Squirrel Nut Zippers: what happened, a Zippers opera

From left, Tom Maxwell, Chris Phillips and Jimbo Mathus perform with Squirrel Nut Zippers at a 1997 free concert for the town of Carrboro. More than 5,000 fans attended.
From left, Tom Maxwell, Chris Phillips and Jimbo Mathus perform with Squirrel Nut Zippers at a 1997 free concert for the town of Carrboro. More than 5,000 fans attended. newsobserver.com

From the N&O archives: May 14, 2006

Squirrel Nut Zippers came together with the greatest of ease. Their hit came even more easily, with a song Tom Maxwell claims to have dashed off in 15 minutes. Most effortless of all was their breakup, which happened so quietly it wasn’t clear until years later that they were gone.

But in the shadows of that slow fade-out lay operatic pain and drama. After selling millions of records, the Zippers foundered amid litigation, divorce, broken friendships and lost money. Hard feelings linger, and bad blood still boils over in public.

“What irks me is playing a show at the Cave and having a drunk girl come up and ask why we’d broken up Jimbo and Katharine’s marriage,” says saxophonist Ken Mosher, referring to singer-guitarist Jimbo Mathus and singer Katharine Whalen. He says Maxwell’s wife also recently took an earful about “what a jerk Tom was.”

The last time Tom Maxwell and Ken Mosher shared a Triangle stage with their fellow Zippers was October 1998. Performances next weekend at Raleigh’s Artsplosure festival will be as close as they’ve come since then. Maxwell/Mosher play Artsplosure on Saturday, the day before Whalen sings with the Europa Jazz Quartet. It’s probably just as well they’re playing on different days.

Maxwell and Mosher left the band in 1999 and later took legal action against the remaining Zippers — Mathus, Whalen, horn man Je Widenhouse, bassist Stu Cole and drummer Chris Phillips — over money generated from the music they wrote and recorded with the Zippers. They say they’ve asked only for what is rightfully theirs. An arbitrator agreed, awarding them more than $345,000 in 2002.

The others say that Maxwell and Mosher had already been paid what they had coming and that the band’s money is gone.

“Those two guys quit — they resigned to start their own thing,” Mathus says. “They sued me and took all the money from Squirrel Nut Zippers. It about ruined all of us...It’s not but just jealousy and greed. Those are the two factors at work.”

During arbitration, Mathus made an unflattering cartoon of Maxwell and Mosher as “Max and Mosh, Twins from Yucatan.” Maxwell is shown saying, “$,” to which Mosher replies, “Me want some too!” The caption at the bottom reads, “You can’t get something for nuthin’.” The cartoon stayed on Mathus’ website for years as a mysterious postscript.

“One of the first questions everybody asks is, ‘What happened?’ “ Maxwell says. “I tell people to go watch ‘Behind the Music’ and extrapolate. Watch 24 straight hours of that, and they’ll hit every single thing that took us down.”

Act I: Jazz and whimsy

Most bands come to bad ends, even successful ones — Creedence Clearwater Revival, the Clash, even the Beatles. But in their heyday, you never would have guessed such a fate awaited the Zippers.

The group formed in 1993, growing out of a series of potluck parties at the Mathus-Whalen homestead where friends brought instruments to play old-time jazz. Reflecting the project’s whimsical nature, they named themselves after a brand of candy.

“The Inevitable Squirrel Nut Zippers,” released in 1995 on hometown label Mammoth Records, was long on ragged charm. The Zippers played old-style jazz in the spirit of Fats Waller and Billie Holiday, but their nervous energy and jittery tempos betrayed their underground-rock pasts in Metal Flake Mother, Rubbermaid, What Peggy Wants and other local bands. The triple-threat combination of Whalen’s torch-diva voice, Mathus’ blues leanings and Maxwell’s idiosyncratic tangents made for perfect musical chemistry.

“Inevitable” sold better than anybody expected. By the spring of 1996, the Zippers were booked to play “A Prairie Home Companion” and the Summer Olympics in Atlanta. Things were getting serious enough that the band drafted a four-page partnership agreement dated June 1, 1996 — three days before the release of their second album, “Hot.”

The Plenty More General Partnership (named after the last song on “Inevitable”) was a model of egalitarian spirit. It called for profits and losses to be split equally among all seven members. Disputes would be settled through arbitration, not lawsuits. And it made provisions to split income from publishing — money generated by public performance of music on radio, television, commercials and soundtracks — among each band member, not just the songwriters. Publishing rights are the most valuable asset any musician has, so this was a generous provision.

“It totally seemed like the right thing to do,” says Maxwell, one of the Zippers’ primary songwriters. “I mean, I was a bartender. ‘Publishing, what’s that? Let’s just split it up.’ It seemed like everyone should have a stake in that. Otherwise, one [expletive] makes obscene amounts of money and everyone else feels resentful.”

Back then, the only money involved was hypothetical. “Inevitable” had sold 18,000 copies -- a healthy number, but nobody was getting rich or even making a living. The biggest issue was whether they could quit their restaurant jobs.

