Hermès Sued For Allegedly "Tying" Birkin Sales to Other Purchases

It’s been the talk of Hermès clients and would-be clients for ages – how much do I need to spend on non-leather items to be offered the opportunity to purchase a Hermès Birkin or Kelly?  This is often referred to as “Birkin Bait” – in the process of developing a purchasing profile. While the heritage luxury brand denies any such requirement, plaintiffs in Northern California have filed what they intend as a class action lawsuit challenging the practice, known as tying.

According to the Complaint filed yesterday in the Federal District Court for the Northern District of California alleging antitrust and unfair competition violations, two shoppers claim they were required to buy “ancillary goods” like RTW, homeware, and scarves, before being allowed to purchase a Birkin (which they define to include both Birkin and Kelly handbags).

The Complaint alleges that the “unique desirability” of Birkin Handbags along with the “incredible demand” and “low supply” gives Hermès “incredible market power.” It further claims customers cannot simply walk into a Hermès boutique and purchase a bag.

“[C]onsumers can only purchase Birkin handbags from Defendants by physically going to a Hermès retail store. However, unlike most consumer products – and most other products sold by Defendants – consumers cannot simply walk into a Hermès retail store, pick out the Birkin handbag they want and purchase it. Birkin handbags are never publicly displayed for sale at
Hermès retail stores. Indeed, it is often the case that there are no Birkin handbags at all at Hermès retail stores or, if there are, there are only one, two or at most three Birkin handbags . . . In fact, most consumers will never be shown a Birkin handbag at Hermès retail store. Typically, only those consumers who are deemed worthy of purchasing a Birkin handbag will be shown a Birkin handbag (in a private room).”[emphasis added]

Plaintiff Tina Cavelleri claims to have spent “tens of thousands of dollars” at a Hermès boutique, but when she requested a second bag in December 2022 was told specialty bags are going to “clients who have been consistent in supporting our business.” She understood that to mean she needed to purchase ancillary items. Plaintiff Mark Glinoga alleges he was “counseled by Defendant’s sales associates to purchase Ancillary Products” so that he could be offered a Birkin.

As for the legal claim of tying, plaintiffs claim:

”The tying product, the Birkin Handbags, is separate and distinct from the tied products, the ancillary products required to be purchased by consumers . . . Plaintiffs have alternative options for the ancillary products and would prefer to choose among them independently from their decision to purchase Birkin handbags.”

In further support of the claims, plaintiffs point to Hermès’ commission structure for Sales Associates, which does not provide compensation for handbags, but rather for the other categories and products. In other words, Sales Associates are incentivized to sell non-leather items.

If the complaint sounds familiar, shoppers in China have also complained of what is called “peihuo” practices – being required to purchase smaller products before getting access to a handbag.

Read: Hermès Denies Peihuo Claims, Opens New Production Facility

As a class action lawsuit, plaintiffs purport to bring this lawsuit on behalf of similarly situated people, defined in the Complaint as U.S. residents in the four years prior to notice of the class action who “purchased or were asked to purchase Ancillary Products in order to purchase a Birkin Handbag (the “Class”).” A subclass for California state law-based claims is defined similarly for California residents only.

What do you think? Would you join the class action against Hermès (if you’re a legit member of the class, a legal construct) to complain about “ancillary” purchase requirements? Or about not being able to buy a Birkin? Should Hermès or any other brand be able to gate-keep its products? Let us know your thoughts.

Read related articles:

Birkin Bait: Is it Loyalty to the Brand or ‘A Means to an End’?

Birkin Bait: The Stuff We Buy to Hook a Birkin