ALL THAT REMAINS Sues OLI HERBERT's Widow, Accuses Her Of Blocking RoyaltiesJanuary 12, 2023
ALL THAT REMAINS has filed a lawsuit against the widow of the band's late guitarist Oliver "Oli" Herbert, claiming that she is holding up royalty payments to the group's surviving members and making overly broad ownership claims to some of their most popular songs.
The lawsuit, which was filed on January 6 in United States District Court for the District of Connecticut, alleges that Elizabeth Herbert "has made various claims" against ALL THAT REMAINS members Philip Labonte, Michael Martin and Jason Costa, "including alleging that [they] were stealing from her and using her late husband's recordings without permission, disparaged [them] on social media, threatened to report the Band to various federal, state and local authorities, claimed the Band had committed crimes, threatened to sue the Band in multiple jurisdictions, and falsely claimed that she had sued the Band."
According to the lawsuit, which has been obtained by BLABBERMOUT.NET, Herbert claimed "in a Facebook post from August 16, 2021 regarding a YouTube video of the song 'This Probably Won't End Well' from the Band's 'The Order Of Things' album" that she was "a co-owner of the Band's 'entire catalog'." She has also allegedly "asserted various claims against Concord Music", which is the successor in interest to record companies Prosthetic Records and Razor & Tie and music publishing company 800-Pound Gorilla Music "with respect to their respective recording" and songwriting agreements with ALL THAT REMAINS and which "has a continuing obligation to pay record and publishing royalties" to ALL THAT REMAINS and Oli's estate pursuant to these agreements.
Labonte, Martin and Costa claim in the lawsuit that "on or about October 8, 2022, Herbert publicly posted about her desire to assert claims against Concord Music" — which is named as a "nominal defendant" in the lawsuit — "and crowdsourced suggestions for 'what state agency' to complain to about 'the record company [that] is holding $$S owed to the Estate.'
Due to ALL THAT REMAINS' dispute with Elizabeth Herbert and the Oli Herbert estate, Concord Music "initially advised Plaintiffs that it refused to pay the Band any royalties until such time as the dispute is resolved," according to the lawsuit. "Concord Music ultimately agreed, as an accommodation, to pay the royalties due for the period ending December 31, 2021 to the Band, provided that the Band agreed to hold Oli's percentage interest in such monies in escrow. In early October 2022, the Band received another royalty statement from Concord Music for the semi-annual accounting period ending June 30, 2022, but did not initially receive payment of any royalties despite such statement reflecting that royalties were due," the lawsuit continues. "After some discussion, Concord Music again agreed, as an accommodation, to pay the royalties due for the period ending June 30, 2022 to the Band provided the Band agreed to hold Oli's percentage interest in such monies in escrow. However, notwithstanding these 'accommodations,' Concord Music has advised Plaintiffs' representatives that Concord will not release any further royalties (including the anticipated royalties to be paid to the Band for the period ending December 31, 2022) due to the Band members — not just Oli's share of such royalties — until such time as Concord Music receives a letter of direction signed by the Estate and the Band with respect to payment instructions for Oli's share of the Recordings and Compositions."
Labonte, Martin and Costa go on to say that they "have held, and continue to hold, Oli's share of the Band's royalties for the periods ending December 31, 2021 and June 30, 2022 in escrow and are ready, able and willing to pay such monies to the Estate. Given the circumstances, and to provide the Estate greater security that it would be paid timely and accurately, Plaintiffs have sought to arrange for Defendants to receive direct payment of Oli's royalties from Concord Music, rather than having the money flow through the Band's accounts and have the Band account to the Estate. In order to effectuate direct payment of Oli's royalties to the Estate, and as is customary in the music industry, on or about May 24, 2022, the Band asked Ms. Herbert to execute a letter of direction to Concord Music effective as of April 25, 2022 identifying Ms. Herbert and/or the Estate as the new payee for Oli's share of the Band's record royalties and music publishing royalties from the Recordings and Compositions, respectively. Ms. Herbert refused to sign the proposed letter of direction." Elizabeth Herbert advised Labonte, Martin and Costa that "she would not sign the proposed revised letter of direction and stated that she 'cannot in good faith sign anything presented to me without a judge overseeing the process,'" the lawsuit claims. "Ms. Herbert also published a post on Facebook on October 14 confirming that she had sent an email to the Band's attorney 'telling him never to contact me again or ask for my signature on a document' and indicating that she 'will NEVER sign anything.'"
