In mid 2009 it was learned that four founding members of EVANESCENCE, guitarists Ben Moody and John LeCompt and drummer Rocky Gray, had joined forces with high profile 'American Idol' contestant Carly Smithson and former METHODS OF MAYHEM bassist Marty O'Brien to form a new band called THE FALLEN. The new group's name alluded to EVANESCENCE's 2003 major label debut album, 'Fallen', which by 2009 had sold over seven million copies in the USA.

Smithson had previously sang EVANESCENCE's 'Bring Me to Life' during the 2008 'Idols Live' US tour.

Just as the group was announced, a cease-and-desist notice over its use of THE FALLEN brand was issued by Philadelphia, Pennsylvania's THE FALLEN, an act formed in late 2005 as an experimental project by musicians Gabe Horning and Mark Bolger having released its debut album, 'Between The Devil And The Deep Blue Sea', in August 2008 and a follow up, 'Between The Angels And The Deep Dark Sky' in June 2009. The Moody / Smithson project subsequently re-branded itself as WE ARE THE FALLEN.