In Bates v. Dollar Loan Center, LLC, 2014 WL 5469221 (D.Nev. 2014), Judge Dawson scheduled an evidentiary hearing on the question of whether a TCPA class action could be certified for a class consisting of calls placed to borrowers’ references listed by the borrower in the loan application.

Defendants argue that the class is overbroad because liability requires both a lack of consent and the use of an ATDS, elements missing from the proposed class definition. Defendants’ argument is meritless. Unless both lack of consent and the use of an ATDS are established, any claim will fail, making the omission of these elements harmless. Further, it appears likely to the Court that both consent and use of an ATDS can be resolved on a class-wide basis. However, if consent is ultimately an issue requiring individual in-court determinations, then it is almost certain that the class may not properly be certified. Regardless, overbreadth of the class definition fails to implicate the ascertainability of the class.  Harmonious with the above discussion, the Court finds that questions regarding consent do not render the class unascertainable. Rather, they implicate the Court’s analysis under Rule 23(b). Additionally, Defendants’ argument that the required data retrieval and analysis will be tedious is wholly unpersuasive. It would be far more tedious to hold trials for each alleged TCPA violation at issue here; this is precisely the reason that class actions exist. ¶ Lastly, the Court is somewhat concerned by the prospect of class members that are difficult or impossible to identify. This is likely to occur where the reference named in the loan application has changed their telephone number. Aside from the potential difficulties of finding such individuals, there is a substantial question regarding whether the number was changed prior to the Defendants’ call, meaning that the true plaintiff will perhaps be impossible to find. However, Plaintiff continues to assert that eighty-five to ninety percent of the class will be reached. See Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1306 (9th Cir.1990) (holding that the class is not unmanageable even where a large percentage of members were “not readily identifiable.”). However, the Court requires the use of objective criteria in ascertaining class members. Accordingly, the Court will hold a hearing on this matter. If satisfactory objective criteria cannot be found, the Court suggests narrowing the class to only those individuals who have retained their phone number throughout the relevant period.

The District Court agreed to grant an evidentiary hearing on the question of commonality, but was skeptical of defendant’s arguments.

Grider asserts that DLC engaged in a standardized course of conduct, allowing the bulk of relevant questions to be answered in unison. DLC contends that the questions of whether an ATDS was used to contact a given class member, and whether that member gave consent for DLC’s contact, are individual questions that simply cannot be answered in the aggregate. To bolster DLC’s claim as to consent, it has supplied various form declarations. The Court is skeptical of the evidentiary value of these declarations, especially in light of the dramatically limited consent explicitly conveyed in the loan documents, but will grant DLC’s motion for an evidentiary hearing. ¶ On a related note, it is premature to address the dubious question of whether the consent of a reference may properly be conveyed by a borrower. Even if the borrowers properly conveyed the references’ consent, that consent appears to be inherently limited. To the extent that DLC exceeded the scope of consent, intermediary issues are simply irrelevant.

The District Court scheduled an evidentiary hearing on the following issues:

 The Court HEREBY GRANTS Plaintiff’s Motion for Leave to File Response (# 166); The Court further sets this matter for an evidentiary hearing on the following matters: 1.  What, if any, objective criteria can be used to identify class members where the phone number provided has been reassigned? If no satisfactory objective criteria are available, can the class be defined to avoid this problem? 2.  Precisely what consent was given via the loan documents, and does this consent vary from loan to loan? If consent varies, how does this impact commonality? Both parties may bring no more than two individuals who signed the declarations to testify before the Court. 3.  Does DLC employ multiple independent systems in making calls, or are all calls generated by various facets of the same integrated system? If multiple independent systems are used, can the class be defined to avoid this commonality problem? 4.  Did Grider’s testimony actually suggest that he provided consent for DLC’s contact with him in light of Mr. Aviles’ multiple declarations, defeating typicality? Mr. Aviles’ testimony will be essential to this inquiry. As to the question of whether an ATDS was used for all calls, and whether the answer defeats commonality, the Court here too will rely on an evidentiary hearing. The evidence before the Court strongly suggests that all calls placed by DLC used an ATDS. However, the Court will conduct an evidentiary hearing to determine whether this question defeats commonality. Even if the Court finds that some non-ATDS calls were placed, the likely result will be clarification of the class definition, and not failure of the class for lack of commonality.