“If donors find themselves subject to litigation and have to incur related expenses solely as a result of their benevolence, they and others who contemplate supporting the Debtors’ organization may be deterred from making future gifts,” the filing states.
The orchestra estimates it needs to raise about $165 million over several years to fund its bankruptcy case and operating expenses in coming seasons, and to boost endowment to an adequate level.
Additionally, the filing reserves the right to seek sanctions against the fund for “vexatious and harassing discovery tactics” and litigation. Sanctions, if sought by the Association and approved by the judge, could include shifting the association’s legal fees for part of the discovery process onto the fund, said the Association attorney, Lawrence G. McMichael.
The pension fund contends that determining the size of the orchestra’s “estate” is required in order to determine whether the “endowment owes the estate money; whether the Debtors acted deliberately or in bad faith, and if with others, with whom, to create or accelerate the liquidity crisis that led them into bankruptcy (so they could achieve their purpose of withdrawing from the Fund); or whether the Debtors commingled the funds in the general operating account, which under relevant law could significantly increase the size of the Debtors’ estates.”
As part of its bankruptcy petition, the Association is withdrawing from the pension fund, which bundles participation from a number of U.S. orchestras and others, while moving its own musicians to a defined-contribution plan. The fund says withdrawal triggers a liability of up to $35 million and is looking to the orchestra’s endowment to satisfy that claim. (See “Pension Fund to Sue over Philly Orchestra’s New CBA”).