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June 23, 2023

Philly Pops claims the Philadelphia Orchestra used the Pops' email list to promote its own concerts

The orchestra, which is being sued by the Pops for alleged antitrust violations, said it was authorized to access the data but denied using it to market the 2023-24 season

Lawsuits Philly POPS
Philly Pops patrons Provided Image/Philly Pops

The Philly Pops claims the Philadelphia Orchestra used the Pops' proprietary email list to promote its own concerts – an accusation the orchestra denied in a court filing asking for the Pops' antitrust lawsuit be dismissed.

The Philly Pops has been in a public battle – and a legal one – with the Philadelphia Orchestra and Kimmel Center over its eviction from Verizon Hall earlier this year. 

The Philly Pops, an orchestra that plays pop music, filed an antitrust lawsuit in April, alleging that the Philadelphia Orchestra and Kimmel Center used unlawful tactics to force it out of business and to create a monopoly in the city. It also has asked the court to issue an injunction that would allow the Pops to return to Verizon Hall this fall for its 2023-24 season, which includes about 25 shows. 

Earlier this week, the POKC urged the court to dismiss the case, calling it "an outrageous waste of the court's and defendants' time and resources."

Among its claims, The Philly Pops alleges that the Philadelphia Orchestra used the Pops' proprietary email list to contact people who had account balances to offer gift certificates. The orchestra, which uses the same ticketing system as the Philly Pops, informed them that their credits had been converted to gift certificates that could be used to purchase tickets to shows at the Kimmel Cultural Campus, including orchestra performances.

"We're making it easier to redeem the unused credit on your account for when you're ready to join the Philadelphia Orchestra for live performances again," read one email to a patron, which was obtained by PhillyVoice. "Your gift certificate is secure and easy to redeem for tickets purchased online, by phone, or at the Kimmel Center, Academy of Music, or Miller Theater (formerly the Merriam Theater) Box Offices."

Despite this claim, Philadelphia Orchestra said that it does not access Philly Pops' data when sending letters. 

"There are overlaps in our patron lists. This specific letter refers to a performance produced or presented by POKC for which the patron was issued a refund or gift card. It is unrelated to the Philly Pops. Pops ticketholders should contact the Philly POPS with questions regarding refunds," Ashley Berke, a spokesperson for Philadelphia Orchestra, said in an email.

The emailed message also listed the benefits of the gift certificates and listed the credit amount and the gift certificate number, but it did not mention any specific performances at the Kimmel Cultural Campus. 

In a court filing this week, Philadelphia Orchestra responded to claims that it overstepped boundaries by accessing the Philly Pops' email list, which contains about 35,000 email addresses. 

"Pops expressly authorized POKC to access and analyze its patron's list last November," the filing states. "Had Pops wished to revoke access, all it needed to do was say so."

Though the Philadelphia Orchestra and Kimmel Center had access to the data, Beth Melena, a spokesperson for Philly Pops, said the company was not permitted to use it. 

The Philadelphia Orchestra and the Kimmel Center said it would no longer access or use the data. 

In its court filing, the Philadelphia Orchestra denied using the data to market or sell concert tickets during the 2023-2024 concert season. However, it alleged Philly Pops violated its license agreement with the Kimmel Center, amended in 2021, and stated that the Pops has no right to perform in Verizon Hall if the ensemble does not make timely payments. 

The Philadelphia Orchestra and Kimmel Center suspended its ties with Philly Pops in January because the ensemble failed to meet a deadline for a $520,000 payment. POKC has alleged the Pops has a $1 million debt and has failed to honor payment plans in the past. 

"POKC offered to lift the suspension if Pops paid a portion of its debt," the court filing reads. "In response, Pops turned to litigation, filing this lawsuit blaming POKC and the (Philadelphia Orchestra Association) for its problems," the court filing states. 

The court filing also states that the Philly Pops "is attempting to use its false media narrative to raise money and divert attention from its own failings."

Through the lawsuit, the Pops are seeking to reschedule their postponed shows at Verizon Hall and ensure their Christmas programs can be performed there, too. The Pops also wants to recoup damages for POKC's alleged interference.

POKC has said the dispute could be rectified if the Pops repaid its debt, noting that it is not obligated to permit the Pops to perform at Verizon Hall. 

Another court hearing is scheduled for next week. 

This story was updated with information from the Philadelphia Orchestra