When not landing a Birkin bag lands luxury brand Hermès a lawsuit: Here's a closer look at the case
SAN FRANCISCO (KGO) -- There are lots of eyes on a proposed class action lawsuit filed here in Northern California against fashion house Hermes. The antitrust lawsuit alleges the retailer was tying the purchase of its popular Birkin bags to the purchase of other luxury clothing and accessory items.
With so much happening in the world, it may seem frivolous to be talking about handbags. But experts say this lawsuit is novel and could become a landmark case for retailers. Attorneys aside, fans of the brand are watching closely.
It's recognized by social media influencers.
"This is a Birkin 30 gold on gold," said Tania Antonenkova, holding up one of her Birkin bags.
And discussed in books like "Bringing Home the Birkin" by Michael Tonello.
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"I knew to myself that I was going to become the Houdini of Hermes handbags," Tonello said.
It's referenced in pop culture, including HBO's "Sex and the City."
"It's not a bag, it's a Birkin," said a man playing a Sales Associate in the popular show.
The fanfare over "Vitamin H," as it's sometimes called, is endless.
"It's interesting that a brand has been able to evoke that much passion," said Monika Arora, PurseBop.com founder.
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Thousands on social media become glued to unboxings of Hermes' highly recognizable orange containers.
"Ohhh," exclaims Arora as her sales associate reveals a new bag she's being offered.
For years, the brand has been synonymous with luxury.
"There is a degree to which you have to get past the velvet rope to buy the Birkin at Hermes," said Susan Scafidi, Fordham Fashion Law Institute founder.
It involves craftmanship.
"It takes a single artisan anywhere from 11 to 17 hours to make that bag," Arora said.
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And it has exclusivity.
"Oh honey, it's not so much the style. It's what carrying it means," says Samantha in HBO's "Sex and the City."
But now some are saying, "Hold on Hermes!"
A proposed class action lawsuit filed in the Northern District of California alleges Hermes is unlawfully tying the purchase of its popular Birkin bags to the purchase of Hermes clothing and accessory items, calling it a scheme to exploit market power by requiring consumers to purchase other, ancillary products from Hermes before they will be given an opportunity to purchase a Birkin handbag.
"That you can't have access to one without buying the other," said Fashion Lawyer Elizabeth Kurpis.
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Attorneys ABC7 News spoke to attorneys who are not involved in the case. They say the plaintiffs have their work cut out for them.
"I think it's going to be tough for the plaintiffs to prove that there's an actual policy in place," Kurpis said.
"It is highly unlikely that every SA treats every customer in exactly the same way, according to some secret handbook of Hermes," Scafidi said.
"It's hard to really imagine that Hermes has so much control over the market that they can really affect or negatively impact competition for items like scarves and belts," said Rob Freund, advertising and e-commerce lawyer.
By email, the plaintiffs' attorneys told ABC7 News, "The legal teams at Setareh Law Group and Haffner Law are dedicated to pursuing justice, and holding Hermes accountable in Court for the conduct alleged, and look forward to proceeding on the case."
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"They've just advertised to the world that they are not close enough to the brand to actually get past that velvet rope, to actually buy the birkin," Scafidi said.
To understand why anyone would sue a fashion house for allegedly denying them the chance to purchase a bag that costs more than $10,000, you first need to understand Hermes.
Tania Antonenkova says she began her Hermes collection -- or rather obsession -- three and a half years ago.
"When I was starting out I had no idea what I was doing. I made so many mistakes, and I was milked by Hermes sales associates. I ended up spending so much money that now I no longer do," Antonenkova said.
Learning from her blunders and triumphs, she began a side hustle coaching other customers. She showcases their success on Instagram in a feature she calls "Hermes Rain."
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The mood of moment? The smaller the bag, the bigger the flex.
"This is one of the hardest bags to get. This is the Hermes mini Kelly," said Antonenkova, while holding up a small lemon-colored mini Kelly. The official Hermes color is Limoncello.
