The strange saga of Gorilla Productions v. Girl Trouble comes to an end

Final Chapter

By Matt Driscoll on January 5, 2012

Good things come to those who wait.

Or, in Girl Trouble's case, good news has come to those who waited - specifically news that the lawsuit hanging over the band's head in Ohio for almost two years has officially been dismissed. Judge Joan Synenberg ruled Nov. 22 to toss a lawsuit levied against the band by Ohio music promotion company Gorilla Productions, based on a motion filed by Girl Trouble 19 months ago arguing a lack of personal jurisdiction over the band in Ohio.

The motion worked. It just took a while.

In March 2010, Gorilla Productions - a company that produces shows across the country, often utilizing a "battle of the bands" style format, and locally frequenting clubs like Seattle's Studio Seven - filed the lawsuit against drummer Bon Von Wheelie (whose legal name is Bonnie Henderson), along with Dale Phillips and Kurt Kendall of Tacoma's Girl Trouble, and Girl Trouble's Wig-Out Records. In the lawsuit, filed in Ohio, Gorilla contended that Von Wheelie's anti pay-to-play website, neverpaytoplay.com, contained "torturous, defamatory, and false statements" regarding Gorilla's operation - statements that Gorilla argued were targeted and powerful enough to hurt the company's business in Ohio. The lawsuit sought in excess of $25,000 from Von Wheelie and Girl Trouble, plus punitive damages. It also sought the immediate shutdown of Von Wheelie's website, claiming neverpaytoplay.com was "dedicated to defamation" of Gorilla Productions.

Von Wheelie and the rest of Girl Trouble disagreed, and, in turn, hired lawyer Wade Neal, locally famous for his guitar work in the early '90s band Seaweed. Since the case was based in Ohio, it was also necessary for Girl Trouble to hire Cleveland-based attorney Suzanne Blum of the firm Thacker-Martinsek.

Though Girl Trouble and the band's legal team contended from the beginning that the lawsuit was frivolous, and simply an attempt by Gorilla to scare or bully Von Wheelie into taking down her website, the proceedings drug on, putting unavoidable stress on all involved.

"They got in touch with me and we kind of came up with a plan to respond to the lawsuit - a move to dismiss the lawsuit based on lack of jurisdiction," says Neal. "What we were saying is you can't come out to Washington from Ohio and drag somebody who's in Washington and has no connection to Ohio all the way over to Ohio based on statements made on the Internet."

"We filed that motion and went back and forth on paper with Gorilla Productions right up through the end of June," recalls Neal. "The last thing that was important that was filed on that issue was at the end of June, 2010.

"Then we basically waited."

Late last month, however, after nearly two years, Girl Trouble and Neal finally received the good news they'd been hoping for. Though it took a while - with Girl Trouble's lawyers originally filing the motion in May 2010 - Judge Synenberg agreed with the band's contention that Ohio courts lacked jurisdiction over Girl Trouble and neverpaytoplay.com.

"Based on the evidence before the court, and viewing that evidence and plaintiff's allegations in the light most favorable to the plaintiff, the court finds that plaintiff has failed to establish the existence of jurisdiction over any of the defendants, and that good cause exists for the granting of defendant's motion to dismiss," Synenberg ruled.

For courts in Ohio to have jurisdiction over Von Wheelie, Girl Trouble or neverpaytoplay.com, Gorilla's argument would have needed to establish that the band did business in the state, had connections to Ohio, or was directing its actions specifically toward Ohio residents with the intention of hurting the company's business in the state. According to Synenberg's ruling, Gorilla demonstrated none of this in the lawsuit.

"The waiting game was pretty difficult, but the judge made the right decision and followed our arguments and decided to dismiss the case from Ohio's jurisdiction," recalls Neal.

"We won, and we're just thrilled about it. It's the right result. And it's a big victory for free speech," says Neal.

Despite how long it dragged on, the case never got around to what, at first glance at least, seemed like the core element - whether Von Wheelie's neverpaytoplay.com committed defamation against Gorilla.

In the simplest terms, Gorilla markets itself as having the ability to help "unsigned talent" (read: young bands) get shows on stages they might not otherwise be able to. Gorilla also advertises the ability to help busy venues produce successful local shows. Gorilla books these shows - often in a "battle of the bands" format - and the bands signed up to play sell the tickets, with Gorilla getting a chunk of the profit. The bands, according to Gorilla, benefit from playing a show the company has organized at an established venue like Studio Seven. Gorilla gets paid first. Sometimes the bands don't.

Though representatives from Gorilla failed to respond to interview requests for this article, in 2010 Vice President John Michalak told the Volcano that his company's pay scales are "more than fair."

"In the current condition of the economy, we find it very sad that a virtually unknown rock band would resort to these kinds of tactics in order to draw attention to themselves," Michalak said at the time.

Despite this critique, Von Wheelie, through neverpaytoplay.com - a site she created in 2009 - has made it a personal mission to publically question Gorilla's practice (and the practices of other similar companies). Though the site's content doesn't get more malicious than to urge musicians to be wary of Gorilla, and suggesting the company's business model is built on taking advantage of young bands, it was enough to inspire Gorilla to launch a two-year legal battle.

While Synenberg never officially ruled on whether Von Wheelie's Internet crusade via neverpaytoplay.com merits defamation, Neal says her ruling offers an indication of where the judge stands.

"Yes and no," says Neal when asked whether the defamation question was answered. "One of the things that (Gorilla) had to prove was that they made out a prima facie case, which means, ‘Did they make out the basic outlines of their case under a certain standard in order to show that there actually was a harm done to them in Ohio?' The judge did not really elaborate too much on her decision, but what she was saying is, ‘No, they didn't make out that case.' So, we can take from that that the judge did not think it was a very strong case for defamation."

Most importantly, the strange saga of Gorilla Productions v. Tacoma's Girl Trouble seems to be over ... at least for the time being. Of course, the chance remains that Gorilla could pursue a lawsuit in Washington State. And as long as Von Wheelie operates neverpaytoplay.com, Gorilla or a company like it could always grow irritated and file a similar lawsuit.

That's exactly why Neal says this case was so important.

"Let me put it this way: Any party anywhere could file a frivolous lawsuit against Girl Trouble if they want to, so there's always danger that Gorilla Productions or another company could file a lawsuit and bring them into court, in Washington or some other state. However, we feel, and I feel, like any such case would be extremely weak, and if it wasn't frivolous it would be very close to that," says Neal.

"One of the things that's really great about this victory is it sets an example for these companies," Neal continues. "I think this is a really good result not only for Bon and Girl Trouble, but really for anyone who's talking about these companies or any other companies on the internet."

Fighting the lawsuit has been taxing, not to mention expensive, but Von Wheelie says she has no regrets.

"I know I would do this all over again, exactly the same way. This isn't something you can turn away from," says Von Wheelie. "I believe that lawsuits like this must be challenged. Gorilla Productions handles their critics by threatening legal action. Most everybody will just take down the offending material because lawsuits are really awful, time consuming and expensive. Nobody wants to be sued. I didn't.

"But it's important to not be bullied, especially when you are just offering your personal opinion," she continues. "This wasn't really about pay-to-play, even though that's what we were arguing about. It was about a person's right to speak up and criticize a national public company."

"That's why this victory is so important," concludes Neal, "because it really does serve as an example to these companies that you can't just push people around, and that the right position is allowing speech to be expressed, and the wrong position is trying to shut it down."