PHILADELPHIA – The Philly Pops has filed antitrust litigation against The Philadelphia Orchestra and The Kimmel Center, charging that the defendants engaged in anticompetitive conduct designed to monopolize the market for live symphonic popular concert music concerts in the Greater Philadelphia Metropolitan Area.
Encore Series, Inc. (doing business as “The Philly Pops”) filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 13 versus The Philadelphia Orchestra and Kimmel Center, Inc. (doing business as “The Philadelphia Orchestra, The Kimmel Center and Ticket Philadelphia”) and Matias Tarnopolsky. All parties are of Philadelphia.
“The relevant product and geographic markets in this case are live symphonic popular music concerts advertised and available to patrons located in the Greater Philadelphia Metropolitan Area which includes several counties in South and Central New Jersey and Northern Delaware. Symphonic popular music includes Broadway show music, movie music, jazz, R&B and rock and roll,” the suit says.
“Popular symphonic music is highly differentiated from classical symphonic music, historically played by the Philadelphia Orchestra, in that it is marketed to different potential patrons and is attended by audiences with little duplication to those of the Philadelphia Orchestra. However, the Philadelphia Orchestra has entered the symphonic case popular music market by scheduling and selling tickets for popular music concerts in Spring 2023.”
The suit adds that beginning in Fall 2021, both the Philly POPS and the Philadelphia Orchestra, resumed their concerts at the Kimmel Center’s Verizon Hall for the 2021-2022 Season.
“Beginning in early 2022, however, and continuing to the present time, defendants POKC and Tarnopolsky using their the leverage of their newly acquired ownership and control of the Kimmel Center and Ticket Philadelphia, willfully and intentionally embarked on a series of unlawful, anticompetitive and predatory conduct with respect to the Philly POPS, with the purpose and intent to force the Philly POPS to go out of business, so that the Philadelphia Orchestra could eliminate competition between the Philly POPS and the Philadelphia Orchestra for concert dates and audiences at Verizon Hall and for corporate sponsorship, foundation, state and local grants and take over and to monopolize the market for live symphonic popular music in the Greater Philadelphia Metropolitan Area,” the suit states.
According to the plaintiff, the defendants engaged in the following anticompetitive and predatory conduct:
• Substantially and unreasonably increasing the Kimmel Center fees for the Philly POPS to perform popular music concerts at Verizon Hall;
• Slowing down the production, distribution and/or sale of seasonal tickets by Ticket Philadelphia for previously scheduled concerts by the Philly POPS at Verizon Hall;
• Proposing to the Philly POPS that it go out of business at the end of its 2022-2023 season and transfer its assets and business to the Philadelphia Orchestra;
• Hiring a public relations firm to create media messaging that the Philly POPS would go out of business at the end of the 2022-23 season and that the Philadelphia Orchestra would take over some or all of POPS concerts at Verizon Hall and elsewhere.
• The POPS considered this proposal but ultimately informed POKC that it was unable to accept it. Then defendants POKC and Tarnopolsky demanded immediate payment of substantially-escalated fees for the POPS’ Christmas Concert Series in December 2022 and ticket fees for the remainder of the season, refused to negotiate a reasonable payment plan for these fees (as the Kimmel Center had done in many prior years) and summarily evicted the POPS from the Kimmel Center, forcing the POPS to cancel and postpone its concerts at Verizon Hall and scramble for different but substantially less viable indoor venues for its already scheduled concerts;
• Defendant Tarnopolsky acting on behalf of the Philadelphia Orchestra and on his own behalf attempted to redirect grant monies previously earmarked for the Philly POPS to the Philadelphia Orchestra;
• 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.
For one count of attempted monopolization in violation of The Sherman Act, the plaintiff is seeking three-fold damages, along with the appropriate interest, and costs of suit including reasonable attorney’s fees, plus an injunction to preliminarily and permanently enjoin the defendants from continued predatory conduct directed to the Philly POPS, an order compelling the defendants to take affirmative action to reinstate the Philly Pops at Verizon Hall and to take other steps to reverse the effects of the anticompetitive and predatory conduct alleged in this complaint.
The plaintiff is represented by William A. DeStefano and Terri A. Pawelski of Saxton & Stump, in Philadelphia.
The defendants have not yet obtained legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-01421
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com