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Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg radio.

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Speaker 2: Number, Susan from NBC. Of course, how are you?

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Speaker 1: I see you?

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Speaker 2: This is krama.

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Speaker 1: Hello you see Oh go ahead, Susan, tell tell me

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Speaker 1: what well?

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Speaker 3: I'm sorry, excuse me one second?

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Speaker 2: Hello?

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Speaker 4: Hi?

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Speaker 1: Would you be interested in switching over to TMI long

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Speaker 1: distance service?

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Speaker 4: Oh?

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Speaker 2: Gee, I can't talk right now.

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Speaker 3: Why don't you give me your home number and I'll

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Speaker 3: call you later.

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Speaker 2: I'm sorry, We're not allowed to do that.

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Speaker 3: Oh, I guess you don't want people calling you at home? No, well,

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Speaker 3: now you know how I feel.

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Speaker 1: Jerry Seinfeld's offered a call a telemarketer back at his home,

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Speaker 1: resonated with viewers and was the inspiration for the Seinfeld Bill,

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Speaker 1: cracking down on telemarketers. In New Jersey, Unwanted calls, including robocalls,

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Speaker 1: are the top consumer complaint with the Federal Community Ocations Commission,

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Speaker 1: but even putting your name on the national Do Not

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Speaker 1: Call Registry doesn't seem to stop them, and so attorneys

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Speaker 1: general in almost every state and DC have joined together

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Speaker 1: in a lawsuit against a telecom company accused of making

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Speaker 1: more than seven and a half billion robo calls to

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Speaker 1: people on the do not Call list. The company, Avid Telecom,

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Speaker 1: also allegedly send or transmitted robocalls involving scams, including social

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Speaker 1: security scams, medicare scams, Amazon scams, credit card interest rate

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Speaker 1: reduction scams, and employment scams, among others. Joining me is

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Speaker 1: an expert in consumer litigation, Sean Collins, a partner at

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Speaker 1: Straddling Law. The defendant here, Avid Telecom, is not the

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Speaker 1: company that made the robo calls, rather it facilitated them.

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Speaker 2: Explain that difference that's right to I don't know if

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Speaker 2: you've had a chance to read through the complaint, but

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Speaker 2: you'll notice that they use the word for still a lot.

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Speaker 2: I mean, it's pretty much every other sentence I would

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Speaker 2: call them the Amazon or robo calling. So they don't

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Speaker 2: sell the product. They're not the people that are actually

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Speaker 2: creating the product. They just facilitate the transaction. So, if

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Speaker 2: you want to be really specific, at it as a

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Speaker 2: voice over internet proto call. So they're kind of like

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Speaker 2: the train tracks or the train station. They route the train,

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Speaker 2: but they don't know the final destination and they don't

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Speaker 2: know the originator, or at least that's what they've claim. Now,

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Speaker 2: that's the interesting part about the lawsuit is that these

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Speaker 2: fifty one Attorneys general are now saying, you do know

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Speaker 2: who's routing. You know the intent of these calls. You

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Speaker 2: know that you're doing business with people who are illegally

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Speaker 2: calling people on the do not Call list. You know

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Speaker 2: that you are helping people violate the Telemarketing Sales Rule,

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Speaker 2: the PCPA, and a lot of other state miny FTC acts.

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Speaker 2: And because you have knowledge of that, and because you

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Speaker 2: are facilitating that, we're going to charge you with violating

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Speaker 2: these You that's what makes this lawsuit very interesting.

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Speaker 1: They could allegedly spoof the area codes of their calls

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Speaker 1: to match those of the recipients, which makes it more

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Speaker 1: likely they'd pick up explain the technology they had.

