Cook et al v. Dava Marketing LLC

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UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
AUSTIN COOK, HARRISON FOLLETT,
CHARLIE ALLEN, SOPHIE SANDERS,
THOMAS BARTELL, JUSTIN ROBERTS,
CARSON MCMASTER, ALONSO
BARRANTES, BRADY PERKINS, JEREMY
THOMPSON, PAIGE LUDDEN, KEATON
HALES, TROOPER JOHNSON, RYAN
GRIMMIUS, AIDAN WALSH, and RYAN
HADLEY, individually and on behalf of
persons similarly situated,
Plaintiffs,
v.
DAVA MARKETING, LLC, a Utah limited
liability company, and DOES 1-10,
Defendants.
MEMORANDUM DECISION AND
ORDER GRANTING IN PART [96]
PLAINTIFFS’ MOTION TO APPROVE
NOTICE LANGUAGE AND DENYING
[97] PLAINTIFFS’ MOTION TO
ALLOW WEBSITE
Case No. 2:23-cv-00632-DBB
District Judge David Barlow
Before the court are Plaintiffs’ [96] Motion to Approve Notice Language for FLSA
Collective1 and [97] Motion to Allow Website for Collective.2
BACKGROUND
This case involves allegations of FLSA overtime violations by Plaintiffs and other
prospective collective action members against Defendant Dava Marketing, LLC (“Dava”).3 On
December 8, 2025, the court granted in part Plaintiffs’ motion for conditional certification of a
1 Motion to Approve Notice Language for FLSA Collective (“Notice Motion”), ECF No. 96, filed Dec. 22, 2025.
2 Motion to Allow Website for Collective (“Website Motion”), ECF No. 97, filed Dec. 22, 2025.
3 See First Amended Complaint (“Amended Compl.”) ¶¶ 135–61, ECF No. 55, filed Feb. 3, 2025.
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FLSA collective action.4 In that order, the court conditionally certified a collective action using
the following definition for the collective:
All current and former employees who were paid by DAVA on an hourly basis to
sell, design, and edit videos and manage online and social media content for DAVA
Marketing LLC in the United States during the applicable limitations period and
who worked more than forty (40) hours in any workweek.5
The court then approved Plaintiffs’ request to send notice to prospective collective members via
mail, email, and text message.6 Plaintiffs’ request for a notice website was denied without
prejudice in the absence of specific website language and justification.7
Finally, the court approved in part Plaintiffs’ Notice and Consent to Join Forms.8
Plaintiffs were ordered to change a single sentence in the Consent to Join Form to better reflect
the presence of multiple named plaintiffs.9 They were also ordered to remove two sentences in
the Notice form instructing prospective collective members to return the forms as soon as
possible and to contact Plaintiffs’ counsel in case of employer retaliation.10 With these minor
adjustments, the court ordered the parties to meet and confer within fourteen days and present the
court with the updated forms as well as proposed language for the text message notice.11 The
parties were unable to reach an agreement, resulting in the motions for approval that are
currently before the court.12
4 See Order Granting in Part Plaintiffs’ Motion for Conditional Certification of FLSA Collective Action
(“Certification Order”), ECF No. 93, entered Dec. 8, 2025.
5 Id. at 8.
6 Id. at 9.
7 Id.
8 Id. at 13–14.
9 Id.
10 Id.
11 ECF No. 94.
12 Following Plaintiffs’ reply brief, Dava filed an objection to the reply that essentially functions as a sur-reply. See
Objection to Plaintiffs’ Reply, ECF No. 105, filed Jan. 29, 2026. Plaintiffs then filed an additional reply to that
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STANDARD
The FLSA authorizes plaintiffs to bring a collective action for overtime wages on behalf
of “themselves and other employees similarly situated.”13 “Unlike in a class action under Federal
Rule of Civil Procedure 23, parties are added to and bound by a FLSA collective action on an
‘opt-in’ rather than ‘opt-out’ basis.”14 “This requires the sending of an accurate and timely notice
concerning the pendency of the action so that other ‘similarly situated’ employees can make an
informed decision about whether to join.”15
DISCUSSION
I. Collective Action Website
Plaintiffs request an order allowing a dedicated website as part of the notice procedure for
prospective collective participants.16 They propose a website unique to this action that would
allow collective members to input a PIN and Access ID to learn more about the case and opt in.17
Plaintiffs argue that such a website would “greatly facilitate[]” the ability of prospective
collective members to make informed decisions and to opt in.18 Dava responds that the motion
still does not provide any justification for why a website is necessary and that allowing a website
would create other issues.19
objection. See Response to Objection to Plaintiffs’ Reply, ECF No 107, filed Jan. 29, 2026. Because the court did
not order any additional briefing on this matter, the objection and sur-reply will not be considered.
13 29 U.S.C. § 216(b).
14 Pichler v. Cotiviti, Inc, No. 2:23-CV-0884-AMA, 2024 WL 3089897, at *3 (D. Utah 2024); see also 29 U.S.C.
§ 216 (b) (“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to
become a party and such consent is filed in the court in which such action is brought.”).