“I was working at the Flying Burrito when the Zippers broke,” Whalen says. “And I remember I did not want to give up my good Friday and Saturday shifts. That was hard. I really had to think about it. ‘Well,’ I thought, ‘OK. I hope this works.’ “

Act II: Money and MTV

It was 1997 when the Zippers exploded. They started the year playing President Clinton’s inauguration and closed it out at “Dick Clark’s New Year’s Rockin’ Eve.” In between, they had a song blow up at commercial radio — “Hell,” an irresistible calypso tune with a dark message about damnation.

As “Hell” sent the “Hot” album rocketing up the album charts, the Zippers crossed over from NPR to MTV. The “Hell” video was playing constantly, and they were pop stars with a million-selling album.

The crowds got bigger, and so did the paydays. They went from playing for a few thousand bucks at Cat’s Cradle in Carrboro to making $75,000 at private corporate events. A television commercial for Intel’s Pentium computer chips used another “Hot” song, Maxwell’s “Put a Lid on It,” to the tune of $350,000.

“I remember when they told me we grossed $1 million one year,” Whalen says. “Which just made me go, ‘Wow!’ Now we didn’t get all that money, obviously, because there were so many expenses. We were all on salary. It was costing us $30,000 a month to travel to gigs on two buses. But there was a lot of money flying around, and people get crazy when that happens.”

All that money raised the financial stakes, bringing managers and lawyers into the picture. The Zippers were Mammoth Records’ blue-chip asset when Walt Disney purchased the label for a reported $25 million. That created immense pressure for another hit.

“Perennial Favorites,” released in 1998, had its moments. But the album was strained where the Zippers used to be easygoing, betraying a sour fatalism. The video for the first song, “Suits Are Picking Up the Bill,” showed the Zippers on display as entrees in a restaurant. After debuting at a lofty No. 18, “Perennial Favorites” faded fast and sold less than half of what “Hot” moved.

Behind the scenes, all was not well. An unsettling blow was the death of Stacy Guess, the Zippers’ original trumpet player, whose heroin addiction forced him out of the band before “Hot” was recorded. He died from an overdose in 1998, when the band was on tour in Europe. They took the news hard.

Then there were the lawsuits. The Zippers had a handshake agreement with the owner of the Massachusetts-based Squirrel Nut Zipper candy company to use the name. After the owner died, Southern Style Nuts acquired the company and sued the band. Former manager Mike Renault also sued after his 1998 dismissal, alleging he was never paid money he was owed.

Both suits were settled. But by the summer of 1999, Maxwell had had enough. He quit the Zippers on June 30. Mosher followed a few months later.

“The best thing the Zippers had was a fundamental joy we were able to communicate,” Maxwell says. “We may have been a complete clambake in terms of the correct notes, but there was always that transparent joy. When that started to go is when I bailed.”

Act III: Lawsuits, fees

The Zippers added replacements and continued. They released one more album, 2000’s “Bedlam Ballroom,” which sold disappointingly (69,000 copies to date). But the Zippers’ back catalog continued to sell.

In June 2000, Maxwell and Mosher discovered that management and accounting fees were still being withheld from their Squirrel Nut Zippers royalties. They asked for that money back, and that’s when trouble started.

“We’d just been through lawsuits over the name and with our former manager,” Maxwell says. “So we wrote letters: ‘Please don’t make us sue you.’ No response. Then there were phone calls. Nothing. That was when I decided to get my publishing back because I had the most to lose from our partnership agreement. I wrote the hit single. It was only by virtue of the partnership agreement that anybody else was allowed to get a piece of it.”

Claiming that the partnership agreement had been breached, Maxwell and Mosher called for arbitration in 2001. They subpoenaed financial records from Disney, Bug Music (the Zippers’ publishing administrator), Zippers manager Erik Selz and accountant Burt Goldstein.

Disney and Bug complied, but records from Selz and Goldstein were not turned over. Attorney Richard “Gus” Gusler, who represented the Zippers in the matter, declined to comment on how the case was handled.

After examining financial records from Disney and Bug Music, Maxwell and Mosher contended that they had also been underpaid for royalties. Arbitrator Chase Boone Saunders agreed. In October 2002, he awarded them $345,569.74, to be paid by the other five members of the partnership. The ruling also gave Maxwell and Mosher control of their publishing rights to the songs they wrote for the Zippers.

In April 2003, the parties settled for $155,000. The first payment was for $110,000, followed by three $15,000 installments. Mathus, Whalen, Phillips, Widenhouse and Cole have two installments left to pay.

Whalen professes to be mystified by the entire proceeding — and about just what happened to all the money the Zippers made over the years.

“We could never figure out what happened,” she says. “I never could figure out where they came up with that [settlement] number. But all I’ll say is that it did not surprise me. You can’t make as much money as we did without things going astray.”

As the case dragged on and legal bills mounted, Mosher had to sell the house where the Zippers recorded “Perennial Favorites.” Maxwell was down to $200 in the bank at one point. And Whalen had to sell the banjo she played in the Zippers.