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Speaker 2: Yeah, so I'm not even going to pretend that I

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Speaker 2: am a technology expert, but from what I understand, from

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Speaker 2: what I read in the complaint, and also just my

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Speaker 2: expertise in this area of the law, as I understand it,

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Speaker 2: they have created proprietary technology whereby they can help a

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Speaker 2: company mask the fact that their call is a telemarketing

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Speaker 2: call or a robo call. For example, you know, I

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Speaker 2: get them a lot, so I have a nine four

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Speaker 2: nine area code. So if I see an area code

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Speaker 2: that's not nine for nine, like most people, I just

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Speaker 2: let it go to voicemail and I'm like, Okay, if

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Speaker 2: it's important, I'll leave me a voicemail and I'll call

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Speaker 2: it like that. But if I see a nine four

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Speaker 2: nine number show up on my cell phone, I'm more

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Speaker 2: likely to think, all right, this could be my wife's

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Speaker 2: calling from an unknown number. This could be one one

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Speaker 2: of my children calling from an unknown number. This could

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Speaker 2: be my children in school. So I'm gonna answer and

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Speaker 2: when I do, now your chances of selling me something

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Speaker 2: have increased. Clearly this company AVID is aware of that,

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Speaker 2: and so if they want to be the primary voice

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Speaker 2: over Internet protocol provider in the market, they could say, hey,

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Speaker 2: I can increase the chances that somebody will pick up

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Speaker 2: your telemarketing call. What telemarketer wouldn't like to hear that?

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Speaker 2: I said, Well, we have this technology that can spoof

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Speaker 2: or mask the true identity of your call and make

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Speaker 2: it seem like it's somebody's husband, wife, child school calling

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Speaker 2: and then more likely to pick up your phone call.

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Speaker 2: So that's the type of technology they're using. They basically

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Speaker 2: are using a generic auto dialer but the technology is

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Speaker 2: able to create a area code on that phone number

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Speaker 2: that makes it more likely the person to pick up

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Speaker 2: the phone.

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Speaker 1: And the Attorneys general also allege that AVID was well

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Speaker 1: aware that it was transmitting illegal robo calls. It got

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Speaker 1: hundreds of trace back notifications complaints from other telecom providers

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Speaker 1: and phone companies. Verizon ended up blocking Avid's traffic entirely

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Speaker 1: because of quote unacceptable levels of illegal or unwanted robo calls.

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Speaker 2: And that's the crux of the lawsuits. So, you know,

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Speaker 2: the reality of it is when you look at the

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Speaker 2: actual counts that they're bringing against Avid, a lot of

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Speaker 2: them are going to be difficult because the way these

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Speaker 2: laws were drafted to Telemarketing Sales Rule, the TCPA and

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Speaker 2: all of the state variants of that, the way they

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Speaker 2: were drafted is they were designed to go after the

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Speaker 2: person to the telemarketer, the person that's actually making the call.

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Speaker 2: And so the tough thing that they're going to have

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Speaker 2: to do is they're now going to have to prove

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Speaker 2: that you are responsible, even if you are a facilitator. Now,

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Speaker 2: one of the interesting statutes that they're bringing, and this

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Speaker 2: is where I think is the bedrock of the government case.

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Speaker 2: They're saying that the statute prohibits persons from providing substantial

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Speaker 2: assistance or support to any seller or telemarketer. So they're

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Speaker 2: saying that Avid is providing substantial assistance or support to

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Speaker 2: these people who are making these illegal Globo calls. Now,

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Speaker 2: even that's going to be challenging because typically when you're

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Speaker 2: trying to prove substantial assistance or support, you're saying that

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Speaker 2: these people are coordinating together. I think of the analogy

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Speaker 2: of radar and the cost. So if I create a radar,

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Speaker 2: then I sell it to someone I don't know the

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Speaker 2: car driver that buys my radar. I'm not intentionally trying

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Speaker 2: to say, hey, when you go out on the five

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Speaker 2: Freeway in California, beware because there's a cop there is

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Speaker 2: to make sure your radar is on. I don't know

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Speaker 2: when he's going to use it or how he's going

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Speaker 2: to use it. I'm just selling him the technology. So

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Speaker 2: I would argue that I'm not providing substantial assistance or

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Speaker 2: support to that particular driver. I'm just selling him my technology,

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Speaker 2: and I would assume that that's the offense that Avid

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Speaker 2: is probably.