15 Pichler, 2024 WL 3089897 at *3.
16 In its Certification Order, the court denied Plaintiffs’ initial website request for lack of sufficient justification. See
Certification Order 9. Because the court specified that the denial was without prejudice, it was not improper for
Plaintiffs to renew their request here with additional explanation.
17 Website Motion 3.
18 Id. at 4.
19 Opposition to Motion to Allow Website (“Website Opp’n”) 1–2, ECF No. 99, filed Jan. 5, 2026.
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The court agrees that Plaintiffs have not shown why a website is necessary in this case.
Plaintiffs’ sole explanation in their motion for why a website would increase notice sufficiency is
that it would be more “compatible with the electronic world of computers, smart phones, email,
text and web communications.”20 They further argue in their reply brief that a website would
facilitate easy access by computer or smartphone.21 But the court has already approved both
email and text notice procedures in addition to regular mail.22 Potential collective members who
rely on electronic communication will be alerted about the collective action via text message and
can electronically send their opt-in forms via email. The addition of a website does not appear to
streamline or simplify the process in any meaningful way. Plaintiffs’ renewed request for a
website is therefore denied, and the language of the proposed notices must be adjusted
accordingly.
II. Statute of Limitations
One of the parties’ principal disputes regarding the language in Plaintiffs’ amended
notice is how the relevant statute of limitations should be calculated. Plaintiffs propose language
indicating that any claim that accrued after September 14, 2020, may be valid.23 Defendant
responds that all claims that accrued after November 9, 2021, are barred as of the date its
Opposition was filed and that even this date is a “moving target.”24
20 Website Motion 4.
21 Reply in Support of Motion to Allow Website (“Website Reply”) 9, ECF No. 104, filed Jan. 26, 2026.
22 Certification Order 8–9.
23 Notice Motion 3.
24 Opposition to Motion to Approve Proposed Language for FLSA Collective (“Notice Opp’n”) 6, ECF No. 100,
filed Jan. 5, 2026.
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The FLSA provides that, in cases of willful violations,25 an action for unpaid overtime
compensation is barred unless it is commenced within three years after the cause of action has
accrued.26 For plaintiffs named in the complaint who have consented to be parties, the action is
commenced for purposes of the statute of limitations on the date when the complaint is filed.27 In
a FLSA collective action, other collective members’ claims are only considered commenced on
the date their written consent to join the action is filed with the court.28 Until that time, the statute
of limitations continues to run.
In this case, the initial Complaint was filed on September 14, 2023.29 On December 12,
2023, the court entered an order staying the case as of December 4, 2023, and tolling all
deadlines and statutes of limitations for all parties and potential collective members during the
stay.30 On January 29, 2025, the court lifted the stay and stopped the tolling of the statute of
limitations as of the date of the order.31
Plaintiffs recognize that the court tolled the statute of limitations during the stay period
and subsequently lifted that tolling.32 However, their briefing seems to indicate a belief that some
sort of “equitable tolling” is in effect.33 They argue that “reason dictates” that none of the claims
for which the statute of limitations was tolled have since expired because a second complaint
25 The court has not yet made any determination of willfulness. But Plaintiffs allege that Dava’s FLSA violations
were willful. Amended Compl. ¶¶ 97, 145. Therefore, the parties and the court have presumed for notice purposes
that the FLSA’s longer, three-year statute of limitations applies. See Certification Order 7.
26 29 U.S.C. § 255(a).
27 29 U.S.C. § 256(a).
28 29 U.S.C. § 256(b).
29 Compl., ECF No. 1, filed Sep. 14, 2023.
30 Order Granting Stipulated Motion to Stay Proceedings (“Order Granting Stay”) 1, ECF No. 16, entered Dec. 12,
2023.
31 Order Lifting Stay 3, ECF No. 52, entered Jan. 29, 2025.
32 Notice Motion 2–3.
33 Id. at 3.
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was quickly filed following the lifting of the tolled statute of limitations.34 Yet the statute of
limitations continues to run for all potential collective action members until their consent to join
is actually filed with the court.35 The FLSA provides no automatic tolling mechanism for such
prospective collective members.36
Plaintiffs criticize Dava for arguing that the court “did not grant or extend equitable
tolling of the statute of limitations to the present date” despite the court’s “clear orders” to the
contrary.37 But they point to no court order that tolls the statute of limitations to the present date.
Instead, they argue that the court’s December 2023 order granting a stay established the date of
the initial Complaint as tolling the statute of limitations for all potential collective members.38
Not so. The court’s order clearly tolled the statute of limitations only “during the stay period,”
effective as of December 4, 2023.39 The statute of limitations for prospective collective action
members is not tied to the dates of Plaintiffs’ complaints.40
It is true that courts in the Tenth Circuit sometimes apply equitable tolling to potential
opt-in plaintiffs in FLSA actions when certain conditions are met.41 However, no such motion is
before the court. To the contrary, Plaintiffs previously represented to the court that they were not
“requesting that the Court extend the statute of limitations indefinitely and eternally,” and
34 Id.
35 29 U.S.C. § 256(b).
