Ambulance chasers make a living skirting the edges of the law, often going many, many years with fraudulent cases before being sanctioned. There are attorneys who send their clients repeatedly to different locations in order to sue for ADA violations. Sanction doon't worry them. Lawyers looking to churn for easy money work the odds and know consequences can take years, if ever, to catch up to them.
Hermès Faces Class Action Suit Over Birkin Sales Practices
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The action is important. Just because different actions have the same outcome doesn't cause the actions to be equivalent legally. The disparate experiences matter because if there was a "tying", you wouldn't have those disparate experiences. You would have a distinct ratio of spend x to get y. You need to remember that there s nothing illegal about giving your preferred customers a reward. Until you actually purchase goods, you really aren't a customer but a potential customer. That means spending. There is no formula, buy one set of plates, 2 pairs of shoes, a jacket and either a dress or pants, a bracelet and a belt, for instance, and you are eligible for a Kelly25. That it is amorphous means there s no tying, per se, but a legal inclination to keep your best customers happy by offering them a coveted bag. You say "spend money, get bag". You are ignoring the widely accepted and legal practice of giving customers who spend more special treatment. Is it illegal for casinos to comp the stay of their biggest gamblers? They are just trying to keep those customers happy and gambling. Thusly, is it wrong for Hermes to reward their best customers to keep them happy and shopping? Some customers spend considerably less and get offered bags, but it is common knowledge across ALL sectors that customers who spend more get special treatment. The guests at a hotel that regularly visit and stay in the most expensive rooms might cause another guest to be moved last minute. They might get access to tickets not available to other guests. Special treatment for customers who spend more isn't illegal. No one is coerced to buy something just because it improves their odds of receiving special treatment. As stated above, there is no requirement to buy x in order to buy Y, so no coercion. Spending is ONE way of being a good customer. Being polite and or regularly buying something are other ways. It is well known that there is no one way to guarantee yourself a bag. For the Saudi prince type, spending $$$$ is one way. For the majority of others, it is probably a mix of spend, rapport, luck, and competition. The part that is easy to miss is that customers are literally competing against each other for the quota bags. Instead of a straight track race it is more of an adventure race across varying terrain. When the totality of you - your spend, rapport, perceived interest, regularity and being in the memory of your SA coalesce to bring you above your current competition in your store, you get offered a bag.
Yes, it matters. The mere fact of a common outcome is not enough on its own. Everything depends on the analysis of the facts against the relevant standards set by the applicable law
Nobody here is claiming that's unimportant. Which is why we're discussing which facts and what standards.
Ambulance chasing is a whole different topic, and really not relevant to the veracity of the anti-competition claim. It’s an ad hominem. Plus, the rules governing what counts as frivolous/meritorious are quite generous. The default is to assume claims are meritorious. You would need proof of the lawyers’ mental state in this filing to build a case.
Tying can be either express or implied. It does not have to be laid out in any more specific terms than, “You need to spend more money, before I’ll let you buy a Birkin.” It can also be as specific as, “If you buy this saddle, I can get you a bag today.”
If a Birkin is advertised as an item that can be bought separately, but actually it cannot be. Then it is probably tying. And then the conversation shifts to whether or not it’s a lawful tie.
There are differences between committed representations, implied representations, and representations by omission. However, a customer’s testimony on what impressions they were left with after talking to SAs is probably always going to be admissible in this case — whether as just not being hearsay in the first place because it’s about effect on listener, or as a hearsay exception.
If a company doesn’t correct a common misunderstanding, or in fact stands to benefit from a misunderstanding, it can become a problem. This is compounded if the company has notice or is aware of the general impression it has given. This is a side point. But, yes, a commonly held impression or general reputation about a practice would ordinarily be admissible to weigh whether or not the practice actually exists.
Also, I’m again a bit doubtful that there would be absolutely zero text messages, emails, or DMs from any managers, SAs, or directors acknowledging spending history, ratios, prespend, etc. I guess that’s what discovery is for.
Your examples of a hotel loyalty card are still different, because those are incentives to encourage spending within the preexisting hotel industry. If a prominent and beloved hotel chain said customers needed to buy their brand of contact lenses before being able to reserve a night, then that would probably be tying. The laws on antitrust do not like when market leaders in one segment diversify their portfolios by relying on their existing products to compete in other industries. This can become complicated depending on how related the tied industries are, how much natural demand there is for the tied product, etc.
I think if customers were asked to buy other leather bags before getting a Birkin, it would be a different story. No one is ever in need of a Birkin, but the issue isn’t exactly about deprivation of a Birkin. Or I should say the refusal to sell a Birkin only plays one part. The underlying theme is about the appropriate exercise of market power, and whether a company can use bags as a way to horizontally compete in homeware, electronic appliances, jewelry, pet products, etc.
I suppose an alternative to prespend that wouldn’t bleed into other industries is the waitlist, or a first-come first-serve every day situation like in Japan, or a daily lottery system for locals like in Paris.
All this is to say that even if I don’t think this case will get very far, I don’t think the claims are entirely groundless. I also don’t necessarily mind the current system staying as is, since my mom gets quota bags every year, so they come my way regardless of my own spending.
I think we could also benefit to separate the major issues. Based on this thread, I think there are three camps:
1. Some people are concerned with the mere existence of Hermes’s tying practice. Whether prespend is even a real requirement.
2. Some people are concerned with the opacity of Hermes’s tying practice. Whether Hermes should be more transparent or consistent with its prespend requirements.
3. Some people are concerned with the legality of Hermes’s tying practice. Whether it is anticompetitive for Hermes to use prespend in nonleather goods to buy a Birkin.
