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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

GRANT BIRCHMEIER, STEPHEN PARKES, 

and REGINA STONE, on behalf of themselves 

and a class of others similarly situated,

Plaintiffs,

v.

CARIBBEAN CRUISE LINE, INC., ECONOMIC 

STRATEGY GROUP, ECONOMIC STRATEGY 

GROUP, INC., ECONOMIC STRATEGY, LLC, 

THE BERKLEY GROUP, INC., and VACATION 

OWNERSHIP MARKETING TOURS, INC., 

Defendants.

Case No. 1:12-cv-04069

Honorable Matthew F. Kennelly

PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR ORDER COMPELLING TMOBILE US, INC. TO PRODUCE CALIFORNIA SUBSCRIBER INFORMATION

INTRODUCTION

Plaintiffs filed a Motion to Compel T-Mobile US, Inc. (“T-Mobile” and the “Motion,”

respectively) to produce the name and address information for its California subscribers (the 

“California Class Members”). (Dkt. 278.) T-Mobile’s Response in Opposition (the “Response”)

argues that Section 2891 of the California Public Utilities Act (the “Act”) requires T-Mobile to 

obtain its mobile subscriber’s written consent before such information can be provided. (Dkt. 283.) 

Simply put, T-Mobile’s reading of the Act is wrong. 

As set forth in Plaintiffs’ Motion, Section 2891 limits the information that telephone 

companies may provide about their residential subscribers without the subscribers’ consent. See Cal. 

Pub. Util. Code § 2891. The statute was implemented to protect California residents from receiving 

unwanted telephone solicitations. See Cal. Pub. Util. Code § 2894.10(a) (stating that the law had been 

enacted to “protect residential telephone subscriber’s privacy rights with respect to telephone 

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solicitations”) (emphasis added). It should not be read to prevent California residents from learning 

about their rights as class members in a certified class action seeking redress from Defendants for 

illegal telephone solicitations. Indeed, courts have interpreted the statute as not applying in similar 

situations—whether because it does not apply to wireless customers at all (the only customers’ 

whose information was requested by the subpoena at issue), or because the Act also permits 

telephone companies to provide information in response to a Court order. Such a result is 

appropriate here.

Therefore, as set forth in Plaintiffs’ Motion and below, the Court should hold that the Act 

does not require customer consent before T-Mobile provides Plaintiffs’ counsel with their California 

subscribers’ name and address information in this case.

ARGUMENT

A. Section 2891 does not apply to requests for wireless telephone subscribers’ 

name and address information.

In its response, T-Mobile argues that the express language of Section 2891—which requires 

a “telephone or telegraph corporation” to obtain a “residential subscriber’s consent” before 

providing “demographic information about individual residential subscribers, or aggregate 

information from which individual identities and characteristics have not been removed,” see Cal. 

Pub. Util. Code § § 2891(a)(4)—requires it to obtain consent before disclosing its California wireless 

subscribers’ contact information to Plaintiffs. (Resp. at 2.) This argument fails in two respects. 

First, as discussed in Plaintiffs’ Motion, the court in Kamalu v. Walmart Stores, Inc. correctly

held that the Act does not apply to wireless subscribers. See Kamalu v. Walmart Stores, Inc., No. 1:13-

cv-00627-SAB, Dkt. 21 at 9 (E.D. Cal. Aug. 15, 2013) (holding that Section 2891 does not apply to 

mobile telephone subscribers, and further noting that the Act distinguishes between residential and 

mobile subscribers elsewhere). Rather, the plain language indicates that it applies only to “residential 

subscribers,” and so the Court’s analysis should end there. See e.g., United States v. Miscellaneous 

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Firearms, Explosives, Destructive Devices & Ammunition, 376 F.3d 709, 712 (7th Cir. 2004) (“The cardinal 

rule of statutory interpretation is that courts must first look to the language of the statute and 

assume that its plain meaning accurately expresses the legislative purpose.”); see also Westcom Long 

