In response to Philly Pops lawsuit, Kimmel Center asks for case to be dismissed

With an outstanding $1 million debt and a “long history of contractual default and related broken promises and commitments,” the Philly Pops is trying to “force its way back into Verizon Hall,” the Philadelphia Orchestra and Kimmel Center Inc. alleged in a court filing Tuesday.

The filing, a response, and series of counterclaims to the antitrust lawsuit the Philly Pops filed against POKC in April, alleges that the Pops is using a “false media narrative” to distract from problems of its own making.

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

A Pops spokesperson Wednesday responded by repeating the group’s claim that the Philadelphia Orchestra, through parent company POKC, is seeking to eliminate the Pops as competition.

“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,” said Jeffrey Sheridan in a statement.

The amount the Pops owes to POKC is in dispute, said Sheridan.

The Pops’ April lawsuit, filed with the U.S. District Court for Eastern Pennsylvania, alleged that the orchestra, since merging with the Kimmel Center in 2021, has engaged in “unlawful, anticompetitive and predatory conduct” to “eliminate the Philly Pops as a competitor.”

In a separate request earlier this month, the Pops asked the court to issue a preliminary injunction that, among other things, would return it to Verizon Hall starting this September after being shut out by the Kimmel.

The Pops filing said there were no other “feasible venues in the Philadelphia metropolitan area for it to perform the approximately 25 symphony concerts during the 2023-24 concert season,” and without the ability to reschedule concerts for which it sold tickets but did not perform, the Pops would be “forced to consider filing a bankruptcy petition.”

On Tuesday, POKC asked the court to deny the Pops’ request for the preliminary injunction. That filing cites the Pops’ unpaid debt in excess of $1 million and a series of past “accommodations and deferred payment plans that [the Pops] then failed to honor.”

“In January 2023, POKC made the difficult decision to suspend Pops from using its facilities. But even then, POKC offered to lift the suspension if Pops paid a portion of its debt,” the filing reads. “In response, Pops turned to litigation, filing this lawsuit blaming POKC and the [Philadelphia Orchestra Association] for its problems.”

The court has not ruled on the request for the preliminary injunction.

On Wednesday, the Pops released a statement saying that “consistently misstating the amount the Pops owed has been one tactic of the new administration” at POKC; that the Pops had routinely paid the Kimmel and Ticket Philadelphia on payment plans because of the uneven cash flow of their business. It added that it believes, as of Sept. 16, 2022, as the season was gearing up, the Pops owed Kimmel no further payments at that time.

A POKC spokesperson said Wednesday that as of that date, the Pops owed it $475,119.08.

The Pops also said that fees charged to perform at the Kimmel Center had been “substantially and unreasonably increased.”

The Pops performed its opening show in Verizon Hall in September, but in November, citing debt and poor subscription sales, Pops then-president Frank Giordano announced that the group would shut down at the end of its 2022-23 season. The organization reversed the decision in January, announcing a save-the-Pops fundraising campaign.

Later that month the Kimmel evicted the Pops. The group’s debt to POKC totaled “just over $1 million, and at that stage we could no longer allow them to keep performing without both settling the debt and paying in advance for future use of the venue,” said POKC president and CEO Matías Tarnopolsky, at the time.

The Pops disputed the accuracy of the debt figure. After the eviction, the group did not perform the rest of its 2022-23 season.

In Tuesday’s filing, POKC alleges that the Pops, in tandem with its April lawsuit, “launched an online and media attack that is based on false statements that has caused, and continues to cause, financial and reputational harm” to POKC, the Kimmel, Philadelphia Orchestra and Ticket Philadelphia.”

Among the statements it cites: That POKC has engaged in conduct “designed to force the Philly Pops out of business so that [the Philadelphia Orchestra] could eliminate the Philly Pops as a competitor.”

In Tuesday’s response, POKC alleges that the Pops “is attempting to use its false media narrative to raise money and divert attention from its own failings.”

The response from POKC asks that the Pops’ claim be dismissed. It also says that “justice can only be served” if the Pops repays its outstanding debts to the Kimmel and Ticket Philadelphia; and it asks for a finding that the Pops “accepted and received substantial benefits” from POKC, the Kimmel and Ticket Philadelphia without compensating them for the “numerous financial accommodations and/or services rendered.”

In its counterclaims, POKC is asking to be paid the amount it says the Pops owes it: $1,021,209.72.

In addition, it asks for an order directing the Pops to retract and correct “its false and defamatory statements,” and for an order “enjoining the Pops from disseminating or publishing any additional false and defamatory statements.”

Tuesday’s response from POKC called the Pops’ lawsuit “an outrageous waste of the court’s and defendants’ time and resources.”