The focus should be this: If I am a new client to Hermes and am only interested in BKs and not other items (e.g., RTWs, jewelry, shoes, etc.), what is the likelihood of me getting a BK? Am I still a valuable consumer to Hermes? Am I not considered loyal because I plan not to buy any other non-leather items? (My definition of loyalty is that I dont resell, or I dont hurt the reputation of Hermes, etc. It has nothing to do with whether I have to buy non-leather items or not.) If I am all bag-centric, does that mean I am not fitted into Hermes?
Yes, but as one person pointed out, prespend is more of an urban myth than a fact. In all the discussion boards here at Purseforum, not one posting can provide a hard core number of required spending to get a Birkin, etc in any store anywhere in the world. No, no one is walking into any store and getting offered a Birkin without establishing a customer relationship, but thus far, no one has produced actual, court admissible evidence that there is a required magic number you need to hit to get offered any bag.
Well I have to say there is a reseller literally directly across the street where I live. I have on a number of occasions walked into the reseller and seen bags I've been offered (Herbags, GP etc) at the store across the street along with other new items like shoes etc., so either the reseller is sending staff over to buy the stuff, or you have people trying to get a BK or C buying at Hermès then walk across the street and resell.
It's my own personal experience that it seems to be more about enthusiasm for the brand and being a nice person than pre-spend. I just bought a pair of Hermès sandals not because I'm trying to get another B or K (don't like Cs), but because I really liked the sandals and know I'll use them. I literally have run into my SA in restaurants etc wearing Hermès items I've either bought from her or bought elsewhere.
I only read part of it and I practiced as a tax attorney, not a litigator, but my thought is that its just a bunch of ambulance chasers hoping to get a settlement. Still, that they couldn't at least spell the name of the product right says a lot.
They could take a look at this thread, get a couple of junior associates working on cites, and get a decent pleading in a heartbeat! Hermes lovin’ tPF lawyers bringin’ the heat for free
In China there is a chart with amounts to be spent in each category, my friend used it in two different stores four times. Hermes knows really well that is going on in China. So there are at least two stores around the world doing it openly. I heard from an associate in London: “my client is negotiating a picnic in China.” Former SA at FSH mentioned one needs to spend 40,000 Euros at once to walk out with a MK if no leather appointment. She loves Hermes, but mentioned she tells all her friends to get out of the game. Hermes needed to put a notice on a store’s entrance (I believe in Canada) that it does not engage or condone tying.
I love @sosauce’s views. Everyone knows really well what Hermes is doing. Some top Chanel clients do not buy at Hermes anymore, they think the sales practices are absurd. My friend who is a top client at Chanel had a discussion with her friend who is Head of client services at one of the flagship stores and the woman said that some people that work there are not happy with what is going on, that they now need to share inventory with newer stores and don’t know what to do. She mentioned that a more clear policy would be more fair to buyers. My friend kept pressing her and she said: “it is the luck of the draw.” Then my friend replied: “let’s test it. I will go to a store everyday and ask for a B or K, so I am sure to get lucky.” The woman laughed: “good luck with that.” I also know a few wives of CEOs that do not buy anything there anymore. There was an article of very wealthy people getting fakes because they got tired of the game.
Someone asked if other luxury brands do that? Except for watches, cars (that would you like you to buy the same product before), I’ve never heard of Chanel, LV doing that. They do not need to.
My personal preference is that what they have in China, even if illegal, is more fair.
I am a member of a private club where you see a lot of women carrying B or K, but I’ve never seen any of them wearing RTW or jewelry, while at the same place you see people head to toe in Chanel, Dior, Gucci and LV. Hermes needs to engage in some sort of tying to provide more value to shareholders. Unfortunately, a good portion of their products do not sell themselves. How many people you know would keep buying there if they could get no B or K? So far I’ve only seen two people on this forum.
Actually, Oprah had a dustup with Hermes FSH
Luxury Store Apologizes To Oprah
For Incident In Which Paris Boutique Did Not Let Her Inwww.cbsnews.com
And this was the Tom Ford incident which was based on them refusing to show it to her because it's "too expensive" so what is that SA basing that assumption on? And which potential customers would she happily show the bag to because she thought they could afford it?
OW incidents seem poles apart.
OW arrived at FSHs closing time, and expected the store to be kept open for (just) her, and for H retail staff to be kept working after hours (which would presumably be against French working practices). Personally, I think the incident was diametrically opposite the way OW made it out to be in the media. Perhaps, Oprah is used to be treated as a Queen in the US, in France she was treated as a normal H client, whatever their profession, status or creed, OW didn't like being treated like a normal H client.
On the TF 'incident': There's a recent thread in the Burberry forum where an SA has suggested something is "expensive" or named the price. I'm guessing it'd have to be part of the SA's training to say such stupid things in whichever company for the brand to be blamed for saying such ridiculously stupid things to any potential customers.
Even thinking about the class action, it's completely different. No one is suggesting they were not allowed into the store before (or after) closing time, nor they didn't have the money to buy. I have been educated by members on this thread as to US law practices. If I now understand correctly, this class action has nothing to do with getting to court and correcting injustice, or the rights and wrongs of any practice, just a tentative play at a money grab.
The Red Bull case is a completely different case, and no, it wasn't settled because customers didn't grow wings
It was settled because Red Bull had implied that there were benefits above and beyond a cup of coffee, and had implied performance enhancement in sports, etc etc, and - most important - because the teeny tiny settlements in both the US and Canadian class action suits were a minor annoyance relative to Red Bull's revenues and a small price to pay vis a vis the time it would take to fight the suits. If there is any lesson to be learned relevant to this thread from that case it's that a class action suit is quite different from one brought solely by individuals, and that class actions are very, very often settled with a (relatively) token gesture. Which brings us back to "lawyers who can't even spell bringing silly actions on contingency".
I'm sure that argument will be made and the Court will likely have identifying information redacted.