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Speaker 3: Going to make.

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Speaker 1: Yeah, Avid said, it's done nothing wrong, and it operates

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Speaker 1: in a manner that's compliant with all applicables, state and

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Speaker 1: federal laws and regulations. Why didn't the FCC go after Avid?

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Speaker 1: They went after some of their customers.

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Speaker 2: I would imagine that they did not go after them because,

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Speaker 2: like I say, they have taken up this very unique

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Speaker 2: position whereby they really are only a junction station. They're

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Speaker 2: just routing trains, at least that's how they see themselves. Again,

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Speaker 2: they're saying, I don't know the final destination. I don't

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Speaker 2: even know the origination sometimes, and there's nothing wrong with

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Speaker 2: me being a facilitator, because you know, the tough thing

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Speaker 2: is is when you look at the big bodies of

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Speaker 2: law that govern this area, the FTC Act, Telephone Consumer

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Speaker 2: Protection Act, the Telemarketing Sales Rule, what they really focus

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Speaker 2: on is do not call registries, And in particular, what

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Speaker 2: they really focused on is do you have the buzzwords?

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Speaker 2: Are the express consent of these people to call them?

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Speaker 2: Avid is saying I have no personal relationship with any

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Speaker 2: of the phone numbers that you're calling. Don't know these people.

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Speaker 2: I didn't help you get their phone number any of that.

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Speaker 2: I'm just helping you route your calls. And I'm trying

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Speaker 2: to help you increase the like with it that when

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Speaker 2: you call somebody that you can sell a product to,

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Speaker 2: that they'll answer your phone call. And so Abit is saying, Look,

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Speaker 2: I don't have to maintain to do that call list,

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Speaker 2: and whether or not somebody's going to do that call

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Speaker 2: list is not my problem. That's my customer's problem, not

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Speaker 2: my problem. Look, they're threatening the needle on this one.

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Speaker 2: I mean, as a consumer protection lawyer, I find it

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Speaker 2: a very interesting argument.

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Speaker 1: Could this lawsuit end up being important in consumer law?

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Speaker 2: Look, it's very rare that this many states aggregate to

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Speaker 2: bring a lawsuit against one company don't happen very often.

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Speaker 2: You know, I worked on the one of the last

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Speaker 2: times this happened at direct TV, So we have forty

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Speaker 2: eight states bring a lawsuit against Direct TV back then.

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Speaker 2: And typically when it happens, it's because of some novel

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Speaker 2: issue that's not well settled law. It's not a slam

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Speaker 2: dun by any means. And so I think everybody should

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Speaker 2: be paying attention to this because it's going to have

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Speaker 2: big ramification for people who believe that they are operating

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Speaker 2: within the boundaries of the law. Haven believe that they're

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Speaker 2: operating within the boundaries of the law.

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Speaker 1: Well keep track of it. Thanks so much, Sean. That's

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Speaker 1: Sean Collins of straddling law. Shelley Fitzgerald, a gay guidance

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Speaker 1: counselor at a Catholic high school, was fired over her

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Speaker 1: same sex marriage and she's trying to convince the Seventh

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Speaker 1: Circuit Court of Appeals to reverse a ruling that she

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Speaker 1: was a minister. Ron Kully High School relied on a

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Speaker 1: legal doctrine called the ministerial exception, which exempts religious entities

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Speaker 1: from anti discrimination laws when employees perform or are involved

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Speaker 1: in religious duties. Here's Joseph Davis, the school's attorney.

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Speaker 5: It is a religious practice or observants, as jo jush

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Speaker 5: Brook pointed on Starkey in the Catholic Church, to avoid

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Speaker 5: same sex marriage, and it's undisputed that the plaint of

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Speaker 5: fear does not adhere to that religious practice or observance.

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Speaker 1: Judge Joe Flumm pressed him on the the school's position.