“Yeah, I ran out of money, so I sold it,” she says. “But that’s OK. It’s just a banjo. Getting divorced was much more stressful. Much sadder.”

Act IV: Baby, divorce

Whalen gave birth to a daughter, Cecilia Mae Mathus, on April 22, 2000. She and Mathus took the baby on the “Bedlam Ballroom” tour and got home about the time she was learning to walk. Mathus went back out on the road with his blues band, Knockdown Society. He didn’t come back.

“When he left, he just disappeared and didn’t say anything,” Whalen says. “Eventually, I figured it out. You know, always the last to know.”

Whalen filed for divorce, and Mathus moved to his native Mississippi, where he married blues singer Olga Wilhelmine. Whalen tended to her daughter and went back to waiting tables. She also started making music again with producer-writer David Sale.

On her startling new solo album, “Dirty Little Secret,” out June 6 on M.C. Records, Sale sets Whalen’s jazz croon against modern electronic effects and percolating rhythms, with impeccable popcraft. The title track sounds like something Burt Bacharach might have written for Dusty Springfield.

Given Whalen’s real-life circumstances, it’s hard not to read some of “Dirty Little Secret” as autobiographical. That especially goes for the first track, “The Funnest Game.” Over a pumping horn arrangement and twangy guitars, Whalen sings of betrayal in a tone of deadpan, ice-cold fury:

But then one day she came along,

Singin’ his favorite song.

I knew that I heard it on the radio,

And I knew that he’d be gone.

Although credited as co-writer, Whalen says she had very little to do with writing “The Funnest Game.” But she acknowledges its eerie verisimilitude.

“When David showed up with that song, it almost made me paranoid,” she says. “ ‘What does he know about my life, and how?’ That one is a little personal, almost a stalking song.”

Even more personal is “Follow.” A mournful piano ballad with the feel of an old hymn, “Follow” is a pledge of enduring love. Whalen and Sale co-wrote and recorded it on Sept. 10, 2004 — the day her divorce became final.

“Jimbo had driven up from Mississippi to sign the papers,” Whalen recalls. Then [daughter] Cece gave me a big shiner that day when I was bending over to tie her shoes — just reared up and hit me with her head.

“So I put on a pink dress with rhinestones and lipstick, went down there with my black eye and got divorced. At one point, the lawyer looked me over and said, ‘You didn’t have to get dressed up.’ Yeah, I did. It made me feel better.”

Act V: Gigging, coping

Whalen will play a few live shows for “Dirty Little Secret” with Hobex as her backup band. But she won’t tour much because she doesn’t want to leave her daughter, who is already learning to play fiddle; mother and daughter even played a gig together at her preschool.

Whalen still sings jazz with the Europa Jazz Quartet, and she’s working on a country record with Hooverville.

Mathus has had the most high-profile post-Zippers career, playing on Grammy-nominated albums by North Mississippi All-Stars and Buddy Guy. When he’s not on the road, he runs Delta Recording Studio in Mississippi. Elvis Costello recorded his 2004 “Monkey to Man” single there (it was also nominated for a Grammy).

Mathus’ next album, an acoustic blues set called “Old Scool Hot Wings,” is due out May 30 on his wife’s label, 219 Records. At last report, he had yet to hear “Dirty Little Secret.”

Maxwell and Mosher’s current band features the rhythm section from Chapel Hill pop band SNMNMNM. Their latest studio project is a soundtrack for a sitcom in development for the Lifetime cable network.

They’re also working again with Jay Faires, the former owner of Mammoth Records, placing their old Zippers songs where they can. “Hell” recently appeared on a “comedy-rock” compilation called “Fun Tracks Wisecracks” (Rhino Records) and in a detergent commercial overseas. Last year, they released “Maxwell/Mosher” (Samsara Records), featuring new recordings of “Hell” and other old Zippers songs, plus new music in the same style.

If Maxwell and Mosher are carrying on in the style of their old band, they’re not calling themselves Squirrel Nut Zippers. Whalen and Mathus still own the name — and they’re actually talking about playing together again as the Zippers, without Maxwell and Mosher.

After all that has happened, Mathus acknowledges it would be “awkward, but no more awkward than anything else.” The motivation would be financial, to pay off their debt to Maxwell and Mosher.

“We wouldn’t be trying to re-form the group to make records and get on the radio,” Whalen says. “It would be more about us surviving. The idea would be to do maybe three shows, probably just a couple of corporate gigs for some money. We’ll be paying off that settlement for two more years, so it would be cool to play a few nights and just make that go away.”

That would make a fitting coda to the saga.

“You know, every one of us had the most amazing, crazy good fortune beyond our abilities or commitment,” Maxwell says. “It was total blind luck. And it still turned out to be the same sad story.

“It starts out fun, a lightning bolt hits, there’s some success. And it devolves into egos, heartbreak, betrayal and who owes whom, settled by agents of the court.”

David Menconi: 919-829-4759, @NCDavidMenconi