What the case alleged

In March 2024, three California residents filed a class-action lawsuit against Hermès in federal court. The core allegation was straightforward: that Hermès requires customers to buy other products — scarves, shoes, jewelry, home goods, belts — in order to qualify for the opportunity to purchase a Birkin or Kelly bag, and that this requirement constitutes an illegal "tying arrangement" under federal antitrust law.

The plaintiffs described the system in specific terms. One plaintiff had spent tens of thousands of dollars at Hermès purchasing items she would not have otherwise bought, hoping to qualify. When she later sought a second Birkin, she was told that priority went to clients who consistently support the business. A second plaintiff made multiple attempts to buy a Birkin, was told each time that he would need to buy additional items first, and never succeeded. A third plaintiff was added in an amended complaint.

The lawsuit further alleged that Hermès sales associates make implicit or explicit promises — that building a purchase history will earn access to a Birkin — while simultaneously knowing that many customers who comply will still not receive one. The plaintiffs added a fraud claim on this basis: that the promise of access is used to generate sales of ancillary products regardless of whether access is actually delivered.

The suit also pointed to Hermès' own website, which states simply that "the Birkin is available" without disclosing any purchase history requirement. The plaintiffs argued this constituted consumer deception.

The boutique allocation system — how it actually works

JaneFinds has operated in the primary and secondary Hermès market for 30 years. The boutique allocation system is not a mystery to us, and it is worth describing accurately because the lawsuit — and much of the coverage around it — obscured what it actually is.

Hermès does not have a written, published, or consistently applied policy governing Birkin and Kelly access. There is no formal tier, no official spending threshold, and no documented process by which a client becomes "qualified." What exists is a system of SA (sales associate) discretion, boutique-level relationships, and client purchase history — none of which is standardized across locations or explicitly communicated to buyers.

What this means in practice:

• • SAs have significant personal discretion. A bag offered to one client at one boutique would not necessarily be offered to the same client at a different boutique. Relationships with individual SAs are the operative variable, not a central purchase score.
• • Purchase history matters, but informally. An SA is more likely to offer a Birkin to a client with a meaningful, genuine purchase history than to a client who has never walked through the door. This is not a formal requirement — it is a relationship dynamic.
• • The bags are genuinely scarce. Hermès produces a limited number of Birkins and Kellys per season. Even clients with decades of boutique history do not always receive access to the specific configuration they want. The scarcity is real, not manufactured by the allocation process.
• • The system is not uniform and is frequently inconsistent. The same SA may offer a Birkin to two clients with similar purchase histories, or not offer to either. The system's lack of a formal policy is its most significant feature — which is also why it was so difficult for the plaintiffs to describe with legal precision.
• • The secondary market exists because of this system. Buyers who want a Birkin or Kelly without navigating the boutique relationship process — or who want a specific configuration that is unavailable through the boutique — come to the secondary market. This is not an incidental fact about the lawsuit; it is central to understanding why the secondary market functions the way it does.

Why the court dismissed the case

Judge James Donato dismissed the case on September 17, 2025, on three grounds that together represent a fairly complete legal rejection of the theory.

1. No legally cognizable market definition

Antitrust law requires a plaintiff to define a relevant product market — the space in which competition occurs and in which market power can be assessed. The plaintiffs defined the relevant market as "elitist luxury handbags in the United States." Judge Donato found this definition legally insufficient. The plaintiffs had supported it primarily with dated academic articles and general luxury consumption reports, which the court found did not establish a real product market with defined competitive boundaries. Without a valid market definition, the entire tying theory collapsed.

2. Market share is not market power

Even accepting the plaintiffs' market definition, they argued that Birkin bags account for 60–75% of the relevant market — and that this constitutes market power. Judge Donato rejected this directly: market share is not synonymous with market power. Market power requires showing that a company can exclude competitors or control prices in ways that harm competition. The plaintiffs provided no factual allegations showing Hermès could do either. Hermès competes with other luxury goods producers; a buyer denied a Birkin can purchase other luxury handbags from other brands. The competitive market for luxury goods is not foreclosed by Hermès' allocation practices.

3. No injury to competition

Antitrust law protects competition, not individual competitors or individual consumers. The plaintiffs' frustration at being unable to purchase additional Birkin bags — and the resulting money spent on ancillary products — is a personal grievance, not an antitrust injury. For a tying claim to succeed, the plaintiffs needed to show that Hermès' practices harmed competition in the market for scarves, shoes, jewelry, and other ancillary goods — that other sellers of those products were damaged by Hermès diverting that business to itself through coercion. The plaintiffs' allegations focused entirely on their own experience and not on harm to the competitive landscape for any tied product.

The federal antitrust claims were dismissed with prejudice. The court also declined supplemental jurisdiction over the California state-law claims (Cartwright Act, UCL, fraud, negligent misrepresentation), dismissing those without prejudice.

The appeal

In October 2025, the plaintiffs filed a notice of appeal to the Ninth U.S. Circuit Court of Appeals. The appeal is in its early stages. The Ninth Circuit could affirm the dismissal, reverse it and remand for further proceedings, or find on narrower grounds. The case is ongoing.

What this means for buyers

The dismissal changes nothing about how the primary boutique system operates. Hermès was not ordered to alter its allocation practices; the court found those practices do not violate antitrust law, at least not as the plaintiffs framed them. The system of SA discretion, relationship-based access, and purchase history remains exactly as it was before the lawsuit was filed.

For buyers navigating this landscape, the practical picture has not changed:

• • Primary boutique access requires a real, ongoing relationship with a specific SA at a specific location. It cannot be manufactured quickly or guaranteed by any level of spending.
• • Spending on ancillary products to qualify for Birkin access is a real dynamic that many buyers participate in. That spending does not guarantee access and does not create a legal entitlement to access — the court has now confirmed this explicitly.
• • The secondary market is the most direct path to any specific Birkin or Kelly configuration regardless of boutique relationship. Buyers who want a specific leather, color, hardware combination, or size — and who want it now rather than eventually — source it through authenticated secondary dealers.
• • If the Ninth Circuit reverses and the case proceeds, subsequent proceedings could require Hermès to disclose more about its allocation practices. That disclosure could have meaningful implications for how the boutique system is understood and potentially documented. This is a scenario worth monitoring.