Philly Pops’ lawsuit alleges Philadelphia Orchestra-Kimmel Center is trying to ‘put us out of business’

The Philly Pops has filed an antitrust lawsuit against the Philadelphia Orchestra and Kimmel Center, Inc. alleging that POKC is trying to put the Pops out of business.

The suit, filed Thursday in U.S. District Court for Eastern Pennsylvania, claims that the orchestra, since merging with the Kimmel Center, has engaged in “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 suit seeks $2.5 million in damages plus other costs — damages that, if awarded, would be tripled, according to statutes.

A POKC spokesperson said that the group “just received the lawsuit, which was brought to our attention by the media. As the complaint has yet to be formally served, we will reserve comment until then and once it has been reviewed with counsel.”

The lawsuit also asks the court to order POKC to allow the Philly Pops back in Verizon Hall. The group was evicted in January from its longtime home in the Kimmel Center in a dispute with Kimmel management over past-due rent and other debts.

Simultaneous with Thursday’s lawsuit, the Pops sent out an announcement saying it “has been forced to postpone the balance of its 2022-2023 performance season.” But in an interview, Pops president and CEO Karen Corbin softened that statement to say that it “may” have to suspend performances for the rest of the season. The group continued to hope that all programs — including make-ups for those that were slated for February and March but didn’t happen — will be presented sometime this season, she said.

Ellen Trainer, president of the musicians union local, didn’t respond to calls, but the union released a statement saying that since the merger of the orchestra and Kimmel, “Local 77 has been concerned about the potential for a monopoly and its impact on our city and the musicians who work here. We will all be following the lawsuit with interest. The loyal patrons and subscribers, along with the dedicated Philly Pops musicians, remain in limbo without a clear path forward to be made whole. The Philly Pops musicians look forward to the day that they can do what they do best — to present world-class pops music to their beloved audience members, our community, and the city of Philadelphia.”

The new lawsuit adds to the confusion and acrimony that has surrounded the Pops since fall when it announced it was suspending operations at the end of the 2022-23 season, and then reversed course. In March, the American Federation of Musicians filed a suit on behalf of the Pops players for compensation they never received for broadcasts of the Christmas concert in December. Patrons have complained about the Pops’ lack of communication regarding refund requests for shows the Pops had scheduled but did not perform.

The Pennsylvania Bureau of Consumer Protection has received 25 complaints from patrons regarding the Pops’ handling of refund requests, a spokesperson for the Attorney General’s office said.

Talks in the last few weeks between the Pops and Kimmel Center over debt and a payment plan have not yielded an agreement that would allow the group to return to Verizon Hall.

The Pops’ suit against POKC alleges a number of activities as evidence of POKC’s “anti-competitive and predatory” behavior, including: “substantially and unreasonably” increasing fees for Verizon Hall; slowing down the production, distribution and/or sale of seasonal tickets by Ticket Philadelphia for previously scheduled Pops concerts; and “denying the Pops access to the Ticket Philadelphia website for the purpose of ascertaining ticket sales for previously scheduled concerts at Verizon Hall and other venues.”

A cyber attack in February knocked out ticketing and other operations at the Kimmel and some of its resident companies.

The suit also names POKC president and CEO Matías Tarnopolsky as a defendant and accuses him of “attempt[ing] to redirect grant monies previously earmarked for the Philly Pops to the Philadelphia Orchestra.”

“It seems pretty clear they want to occupy the pops market for symphonic music and don’t want to conduct it in competition with the Pops. They want it all to themselves,” said William A. DeStefano, the lawyer representing the Pops.

DeStefano said the Pops may next file a preliminary injunction asking the court to order POKC to allow the Pops’ return to Verizon Hall, but that practically speaking, a return might not be possible before next season.

“If they could get back for Christmas, that would really keep the Pops alive,” he said.