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Speaker 6: So I just want to be clear on what it

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Speaker 6: is that she has done in her role to deviate

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Speaker 6: from a mission of the church or the school other

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Speaker 6: than her status, her sexual orientation.

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Speaker 5: Not her status you're on her entering into relationship. This

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Speaker 5: contrary to teachings of the Catholic Church.

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Speaker 1: And Fitzgerald's attorney, Gabriella Hybel, said the guidance counselor didn't

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Speaker 1: perform any religious functions at the school.

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Speaker 4: And then on the other end of the spectrum, you

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Speaker 4: have the guidance department, where the school explicitly told teachers,

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Speaker 4: if students have religious questions, send them to the priests.

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Speaker 4: Send them to religion Teachers. Students have academic questions, send

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Speaker 4: them over to the guidance department. Their job. Their responsibilities

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Speaker 4: are about getting students into college, not about providing them

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Speaker 4: any spiritual support.

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Speaker 1: Adding to the mix here, less than a year ago,

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Speaker 1: the Seventh Circuit decided another case involving the same high

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Speaker 1: school firing a former gay coworker of Fitzgerald's and decided

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Speaker 1: in favor of the high school. Joining me is such

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Speaker 1: in Pondia, a professor of law at the University of Connecticut,

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Speaker 1: begin by telling us a little about the history of

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Speaker 1: this Catholic high school, as far as gay counselor is

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Speaker 1: because it's been here before.

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Speaker 3: Yes, So this particular case is unusual in that there

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Speaker 3: is a prior lawsuit involving a different plaintiff in which

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Speaker 3: the same argument was made. There's the Title seven claim.

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Speaker 3: The school claimed that there was a mysterial exception because

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Speaker 3: the person was functioning as a minister. The case was

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Speaker 3: litigated all the way to the Seventh Circuit. The case

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Speaker 3: is called Starkey, and in that case, the Seventh Circuit

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Speaker 3: found in favor of the school. So one of the

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Speaker 3: arguments in this case is that the Seventh Circuit ruling

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Speaker 3: in Starkey should affect the decision in favor of affirming

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Speaker 3: the court below's judgment that the ministerial exception shop and

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Speaker 3: the plaintiffs, of course say, look, even though it was

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Speaker 3: the same school, we've got a different plaintiffs, a different

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Speaker 3: set of facts, different kinds of work, circumstances, and because

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Speaker 3: of reasonable jury could go either way on the question

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Speaker 3: of whether or not this plaintiff was sufficiently acting as

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Speaker 3: a minister for purposes the exception. The lower court messed

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Speaker 3: up when they granted summary judgment. We should have a

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Speaker 3: trial and literatury decide that issue in dispute one way

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Speaker 3: or the other.

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Speaker 1: This is about the ministerial exception to Title seven. Explain

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Speaker 1: what that is sure.

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Speaker 3: So the ministrial exception of the Title seven doesn't appear

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Speaker 3: in the text of Title seven itself. Rather, it arises

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Speaker 3: from the idea that certain kinds of employers, particularly churches

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Speaker 3: or other religious organizations, have a legal right under the

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Speaker 3: religion clauses of the First Amendment, to decide who they're

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Speaker 3: going to have as a minister or minister equivalent. And

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Speaker 3: where there's a clash between Title seven of the thirty

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Speaker 3: before Civil Rights Act and the authority of their religious

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Speaker 3: employer to decide who they want to appoint as minister

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Speaker 3: to ad minister to their congregation or their prisoners or

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Speaker 3: what have you, that's the basis for the minister of exception.

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Speaker 3: So the constitutionally based exception, not a statutory based exception,

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Speaker 3: which has as main goal protecting the autonomy of religious

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Speaker 3: organization to decide who they can appoint or reject as

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Speaker 3: a ministry.

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Speaker 1: So one of the questions at the oral arguments was

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Speaker 1: how much of what a worker does needs to be

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Speaker 1: religious for them to be deemed a minister, And in

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Speaker 1: this case there was a factual question about whether she

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Speaker 1: actually performed religious duties.

