Photo of Mimi Dennis

Mimi S. Dennis is a counsel in the firm’s Washington, D.C. office. She is a member of the firm’s Mass Tort, Product, and Consumer Litigation and Advertising & Product Risk Management groups. Mimi’s practice focuses on toxic tort and groundwater contamination matters, though she represents clients in a wide range of commercial and product liability litigation and product regulatory counseling matters. She has experience defending clients in multidistrict proceedings, arbitrations, and other complex litigation and has first chair bench and jury trial experience. She has handled regulatory matters before various federal and state agencies, including FDA and EPA, and has counseled food, beverage, medical, and pharmaceutical industry clients on liability prevention and compliance matters. She has also defended corporate clients in various contract disputes, construction-related matters, and other commercial litigation.

© Thinkstock

Multiple class actions have alleged violations of the Telephone Consumer Protection Act (TCPA) for use of automated dialing systems (auto-dialer). In a 2015 Order, the Federal Communications Commission (FCC) defined an auto-dialer under the TCPA to mean any device with the theoretical “capacity” to place autodialed calls, even if had the potential to be transformed into an auto-dialer. Importantly, the FCC’s definition was prospective and applied even if additional software was required. However, several recent cases have narrowed the scope of the definition of “auto-dialer,” creating a potential hurdle for plaintiffs and creating confusion about the viability of class actions that hinge on whether the marketing platforms used to send messages to consumers qualify as “auto-dialers.”

In March, in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. Mar. 16, 2018), the D.C. Circuit limited the FCC’s 2015’s broad prospective definition of auto-dialer, stating that it would “subject ordinary calls from any conventional smartphone to the act’s coverage” and that the statute did not necessitate such a “sweeping swoop.”  Instead, the court reasoned, the proper analysis of whether a device is an auto-dialer under the TCPA should turn on the capacity of a device to behave as an auto-dialer, as well as the amount of effort required to turn a device into an auto-dialer.

Continue Reading Who You Gonna Call? (Just Don’t Use an Autodialer!)