Philly Pops ticket holders may get their day in court over concerts that never happened. Here’s what to know

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The fallout from the collapse of the former Philly Pops is still playing out in court as a judge has allowed a class action lawsuit to move forward representing ticket holders who paid for concerts that never happened.

The suit filed on behalf of ticket holder Carol L. Callahan names as defendants the former Pops parent company Encore Series, Encore’s CEO Frank Giordano, Ticket Philadelphia andThe Philadelphia Orchestra and Kimmel Center, Inc.

The name “The Philly Pops” was recently acquired by a new organization for its own symphonic pops ensemble concerts. The new Philly Pops is not involved in the lawsuit.

What is the Philly Pops class-action lawsuit about?

The suit claims $1.1 million was raised in ticket revenue for concerts that were announced for the spring of 2023 but never performed. On Nov. 13, Judge Mia R. Perez allowed five of the suit’s original 10 claims to move forward to discovery, including accusations of fraud, unfair trade practices and Giordano and POKC aiding and abetting each other to perpetuate a misrepresentation.

The ruling requires Giordano and Encore to produce heretofore unseen documents.

One of the key factors of the suit is the claim that a public statement released by Encore, which absolved POKC from financial culpability for the demise of the former Pops, is wrong.

“We believe that once Encore complies with the numerous court orders requiring them to produce the relevant documents and information, we’ll be able to test the veracity of the statements made by the defendants,” said attorney Jonathan Zakheim, a partner with the firm Astor Weiss Kaplan & Mandel, LLP, representing the plaintiff Callahan.

Zakhaim believes there may be thousands of ticket holders who could benefit from the outcome of the suit.

In a statement, POKC called the lawsuit “wasteful litigation based on a false narrative that POKC is responsible for Encore’s failure to deliver on its promises to its patrons, failures that even Encore itself has publicly acknowledged were solely its own responsibility.”

Shifting legal arguments

Zakheim said Encore’s instinct was right when the company initially sued POKC, but it used the wrong argument.

Encore sued Kimmel in 2023, alleging it intentionally undermined the finances of Encore in order to drive it into bankruptcy so thatPOKC could establish its own pops program. That legal argument was based on antitrust laws, which Encore ultimately withdrew.

The new class-action suit makes a similar claim but based in malpractice law. Its court filing puts forth the narrative that Encore and POKC had entered into negotiations to consider a merger, arriving at a preliminary agreement to fold The Philly Pops into the Kimmel Center organization.

The suit says the two entities made public announcements of a planned merger before their respective boards could vote for approval, which ultimately did not happen. The suit claims the ticket-buying public was falsely led to believe future concerts were secured.

“Defendants’ unfair and deceptive acts or practices occurred repeatedly in their trade or business, and were capable of deceiving a substantial portion of the purchasing public,” the suit claims.

The Philadelphia Orchestra and Kimmel Center calls the suit “baseless.”

“While the Court permitted certain legal theories to proceed past the preliminary motion-to-dismiss stage (while dismissing other claims), that ruling does not address, let alone resolve, the merits of [Callahan’s] claims,” POKC said in a statement.