Death Metal and the Statute of Frauds (plus Alleged Cancellation Because of Sexual Assault Claims)

From yesterday’s decision by Judge Henry Edward Autrey (E.D. Mo.) in Eames v. NILE, the plaintiff’s allegations (which at this point are of course just allegations):

Defendant NILE is a death metal band founded in 1993 that has released twelve (12) Albums, the most recent of which, “The Underworld Awaits Us All”, was released August 23, 2024.

Eames was a member of the band NILE from mid-2021 until October 26, 2023. Eames toured with NILE from mid-2021 to November 2022, performed guitar and vocals stage left, and was paid $700/week.

In November 2022, Eames agreement with NILE was modified by mutual agreement. Pursuant to the new terms, Eames was moved to stage-front center, performed as the Frontman, main-vocalist, and guitarist for NILE, and Eames was to perform on NILE’s new album “The Underworld Awaits Us All” (“Underworld”) with the album recording to take place during the ensuing year….

As a member of NILE and pursuant to the Agreement, in exchange for his performance and collaboration on NILE’s Underworld album, Eames was to perform on NILE’s Underworld tours as a member of NILE following the album’s release until October 11, 2025 (the last scheduled tour date). In exchange for his performance of the Agreement, Eames was to receive: 1) Tour compensation of $850.00/week on a weekly basis for the duration of the Underworld Tour; 2) 1/3 of NILE’s net revenue from the release of the album and sales; 3) 1/3 of NILE’s net royalties on future uses of the album, album streaming, and merchandise sales; and 4) 1/3 of NILE’s net endorsement and advertising revenue….

On October 23, 2023, a fake article was posted on internet websites Medium.com and NewsBreak.com which falsely stated that Eames had been “criminally charged in Moberly, Randolph County. MO, with multiple counts of battery and sexual assault, claiming authorities were notified of the crimes and that multiple women, including a minor, had reported years of domestic violence and abuse” (“Posts”). The articles included Eames name and a photo of Eames credited to MO Newsdesk 13 (a local cable news affiliate) and was created to appear to be an official press release.

The claims in these articles are completely false and Eames has never been criminally charged with battery, sexual assault, domestic violence/abuse, or minor abuse. The articles were falsely published under the identity of a Missouri based author and self-proclaimed domestic violence advocate and survivor; the actual identity of the Posts’ creators remains unknown. Contacting the purported author would have quickly revealed she had no involvement in the posts and would have revealed the deceitful, deceptive, and fraudulent intention of the Posts. NILE acknowledged the falsity of the Posts in communications with Eames.

On October 24, 2023, Eames discussed these fake Posts and false statements with NILE and assured them they were completely false and were nothing more than a smear campaign against him. NILE acknowledged Eames’ innocence and assured him they knew the Posts were false and a smear campaign.

On October 26, 2024, NILE announced the band and touring lineup for its Underworld album and tours omitting Eames. An October 26, 2024, article announcing the lineup posted on Metal Insider (a prominent online heavy metal publication) indicated that Eames was surprisingly omitted from the NILE Underworld lineup and included a link to the false Posts on Medium.com and Newsbreak.com.

NILE has at all times relevant, failed to pay Eames 1/3 of net revenue from the Underworld album release and album sales, 1/3 of net royalties on future uses of the Underworld album, album streaming, and merchandise sales, and 1/3 of NILE’s net endorsement and advertising revenues related to the Underworld album.

The court dismissed Eames’ breach of contract claim:

Contracts for a period of greater than one year are invalid unless they satisfy Missouri’s statute of frauds, which provides in pertinent part that:

No action shall be brought … upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year … unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith ….

An agreement satisfies the statute of frauds only if its “essential terms” appear in writing…. Plaintiff’s Second Amended Complaint alleges the parties had an agreement that was modified in November, 2022 and was to be completed at the end of the tour, October 2025. This time frame is clearly over one year and by its terms cannot be completed within one year, thus subjecting it to the statute of frauds.

Plaintiff merely states that the parties had an agreement. Nowhere in the Second Amended Complaint does Plaintiff claim the agreement was reduced to writing or that any memorandum of agreement was executed by the parties. Indeed, Plaintiff essentially admits in his opposition that the agreement was an oral agreement. Once Defendant raised the statute of frauds in its motion to dismiss, Plaintiff was required to affirmatively “show the existence of an appropriate writing or an exception to this defense in order to avoid dismissal.” Without a written agreement containing the essential terms of the parties’ agreement, Plaintiff’s breach of contract action is barred by the Missouri statute of frauds….

Plaintiff’s argument that he has partially performed the contract fails…. [But] “[t]he doctrine of part performance, interposed to avoid the defense of the statute of frauds, is a creature of equity and has no application to an action at law for breach of contract.

But the court allowed plaintiff’s unjust enrichment to go forward:

Partial performance in furtherance of the agreement may serve as an equitable exception to the Statute of Frauds. A party may avoid the bar of the Statute of Frauds if the party has performed acts that, in themselves, are evidence of the existence of the contract.

[“]The acts must have been done in reliance on the contract, and the positions of the parties must have been so materially changed that it would be grossly unjust to allow the other party to rely on the Statute of Frauds. If partial performance is established, the party asserting that a contract exists may introduce parol evidence of the verbal terms of the contract.”

Plaintiff’s Second Amended Complaint sets forth sufficient facts to notify Defendant of his unjust enrichment claim….