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Exclusive access or exclusion? Hermès faces antitrust lawsuit over purchase policies

4/18/24

By: Anna Perry

A class action lawsuit out of a federal California court has gained attention over the tactics luxury brand Hermès has utilized in the sale of its Birkin and Kelly handbags. The lawsuit alleges, among other things, that the Birkin handbags cannot be purchased on the Hermès website, and they are often not even available inside the stores. That said, even if they are physically present in the stores, the Birkin bags are not viewable to the general public. As the lawsuit explains, only consumers who are deemed worthy are shown the elusive Birkin bag. So, what makes a consumer worthy of such an experience? 

As alleged, the Hermès Sales Associate looks at the consumer’s purchase history with Hermès to determine whether the consumer’s commitment to the brand is sufficient to be given the opportunity to purchase a Birkin. The purchase history generally includes things like scarfs, shoes, belts, and other accessories from Hermès. Essentially, the consumer must prove themselves and demonstrate their love for the entire Hermès brand—not just the exclusive Birkin bag—to be given an opportunity to purchase this item. 

The lawsuit states that Hermès has unlawfully tied their “ancillary products” (i.e., the accessories) to the Birkin handbags. In doing so, Plaintiffs argue Hermès has violated the Sherman Act and the Carwright Act. This tactic is described by Plaintiffs as coercion to purchase accessories solely for wishing to purchase a Birkin bag in the future. The Plaintiffs also include a count for a violation of California’s Unfair Competition Law (“UCL”), a law commonly employed in class action cases. The UCL prohibits false advertising and illegal business practices. Here, Plaintiffs state the direct and proximate result of the unlawful business practices is they purchased products they either did not want, or could have gotten elsewhere, just for a shot at the product they actually desired—the Birkin.  

The price of exclusive access is hard to measure, although Birkin bags on the market sell anywhere from a few thousand dollars all the way up to two million. With the recent lawsuit, Hermès may have to change their strategies that are claimed to be rooted in coercion and unreasonable tactics. 

For more information, please contact Anna Perry at anna.perry@fmglaw.com or your local FMG attorney.