Case: 11-2125

Document: 006111180240

Filed: 01/10/2012

Page: 70

decision, the new regulations reaffirmed that mortgage loan officers are nonexempt and must be paid overtime.
Rather than reclassifying its loan officers, however, Quicken began pursuing
a strategy of regulatory capture. Having failed to change the law under the
sunshine of notice and comment rulemaking, Quicken shifted gears and began a
secret lobbying effort to attempt to change the law though backdoor negotiations
with its connections at the DOL.
On January 31, 2005, Robert Davis noticed his appearance as counsel of
record for Quicken in this litigation. (R.67.) Davis also continued to represent the
MBA. From around July 2005 to September 2006, while representing Quicken in
this litigation, Davis contacted some of the personal connections he had developed
at the DOL during his tenure as Solicitor of the DOL, and lobbied for an opinion
letter addressing the application of the administrative exemption to mortgage loan
officers. (R.552-3: Davis Decl. A.) Chyette, Quickens corporate counsel, and
Robert Varnell, another member of Quickens litigation team, also worked with
Davis on the opinion letter request. (R.586-3: Correspondence between Robert
Davis and other Quicken counsel; R.552-5: Email dated Apr. 27, 2006.) Despite
Daviss, Chyettes, and Varnells representation of Quicken in this litigation
involving the classification of its loan officers, they explicitly represented to the
DOL that the opinion letter was not sought by a party to pending private litigation
56