Hermès Faces Class Action Suit Over Birkin Sales Practices

[Diamondbirdie]

It’s all about the money for Hermes, isn’t it? That’s the bottom line. I could afford to buy a Kelly or a Birkin at store prices, but given that I don’t live near a store, am only interested in the scarves or maybe some of the other accessories, I’ll NEVER be offered one. That’s a fact. Why don’t they just double, or triple the bag prices? That takes “aspirants” like me out of the equation and ensures that the bags go to the 1% (or 5%, or whoever) that they are really pandering to. I’ll just drop out of the game and spend my money at Polene.

 

[MonsoonBirkin]

Again, you have misunderstood my written word. I have nothing against you, but I do have a bone to pick with poorly written legal pleadings. I do not understand your dogmatic support for something that is so legally weak. I understand and empathize with those who may have felt belittled by Hermes and maybe the reason you are holding on to this issue regardless of the poor legal standing is because you feel victimized or aggrieved. However, this complaint may have touched a nerve, this particular Compalint will not bring legal relief. That is all I am saying, nothing personal, which is what you are making it.

I'm at a loss as to how me asking you to cite evidence for your claims is somehow me taking it personally? Please don't deflect from the matter at hand, which is me asking for the actual law behind your statements. For ex, your assertions as to why this particular court is the improper venue. When you further clarify your views with actual legal arguments which ostensibly you can do as a lawyer, then I am willing to weigh that accordingly, as I have in the past. I may even agree with you, as I've done with antitrust experts I've cited myself who stat that this case is tenuous and likely to fail. But as I reiterate: "I've been a lawyer for x number of years" is fallacious and insufficient reasoning. As is impugning the character of the plaintiffs and clients.

In addition, I welcome you--or anyone else who holds this perception--to quote my exact words that indicate "dogmatic support" so I can better clarify my views. That's an erroneous takeaway. Lastly, I'm even open to discussing the inherent biases that may drive our perceptions related to the case at hand. However, the line as you've used it here--"maybe the reason you are holding on to this issue regardless of the poor legal standing is because you feel victimized or aggrieved"--is textbook strawman. And a faulty motives fallacy. Nothing personal.

 

[880]

if you want to say WHY the court is wrong venue, I'm all ears since I've asked it here and in our informative DMs with no answer. If you want to describe on what legal grounds their research is deficient, that's great because I'd be really interested to know, to

See below. Numbers refer to post numbers in this thread (though I didn’t single out venue from legal substantive deficiency)*

have answered in detail my legal opinions and once you have passed the bar in Calfornia, I welcome your opinion. I have an opinion that I am completely entitled to based on my 20+ years of my personal professional experience as a civil state and Federal California litigator.

She’s written her opinion on the deficiency of the complaint and the plaintiffs arguments at length, namely
31, 36, 60
214, 267, 520, 529 (legal deficiency; I believe venue is included in a few of these)
244, 585 (style and sloppiness of the pleading are the subject of the fewest posts*
321 (and earlier posts, on the nuisance litigation/nature of plaintiffs

Didn't know the "trust me I'm a lawyer" is evidence, and that you're immune from CA Bar ethical rules. Thanks for clarifying!

Not sure where this is coming from. haute okole has actually expressed some sympathy for your position in at least two posts (and she mentioned via PM), I think 287, 416

your query as to how she might be taking your post personally might be in reaction to your 585 above, not in your request for substantive clarification. (Just my third party opinion; I don’t know for certain) I’ve also PMed you

I understand and empathize with those who may have felt belittled by Hermes and maybe the reason you are holding on to this issue regardless of the poor legal standing is because you feel victimized or aggrieved.

Agree. I feel like most of the contributors to the thread who seem to ignore the legal deficiencies must feel somewhat aggrieved or personally vested, JMO. When i recall the substance of their argument (not necessarily that of OP or Monsoon Birkin, but generally, it seems to center around 1. Unfairness to clients and walk ins (the presumption being that those who defend in this thread are successful at getting bags; 2. Criticism of defenders as simply focusing on complaint sloppiness like misspelling Birkin.

