Editor: Please tell our readers about your background with Dykema Gossett.
Melendez: I joined Dykema a year ago, in July 2013, after 22 years with Faegre Baker Daniels and its predecessor Faegre & Benson. I wasn’t unhappy, I wasn’t looking to switch firms, and I had never talked with another firm about switching. But when a friend approached me about joining Dykema, I was impressed with the breadth and depth of Dykema’s practice, and with its deep relationships with national clients who had a presence in the Minneapolis-St. Paul market but weren’t using Minnesota-based lawyers for their legal needs. Dykema has positioned itself very well in the Minnesota legal market, and I am very glad that I made the choice last year to join the team here.
Editor: You were recently named partner-in-charge of the Minneapolis office. Please summarize the history of the Minneapolis office and your plans for the office’s future.
Melendez: Dykema opened its Minneapolis office in January 2013 with two lawyers. Today, a year and a half later, there are a dozen. By the end of next year – a year and a half from now, December 2015 – we hope to have two dozen lawyers in the Minneapolis office. Dykema is a full-service law firm, and we hope to grow the Minneapolis office in a strategic way so that each of Dykema’s key practice areas is represented in the Upper Midwest market.
The office’s strengths for the time being are our intellectual property and litigation practices. My partner Reed Heimbecher leads a team of five intellectual property lawyers, with a focus on patent and trademark prosecution but with a deep capability in all areas of intellectual property law. On the litigation side, Dykema scored a coup last year in bringing over Tim Kelly, one of the premier trial lawyers in Minnesota; and this year we were joined by David Graham, an experienced litigator whose practice focuses on food, drug, and medical-device litigation. Our latest addition is Shannon Heim, whose practice emphasizes telecommunications regulatory matters. Going forward, I expect that we will keep building our intellectual property and litigation teams, but will add greater capabilities in real estate, corporate, and other transactional practices.
Editor: Please tell our readers about your personal practice and the nature of the cases that you handle.
Melendez: My practice is business litigation – mostly business torts and contract disputes. For the past decade, my practice has focused primarily on consumer-credit litigation: I have represented credit card issuers in more than two hundred cases, including a dozen nationwide class actions and half a dozen federal appeals; and I have handled consumer-protection cases in courts in 40 states, including state courts, federal district courts, bankruptcy courts, and federal appellate courts. I have litigated cases involving the Truth in Lending Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Telephone Consumer Protection Act, and their state law analogs, among other statutes.
Editor: You have held several high-ranking offices in various bar associations, including the presidency of the Minnesota State Bar Association and the national chairs of various sections and committees in the American Bar Association. What is your philosophy of bar association involvement?
Melendez: Membership and involvement in the bar association are as much a part of citizenship in the profession as serving as a voter or juror is a part of citizenship in the society that the profession serves. The mission of the bar association is to help shape (and change) the culture of the bar for the good of the profession and of the broader community and society that it serves. The bar association is the means by which a lawyer can help turn the practice of law into a profession, can help turn the legal market into a professional community, and can help turn the profession into a vocation.
Editor: Consumer-financial-services litigation seems to be a fast-growing area of the broader litigation practice. Are there particular trends that you’d like to emphasize for us?
Melendez: The plaintiffs’ consumer-financial-services bar tends to bring cases in waves: Once a plaintiff’s attorney succeeds on a novel claim or theory, other plaintiffs' attorneys follow suit. For several years, for example, there was significant litigation over consumer-credit reporting under the Fair Credit Reporting Act. Before that, there was litigation over credit-card-receipt truncation under FACTA, the Fair & Accurate Credit Transaction Act (which is also a part of the Fair Credit Reporting Act). The recent trend has been a significant uptick in the past two or three years of litigation under the Telephone Consumer Protection Act over calls and text messages to cell phones. I litigated my first TCPA case in 2000, a class action in Minnesota court, and have handled more than a dozen TCPA cases just in the past three or four years.
Dykema has put together a national team with expertise in TCPA litigation, led by Rosa Tumialán in our Chicago office, and with experienced lawyers from our other offices around the country. I’d stack up Dykema’s expertise in TCPA litigation against any other firm.
