Case: 11-2125

Document: 006111180240

Filed: 01/10/2012

Page: 71

concerning the issue addressed herein. (R.436-3: Wage and Hour Opinion Letter
FLSA2006-31, p. 7.)
But Davis, Chyette, and Varnell did not simply request the DOLs impartial
application of the FLSA to a hypothetical set of facts. Instead, correspondence
obtained through Freedom of Information Act requests shows that Davis and DOL
attorneys improperly worked hand-in-hand on the letter, behind closed doors,
extensively negotiating both the factual assumptions and legal analysis on which
the DOLs opinion would be based. (R.552-4; R.552-5.)
For example, on July 28, 2005, Davis submitted a memorandum to DOL
attorneys containing a draft opinion letter request. (R.552-4: Draft opinion letter
request.) The draft contained proposals for the facts that would be assumed, as well
as the legal analysis to be used by the DOL in reaching the requested conclusion.
Davis asked the DOL to assume that the loan officers that were the subject of the
opinion letter, unlike Quickens employees, engage in some sales activity, but not
sales activity as their primary duty[.] (Id. p.1.) Rather, Davis asked the DOL to
assume that the primary duties of the hypothetical loan officers consisted of
various other dutiessuch as marketing, servicing or promoting the employers
financial products. (Id., p.4.) With respect to the sales activity the hypothetical
loan officers did perform, Davis gave the concept an extremely narrow definition,

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