ETA: * 321 and 520 I believe refer to her opinion on venue. Haute Okole is certainly a more experienced lawyer than I am (and I have little experience in this type of litigation (or any type of litigation anyway). It’s my vague recollection or relatively uneducated opinion that venue might get a pass bc H has business nationally and internationally. But, the fact that the complainants do not address their arguments to H’s competitors and don’t accurately define the monopolistic market would seem to be overarching reasons for deficiency. (since im not versed in this, I’m sure I have not addressed most of the legal deficiency).

I am defining ‘aggrieved’ in this thread as those posts that are unhappy that lower spend does not give them similar access to bags. I also want to add that higher spend does not always lead to more bags, even if one wants them. This frustrates my SA even more than it frustrates me, but the upshot is, I don’t necessarily think that Hermes has a master formula spend correlated to bag offer. In other words, I feel that complainants case is weak, but that is not bc I get a lot of boutique offers (relative to my spend or desire lol) Several SAs have told me that if someone has a lot of bags, Hermes attempts to give the next one to a relative newcomer who is starting out. I try not to think of it as fair or unfair, bc it would drive me crazy lol

 

[MonsoonBirkin]

See below. Numbers refer to post numbers in this thread (though I didn’t single out venue from legal substantive deficiency)*

She’s written her opinion on the deficiency of the complaint and the plaintiffs arguments at length, namely
31, 36, 60
214, 267, 520, 529 (legal deficiency; I believe venue is included in a few of these)
244, 585 (style and sloppiness of the pleading are the subject of the fewest posts*
321 (and earlier posts, on the nuisance litigation/nature of plaintiffs

Respectfully, 880 (and to you as well, haute okole)... opinions are not necessarily valid legal arguments. Judges do not dismiss cases for spelling mistakes. They also do not toss cases and write a ruling of, "Plaintiff is clearly money-minded and greedy. Clients are bitter because they just want a bag." Making the assumption that the plaintiffs chose a court for its consumer-friendly laws is not a legal argument about perceived insufficiency of venue. And so on down the line where you cite her opinions. Where I am challenging an argument, it is done with a desire to know the law behind it. It is NOT personal. I am sure haute okole is a fine lawyer. It is for that reason that I'm trying to pick her brain about the law itself, and leave any personal inferences at the door.

Hence, I do not find, "everyone's bitter and just wants a bag after a terrible experience at Hermes" to be any more of a valid line of thinking than, "people who support this lawsuit are elitist Hermes sycophants." It's not only fallacious but also needlessly inflammatory.

 

[880]

Respectfully, 880 (and to you as well, haute okole)... opinions are not necessarily valid legal arguments. Judges do not dismiss cases for spelling mistakes. They also do not toss cases and write a ruling of, "Plaintiff is clearly money-minded and greedy. Clients are bitter because they just want a bag." Making the assumption that the plaintiffs chose a court for its consumer-friendly laws is not a legal argument about perceived insufficiency of venue. And so on down the line where you cite her opinions. Where I am challenging an argument, it is done with a desire to know the law behind it. It is NOT personal. I am sure haute okole is a fine lawyer. It is for that reason that I'm trying to pick her brain about the law itself, and leave any personal inferences at the door.

Hence, I do not find, "everyone's bitter and just wants a bag after a terrible experience at Hermes" to be any more of a valid line of thinking than, "people who support this lawsuit are elitist Hermes sycophants." It's not only fallacious but also needlessly inflammatory.

While many posts here think complainants are idiots, I don’t think anyone here has said that the mere fact of their idiocy or bitterness would be the legal grounds for dismissal. Or spelling mistakes. In fact I tried to communicate otherwise. Apologies if that didn’t come through. Posts that point it out are merely making fun of the fact that the complainants attys didn’t use a spell check.