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Speaker 3: Yeah, so that precise issue is what's in dispute whether

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Speaker 3: or not there's enough of a factual dispute about whether

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Speaker 3: what this plaintiff did was religious in nature that she

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Speaker 3: ought to be treated as a minister for purposes of

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Speaker 3: this exception. The plaintiffs that, yeah, and therefore you should

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Speaker 3: let a jury decide that issue. We should have a trial.

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Speaker 3: The defendant says, no, a reasonable jury coulically go one

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Speaker 3: way on that based upon the evidence of the record

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Speaker 3: thus far, and that she was acting functionally as a minister,

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Speaker 3: and therefore you don't need a trial. And so that's

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Speaker 3: the key dispute. The Supreme Court doctrine in this area

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Speaker 3: doesn't have a hardened fast rule about who qualifies as

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Speaker 3: a minister. Rather, they've pointed to a set of factors

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Speaker 3: that the courts must consider, and they emphasize again and

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Speaker 3: again the label of minister isn't this positive. Rather, the

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Speaker 3: focus is on what you do and the expectations about

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Speaker 3: what you do and what you're supposed to do in

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Speaker 3: the job. This is why you might think of somebody

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Speaker 3: as a traditional minister who might preach on a Sunday,

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Speaker 3: for example. But Supreme Court case law has also identified

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Speaker 3: people in religious schools who provide some form of religious

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Speaker 3: instruction as qualifying for the ministerial exception as well. It's

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Speaker 3: a very fact intensive inquiry, and so for that reason,

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Speaker 3: it matters a great deal whether or not there is

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Speaker 3: indeed a bonafide factual dispute about whether what she did

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Speaker 3: in her job was religious enough.

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Speaker 1: She signed a ministerial contract after she worked there for

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Speaker 1: more than fourteen years. She claims it was a pretext

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Speaker 1: for sex bias. How important is the contract that she signed?

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Speaker 3: Well, so that's the thing. The defendant wants to emphasize

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Speaker 3: that contract as a very important piece of evidence, so

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Speaker 3: important that it should decide the matter. The plaintiff wants

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Speaker 3: to say, now you need to take that in context

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Speaker 3: of all the different things that this plaintiff did. The

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Speaker 3: contract itself shouldn't decide the matter once and for all.

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Speaker 3: It's not a positive And so in that way, they're

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Speaker 3: fighting over the amount of weight that judges should give

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Speaker 3: to all these pieces of evidence to decide whether or

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Speaker 3: not there's enough of a factual dispute to have a

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Speaker 3: jury take a crack at that question.

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Speaker 1: So the guidance counselor here was fired after the school

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Speaker 1: discovered that she was married to another woman that would

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Speaker 1: be barred by law if she worked at a public

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Speaker 1: high school. So explain the sort of legal tension here

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Speaker 1: over the ministerial exception denying her anti discrimination protection.

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Speaker 3: There are many ways in which both the statute itself,

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Speaker 3: as well as the statute and constitutional law try and

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Speaker 3: reconcile this pretty durable tension between on the one hand,

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Speaker 3: the public policy against employment discrimination and on the other hand,

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Speaker 3: providing enough protections for churches and other types of religious

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Speaker 3: organizations to decide internally what they want to do in

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Speaker 3: order to shape their own religious mission. The ministerial exception,

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Speaker 3: which we've been talking about is really focused on religious organizations,

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Speaker 3: and by religious organization, the paradigm case is a church

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Speaker 3: right if you're a religiously affiliated nonprofit, which is Catholic charities.

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Speaker 3: That's not the classic case. However, Title seven itself contains

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Speaker 3: its own statutory exception, which provides that if you're a

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Speaker 3: religious organization or a religiously affiliated school, and you are

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Speaker 3: motivated to act consistent with your religious beliefs to practice

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Speaker 3: religious discrimination. That is, I want to hire someone who's

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Speaker 3: of a different faith than I am, Title seven allows

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Speaker 3: you to do that. The tricky part here is in

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Speaker 3: this example, you can characterize the firing in two ways.

