Philadelphia Orchestra and Kimmel Center Inc. Seeks Dismissal of Philly Pops Lawsuit

Filed by the Philly POPS Orchestra, the antitrust lawsuit alleges the merger organization attempted to "eliminate the Philly Pops as a competitor"

 

In April 2023, the Philly POPS Orchestra filed an antitrust lawsuit in the U.S. District Court for Eastern Pennsylvania against the Philadelphia Orchestra and Kimmel Center, Inc. (POKC), claiming the latter was deliberately putting them “out of business.”

Following a year of financial loss, the Philadelphia Orchestra (PO) and the Kimmel Center merged in 2021 to become POKC — consolidating its leadership teams to form one parent company.

Since the merger, POPS alleged in the lawsuit document that POKC has displayed “unlawful, anticompetitive and predatory conduct” to “eliminate the Philly Pops as a competitor in and monopolize the market for live symphonic popular concert music” in the Greater Philadelphia area.

The Philly POPS also filed an amended complaint in federal court addressing POKC’s monopoly on programming and performances held at Kimmel Center’s Verizon Hall, and their alleged control over ticketing site, Ticket Philadelphia, interfering with sales and causing concert postponements.

 

Additionally, POPS states PO used its proprietary email list of around 35,000 emails to promote their own concerts. POPS spokesperson Beth Melena said while PO had access to the list, they were not authorized to use it. 

“POPS expressly authorized POKC to access and analyze its patron’s list last November,” PO responded. “Had [they] wished to revoke access, all it needed to do was say so.” Since then, POKC has said they would no longer access the data. 

“This filing represents another step in our lengthy effort to negotiate a path forward for the Philly POPS,” said POPS president and CEO Karen Corbin in a statement. “From the beginning of its new structure, [POKC’s] actions seem to have been focused on one goal: eliminating competition by forcing [us] out of business.

“The Philly POPS has a bright future,” she continued. “All we want to do is continue what we do best – playing popular music for the community we love by presenting the concerts that we have announced and planned for our patrons.”

The POPS is currently suing POKC for $2.5 million in damages, plus other costs — that, if awarded, would triple, according to legislation. 

 

Separately, POPS requested a court-ordered return to Verizon Hall or it would “be forced to consider filing a bankruptcy petition,” due to its inability to reschedule concerts for which it sold tickets but did not perform. Further, it stated there were no other feasible venues that could host around 25 concerts during the 2023-24 season.

In response, POKC has filed several counterclaims to the POPS’ lawsuit, claiming POPS formed a “false media narrative to raise money and divert attention from its own failings,” according to the Philadelphia Inquirer.

Additionally, it has requested the POPS to retract and correct “its false statements,” and for an order “enjoining the POPS from disseminating or publishing any additional false and defamatory statements.”

POKC claims POPS is trying to “force its way back into Verizon Hall,” after debt and a “long history of contractual default and related broken promises and commitments.” POKC subsequently asked the court to deny POPS’ request for the preliminary injunction, citing POPS’ unpaid debt of over $1 million and other deferred payment plans. 

“The Pops makes the remarkable and wholly unsupported assertion that [we] and [ the Philadelphia Orchestra Association (POA)] are trying to drive it out of business, supposedly in order to monopolize a bizarrely gerrymandered purported market for live symphonic concerts,” POKC stated.

In response, POPS spokesperson Jeffrey Sheridan reiterated: “The Philadelphia Orchestra has made it abundantly clear — both through their repeated actions and their response to the Pops’ lawsuit — that they are absolute in their wrongheaded mission to shut down the Philly Pops, America’s largest standalone Pops orchestra.”

POKC has requested the amount of $1,021,209.72 to be repaid by the Philly POPS. This figure is in dispute, according to Sheridan.

 

At the end of the 2022-23 season, the POPS had announced it was shutting down operations — a decision that was later reversed following POPS musicians’ vote on a work strike and a #SaveThePops campaign that needed a projected $2 million to avoid complete closure. 

However, in January 2023, POPS was evicted from the Kimmel Center over debts, which saw the group cancel the rest of its concert season.

“In January 2023, [we] made the difficult decision to suspend Pops from using its facilities,” POKC’s file reads. “But even then, [we] offered to lift the suspension if Pops paid a portion of its debt. In response, POPS turned to litigation, filing this lawsuit blaming [us] and the [POA] for its problems…an outrageous waste of the court’s and defendants’ time and resources.”

POPS stated fees charged to perform at the Kimmel Center were “substantially and unreasonably increased,” and that it had routinely paid the Kimmel Center and Ticket Philadelphia on payment plans because of its uneven cash flow. 

As of September 16, 2022, the POPS believed it owed Kimmel no further payments, whereas a POKC spokesperson said that as of that date, the POPS owed $475,119.08.

POKC has claimed that “justice can only be served” if the Philly POPS repays its outstanding debts. The former also requests a finding that POPS “accepted and received substantial benefits” from it without compensation despite “numerous financial accommodations and/or services rendered.”

The court has yet to rule on the request for the preliminary injunction. Another court hearing will take place in the following week.