Re legal basis for opinions against this case. . LIf you run a search on the Cartwright act that is one ground for dismissal that most legal experts outside the thread agree that the complainants fail to state a claim. Another would be the fact that the relevant law doesn’t deal with protection of consumers rather than protection for competitors (at least that’s how I interpret more informed posts re antitrust than mine. And, the monopolistic market isn’t simply birkins. . .

Re Haute Okoles statement that CA is consumer friendly, that’s not why she says she thinks the case would be thrown out It’s an example of why she thinks complainant two is an ambulance chaser (and therefore less likely to be taken seriously).

I don’t think everyone is bitter and just wants a bag. Nor do I think people who support this lawsuits (demise, I assume you mean) are Hermes sycophants. Just stating my opinion of posts that I read and how they come across.

ETA: people are giving their opinion (informed or otherwise lol) re whether this case has legs. That’s all.

 

[papertiger]

I see where you're coming from. The good news is, nothing about this lawsuit would force Hermes to factory-produce its Bs and Ks. Even in the unlikely event of a win, the verdict would direct Hermes to change the way it allocates its Bs and Ks. It wouldn't compel the company to produce a bag for anyone who wants one. The silver lining for the scarf fans (and those who love the other items) is that a win would likely cause a decrease in price for all of the items, too, since it's a real possibility that those prices are artificially high due to the existing bag allocation practice.

As to factory producing, didn't Hermes change its production methods on Bs and Ks independent of this lawsuit? I thought I read here (was it from Bababebi?) that instead of a single artisan working on one bag from start to finish, it's now more like the Model T production where one artisan works on one part before passing the bag onto someone else to do the next step. I think a lot of us have lamented this new approach. Personally, the day the company stops making their bags largely by hand is the day I stop buying.

Lastly. I can understand your frustration about those buying "Birkin bait" taking things you would genuinely love to have if they weren't bought up by this demographic. But at the end of the day, isn't Hermes the one choosing not to restock products it knows is selling out? And wouldn't that be the case regardless if the "Birkin bait" people were shopping or not, because of its business tactics re: exclusivity and rarity? Plus, a lot of others seem to value that Hermes produces limited, one-off pieces.

I get that some of the worst aspects of shopping are brought about by those who seemingly only want a bag. But at the same time, Hermes is also the one laughing all the way to the bank, here. I see it as a stroke of genius on their end that they have managed to convince consumers to pay a lot of money for stuff they profess is "crap." The company needs absolutely no defense from anyone who loves the brand for what's really quite the marketing feat on their end!

I love the phrase 'Birkin-bait!' That's the way to catch a shopping-shark Please someone, start a thread called Birkin-bait

I'm not an expert in US law. I'd presume that firstly, they'd have to prove Hermes allots bags in a deliberate and strategic way that was unfair. Randomness is not provable, even personal favour is not provable. There'd have to be provable discrimination against those bringing the lawsuit, and/or a policy of beyond 'up-sell' (if you like this, you will love this, and one day 'X') and a 'reward system' selling (VIP / private client / event-goer / local / regular / MTO client) both pretty much standard, even taught as modes of professional US retail training.

It could stop Hermes from allotting bags the way it does in the US. No where else.

It could stop Hermes from allotting bags the way it's proven (if it does). It can't tell Hermes how to implement a new policy, or what their new policy in bag allocation should be. Hermes could literally just import less B/K/C to the US and make them ipso facto rare (as opposed to Q bags perceived scarcity).

Sadly, prices of scarves would not come down. The price of scarves and other accessories has gone up across the luxury sector, mostly keeping-up with Hermes. It's another strategy (like its competitors) that Hermes sells scarves at one of the highest price points. The only time scarves went down was in countries was due to currency fluctuations (e.g. UK in 2014) or static stock due to a non-equable territory was having needs met importing through the grey market and/or internationally operative personal luxury shoppers/concierge services.

