On February 21, 2012, Goodwin Procter partner Tom Hefferon represented Quicken Loans Inc. before the United States Supreme Court, arguing a case involving interpretation of the Real Estate Settlement Procedures Act (RESPA). On May 24, 2012, the United States Supreme Court ruled unanimously in favor of Quicken Loans. The court’s decision in Freeman v. Quicken Loans was a substantial victory for Goodwin’s client that also has significant implications for the mortgage industry, nullifying multiple suits mortgage settlement service providers have faced over the last decade. Visit the Supreme Court website for the audio recording of Tom's argument.
Goodwin was hired as Quicken Loan’s U.S. Supreme Court lead counsel after the U.S. Court of Appeals for the Fifth Circuit affirmed lower court rulings. The Goodwin team that represented Quicken Loans before the U.S. Supreme Court was led by Tom Hefferon, chair of the firm’s Consumer Financial Services Litigation practice and co-leader of the firm’s Litigation Department in Washington, D.C. and Kevin Martin, who served as law clerk to Justice Scalia, also helped spearhead the effort. Matt Sheldon had a central role in the brief and argument preparation. Tony Downs, Dave Permut, Jim McGarry and Rick Wyner helped out with moot courts.
This success is a testament to Tom's impressive legal and advocacy skills, and the deep bench supporting him at Goodwin. We had the opportunity to ask Tom some questions about his experience arguing before the U.S. Supreme Court:
What was it like presenting your argument in front of the U.S. Supreme Court?
It was a lot of fun, actually. I enjoy oral arguments, and the chance to argue in the highest court in the land was a real kick. It also was a great opportunity for my professional colleagues, friends and family to share in this unique experience.
How was your preparation for this oral argument different from other oral arguments?
Only in one way. Though I argue in court often, I never do practice arguments – so-called “moot courts.” But because I was told that every advocate does them before a Supreme Court argument, I did three moot courts.
Were there any surprising or interesting anecdotes from the experience that you can share with your fellow colleagues and alumni?
A couple come immediately to mind. First, the judge’s bench is really, really close to the person presenting oral argument. I was so close that I almost was able to reach out to shake the Chief Justice’s hand. So, I had a bit of whiplash when I had to pivot frequently to field the Justices’ questions. Second, the argument itself seemed very long. The argument for each side is 30 minutes. While I usually am not at a loss for words, I was so anxious not to say something wrong that I found myself looking constantly at the five-minutes-to-go warning light, hoping it would illuminate so that I could start to sum up. Third, even though the argument was in an area of the law I know well, there was one question that I absolutely could not answer. Luckily, that question was posed to my opponent!
How did the questioning by the Justices go? Did you expect Justice Scalia to author the Court’s opinion?
I counted 66 questions, most of which were from Justice Scalia and Justice Sotomayor. I would say I had a good mix. I was not sure who would author the opinion – I’ve long since given up on predicting judges.
What do you believe are the reasons that the U.S. Supreme Court chose to hear this particular case?
There was a split of lower court decisions; the 7 circuit courts who had previously decided the issue were split 4-3, with 11 judges having ruled for my side and 10 for my opponents’. The case gave the Supreme Court a chance to resolve that split.
Is there anything you would do differently (or definitely do the same) if you had another opportunity to argue before the U.S. Supreme Court?
I would make sure my brief was not due on January 2! Matt Sheldon and I did not have a very restful holiday that year.
Can you tell us a little about how the Goodwin legal team worked together on this argument?
Everyone was great. Kevin Martin agreed as soon as I asked him to assist in the briefing, and Matt Sheldon did more than I could ever have hoped to coordinate the effort and assist me in argument preparation as well. I had a great moot court team, consisting of partners both from my practice area and from outside of it.
How did you feel when you found out that the U.S. Supreme Court ruled unanimously in favor of your client, Quicken Loans?
I was elated. The unanimity was a huge surprise, given the argument and the political environment – as I was defending a mortgage company in the midst of an economic downturn that some blame on mortgage lenders. But I got so wrapped up in calls, press issues and the like that I did not read the opinion until the day was over.
Anything else noteworthy?
Three things. First, I cannot say enough for our client, Quicken Loans. They really bucked the trend in using a Supreme Court rookie to present argument, and I am very grateful. Second, I also cannot say enough for the firm. Everyone was so supportive, at all stages – including with a real show of force on the day of argument. And, third, the best part of it all was that because this was the Supreme Court, for the first time my family (other than my wife, Elizabeth, who I met at the firm) actually understood what I did for a living. Of course, it may be all downhill in my career from here – and more than one person has told me so!