Distance, Inc. v. Pacific Bell, 2006 WL 2076342, at *10 (Cal. P.U.C. 2006) (demonstrating that even the 

California Public Utilities Commission has acknowledged that Section 2891 “appears to apply only 

to residential customers.”).1/2

This reading is further supported by the fact that, although the Act does not define 

“residential subscribers,” Section 2891.1 of the Act—which immediately follows Section 2891—

distinguishes residential subscribers from mobile telephone customers. Namely, Section 2891.1, 

provides that:

(a) Notwithstanding Section 2891, a telephone corporation selling or 

licensing lists of residential subscribers shall not include the telephone number of any 

subscriber assigned an unlisted or unpublished access number. A subscriber may 

waive all or part of the protection provided by this subdivision through written 

notice to the telephone corporation.

(b) Notwithstanding Section 2891, a provider of mobile telephony services, or 

any direct or indirect affiliate or agent of a provider, providing the name and dialing 

number of a subscriber for inclusion in any directory of any form, or selling the 

contents of any directory database, or any portion or segment thereof, shall not 

include the dialing number of any subscriber without first obtaining the express 

consent of that subscriber. 

																																																							 1 Westcom does not appear to be paginated, so the pin cite is to the page of the Westlaw 

document.

2 Westcom Long Distance—a case that was cited in T-Mobile’s Response—involved the 

California Public Utilities Commission’s determination that a party was generally engaging in 

reprehensible conduct, including intercepting telephone communications, and the business-customer 

information that was disclosed involved “calling patterns,” rather than just the names and addresses 

of the company’s subscribers. Id. There are no factual similarities to this case, nor did the 

Commission provide any analysis of the scope of Section 2891. Therefore, Westcom is relevant for 

only the Commission’s acknowledgement that Section 2891 “appears to apply only to residential 

customers.” 

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Cal. Pub. Util. Code § 2891.1 (emphasis added).3

T-Mobile does not address the relevant statutory language regarding “residential 

subscribers,” but instead argues that because T-Mobile is a “telephone carrier,” it must adhere to the 

requirements of the Act. T-Mobile’s status as a “telephone carrier”—which Plaintiffs do not 

dispute—says nothing about whether T-Mobile’s wireless customers qualify as residential telephone 

subscribers, and as a result, whether the Act applies to the subscriber information currently at issue. 

Moreover, the two cases cited by T-Mobile in support of its contention that the Act applies to 

wireless customers—In re Farsheedi, No. C 09–3888 JF, 2009 WL 4572745 (N.D. Cal. Dec. 4, 2009) 

and Tataryn v. Barnett, Case No. 08 FL 00527 (Superior Court of California, County of Sacramento, 

June 9, 2014)—provide no persuasive reason to depart from the Act’s plain language. For example,

in In re Farsheedi the court merely held that that the Act applied to T-Mobile’s customers because “TMobile is a wireless telecommunications provider,” but as explained above, that determination is not 

relevant to the issue of whether its customers are “residential subscribers.” Dkt 283-2 at 25.

Likewise, in Tataryn, the court held that Section 2891 applied to wireless customers on the ground 

that the legislature’s use of “residential” was meant only to distinguish between subscribers who 

used their telephones for personal reasons and business customers, rather than between “residential” 

telephones and wireless telephones. The Tataryn court also acknowledged that Section 2891 was 

implemented before the proliferation of wireless telephones, so it is possible that the legislature 

																																																							 3 Mobile telephony services is separately defined in the California Public Utility Code, and the 

definition makes no reference to residential service. Instead, it is defined as “commercially available 

interconnected mobile phone services that provide access to the public switched telephone network 

(PSTN) via mobile communication devices employing radiowave technology to transmit calls, 

including cellular radiotelephone, broadband Personal Communications Services (PCS), and digital 

Specialized Mobile Radio (SMR). ‘Mobile telephony services’ does not include mobile satellite 

telephone services or mobile data services used exclusively for the delivery of nonvoice information 

to a mobile device.” Cal. Pub. Util. Code § 224.4(d).