Editor: Do you see TCPA litigation continuing in its ascendancy? Will there be more and more of these actions?
Melendez: We will continue to see a spate of TCPA litigation unless Congress amends the statute or the Federal Communications Commission, the regulatory agency that Congress has charged with implementing the statute, provides some clarity around some of the more loosely defined terms under the statute. The TCPA creates a private cause of action and, while the statute has curbed some of the abuses that it was aimed at, it has also created a cottage industry of aggressive plaintiffs' attorneys who have pushed the statute well beyond what anyone was contemplating when it was enacted 23 years ago.
Editor: And are there actions currently in front of Congress or the FCC to do just that, or are they kicking it down the road?
Melendez: There has been a lot of talk about the need for legislative solutions to some of the TCPA’s shortcomings, and some sympathy both from legislators and from FCC commissioners, but no legislation has gotten anywhere near the floor of Congress in recent times. But there are multiple petitions pending before the FCC, which can exercise its rulemaking authority to relieve at least some of the more salient problems, such as the definition of which automatic telephone dialing systems trigger the TCPA’s provisions.
That issue is a good example of how the TCPA has been pushed beyond the bounds of logic. The TCPA defines an “automatic telephone dialing system” as “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator,” and “to dial such numbers.” While that definition seems simple enough, you still get plaintiffs’ attorneys who argue that just about any telephone – if its safeguards were defeated and its design were reconfigured – theoretically has such “capacity.” But by that logic, every telephone in the world has such capacity, if the equipment were upgraded in the right way. And by the same logic, every automobile in the world is a flying machine, if you add wings and a jet engine. (For that matter, by the same logic, every automobile in the world is also an automatic telephone-dialing system.) Such choplogic defies the obvious legislative intent. There have been some ridiculous lawsuits, and the regulators are seeing that there needs to be at least some tweaking.
Editor: Do you envision expanding Dykema’s pro bono practice in the consumer-protection area?
Melendez: Dykema already features one of the most robust pro bono programs of any major firm. All Dykema lawyers are required either to perform a certain minimum number of hours on pro bono legal service (which count toward the lawyer’s billable-hour requirement), or to make a significant contribution to an organization that provides pro bono legal services to the economically disadvantaged. My personal pro bono work has been in the consumer-protection area, and I know that other Dykema lawyers also bring their consumer-financial-services expertise to their pro bono practice. There is a great need in the pro bono community for representation in consumer-protection matters, and Dykema pulls its weight in helping meet that need.
Editor: In just the last few months, our readers have benefited from articles by Dykema Gossett partners providing insight and analysis in a variety of different fields, from maintenance of trademarks to federal government interest in hiring practices, and from clerking in appellate courts to cross-border investment. Is this a reflection of what one article called a “client-friendly firm philosophy”?
Melendez: One piece of a “client-friendly firm philosophy” is understanding what services our clients need and delivering those services in a way that is both effective and economical. The broad range of services that those recent articles illustrate is one way that Dykema serves a diverse nationwide client base. The notion of a client-friendly firm philosophy is an enterprise-wide initiative at Dykema, to which the firm dedicates significant time, energy, and resources. As a firm, we try to crack the code in figuring out what our clients (and prospective clients) benefit from most vitally, and how we can deliver good value to them. Providing exemplary service is at the very top of that list.
Editor: The breadth of subject matter covered in these articles speaks favorably of Dykema Gossett’s overall capabilities. How much is included in the scope of the Minneapolis office?
Melendez: Dykema is a full-service law firm. With only a dozen lawyers in the office today, we haven’t replicated the complete range of Dykema’s capabilities in the Minneapolis office, but our lawyers in Minneapolis work closely with Dykema’s offices in California, Illinois, Michigan, Texas, and Washington, DC, so that the full range of Dykema’s capabilities is available to our clients in the Upper Midwest market. We look forward to growing the Minneapolis office so that the full range of Dykema’s legal services is available in the Minneapolis office.
Published June 25, 2014.