MEGADETH's DAVID ELLEFSON Says Lack Of 'Direct' Communication With DAVE MUSTAINE Led To 2004 Lawsuit

February 7, 2021

During a recent appearance on Mitch Joel's "Groove - The No Treble Podcast", MEGADETH bassist David Ellefson reflected on the fact that he sued the band's leader Dave Mustaine in 2004 for $18.5 million, alleging that Mustaine still owed him substantial merchandise and publishing royalties. In January 2005, the case was dismissed in court, and five years later, Ellefson rejoined MEGADETH.

"I firmly believe Dave and I ended up in that situation because he and I were not directly communicating," Ellefson said (hear audio below). "There was a new manager, a new lawyer, a new team of people, and they were all trying to impress the client, so they were just, 'Well, we're just doing whatever the boss tells us to do.' And it's, like, wait a minute — your job is to manage and counsel and direct your client, and — in my opinion — avoid litigation, avoid these things. Those people are no longer here — they've all been let go, thank God — and once most of them were let go was when Dave and I had an opportunity to come back and reconcile. And as soon as Dave and I get in a room, it's, like, 'What the hell are we fighting over? Get your guitar. Let's play. Let's jam.' And then it becomes about the music, and there it is. So when we keep it on that level, it goes well. When the business people and the lawyers and the people come in and they try to sort of put logic around it, that's when the trouble [begins].

"I've always said MEGADETH is completely illogical — there's no logic to it at all," he continued. "And there's not really supposed to be, because it's something of the heart — it's not of the head; it's of the heart. I always say the longest journey is the 15 inches from the head to the heart. To memorize it is one thing, but to know it by heart is another thing. And that's what we do as musicians — we don't just memorize it; we have to really [know] it by heart. And that's what a group is — a musical setting is about that. And, of course, there has to be some sort of business dynamic around it to kind of make it work, I guess — at least for the accountants.

"I always say I'm in MEGADETH 'cause I wanna be here — not because I have to be here, not because of some contract that forced me," Ellefson added. "If it ever comes to that, I'm done. I don't wanna play music 'cause I have to. That's the worst feeling ever. And we went through many years of that, where managers would take big advances, and next thing you know, they took their commission and they're off living in Malibu, or wherever, and meanwhile, the four of us are out in the yellow submarine working our tails off for the next 18 months trying to recoup these advances. That's when you realize, 'Woah, this model is all wrong. I've mortgaged my future and I'm out having to pay for it now. This sucks.' So, [these are] lessons you learn as you go through this. And you learn some of those lessons at the top of your career — not at the bottom."

Last September, Mustaine spoke about Ellefson's lawsuit during an appearance on Fox Sports 910's "Freak Nation". At the time, he said: "I think forgiveness is a super-cool thing. When David Ellefson sued me for 18 and a half million dollars, and the judge dismissed it and then made him pay a bunch of money on top of that, he got his ass handed to him in public. And I was really, really, really hurt by the things that he said about me. And I thought, 'You know what? If I never see him again, I guess I'll be okay.' And I was sad, but I figured he was gone. One day, I was flying home from Dallas, and the flight stopped in [Ellefson's hometown of] Phoenix, and for some stupid reason, I called him up and I said, 'Hey, you wanna have dinner?' And he said, 'Yes.' So we went out. And the first thing he said was, 'I wanna tell you, it was the stupidest thing I ever did suing you, and I wanna apologize.' And I looked at him and I waited a beat, and I said, 'Dave, I forgive you. I completely forgive you. I love you.' And it was over like that. And I think that that's really something great that people should take with them today, anybody listening to this. There may be somebody you need to forgive or somebody you need to apologize to, but I'll tell you what — it makes [you feel] a lot better at the end of the day."

Ellefson was in MEGADETH from the band's inception in 1983 to 2002, when the group briefly broke up because Mustaine suffered severe nerve damage that left him unable to play.

Mustaine reformed MEGADETH 17 years ago. Originally setting out to record a solo album, Mustaine enlisted studio musicians to play on what ultimately became MEGADETH's 2004 "The System Has Failed" comeback album, subsequently recruiting former ICED EARTH bassist James MacDonough to take Ellefeson's place for the album's touring cycle.

In his 2004 lawsuit against Mustaine, Ellefson claimed that he "attempted to resolve his differences with Mustaine on an amicable basis and offered to continue to perform with [MEGADETH]." However, his "offers were met with verbal abuse, threats, lies and continued invective from Mustaine." Ellefson also said that Mustaine — a veteran of at least 17 drug rehab stints, according to the bassist — resented Ellefson, a former drug addict, for having kicked his own habit. According to Ellefson's court papers, the battle of the band spread to the Internet when Mustaine posted on that Ellefson was trying to extort him.

Mustaine gave his version of why the 2004 reunion with Ellefson didn't pan out in a message posted on the MEGADETH web site. In lengthy essay, Mustaine claimed that Ellefson missed several deadlines to accept his offer, which included 20% of the artist royalties on "The System Has Failed", none of the publishing royalties and a $2,500-a-week salary while the band was on the road.

In his first book, Ellefson admitted that he became a salaried employee upon his return to MEGADETH 11 years ago. He told in an interview: "Going from being a co-founding owner to just a sideman musician was initially why I didn't come back in 2004. I was not happy with the participations that were presented to me. In recent times, coming back, I found great joy in doing music with a lot of other people in other settings that helped me fall back in love with playing music. Now I can come back into or go into musical situations and be able to be there for a purpose and level of pay. Being a sideman absolves you from being involved in all the other stuff. At this point in my life, I would rather leave that stuff on the sidelines. Like American Express says, 'membership has its privileges,' being a sideman has its benefits. In my case, it helps retain a friendship too. In order to have a friendship, I had to give up some ownership."

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