 

[880]

This is super interesting and I enjoyed reading everyone’s opinions very much! Not a lawyer, only have a master’s degree in compliance law, but I don’t think this suit will go far.

To summarize my stance:

Tying (in US because EU is separate) means there is an agreement (by H) that Birkins can only be sold with the purchase of a tied item. First, you’d have to determine that H customers are forced to purchase the tied product and if the products could be sold separately. So, for example: shoes. Can a Birkin and shoes be sold separately? Yes. Can the plaintiffs reasonably provide evidence that a tied product is required? Unlikely. In most cases, it’s a specific bundled item (hotels and breakfast, cars and radios, Microsoft office and a computer). Because H sells so many items (rather than a specific tied product), this will be hard to prove. Plus, people buy shoes from H without wanting a Birkin. H could easily evidence this. If they’re just saying “prespend” is required, that won’t cut it (and there would be a million different data points to back up H). Second, the plaintiffs need to prove that H has enough market power (under the Sherman Act) that the tied product (example: shoes) would be restrained in the free market. Again, I don’t think they could pinpoint one item (with data) to show that free competition was impacted because no one bought designer shoes from other luxury brands.

Their claim on the Cartwright Act is flimsy too. Typically the Cartwright Act is when two or more people engage in tying. Like two competitors who price fix or restrict trade collaboratively. Lastly, for the California Unfair Competition Law, they’re claiming injury-in-fact as loss of money (not a strong argument because the purchase of products is not a loss because you received said product as well as many other people who continuously buy without injury) and they’re also kinda claiming UDAAP, but that argument of unfair and deceptive is really targeted for financial products.

All H has to do here is show examples of when Birkins were offered without prespend. I’m sure this happens. I also think that having managers approve sales of Birkins is deliberate and actually helps protect SAs from claims like this because they don’t have the power to conclusively say that a Birkin will appear (and be approved) with this jewelry/shoe/scarf purchase.

For this complaint to be credible, they’d need written proof not just that they stated they were “told to purchase other items and accessories.” That’s not a credible claim.

Anyway, just my two cents. I could rant about this foreverrrrr so sorry to drone on. Also have to point out that this complaint was VERY sloppy. I’m embarrassed for the lawyers!

@MonsoonBirkin , I learned a lot from this post, so bumped it haute okole, AngieBBB and many others have made similar points, but this post kind of puts them all together

 

[HeartHermes]

@MonsoonBirkin , I learned a lot from this post, so bumped it haute okole, AngieBBB and many others have made similar points, but this post kind of puts them all together

I wonder what would happen if one of the plaintiffs, trying to catch Hermes for the lawsuit, went into the store with their phone (or some hidden device) and recorded a SA stating they needed to build their profile with additional purchases, or they need to spend more to be offered a bag. I've been wondering if the attorneys have something like that in hand. Maybe it would take multiple clients/customers with that type of evidence to build a case. I agree that it would be a very difficult case to prove, especially since every boutique in the world seems to have their own set of standards/rules for offering a B, K, or C.

 

[textilegirl]

@MonsoonBirkin , I learned a lot from this post, so bumped it haute okole, AngieBBB and many others have made similar points, but this post kind of puts them all together

great recap, thanks for the bump!

I’m coming to the view that the true significance of this case may not be its legal effect but rather its ability to elicit commentary on the state of contemporary culture. The state of the luxury experience; the rise of social media and 'influencers'; the responsibility of the privileged in a world where children remain unfed, unhoused and with limited educational opportunities; the notion of unfairness, it's all in there, and food for thought.

Still not convinced that the case has legal merit but who knows what an activist judiciary might do in a renewed look at federal antitrust statutes, and of course what an appellate court might have to say about it. I'll throw a little Oliver Wendell Holmes in here, especially as it was part of his dissent in an antitrust case,

"Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgement." Northern Securities Co. v. United States, 193 U.S. 197, 400-401 (1904)

And that's the extent of the legal research I'm willing to do, so don't come for me with a brief with citations

 

[benjinito]

I wonder what would happen if one of the plaintiffs, trying to catch Hermes for the lawsuit, went into the store with their phone (or some hidden device) and recorded a SA stating they needed to build their profile with additional purchases, or they need to spend more to be offered a bag.

I’m curious about this too. Just this weekend, a SA told a friend of mine “I have a bag, but you will need to purchase a piece of FJ. Buy this and you get [specs], buy this more expensive piece and you get [more desirable specs]”. This happened at a US store. This same SA has said the same thing to my friend about RTW pieces before (“if someone buys this coat, they will definitely get a bag offer”). Obviously nobody is “coerced” into doing anything, but it’s very clear that the items were presented as a “bundle”.

1 - Is it even legal to record a conversation that happened at a store?
2 - Does this really prove anything? Can H just say “We never told the SA to say that”

 

[Love Of My Life]

I’m curious about this too. Just this weekend, a SA told a friend of mine “I have a bag, but you will need to purchase a piece of FJ. Buy this and you get [specs], buy this more expensive piece and you get [more desirable specs]”. This happened at a US store. This same SA has said the same thing to my friend about RTW pieces before (“if someone buys this coat, they will definitely get a bag offer”). Obviously nobody is “coerced” into doing anything, but it’s very clear that the items were presented as a “bundle”.

1 - Is it even legal to record a conversation that happened at a store?
2 - Does this really prove anything? Can H just say “We never told the SA to say that”

My understanding is that it is illegal to record a cell phone or landline conversation without the
consent of all parties involved.

 

[MonsoonBirkin]

My understanding is that it is illegal to record a cell phone or landline conversation without the
consent of all parties involved.

This is my understanding as well, at least in CA which is known as a "two-party consent" state.

 

[papertiger]

So many avoid this thread but I'm finding it fascinating, thanks to all those that have contributed. I've had too much coffee and the cat's gone to sleep so all I have to keep me company is you.

As I've written earlier on in this thread, I've never felt pressured to buy non-bag items in order for a chance to buy a bag. However, that others on this H forum have, doesn't mean members' posts/threads are invalid. Perhaps it is a country by country, city by city, even store by store policy. I think that's what's so confusing to many on this forum, especially when travelling, so many different rules depending on X or Y (real, imagined, written or unwritten). I think people can write about the unfairness of the 'H-game' and think the lawsuit's wrong. Somewhere, someone wrote, this lawsuit is just more great publicity for Hermes that makes it harder for clients to get what they want.

I'm not convinced that sophisticated people fight for bags, I think they move on to other brands if they are aware there's a game, or are satisfied with what H they have if they have. It's seems diametrically opposite to sophisticated to be 'begging' - for anything.

Rich people are just rich. There is absolutely nothing else that groups them together except when together, but there are still what used to be called café society who then turned into the 'jet set'. I agree there's a status attached to certain Hermes bags, most internationals are people are too busy showing-off how unimportant things are but emphasising how important they are tuning up in 'this old thing' (UK) vintage, hand-stitched, yeti hair, inherited coat with thrifted lucky find H scarf (France) or £2K Loro Piana 'Gift of Kings' 12 micron Nivous tee paired with one-off Momotaro salvage denims made from Zimbabwean cotton (US). Most of us have met these people who profess to hate fashion and tell you about their outfit for 20 minutes. Yup, the games people play. I still think these types pay others to find them a beaten-up B/K, I don't see them in-store - or queuing outside.