Labonte, Martin and Costa are asking the court, among other things, to declare that "Oli and/or the Estate has a 27% interest in each of the" ALL THAT REMAINS recordings in question, and that Oli's estate "must execute the requested letter of direction to Concord Music in order to conclusively and finally resolve any withholding of royalties to the Plaintiffs by Concord Music". They are also asking the court to order Concord Music to "pay all monies due and owing to Plaintiffs in respect of record and/or music publishing monies to Plaintiffs" and "pay all monies due and owing to Oli and/or the Estate in respect of the Recordings and Compositions to Defendants."
Last May, Elizabeth Herbert gave her first interview since her husband's death, denying she had anything to do with his passing. "I absolutely did not kill my husband," she told Daily Mail.
She also took a swipe at the lead detective over the way she was treated after she became a target in the investigation, questioned not just by cops but also by Oli's friends, family and bandmates.
"You could tell he was fan of the band," she said. "Here he is, this country cop, and he's working on a rock star who died. I think he got star struck and was on a power trip."
Oli was found dead on October 16, 2018 at the edge of the pond on his Stafford Springs, Connecticut property. He was reported missing by his wife about 3 p.m., and his body was found by police face down at the edge of the pond where the water was only a few inches deep. The medical examiner's office conducted an autopsy showing that Oli had three prescription drugs in his system — the antipsychotic olanzapine, the antidepressant citalopram, and Ambien. It also said: "Mr. Herbert's past medical history is reportedly significant for marijuana use."
The Connecticut State Police Eastern District Crime Squad is still investigating Herbert's death, which is being treated as suspicious. They are looking at the will he signed a week before his death as well as a life insurance policy mentioned in the will.
The will named Elizabeth Herbert as executor and sole benefactor. It said that Oliver Herbert's sister, Cynthia Herbert, should not become executor or receive anything from his estate. The will also stated that Elizabeth Herbert should get all "property as well as any current or future earnings."
Elizabeth, a self-described pagan, told Daily Mail the timing of the will was purely coincidental, that she and Oli had just recently had a friend die and wanted to prepare for the unexpected.
"We loved each other, we trusted each other and we were husband and wife, despite everyone else doing whatever they could to break us up," she said. "We were leaving each other everything, including making each other beneficiaries of each other's life insurance policies."
Others who knew Oli painted a different picture of the couple's relationship, saying that he was actually considering a divorce. They claimed Elizabeth was frequently hostile to Oli and bandmates and routinely accused him of sleeping with groupies.
According to the Hartford Courant, state police seized Elizabeth Herbert's computer and phone records as part of their investigation.
The couple were married for 14 years and lived in Stafford Springs for four years before Oli's death.
In 2020, Labonte called Elizabeth Herbert a "garbage human being" who was "never allowed" to join the band on tour. "She would come to the local shows, because we couldn't stop her from showing up," he explained. "[But] she wasn't allowed because she's a garbage human being."
According to the singer, he tried unsuccessfully to convince Oli to get a divorce for a long time. "I can't tell you exactly why he wouldn't do it or what the circumstances [were] surrounding his resistance," he said. "I don't know. But I can say that I personally talked to him multiple times and said, 'Look, if you need a place to stay, I've got plenty of room. Come to my house."
Asked if he had an opinion on how Oli died, the singer responded: "I do have an opinion on it, but I'm not gonna say. There is an ongoing investigation by the Connecticut state police."
Herbert began playing guitar at 14. He co-founded ALL THAT REMAINS with Labonte in 1998.
The surviving members of ALL THAT REMAINS later recruited guitar virtuoso and YouTube personality Jason Richardson (ALL SHALL PERISH, CHELSEA GRIN, BORN OF OSIRIS) to replace Herbert.
In March 2021, Labonte revealed that a financial dispute with Elizabeth Herbert has made it impossible for ALL THAT REMAINS to use Oli's name in connection with any of its projects. Speaking to American Songwriter, Labonte said he and his bandmates have toyed with the idea of hosting benefits for Herbert and even starting a charity or project in the late musician's name. "We talked about ideas to do a benefit to raise money for kids in schools, but we can't do anything that has his name on it," Labonte said.
Labonte also confirmed that ALL THAT REMAINS has always paid everything owed to Herbert's estate and will continue to do so.
"We've made sure that that our accountants and all the people that work with us know any money that is owed to Oli Herbert's estate must be paid to Oli Herbert's estate," Labonte explained. "And we have absolutely no interest in not paying. It's not worth any kind of hassle for the amount of money."
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