In addition to plenty of free advice, Antonenkova charges followers $1,500 for a lifetime membership to her "H inner circle" for additional assistance, but says she saves them much more in unnecessary pre-spend.
"I have done a ton of research on different stores in different countries," Antonenkova said.
"Basically, the Hermes game or 'Hermes pre-spend' is whenever a person wants to buy a Birkin or a Kelly, and they would need to spend a certain amount of money on other products in order to be offered the coveted Hermes bag," she said.
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The lawsuit calls it having a sufficient "purchase history" or "purchase profile" and says "Only once a consumer has a sufficient purchase history ... will they be offered the opportunity to purchase a Birkin."
Antonenkova considers the bags investments and estimates she's spent approximately $150,000 on bags and an additional $200,000 on Hermes' other brand categories, including a nearly $40,000, which she says is being made for her and will be delivered sometime in Q2 of this year.
Should she ever re-sell the bags...
"Not that I would. They would be worth at least double that," Antonenkova said.
Author Michael Tonello is perhaps the OG when it comes to pre-spend. In his memoir, "Bringing Home The Birkin," Tonello describes buying Hermes scarves to flip on eBay, only to discover after being turned down in multiple stores for a Birkin, a large scarf purchase seemed to do the trick.
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"She puts the box down on the counter, she opens the drawer, she puts on cotton gloves, takes off the lid, the tissue, the tissue, the tissue and pulls out the bag," said Tonello, miming what it looked like as layers of tissue were pulled back to reveal a 35 centimeter crocodile Birkin, which cost 22,000 at the time.
"Once I figured it all out, that first year I bought and sold $1.6 million-worth of Birkin bags," Tonello said.
But where some sing the praises of pre-spend, others say it's an urban legend.
ABC7 News Reporter Melanie Woodrow stopped Elizabeth Browne in San Francisco's Union Square, struck by her Noir Box Leather Kelly 28 with palladium hardware.
"I haven't had that kind of experience where I was told or encouraged to purchase anything to have access to any other product from the house," Browne said.
"There is a scarcity in the market. There are not enough Birkins and Kellys to satiate all of the aspirational clients that are there," Arora said.
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Customers with an appetite for orange can satiate themselves on PurseBop.com, founded by Arora in 2013. The website boasts endless pictures and videos of Hermes bags, but none of Arora. She asked to remain off camera for our interview.
"The website is not about Monika. It's about the passion for the bag," Arora said.
Arora's team of writers educate site visitors on Hermes leathers, hardware and prices.
"We want what we can't have," Arora said.
She says Hermes is a complete lifestyle brand, and she shops all the categories from cosmetics to tableware, ready to wear and shoes. Her brand loyalty has paid off with invitations to Hermes' runway shows in Paris.
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"There is a degree to which Hermes, like many companies, wants to take good care of its best customers," Scafidi said.
The lawsuit defines the class as anyone who in the last four years purchased -- or was asked to purchase -- Hermes ancillary products in order to purchase a Birkin.
"If they were to get the class certified and if they were to win then the damages could be substantial," Scafidi said.
"What are the damages? Is it money? Do you get a bag? How do you quantify it," asked Woodrow.
"That's sort of what a jury or a judge would have to determine," Kurpis said.
The lawsuit asks for an order stopping Hermes from continuing the alleged practice as well as an award of restitution and damages.
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"I am very curious to see how this all plays out," Tonello said.
Antonenkova believes it could become more difficult for customers to get highly coveted bags, with those still waiting for their wish list saying, "Bye, bye, Birkin," just as Samantha does in HBO's "Sex and the City."
The lawsuit says the class could be thousands of people. For as many people as ABC7 News interviewed for this report, Woodrow was turned down by many more who said they were concerned talking on camera could affect their relationship with the brand.
Attempts to reach Hermes for a comment were unsuccessful.
You can find an extended interview with Michael Tonello in the player below.
Extended interview with Hermès expert Michael Tonello
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