36 29 U.S.C. § 255.
37 Reply in Support of Motion to Approve Proposed Language (“Notice Reply”) 3–4, ECF No. 103, filed Jan. 26,
2026.
38 Id. at 6.
39 Order Granting Stay 1.
40 See 29 U.S.C. § 256(b).
41 See Madsen v. Sidwell Air Freight, Dhl Express (USA) Inc., No. 1:23-CV-0008-JNP, 2024 WL 1157394, at *2 (D.
Utah Mar. 18, 2024) (analyzing the three situations in which Tenth Circuit courts have found that FLSA equitable
tolling is appropriate); see also Ennis v. Alder Prot. Holdings, LLC, No. 2:19-CV-00512, 2021 WL 12313398, at *2
(D. Utah Sept. 30, 2021) (applying a five-factor test to determine when equitable tolling should apply in FLSA
cases).
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requested only that the statute of limitations be tolled until they filed their Amended
Complaint.42 Because the court’s previous tolling order has been lifted, and because the court has
not granted a motion for equitable tolling, the FLSA statute of limitations continues to run for
prospective collective members. It was tolled for a 422-day period while the case was stayed.
Therefore, for potential collective members who have not yet filed their consent to join this
lawsuit, only claims that accrued within the last three years and 422 days may be brought.
III. Notice Language
A. Notice Form
Finally, the parties dispute the language in Plaintiffs’ Amended Notice form and email
and text proposals.43 In addition to language referencing a website and the statute of limitations,
Dava objects to statements that plaintiffs who join will be represented by Mr. Edwards,44 the
inclusion of FAQs,45 and language regarding “exemption and employee misclassifications.”46
Before addressing Dava’s objections, the court will first discuss Plaintiffs’
implementation of the court’s prior order. As already discussed, the court ordered Plaintiffs to
remove two phrases from the Original Notice proposal and otherwise approved the Original
Notice.47 Plaintiffs implemented those changes in their Amended Notice proposal.48 However,
Plaintiffs also made numerous additional unapproved changes to the structure and language of
the notice form in their amended proposal. While some of these changes appear to be an attempt
42 See Plaintiffs’ Reply in Support of Motion for Partial Lift of Stay 3, ECF No. 49, filed Oct. 16, 2024.
43 See generally Notice Motion; Notice Opp’n.
44 Notice Opp’n 7.
45 Id. at 8.
46 Id. at 7.
47 Certification Order 14.
48 See Amended Notice Form (“Amended Notice”) 1, 2, ECF No. 96-1, filed Dec. 22, 2025.
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to comply with the court’s definition of the collective, most are unconnected to the court’s
previous order.49 A second bite at the notice apple is not warranted here. Plaintiffs sought no
leave to make additional changes and provide no reasoning for why they are seeking changes to
the language they themselves proposed. The Original Notice proposal is approved pending minor
changes.
Because the parties were not fully successful in executing the changes the court identified
previously, the court has included the approved notice form on the docket with the necessary
changes already made. To briefly summarize those changes, the court made the edits identified in
its Conditional Certification Order, changed some language to reflect the court’s definition of the
collective, removed any references to a website or statute of limitations date, and corrected a few
minor typographical errors.
The Original Notice form is approved with these changes. To the extent Dava’s
objections are still relevant to the language in the Original Notice, the court will address them.
Regarding Dava’s argument that the notice form references exemption and misclassifications, the
court notes that these issues are relevant to Plaintiffs’ claims.50 They were only removed from
the collective definition to broaden the scope of employee information that needed to be
produced.51 As to Dava’s concern about the statements that opt-in plaintiffs will be represented
by Mr. Edwards,52 this language is accompanied by notice that the employee can also retain their
49 See Original Notice Form (“Original Notice”) 2–4, ECF No. 75-1, filed Sep. 19, 2025; see also Amended Notice
1–3 (eliminating and reorganizing many of the sections approved in the Original Notice and adding additional
sections and language).
50 See Amended Compl. ¶ 157.
51 Certification Order 5–6.
52 Notice Opp’n 7.
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own attorney.53 The court’s order did not require the removal of language informing potential
collective members of their options for representation in this action. Rather, the court refused to
permit language soliciting employees to join a separate, potential retaliation lawsuit.54
Finally, the court has removed all references to the statute of limitations dates. As
discussed above, the statute of limitations period will be different for each opt-in plaintiff
depending on when their cause of action accrued and when their consent to join form is filed
with the court.55 Dava indicated in its briefing that it has provided Plaintiffs a list of employees
going back three years and 422 days from the date of the court’s certification order.56 Plaintiffs
may send the approved notice to every employee on the list. Then, the determination as to
whether each opt-in plaintiff has a claim that accrued within the limitations period can be made
on an individual basis once their consent form has been filed.
B. