19

negotiating both the factual assumptions and legal

analysis on which the DOLs opinion would be based.5
Despite Mr. Davis representation of Quicken
Loans in litigation involving the classification of the
companys loan officers, he explicitly represented to
the DOL that the opinion letter was not sought by a
party to pending private litigation concerning the issue addressed herein. Wage & Hour Div., U.S. Dept
of Labor, Opinion Letter, FLSA2006-31, 2006 WL
2792445, at *6 (Sept. 8, 2006), App. 106a.
v. On September 8, 2006, in a sharp break from
its long-settled position, the DOL issued an opinion letter concluding that mortgage loan officers are
exempt administrative employees. See id., App. 91a.6
5

For example, on July 28, 2005, following a preliminary

meeting with agency personnel, Mr. Davis submitted a memorandum to DOL attorneys containing a draft opinion letter
request. R., Intervenors Mem. Oppn Summ. J., Ex. 9, ECF No.
30-9. 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. Id. at 5-7. Following another
meeting between Mr. Davis and DOL attorneys, Mr. Davis sent a
follow-up email addressing factual distinctions that he believed
would be appropriate for the DOL to make in its opinion letter,
as well as supplemental legal analysis to be used in the letter.
Id., Ex. 7, ECF No. 30-7.
6
Recognizing that the 2004 revisions to the FLSA overtime
regulations did not alter the substance of the administrative
exemption, the 2006 opinion letter asserted that its conclusion
applied in equal force under both the current and prior versions
of the regulations. Wage & Hour Div., U.S. Dept of Labor,
Opinion Letter, FLSA2006-31, 2006 WL 2792445, at *2 (Sept. 8,
2006), App. 96a.