It's strange that status is only attached to 2 or 3 models (same with Chanel etc). So, I guess it's not just branding. I used to think it was a class thing (Britain) until I saw the whole 'old money' v 'new money' aesthetic dynamic play out (of the US). I'm informed by natives of other countries that there are similar distinctions about 'deserving' or 'non-deserving' rich with similar demarkations between good/bad taste. There's an explanation of Hermes 'quiet luxury' being hunted down by those that otherwise own 'loud luxury', and it can only be that so-called quiet luxury has been subverted with the rise of (or the access to) resale and celebrity flex. LP and The Row are the new Hermes. LP can't keep a cap in stock and The Row is not allowing cameras into shows, so I guess we can expect similar lawsuits soon with the unfairness of it all.

Bear with me, method and madness: I am reminded of the whole put-down of the white wedding dress because Queen Victoria was the first to wear one (OK, she wasn't - but she was the one that left off her cloak). At the time of her marriage to Albert her wedding dress was a controversial though youthfully exuberant choice. She showcased hand-bobbin Honiton lace when machine lace was affecting the livelihoods of artisans and silk orange blossom flowers (virtue) all on white so as not to overshadow the signifiers. Now we have those 'decolonising the curriculum' by blaming her for every overpriced, mass-produced, white polyester monstrosity on the planet. It's wasn't Queen Victoria that promoted the white wedding dress, it was everyone else that wanted to be a queen for their day. Unlike Victoria, Hermes is responsible for marketing, work practices, target-setting, quality assurance, monitoring KPIs etc, but they can't be held responsible for the popularity of bags that have evolved into the chief signifiers of status with those that seek it.

There's definitely a 'if I can't have one no one can' mentality to this lawsuit IMO, a testing of the so-called 'open secret' H-game as well as a opportunity for a cash-grab (written about earlier by others). I don't mind how many write about their respective Hermes journeys, it's always interesting, nor do I mind when the same people defend their favourite brand, we all have a right to champion our dysfunctional families. I find the lawsuit childish, but also fascinating for what ti brings up (and learning about related US law)

 

[Love_Couture]

It is up to H to decide what sales strategy to deploy to balance the short-term leather-goods driven revenues, versus the longer term non-leathers H brand values. As long as the Heure H watches are called, or viewed as, "Birkin-baits" (I also like this phrase ), their watches, and arguably the whole H (non-leather) brand would be devalued. This is something a luxurious brand ultimately should avoid.

We can also "guesstimate" how many or percentage of customers who are just for the bags by counting the number of NEW H pillows, blankets, bracelets, watches, pendants, etc. (Brikin-baits) in the secondary market, and the amount of discounts on them. Base on what I see on just a few big resales platforms, I would say, the numbers are non-negligible.

 

[880]

I’m curious about this too. Just this weekend, a SA told a friend of mine “I have a bag, but you will need to purchase a piece of FJ. Buy this and you get [specs], buy this more expensive piece and you get [more desirable specs]”. This happened at a US store. This same SA has said the same thing to my friend about RTW pieces before (“if someone buys this coat, they will definitely get a bag offer”). Obviously nobody is “coerced” into doing anything, but it’s very clear that the items were presented as a “bundle”.

1 - Is it even legal to record a conversation that happened at a store?
2 - Does this really prove anything? Can H just say “We never told the SA to say that”

In some states including CA, both parties need to consent to being recorded. Two consent state
In NY, I think only one party (who can be the recording party can consent) one consent state

Whether a recording would be admissible would fall within hearsay exceptions (most of which I don’t remember lol)

I believe, from speaking to SAs, that they are trained that prespend does not matter, but someone more knowledgeable up thread mentioned that the crux of the antitrust claim refers to legal protection of other retail competitors from Zhermes, not protection of prospective clients (antitrust is not consumer protection in the way most of us might think)

Just my understanding of read8ng this thread

ETA: the reason why I ask my SAs permission to take pics; to give out a referral; or even their name (and I would of course never record them) is that I’ve been told by more than one that this can cause them serious problems at work. I believe my SA when he says he’s too busy to monitor TPF (he has a toddler lol and he is sleep deprived), but many companies have employees to search social media etc.