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never considered wireless customers when it enacted Section 2891.4 Nevertheless, because Section 

2891’s plain language limits its application to residential subscribers, it is improper for courts 

interpreting the statute to try to divine the legislative intent, and those decisions should not be 

followed. See Miscellaneous Firearms, Explosives, Destructive Devices & Ammunition, 376 F.3d at 712.

Second, even assuming, arguendo, that Section 2891 applies to wireless subscribers, TMobile’s contention that the Act prevents it from disclosing the information requested because the 

Act prohibits the dissemination of “demographic information” is off base. Although Plaintiffs 

acknowledge that the Act prohibits the disclosure of certain types of residential subscriber

information, such as calling patterns, details about services that subscribers purchase, the 

subscriber’s personal financial information, and demographic information, see Cal. Pub. Util. Code § 

2891 (a)(1)-(a)(4),

5 a person’s name and address alone are not typically considered “demographic 

information.” In fact, the first definition for “demographic” on dictionary.com is “the statistical data 

of a population, especially those showing average age, income, education, etc.”6 And the most 

relevant definition in Merriam Webster states that “demographic” is “the statistical characteristics of 

human populations (as age or income) used especially to identify markets.”7 T-Mobile has not 

provided any basis to read “demographic information” as meaning name and address alone, and the 

Court should not do so here.

																																																							 4 That the legislature may have been unaware of wireless technology provides another reason 

to hold that Section 2891 does not apply to wireless customers, rather than a basis to assume that 

the legislature would have covered wireless customers had wireless technology been prevalent at the 

time. Notably, despite that wireless technology is now widespread, no amendment to the statute has 

been made. 

5 It also prohibits the dissemination of “aggregate information” without removing a 

subscriber’s identifying information, but Plaintiffs have not requested any aggregate demographic 

information.

6 See http://dictionary.reference.com/browse/demographics (last visited on March 17, 2015).

7 See www.merriam-webster.com/dictionary/demographic (last visited on March 17, 2015).

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B. The Court has Authority to Issue an Order Directing T-Mobile to Produce the 

California Subscriber Records. 

Next, T-Mobile argues that the Court lacks the authority to issue an order directing TMobile to turn over the requested information. In making that argument, T-Mobile asserts that 

Plaintiffs’ subpoena is not valid because the Act “only applies to subpoenas issued for law 

enforcement purposes.” (Resp. at 4 (citing Cal. Pub. Util. Code § 2894(a) (emphasis in the 

original).) This argument is also unavailing. As an initial matter, Plaintiffs do not, as T-Mobile 

suggests, contend that Section 2891 authorizes telephone companies to provide protected 

information merely because a party issues a subpoena. Rather, Plaintiffs agree that telephone 

companies may provide protected information in response to subpoenas, without consent, only if 

the subpoena is an “administrative subpoena issued at the request of a law enforcement official or 

other federal, state, or legal government agency for law enforcement purposes.” Cal. Pub. Util. Code 

§ 2894(a).8 That was a sensible way for the legislature to ensure that law enforcement officials could 

issue necessary subpoenas, while protecting consumers from non-law enforcement subpoenas 

seeking the same information.

But Section 2894(a) also allows for information to be released “in good faith compliance 

with the terms of a state or federal court order..., ” id., and T-Mobile has not provided any reason 

why the Act should be read to prohibit a federal court from issuing an order unless it was requested 

by a government agency for law enforcement purposes. Moreover, contrary to T-Mobile’s argument, 

no part of the statute is rendered superfluous by reading it to mean that administrative subpoenas 

																																																							 8 As described by the Department of Justice, administrative subpoenas may be used by 

government agencies in a variety of contexts. See 

http://www.justice.gov/archive/olp/rpt_to_congress.htm#2 (last visited on March 18, 2015). The 

California legislature, therefore, may have sensibly decided to limit the situations in which 

administrative subpoenas could be used to request information that is otherwise protected by 

Section 2891, to those involving “law enforcement purposes,” but that does not mean a federal 

court may not order the disclosure of the information requested where appropriate. 

