I’m definitely not an antitrust lawyer; but this seems like one of those situations where it’s definitely tying; but not tying that satisfies all the requirements of the Sherman antitrust act or Clayton antitrust act.
Especially if the court is uninterested in the fact that Birkin handbags are super-special; and evaluates Hermes’ market power with respect to fashion goods generally or leather goods generally(which seems likely; since otherwise literally anyone who deals in unique goods like original art or sole-source goods like copyrighted books not licensed to multiple publishers would be counted as having hegemonic market power no matter how marginal they are with respect to the broader market).
It wouldn’t entirely surprise me if some specific dealers or salespeople have wandered across the line into an implied contract or some sort of promissory estoppel by getting a little too specific about the reliability with which specific amounts of high rolling converted into access, without ultimately delivering; but that’s a totally different foundation for a claim; and would rely on the fiddly details of what individual buyers were told; rather than being class action fodder.
