MAY 23, 2014
In Marino v. Usher, I represent the plaintiff Dan Marino, a talented Philadelphia-based musician who wrote,
recorded, engineered, and produced the song Club Girl which was later exploited by the popular R&B artist
Usher. Usher renamed the song Bad Girl and it was placed on his Confessions album which has been regarded
by music critics as Usher's greatest work; it was Usher's most successful album of his career selling in
excess of 10 million copies in the U.S. alone.
On Wednesday, Judge Diamond issued memorandum opinions granting summary judgment for certain
defendants and sanctions in that case. We will be appealing both those decisions as they are against the
weight of the evidence and the court grossly misapplied the law. For reasons I will address below, as it relates
to my interaction with defendant Wil Guice, I did nothing wrong. I was upfront and honest with Mr. Guice.
I acted properly and in accordance with the Pennsylvania Rules of Professional Conduct. I am confident we
will be successful in bot h appeals as the rulings are without legal merit and are premised upon gross
distortions of the truth unsupported by the objective evidence in either matter.
First, it must be stressed that there is no question that Dan Marino is the true author of Club Girl and Bad
Girl. Judge Diamond himself acknowledged this in his opinions. To that end, our mission has been partly
accomplished. Granted, there are still legal issues that must be resolved; however, the public should know
two things: (1) Dan Marino wrote, recorded, engineered, and produced the song Club Girl and Usher's Bad
Girlj and (2) while Usher and others (including Mr. Guice) have profited greatly from the songs, Dan
Marino has not.
Second, I deeply disagree with Judge Diamond's grant of sanctions. The Court made a mistake in this case.
Judge Diamond granted sanctions because he somehow came to the belief that I misled one of the
defendants in the case-Wil Guice. However, Judge Diamond failed to consider the objective evidence in
the sanctions motion and his opinion conveys a completely inaccurate and false representation of the facts
as it relates to my interaction with Mr. Guice'°
Let me be abundantly clear-Mr. Guice knew that I represented the plaintiff Dan Marino; he was told
multiple times he was a defendant; he' knew what it meant to be a defendant; he signed a statement
acknowledging he was a defendant; and he was advised to review that statement with a lawyer before signing
it. I have a recorded and transcribed telephone conversation, phone records, and a written and signed
statement from Mr. Guice proving this-all of which Judge Diamond incorrectly and inexplicably chose not
to credit.
I must stress that the recorded phone call shows that after Mr. Guice reached out to me-completely on his
own initiative-he was explicitly told multiple times, verbally and in writing, that I represent the Plaintiff
and that he was a defendant. It is undisputed that Mr. Guice never voiced any confusion to me about his
role in the case.
Rather than relying on the unrebutted objective evidence, the Court instead relied on Mr. Guice's most
recent self-serving testimony in which Mr. Guice conveniently stated he thought he was only a "witness. "
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Transcribed Recorded Phone Conversation
Attorney Malofiy and Defendant Wil Guice
February 23, 2012
GUICE: Hello?

MALOFIY: Yo Wil, how you doing bud?
GUICE: Hey what's good?
MALOFIY: Can you hear me?
GUICE: Yep I can hear you.
MALOFIY: Alright, listen I put together, I basically I took a
buncWof notes down on a yellow pad from when we, from
when we talked, and I tried to put them together as
best I could. I don't want to put anything down that
you're not comfortable with, so, I wanted to run
through this affidavit, and you let me know if
anything is not correct, cause I don't want to have to
go back-and-forth, back-and-forth. Is that alright?
GUICE: Ok, yeah that's cool.
MALOFIY: Do mind if I record it?
GUICE: Nah, go ahead.
MALOFIY: First it says ...
Affidavit of Wil Guice.
My name Is Wil Guice. I live at 16794 East Tufts
Avenue; Aurora, CO 80015.
Ah, on February 14, , 2012 I was served with an Amended
Complaint in regards to Marino v. Usher. I understand
that I'm a party to this lawsuit - I'm a named
defendant. I understand that you, Francis Malofiy,
represent plaintiff Dan Marino.
I called Francis Malofiy on February 23, 2012 around
noon to set the record straight and express my
frustration that Dan wasn't properly credited as a
songwriter or producer of Club Girl/Bad Girl. I'm just
going to call it "The Song". I make this Affidavit on
my own free will - nothing was promised to me in
e xchange.
I'm going to tell it how it is, no bullshit. I want to
make it clear that I had absolutely no idea that Dan

