Hermès Faces Class Action Suit Over Birkin Sales Practices

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I’ve been thinking - the bourbon world functions similarly to Hermes, albeit with a few less 0’s on prices (usually). DH is a bourbon guy and we had the following exchange at our local wine & spirits shop recently. For context, this shop is 2 blocks from our house and we buy regularly from them but don’t spend a whole lot - I mean like less than $1k / year (I like wine ok?! :P). The shop employees know us by sight, although not by name. We popped in to get a bottle of wine and DH was looking at the bourbons when one of the owners started chatting with him:

Owner: you looking for anything in particular today?

DH: no just browsing

Owner: we’ve got some [insert rare bourbon name here] in the back if you’re interested. We don’t put it out on the shelves otherwise it’d be gone in a second, but since you’re a regular, it’s available if you want it. We literally have people that follow the delivery trucks around and buy it up as it gets unloaded.

DH: really? How much?

Owner: $80 [DH says this is a $150 bottle on the secondary market]

DH: Great, I’ll take one.

These “rare” bourbons are produced in limited quantities, be it due to a longer aging process, special edition recipe, or what have you. Either through real or artificial scarcity, demand outpaces supply for these bottles. They can be difficult to find in store, maybe only released once a year, and typically go for a premium price on the secondary market (Sound familiar!?)

Back to my bottle shop experience recently, it was pretty clear that the bottle of bourbon was “tied” to our patronage/loyalty to the store aka “being a good customer”* rather than tied to explicitly buying x or y product, again sounds exactly like my personal experience with H.

I only recently, this last visit, brought up “quota” bags with my SA, more specifically that I’d like to add a new bag with a strap as my next bag and the convo naturally gravitated to the Kelly & Constance (among others). I only (“only” in H world lol :facepalm:) spend a few thousand $ per year (<$5k), mostly on shoes and leather goods. My SA and I had an open convo about leather types of each bag, likely availability of what, etc and she said “it just comes down to when we get x or y in!” I totally get that means depends on when they get x or y relative to who else wants it 😁but not once has she ever mentioned “building a profile” in different categories, suggested I try out different maisons, or tried to hint at me buying more. In fact she talks me out of things! Clearly I’ve not gotten the bag we discussed yet, so who knows how it’ll work out, but I’ve been working with her for 5 years and would hope at this point she’s not just blowing smoke up my a**. I very much left with the impression that if she has something that matches what I’m after, it would be available to me.

I can only speak from my personal experience, and in no way want to diminish or dismiss those who have had different encounters of SA’s being more explicit on buy x to get y.

*I would consider spend/$$ just 1 aspect of being a “good customer” along with consistency, ease of doing business with, among other qualitative factors.

Totally OT, but DH tells me that in his convos with bourbon store owners, it seems their stock of rare bourbons is very much tied to the purchase of x number of cases of less desirable liquor from their distributors. Literally as explicit as “well I’ve got a case of [rare bourbon] and I’ll sell it to you if you buy 10 cases of fireball too. So the tying is more from distributor to store front, rather than store to consumer. Interesting to think what if each of our boutiques’ stock of bags was tied to their sale of other goods!?

If you’ve made it this far, thank you for sticking with my ramblings. All in all, this seems to be a very shades-of-grey issue for H, certainly not black and white and I’ll be interested to see how it plays out.

It's totally common place in luxury, across the board. Same with 'Presidential' or 'Royal' suites in hotels or availabilit and /upgrades to 1st class on long-haul flights, the last goes on. It's centred around scarcity (or the perception thereof). The investment watch sector is an even better example than H.
 
I wonder if other brands do some kind of scaled commission to push a particular new bag or other items (example houseware/exotics). If its "common practice" then Hermes isn't doing the norm?
Yes, other brands do this, too. LV is a great example. It’s why LV CAs are always pushing leather bags over canvas - the commission is higher.
 
I wanted to also add that I had no idea there was such a thing as pre spend. I have been shopping sporadically at Hermes since around 1999-2000. But I didn’t stick to the same SA until about 2017. Since then I have not shopped anywhere near what some people do, and I have acquired 4 Birkins, an Evelyne, a Picotin and a special order. I do buy shoes and scarves because I love them and I love the H bracelets, but it’s maybe a scarf every other month. And shoes when I see something I love. So I personally haven’t worried about pre spend and it’s worked out for me. I’m also super friendly and laid back, down to earth and I genuinely LOVE the brand.
 
It used to be (as far as I have been told) that if an SA had a lot of high spenders, some of whom didn’t want any more QB, that the SA had some leeway to advocate for a smaller client to get one. Not sure if that happens post covid in general, but such practice seems to be anti tying ? A philanthropic SA (joking) lol
 
I wanted to also add that I had no idea there was such a thing as pre spend. I have been shopping sporadically at Hermes since around 1999-2000. But I didn’t stick to the same SA until about 2017. Since then I have not shopped anywhere near what some people do, and I have acquired 4 Birkins, an Evelyne, a Picotin and a special order. I do buy shoes and scarves because I love them and I love the H bracelets, but it’s maybe a scarf every other month. And shoes when I see something I love. So I personally haven’t worried about pre spend and it’s worked out for me. I’m also super friendly and laid back, down to earth and I genuinely LOVE the brand.
I think that is the intent of H and you’re the type of customer they want and are marketing to. They truly want their clients to love and appreciate the brand. Not those who have been influenced by social media for 1-2 items.
 