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must be issued by law enforcement officials, but court orders may be issued at the request of a party. 

Notably, in the only case that Plaintiffs located addressing this issue, the court entered an order 

directing the production of otherwise protected information in a putative class action. See McArdle v. 

AT&T Mobility LLC, No 09-1117 CW (MEJ), 2010 WL 1532334, at *5 (N.D. Cal. Apr. 16, 2010)

(ordering the production of the putative class members’ contact information and holding that 

“[s]ection 2891 does not prohibit the disclosure of [d]efendants’ customers’ contact information 

under a court order, and there is no requirement that the [c]ourt require an affirmative waiver from 

any such persons”). In ordering production of that information, the McArdle court recognized that a

different result “could have potentially adverse effects in cases brought to redress a variety of social 

ills, including consumer rights litigation.” Notably, T-Mobile has not identified any contrary case 

law, and given the similarities between the circumstances present in McArdle and those presented 

here, McArdle should be dispositive.

In short, Section 2891 does not apply to the information requested in Plaintiffs’ subpoenas, 

and even if it does, the Court has the authority to, and should, order T-Mobile to comply with 

Plaintiffs’ subpoenas here.

C. Section § 1985.3 of the CCP does not require T-Mobile to obtain consent 

under the instant circumstances either.

Finally, T-Mobile’s brief includes a heading asserting that “Rule 45 does not preempt the 

California Public Utilities Code.” (Resp. at 6.) Plaintiff, however, makes no such contention. Rather, 

as T-Mobile acknowledges in the first sentence below its heading, Plaintiffs argue that the California 

Code of Civil Procedure (the “CCP”)—which also contains a section that would require customer 

consent for certain types of information—does not apply to Plaintiffs’ subpoena. See id. The Court 

in RBS Sec. Inc. v. Plaza Home Mortgage, Inc., No. 12CV2132-JM MDD, 2012 WL 3957894, at *1 (S.D. 

Cal. Sept. 10, 2012) agreed, explaining that “[a] subpoena duces tecum issued under the Federal Rules 

of Civil Procedure is not subject to CCP 1985.3 which, by its terms, is limited to subpoenas issued 

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under the [California Code of Civil Procedure],” and further explaining that although “[c]ourts have 

wandered into the morass of determining whether CCP 1985.3 creates a privilege under California 

law and whether that privilege should be accorded some recognition in federal proceedings” it 

would be more appropriate to “credit the plain language of the statute regarding its scope.” Id; see 

also CCP 1985.3(a)(3) (limiting the requirements of CCP 1985.3 to “a subpoena duces tecum to be 

issued or served in connection with any civil action or proceeding pursuant to this code . . . .”)

(emphasis added).

Nevertheless, to the extent that the Court disagrees, and is inclined to consider Section 

1985.3 of the CCP as a substantive privilege law that should be addressed (despite the fact that this 

case involves claims arising under a federal statute), as the court did in Robinson v. Kia Motors America, 

Inc., No. Civ-S-10-3187, 2011 WL 2433369 (E.D. Cal. June 13, 2011), Plaintiffs’ motion should still 

be granted. As explained fully in Plaintiff’s Motion, each Robinson factor weighs in favor of 

disclosure, or at best, is neutral.