did not get credited or paid as a songwriter for the
Song and I was shocked when I learned this after
reading the Complaint. It was my understanding that we
were supposed to receive equal credit as songwriters.
Dan wrote the music, then Dante Barton laid down the
beat and chopped it up, and then I wrote the lyrics,
in that order.
I als p want to make it clear that I had absolutely no
idea t hat Dan did not get credit as a producer for the
Song. It was my understanding that Dan and Dante had
split the production of the Song 50/50.
I really knew ... um, I never really knew what was going
on behind the scenes as far as the business deal for
the Song, Dante handled this aspect of things and it
wasn't my concern. I was focused as an artist and did
not know what was going on regarding the credits, um ...
regarding the credits, the business deals, or the
publishing affairs of the Song.
I don't deny that Dan had a big part in writing the
Song. Dan and his guitar .. . that's what started the
Song. Dan sat there and started playing the guitar for
us, um ... the guitar for us, ah, for something he was
working on. Dan wrote the music and created that
guitar riff on his own, in his head, no one told him
to play something. The whole track was driven by the
music - the strong guitar riff. That's what made the
song hook. That's what got me and Dante wanting to
work it . That's what got Usher and Mark Pitts
involved . The guitar drove the whole record - there
aint no doubt about that. Dante built the beat around
what Dan had tracked, we listened back and that's when
we were like, "Damn , that's hot shit!" I think that's
what, I'm just quoting you . I scribbled it down.
Um, then I went into the other room and laid down the
lyrics and it really came together it was tight.
That's how we regularly worked. It started .. . the Song
was created initially from Dan and his guitar and then
it really started to take form when we put the beat
and I put the lyrics to it.
Yes we did write the Song together. I had nothing to
do with the music, with the composition of the music,
but lyrically, I wrote the lyrics though, until

Usher's people got involved and then they changed, and
then some change, changes were made. You ask me if
Dan's contribution to the Song was bigger than Dante's
or equal to mine. Well I wouldn't say it was bigger
than Dante's, I wouldn't say that Dan's part ... but I
but I would say that Dan's part drove the track. So
when we all came together it was hot and I can't say
that any one of our contributions was greater than the
otherp, but I will say that Dan first created it.
I haven't talked to Dante Barton in over 5 years - I
have no issue with Dante Barton. I haven't talked to
Tom Van Dell in over 7 years - I have no issue with
Tom Van Dell.
I left the Philadelphia area because I needed to move.
I didn't want to sit in one spot for too long I was
feeling stagnant as an artist. I have no hard feelings
with anyone and wish everyone well but what happened
to Dan is wrong, and should've, he should have been
recognized as a songwriter. I told it straight how it
is, no bullshit, cause bullshit is a waste of time and
just prolongs stuff. If Dan didn't get credited and
paid for creating a major part of the Song then that's
fucked up.
MALOFIY: That's pretty much from all my notes.
GUICE: Yep, yep.
MALOFIY: Is there anything there that -
GUICE: If, if, if, if .. . I mean if you, if you think um, I
mean I don't know if you could just switch out all
the, all the, the cussing parts.
MALOFIY: Oh, okay.
GUICE: Just regular, just, just, just, just regular words and
everything is good.
MALOFIY: Yeah that's fine. I can do that. I just, I just don't
want you to think I was playing with your words.
Cause, I actually, I scribbled them down on a yellow
pad just while I was talking to you cause I didn't
want you to think I was playing games with your words.
GUICE: Nah, nah. That's cool.
MALOFIY: Alright, so, so you're comfortable with that and, and,
and, um ... that affidavit is an affidavit that, that
ah, that if you we're here you would have signed,
GUICE: Yes, yep.
MALOFIY: Alright. So what I want to do is I'm also going to,
ah, um ... and you' re also swearing to me the statements
in here are true. And what we previously talked about
is true, and that what I just told you back was true.
That's what happened right?
GUI CE: Exactly.