts load 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 performances; (b) his failure to timely notify the band his inability to perform live at all the band's live performances, and (c) his overall demeanor and negative behavior which has fallen below band or his family members, 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.

The remaining dates on the tour are as follows:

04/08 Santa Ana, CA @ Observatory
04/09 Santa Ana, CA @ Observatory
04/11 Roseville, CA @ Goldfield Trading Post
04/12 Roseville, CA @ Goldfield Trading Post
04/13 Portland, OR @ Wonder Ballroom
04/14 Portland, OR @ Wonder Ballroom
04/15 Seattle, WA @ The Croc
04/16 Seattle, WA @ The Croc




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