100 Fans Are Ready to Sue Tool

Is Tool being a bunch of tools? Part of their fan base seems to think so. At the band’s inaugural destination festival in Punta Cana this past weekend, attendees — some of whom shelled out thousands of dollars to be there — raged after a promise of “two unique sets” was not upheld. Instead, the Tool in the Sand Festival performances had several overlapping songs: Ten were played the first night, then nine the second — with four repeats. (Social-media footage showed people booing and hurling expletives at Maynard James Keenan & Co. during the second night.) Now, one disappointed attorney who was present at the festival is initiating a class-action lawsuit. Stas Rusek, a longtime fan leading the case, told Vulture that roughly 100 attendees have already signed up. While he doesn’t have a filing date in mind, Rusek plans to do so as soon as “ethically possible” after investigating all of his clients’ claims. “I expect a few dozen more per day for the next few weeks,” he adds.

While not exactly a Fyre Festival level of chaos, the Tool quandary presents a new and amusing legal logic to ponder: If your favorite artist asserts that they’ll do two distinctive concerts and doesn’t follow through, are you entitled to financial compensation? Peter Nicolas, an endowed chair-in-law at the University of Washington, is at a bit of a loss. “The fact that we’re even talking about this, at all, tells you Tool has a problem,” he says. “It may not necessarily be a legal problem, even though they’re being threatened with a lawsuit. But it’s definitely a public-relations problem.”

One hundred fans have signed up for the class-action lawsuit, with more expected to be added in the coming weeks. What does this number tell you about the strength of the case?
The number doesn’t tell you much about the strength of the legal case. It’s the type of thing no band wants. The main thing I tell my students, which relates to the intersection of music and law, is even when the law is on your side, something like this doesn’t look good. As an artist, you don’t want fans threatening to sue you. That’s bad. The fans are obviously mad and perhaps have a basis to be mad. With social media, you’re able to quickly rack up signatures for stuff like this. It’s low-stakes to sign up.

The lawsuit hinges on the fact that fans were promised “two unique set lists” at the festival. How could one define “unique” in a lawsuit like this?
I think the fans interpreted it as there was going to be one set of songs for night one and one set of songs for night two. That’s where the crux of the dispute is, to the extent that the basis for the lawsuit is false advertising. There might be a little bit of playing fast and loose with lingo and the word “unique.” There are two different ways one can interpret that word. What if it was, “Each night we’ll play one single and unique song”? There’s a legitimate argument that fans expected no overlap, and there’s also an argument for the band that “unique” doesn’t necessarily mean every song in the set list. Listen, I’m not a Tool fan myself. I don’t know which of those songs are their go-to songs. Can I do a personal comparison?

Of course. I’m sure there are people reading this who are unfamiliar with Tool’s discography.
I’m a big Cher fan. If I were going to a five-day festival where Cher was going to headline, I would want to hear “If I Could Turn Back Time” every day. There’s certain things where it’s like: Is the song iconic? Is it associated with the deep cuts? Are four repeat songs excessive in a set of nine or ten songs? Probably. But I’m unsure if there’s a strong claim on false advertising.

Does the high price of the festival factor into this at all? Some of the weekend packages went for over $7,000 when tallying up tickets and hotels.
I’m someone who buys concert tickets a lot at different price points. Here’s the thing: Everybody is going to see the same music. The tickets that are more expensive usually involve greater access, whether it’s the distance from the stage or an opportunity for a meet and greet. That feeds into what the contract is between Tool and its fans, or the promoters for Tool and its fans. As long as the advertising itself wasn’t actually deemed misleading, the contract between them is what happens when you buy the ticket and agree to all those terms and conditions. I have no doubt that buried in there are all sorts of things like, There’s no guarantee for specific songs played and it’s all at the discretion of the performers. 

The attorney spearheading the lawsuit was present at the festival, which makes his effort to rally fans to sign up all the more personal. Do you feel that makes a difference at all, as opposed to a random attorney who doesn’t have strong feelings toward the band?
I don’t want to criticize the lawyer, but one of the first things they taught us in law school was “never represent yourself.” And that’s because what a disinterested lawyer would do is bring in that objectivity. He, as a fan, is naturally upset. I don’t discount that. But a disinterested lawyer would tell him, “Look, it’s probably not a strong case.” I’m not saying there’s no chance, but there’s a lot of things working against this particular lawsuit, and it’s going to cost you a lot of money. What that means, though, is it makes it worse for Tool. Since this person is personally affected, using his own time, and not trying to persuade another lawyer, he’s motivated. He’s already caused them trouble simply from the negative publicity. My gut tells me that this isn’t going to go very far in terms of a court suit. That doesn’t mean it won’t influence things.

Tool has yet to comment about anything related to the case. What does that suggest in terms of that influence?
If you think there’s a serious lawsuit, you don’t want your clients going out and talking unless you know what’s going on. You don’t want them to say something that might make the lawsuit even worse. As a business — and any band is ultimately a business — they’ve got a public-relations problem. These people, who are dedicated enough to spend $7,000 to attend this type of festival, are what feed them. If I were managing and advising Tool, I’d say, “Without saying we did anything legally wrong, we acknowledge the unhappiness of the fans.” And I’d voluntarily rebate a portion of the ticket prices. Again, not because they’re legally obligated to. It’s just a good gesture. I suspect something like that might happen. Maybe it’ll be negotiated with this particular lawyer, or maybe the band will decide to do it. I suspect there will be a brief negotiation to get this lawsuit not to happen. You don’t want this. Artists should be sued for copyright infringement. They shouldn’t be sued by their fans.

Does a lawsuit like this worry you at all, in terms of a precedent being set for touring musicians and what they could open themselves up to in the future?
It’s not the worst thing in the world if artists are more careful about how they speak and what they put out there. That’s going to be the natural next step: If there’s any concession here, the lawyers will be like, “Make sure you let me look at your advertising before it goes out. We don’t want to create a potential liability.” What wouldn’t be a good thing if a fan sued for a reason like, “I didn’t like how the timbre of this artist’s voice sounded that night.” Some things are beyond the control of the artist. But this is something that can be controlled.

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