Korn v. Polo Ralph Lauren Corp., ____ F. Supp. 2d ____, 2008 WL 544564 (E.D. Cal.)

An unprecedented clash of cultural titans. One, the fan club of the nu metal[1]. pioneer Ko?n.[2] The other, he of the over tanned skin and the white hair, fashion god and prepster idol Ralph Lauren. The plaintiff, the fans of a band who made such phrases as “Freak on a Leash”,  “Rumbutly boo”, and Ghost Pirates (brownie points for the first reader to post a comment identifying that cultural reference) common lingo amongst generation Y (which comes after generation X, which comes after the baby boomers for you geezers out there). The defendant, he of shirts with horses (that cost too much), fancy sheets (that cost way too much), madras shorts (that cost too much). These titans clashed in the only Federal District Court where two such unlikely opponents could meet, the Eastern District of California which includes Bakersfield, California. The birthplace of Ko?n.

[1] For those of you who are totally uncool and/or do not have sons in high school, a few definitions of NU Metal I found on the web. “A genre of music that incorporates hiphop, decks and digital sound to metal music. Not to be confused with thrash or industrial, NuMetal bands tend to be more commercial than their underground counterparts and attract a certain subculture too.”;  “A pathetic attempt to use the term "metal" to create a tough, hard image for BLEEPy music that bears little, if any, resemblence to actual metal music.” As with all music, a matter of taste.

[2] See http://en.wikipedia.org/wiki/Korn


A class action was filed in the Solano County Superior Court by Brian Korn against Polo Ralph Lauren. Brian Korn was born Brian Cornwallis. As a teenager, Brian illegally downloaded Ko?n’s Follow the Leader. Inspired by lyrics such as “We com’n’ from Generation Triple-X; we all about the weed smoke and the kinky sex."[1]

Brian changed his last name to Korn, dropped out of school, runs theKo?n fan club and works at Kentucky Fried Chicken. Brian was totally psyched when he learned that Ko?n was coming out with a line of black bed linens with prints of Ko?n’s albums on the pillow cases.   Brian posted the great news on his blog (www.creamedKorn.com) and fan club members flocked to Ko?n’s website to buy the sheets. 

Unbeknownst to Brian and the legions of Ko?n fans in California, Ko?n had licensed their artwork to Ralph Lauren who was trying to break into the gen-Y, underemployed, nu metal market. Good old Ralph, being the corporate type that he is, recorded the telephone number and address of each fan club member buying or returning sheets in violation of California Civil Code § 1747.08. Brian, whose poud father was a plaintiff’s class action attorney, filed a class action on behalf of the fan club members for violation of the California Code as well as for intentional infliction of emotional distress. Brian explained stating, “You know how BLEEPing lame it is to get mail from Ralph Lauren? My buds are dissing me. Plus, the sheets are not even 100% cotton.”

Ralph Lauren, like any sensible corporation, filed a motion to remove under CAFA. Brian Korn filed a motion to remand arguing that Ralph: 1) had not established he was not a resident of California; 2) Ralph failed to establish that the class members’ claims exceeded the jurisdictional amount in controversy of $5,000,000; and 3) Ralph failed to establish that the exceptions to CAFA do not apply.

The District Court quickly dismissed the lack of diversity argument. Seems as if Brian alleged in his complaint that Ralph Lauren is a Delaware corporation with its principal place of business in New Jersey. This is known in the legal biz as a judicial admission. For the purposes of diversity, a corporation is a citizen of the state of its incorporation and its principal place of "bidness." Ralph Lauren did not have to come up with evidence of diversity because Brian did it for him. 

Ralph, not one to leave his fate to the likes of a poser like Brian, nonetheless provided evidence that it is not a citizen of California. In the Ninth Circuit, courts apply the “place of operations test” in determining the principal place of business of a corporation. This test places a corporation’s principal place of business in the state containing a “substantial predominance of corporate operations.” This requires a corporation’s business activity in one state to be significantly larger than in any other. Ralph provided a bunch of boring statistics that essentially proved most of his operations were in New York which was Ralph Lauren’s “nerve center.”

Brian also argued the case should be remanded because Ralph did not prove the jurisdictional amount in controversy exceeded $5,000,000. Brian asserted that although he alleged in his complaint the maximum statutory penalty was $1000, a plaintiff might be awarded less than the maximum penalty. The court noted that Brian missed the point. The issue was not what the plaintiffs’ likely recovery might be. No, no.  The issue is the amount in “controversy.” All Ralph needed to do was prove that there was at least 5,001 putative class claims. Ralph did that by introducing evidence that it processed more than 5,000 credit card transactions for the Ko?n themed bed linens in California over the prior year. The court also rejected Brian’s argument that Ralph failed to prove the exceptions to CAFA. The court responded to Brian by stating, “Duh loser, it is your burden to prove the exceptions to CAFA apply. Motion to remand denied.”

After the hearing, Brian posted the following on his blog, “First of all, I do not even know what the BLEEP putative means. Secondly, that old judge is clearly a lame Limp Bizkit fan. And thirdly, Ralph Lauren, your sheets SUCK.”

Editors’ Note: Ok, by now (hopefully), you know I made all this up. Well most of it anyway. The facts. Those are all made up. But truth is, and don’t tell my bosses here at the CAFALAWBLOG, not all CAFA cases are very interesting. And none of them have any cussing in them. So when I came across a case involving KORN and Ralph Lauren, my mind wandered. It is late. I should be home. I have not eaten. I am getting woozy and lightheaded. So I, shall we call it, embelished. There really was a case in California filed by Brian Korn against Ralph Lauren regarding credit card transactions. All the legal arguments are true, I just made the facts of the case more interesting. This is a legal tactic I am considering in my practice to liven things up a bit.

You might wonder, why S. Tolson, do you have such in depth knowledge of Ko?n. Because I am huge fan!  No.  The reason is that I have a stepson that is 21. He was a HUGE Ko?n fan, and we still have the posters hanging in his room. Being the cool mom I always planned to be, I let him listen to whatever music he wanted to as long as he was an otherwise more or less contributing member of society. If you have ever heard Ko?n, you can’t make out any of their lyrics. So I had no idea what they were singing about. Well, let’s just say, the lyric quoted above is the only one I could come up with that could be posted (despite how irreverent the Blog is). For a laugh, and I caution those of you with a sensitive disposition, play the Ko?n classic Xmas Song. at your next firm Christmas party  It will really liven things up. 

Rock on Dudes.

(S. Tolson)

Here is a picture of the CAFA Law Blog dressed as members of Ko?n.

[1]From the Ko?n classic “Children of the Korn.”