9 With respect to the first two factors, contrary to T-Mobile’s 

argument, mailing a consumer notice of his or her rights with respect to privacy violations is not 

even close to being “precisely the type of encroachment implicated by the Public Utilities Code 

provisions (and the invasions of privacy addressed by the TCPA)”. Rather, the statutes at issue were 

enacted to limit improper telephone solicitations. See Cal. Pub. Util. Code § 2894.10(a) (stating that 

the law had been enacted to “protect residential telephone subscriber’s privacy rights with respect to 

telephone solicitations”); see also Mims v. Arrow Fin. Svcs’s, LLC, 132 S. Ct. 740, 744 (2012) (explaining 

that Congress enacted the TCPA in 1991 in response to “[v]oluminous consumer complaints about 

abuses of telephone technology . . .”). Plaintiffs, of course, do not intend to use the subscriber name 

																																																							 9 The five factors are: (i) “the probable encroachment on the individual’s privacy right...and 

the magnitude of the encroachment,” (ii) whether the information sought is of the type that has 

“traditionally been off limits[,]” (iii) whether the information “is available from other sources with 

less encroachment[,]” (iv) “the extent to which [] exercising [] the individual’ privacy rights [would] 

impinge [] the rights of others[,]” and (vi) the “interests of society.” Id. at *3

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and address information to attempt to sell products to those individuals, or for any other improper 

purpose. With respect to the third Robinson factor, as explained in Plaintiffs’ Motion, Plaintiffs have 

asked only for limited information that subscribers have voluntarily provided to T-Mobile. 

Moreover, the information is not readily available elsewhere. The fourth factor—the extent that the 

individual’s right to privacy would impinge on the rights of others—is neutral (although Defendants 

may argue that their rights are affected if they are not provided with the known identities of class 

members). Finally, society’s interests would be advanced by the production of this information, so 

that class members can be informed of their rights.10 As such, to the extent the Court engages in a 

Robinson-type analysis, disclosure is favored. 

CONCLUSION

WHEREFORE, Plaintiffs respectfully request that the Court enter an order (ii) instructing 

T-Mobile to comply with their Subpoenas by producing the names and last known home and email 

address(es) (if any) for the California subscribers whose numbers received the calls at issue in this 

case on the dates identified in Plaintiffs’ Subpoenas, and (ii) granting any other relief that the Court 

deems reasonable and just. 

Date: March 19, 2015 By: /s/ Eve-Lynn J. Rapp

Jay Edelson

jedelson@edelson.com

Rafey S. Balabanian

rbalabanian@edelson.com

Eve-Lynn J. Rapp

erapp@edelson.com

EDELSON PC

Scott R. Rauscher

scott@loevy.com

Michael I. Kanovitz

mike@loevy.com

Jonathan I. Loevy

jon@loevy.com

LOEVY & LOEVY

																																																							 10 Another potential option would be for T-Mobile to mail the approved class-action notice to 

its California residents, without providing their contact information to the parties or the Court. 

Plaintiffs would agree to pay the reasonable costs associated with that process, although the 

reasonable costs would not be anything close T-Mobile’s proposed cost of approximately $20 per 

customer to send a consent form. Rather, Plaintiffs submit that the reasonable costs would be the 

costs that their class administrator, KCC, would charge for the same work.

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350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Class Counsel

312 N. May Street, Suite 100

Chicago, Illinois 60607

Tel: 312.243.5900

Fax: 312.243.5902 

 

Class Counsel

Scott D. Owens

scott@scottdowens.com

LAW OFFICES OF SCOTT D. OWENS, ESQ.

664 East Hallandale Beach Boulevard

Hallandale, Florida 33009

Tel: (954) 306-8104 

 

Counsel for Stone

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CERTIFICATE OF SERVICE 

I, Eve-Lynn J. Rapp, an attorney, hereby certify that on March 19, 2015, I served the above 

and foregoing Plaintiffs’ Reply in Support of Motion for Order Compelling T-Mobile US, Inc. to Produce 

California Subscriber Information, by causing a true and accurate copy of such paper to be transmitted to 

all counsel of record via electronic mail, on this the 19th of March, 2015.

/s/ Eve-Lynn J. Rapp

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