I think that is the intent of H and you’re the type of customer they want and are marketing to. They truly want their clients to love and appreciate the brand. Not those who have been influenced by social media for 1-2 items.
Again, I think any SA would know that you're someone who will buy with them (and make them commissions) for the long term and not just to get a Birkin, and that makes a big difference.
 
Very interesting article comparing the bag allocation system to how the B2B art gallery world works.

It also cites a number of antitrust legal experts that essentially conclude that the biggest (likely insurmountable) obstacles for this case under the law are less about tying, but proving 1) Hermes has a monopoly and 2) the effects of tying result in a landscape that hurt competitors and consumers.

To be clear, me linking the similarities between these two industries is in no way exonerating Hermes. The art world isn't exactly a bastion of transparency with prices reflecting anything close to legitimate supply and demand.
 
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Very interesting article comparing the bag allocation system to how the B2B art gallery world works.

It also cites a number of antitrust legal experts that essentially conclude that the biggest (likely insurmountable) obstacles for this case under the law are less about tying, but proving 1) Hermes has a monopoly and 2) the effects of tying result in a landscape that hurt competitors and consumers.

To be clear, me linking the similarities between these two industries is in no way exonerating Hermes. The art world isn't exactly a bastion of transparency with prices reflecting anything close to legitimate supply and demand.
@MonsoonBirkin , thanks for the link. In accordance with your second sentence re monopoly, the article seems to posit that both cases are dead in the water bc the plaintiffs cannot show that Hermes kills off its competitors, defined as those businesses that sell the belts, scarves, RTW, accessories, teacups etc. I thought it was interesting that the courts are reluctant to define a market with a single brand. So the market would not be simply the Hermes Birkin but leather bags. The article specifically stated that the antitrust issue is not whether it is hard for the prospective client to get a QB ( the same argument as an art collector who is not on the galleries preferred list. ETA: summarizing it bc the first time I opened the link, I saw the article; the second time I got a paywall

Microsoft seems to be an issue of two products in a tied bundle. . .
 
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@MonsoonBirkin , thanks for the link. In accordance with your second sentence re monopoly, the article seems to posit that both cases are dead in the water bc the plaintiffs cannot show that Hermes kills off its competitors, defined as those businesses that sell the belts, scarves, RTW, accessories, teacups etc. I thought it was interesting that the courts are reluctant to define a market with a single brand. So the market would not be simply the Hermes Birkin but leather bags.
Yeah, it's a tough climb. I went back to the initial complaint to figure out how the Plaintiffs were going about the monopoly component. That was (and still is) a big mystery to me because I wasn't sure how they intend to play that--are they claiming market power over handbags, monopoly power over the Birkin, or...? I read and re-read the filing and still can't make heads or tails of what they're going for.

This comment in the article stood out to me:

“The law in the US focuses on how you got your monopoly and how you keep your monopoly, meaning how you kill off competitors. This [Hermès] complaint has nothing to do with that,” says Hay, adding: “The focus of tying law is not on the people buying the X, it’s on the people selling the Y.” In other words, for an antitrust lawsuit to succeed in a US court, it doesn’t have to show that the defendant’s business practices are unfairly hurting consumers; it has to show that the defendant’s business practices are unfairly hurting competitors in the “tied” market (aka the market for the thing consumers begrudgingly buy to get something else they really want).

That blew my mind. I was always under the assumption that the focus of antitrust law was on the consumer harm as the starting point, but what Professor Hay (whose knowledge/credentials/experience waaaaay >>>> mine) states is that apparently the law starts with assessing the harm at the seller/producer level. I wonder if it's because there's a defacto assumption that any business unfairly hurting competitors is always hurting the consumer in terms of limiting competition/affecting prices, and therefore proving one element is automatically proving the other? I'm out of my depth on this one. I just know I'd have a ton of questions for this professor.

Also, for anyone who needs it, here's the article out from under its paywall.
 
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TAN article is on the money. I was waiting for someone to pick up on that parallel. Art galleries operate on the same basis because- guess what- art is a handmade object not a something spat out of a factory. Birkins are not art but they are made by hand by artisans, and so limited supply + high demand = waiting list and prove your worth. Shock! Gosh what a silly lawsuit.
 
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So...
  • should airlines be sued because of their frequent flyer mileage programs? i.e. if you acquire this many miles then you can get these rewards.
  • should Starbucks be sued because of their drink rewards program? i.e. you have to purchase this many drinks to get this.
  • should I sue Walgreens because in order to get more rewards points, I must make more purchases?
  • should I sue the entire hotel industry because of their rewards points system?
I believe this lawsuit against Hermes for "tying" is ridiculous.

Furthermore, Hermes isn't pumping out their "Berkins", Kelly bags, and Constance bags on an assembly line. Everyone knows that each bag is made by hand by a single craftsman and so demand far far outweighs the supply available. Hermes are desired specifically because of their quality, craftsmanship, attention to detail, attention to stitching, attention to the leather quality etc.. It's their business model and has always has been their business model.

Should Hermes now be penalized for their attention to quality and craftsmanship? Should Hermes be ordered to make more bags and make them faster? Of course not - it's ridiculous.

How can Hermes be ordered to sell a bag to every client that walks in a Hermes boutique that requests one and taking it a step further....have said bag available in each and every clients desired spec? Hermes would have to train and hire tens of thousands of artisans to make bags in every conceivable combination and then stock a mountain of bags at each store just so that every client gets what they want. Or, Hermes would have to setup assembly lines to pump out bag production which would then go against the grain of their Business model of the quality and craftsmanship that we all expect and desire.
 
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