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Speaker 3: One way of character firing is it's sex discrimination, because

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Speaker 3: the Supreme Court has held since Boss DOOC that if

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Speaker 3: you fire somebody because they're gay, that qualified sym sex

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Speaker 3: discrimination within the meaning of the statute. On the other hand,

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Speaker 3: if you characterize it is no, it's not sex discrimination.

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Speaker 3: We realize that this person was acting inconsistent with the

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Speaker 3: Catholic faith, and we require people to act consistent with

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Speaker 3: the Catholic faith, and therefore we're practicing a kind of

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Speaker 3: permitted religious discrimination. And so you can see how we're

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Speaker 3: really trying to thread a needle between on the one hand,

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Speaker 3: honoring the anti discrimination norms and Title seven, but at

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Speaker 3: the same time allowing churches and religious organizations to make

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Speaker 3: sure that people of the same faith are the ones

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Speaker 3: that are involved in the day to day practices consistent

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Speaker 3: with their religious mission.

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Speaker 1: Have the courts and the Supreme Court in particular, been

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Speaker 1: expanding the ministerial exception over the years.

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Speaker 3: So the ministerial exception was recognized for a very long

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Speaker 3: time in the Lower Court. So it wasn't until twenty twelve,

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Speaker 3: in a case called Hossana Taiborg that the Supreme Court

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Speaker 3: announced for the first time that there was a ministerial exception.

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Speaker 3: Since then, in the handful of cases in which the

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Speaker 3: Supreme Court has taken up the issues, they have been

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Speaker 3: expanding it. The most recent case is a case called

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Speaker 3: Our Lady Guadalupe, in which the Court there applied the

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Speaker 3: ministerial exception to teachers who aren't, strictly speaking, even by

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Speaker 3: their own account, ministers in the classic sense. But the

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Speaker 3: Supreme Court emphasized that the ministerial exception doesn't turn on

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Speaker 3: this label minister, and that the teachers in those cases

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Speaker 3: had enough in the way of religious instruction that they

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Speaker 3: would qualify for the ministerial exception.

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Speaker 1: When you look at this case, do you think that

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Speaker 1: the Catholic school has a better argument or the guidance case.

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Speaker 3: I must say that it's a hard question to answer.

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Speaker 3: I don't have a firm view about it, because this

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Speaker 3: isn't a case which turns on simple clash of values.

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Speaker 3: This is a case that turns on some pretty complicated

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Speaker 3: issues of fact. How did they actually treat her in

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Speaker 3: the years that she worked? There were the things that

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Speaker 3: she was and wasn't expected to do how much weight

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Speaker 3: should we put on, for example, the contract terms that

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Speaker 3: the defendant emphasizes versus the evidence of the kinds of

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Speaker 3: tasks that she was asked to perform over the course

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Speaker 3: of her time there. And those questions are typically ones

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Speaker 3: that jury sort out, but in this case, the project said, no,

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Speaker 3: I think that you don't need a jury to do this.

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Speaker 3: We can rule on summary judgment. And so to that end,

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Speaker 3: it kind of depends on how much weight you put

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Speaker 3: on certain facts and pieces of evidence, and I don't

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Speaker 3: have a very fun sense of that to have a

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Speaker 3: strong opinion about it.

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Speaker 1: It's going to be very interesting to see how this

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Speaker 1: panel of judges at the Seventh Circuit decides this second

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Speaker 1: case against Ronklie High School. Thanks so much for being

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Speaker 1: on the show. That's Professor Sutchen Pondia of the University

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Speaker 1: of Connecticut Law School, and that's it for this edition

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Speaker 1: of The Bloomberg Law Show. Remember you can always get

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Speaker 1: the latest legal news on our Bloomberg Law Podcast. You

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