The POWER 30: Brian Melendez

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His practice consists mostly of consumer-credit litigation and business torts.

He has litigated more than 300 cases under federal and state consumer-protection statutes, including the Telephone Consumer Protection Act, the Consumer Credit Protection Act, the Truth in Lending Act, the Fair Credit Reporting Act, the Fair & Accurate Credit Transactions Act, the Fair Debt Collection Practices Act and the Minnesota Prevention of Consumer Fraud Act. His practice takes him all over the country.

There are legitimate disputes in this area but also in certain states that are not Minnesota, “there are firms looking for a quick buck,” Melendez said. The statutory damages for a violation can add up quickly if there are a lot of plaintiffs, Melendez said. “Plaintiffs make money on high-volume cases.” And, many consumer protection laws have fee-shifting provisions, he noted.

Credit reporting is a rich area of consumer litigation, but it is not a strict liability claim. There must be a reasonable investigation into the plaintiffs’ allegations, and of course, whether something is reasonable is disputable.

But the cases are more than receptacles for boiler-plate pleadings, Melendez said. “A lot of the law is cutting edge. There are genuine intellectual disputes.”

Those include statutory interpretation and constitutional issues like the separation of powers. There are very tight regulations and statutory exceptions as well, he added. “I enjoy having to know the nooks and crannies.”
Consumer protection cases end up at the Supreme Court every term, Melendez said. Most recently was Facebook v. Duguid, decided in April, where the Supreme Court unanimously sided with Facebook in a lawsuit over unsolicited text messages sent to a cellphone number in the company’s database.

The act does not ban the use of predictive dialing technology that can call or text targeted customers, so long as an artificial or pre-recorded voice is not used. “It kind of squashed robocall claims for plaintiffs,” Melendez said. The question now is whether Congress will tweak the statute.

The U.S. Supreme Court visited the Fair Debt Collection Practices Act in June in TransUnion LLC v. Ramirez, a class action from the 9th Circuit welcomed by defendants. The Supreme Court said that a plaintiff class member must suffer a concrete injury resulting from a defendant’s statutory violation to have Article III standing to pursue damages from that defendant in federal court. The court also held that plaintiffs in a class action must prove that every class member has standing for each claim asserted and for each form of relief sought.

In other FDCPA news, its regulatory scheme was changed to restrict phone calls and other methods of communication. The new regulations take effect Nov. 30 and will allow texts, emails and private messages on social media. It is the first time that a federal regulator has addressed the issue of new communications technologies since the Fair Debt Collection Practices Act was adopted in 1977.