Ed Sullivan and Sam Kaplan have been friends for 30 years, beginning when they met at the University of Texas as undergraduates. Later they both decided to become lawyers.
As Sullivan put it in an interview, Kaplan “went to Harvard Law. I went to the other law school with an H: the University of Houston Law Center.” Kaplan went on to a complex commercial litigation practice at Boies Schiller Flexner in New York, and Sullivan built a labor and employment practice called Oberti Sullivan in Houston.
Their friendship continued but never as intensely as it did this year, while working together on a case that would go all the way to the U.S. Supreme Court. They agreed to talk to The Texas Lawbook about how it all went.
The case, argued Oct. 12, was Helix Energy Solutions Group, Inc. v. Hewitt, a dispute about whether highly paid employees are eligible for overtime pay under the Fair Labor Standards Act. It is an important issue for the oil and gas industry. The case was brought by Michael Hewitt, a “tool-pusher” on an offshore oil rig. Other amicus briefs indicated that the outcome of the case could affect a range of organizations including nursing.
Sullivan took on the case in 2017, when Hewitt called him for help out of the blue, apparently picked by scanning the internet for Houston labor lawyers. Sullivan asked Hewitt how he was paid, and the case went from there, though Sullivan didn’t think the case would go all the way to the Supreme Court. “I actually thought it was noncontroversial,” he said.
But it was controversial, and Sullivan won three times for his client: first from a Fifth Circuit three-judge paneI, then a 2-1 rehearing and finally 12-6 from an en banc court. “As you can see, there’s no shortage of scrutiny,” Sullivan said.
In January Helix petitioned the Supreme Court against Hewitt, and in May the Supreme Court granted review. Sullivan and his friend Kaplan decided to take their arguments to the next level. For both of them, it would be their first time before the Supreme Court.
“I really wanted to argue the case,” Sullivan said. “But for a long time, I thought I shouldn’t be the one to argue it. I’m not ignorant to the fact that Supreme Court litigators are a different breed, different kind of oral argument. But I also felt that this is something I’ve practiced for 20 years.”
But another factor emerged: Paul Clement, an acclaimed former U.S. solicitor general who has more than 100 Supreme Court arguments under his belt, was going to argue for Helix before the Supreme Court. Sullivan said he had actually considered recruiting Clement to argue for his side, but “all of a sudden, he’s on the other side. It was devastating.”
Sullivan said, “This case was obviously very important for the law, and it’s extremely important for my client, so I didn’t want to give it to anyone that I didn’t 100 percent trust. So that’s why I thought about Sam. I told him I wanted him to argue the case, because I just think he’s a genius.”
Kaplan and Sullivan went back and forth about whom to argue, but Kaplan felt strongly that it was Sullivan’s turn. “I told him, why don’t you argue?” Kaplan said. “I didn’t want him to not have the opportunity. I didn’t want him to give up something that was so important to him.” For his part, Kaplan said he would take the lead on writing Hewitt’s brief. It was filed in late August, and Kaplan’s name was listed in the brief as counsel of record.
Sullivan finally agreed to argue the case. “Okay, I’ll do it. I have confidence in myself, which you have to have as a lawyer, and I didn’t think I would fall flat,” Sullivan said. “Although I have a totally different style. I’m much more colloquial and anecdotal, too willing to throw in a joke. I don’t know if those are defensive mechanisms or to just the style I’ve developed over the years. But man, I learned in the moot courts that my typical style was not going to cut it.”
As the argument date loomed, Sullivan practiced with several moot courts, including a Boies Schiller moot, one from George Washington University, another from Cooper Kirk and Georgetown University Law Center’s Supreme Court Institute.
The Georgetown moot was especially memorable, Sullivan said, because of Paul Clement. As it often happens at Georgetown, advocates on both sides wanted to have their moots take place there. When that occurs, a coin is tossed so only one side gets the Georgetown moot. Clement won the coin toss, but when he learned Sullivan was arguing, Clement gave the moot to Sullivan. “I’d like to thank Paul,” Sullivan said. “I thought that was an extremely class act.”
Just before the argument began, Kaplan sat next to Sullivan at the table facing the bench. Sullivan was ready for the allotted 20-minute argument on Hewitt’s behalf.
Questions from justices came fast and long. Sullivan answered the questions with ease, showing his deep understanding of the somewhat confusing history and meaning of the statutes and interpretations at issue in the case. At one point, Justice Brett Kavanaugh told Sullivan, “You’ve answered that well.”
At another moment, both Kavanaugh and Justice Ketanji Jackson bombarded Sullivan with questions at the same time. Drawing laughter, Sullivan said, “This is my first argument. I don’t know [who] to go [to.]” Kavanaugh said with humor, “Answer them both.”
After the argument, Sullivan said, “When they both started asking me questions at the same time, I was like, OK, this is awesome. Just a chance to show a little humility to just to tell them, I don’t know who I should answer first. I didn’t know the etiquette.”
Kaplan said that his friend Sullivan “did great,” and Sullivan himself was pleased. “The moot courts that I had before the argument really prepared me well. I thought I did the best I can do. I was happy with my performance, not for me as much as the client. I wanted to make sure I made the points.”
The decision will likely be handed down late this year or early next year.