Hermès Beats Birkin “Tying” Case in N.D. Cal.—Key Takeaways for Scarcity-Driven Brands

A California federal judge dismissed—with prejudice—the proposed class action claiming Hermès illegally conditioned access to Birkin (and Kelly) bags on customers’ prior purchases of scarves, jewelry, home goods, etc. The court found the plaintiffs failed to plausibly define a relevant market, show Hermès had market power in the “tying” product, or allege anti-competitive harm in any coherent “tied” market—pointing out that market share does not equate to market power and that lumping varied ancillary goods together was legally insufficient.

Even under a per se tying theory, the judge emphasized that reserving a highly coveted product for top spenders “is not an antitrust violation” absent foreclosure of competition. Federal claims were dismissed with prejudice; the court declined supplemental jurisdiction over remaining California claims.

Pretty nice blueprint for luxury brands that manage access via spend histories or relationship selling: it appears that scarcity and gatekeeping alone don’t violate U.S. antitrust law without credible market definition, power, and competitive harm. Still, brands should align access policies with clear disclosures to minimize false-advertising and unfair and deceptive trade practices allegations, maintain consistent clienteling documentation, and avoid practices that could be framed as exclusionary conduct if market dynamics shift.

Akiba Law PLLC is a boutique law firm based in Miami, Florida. The firm represents artists, creators, brands, entrepreneurs, collectors, galleries, and businesses in matters involving art law, intellectual property, trademark protection, copyright, contracts, business disputes, and brand enforcement.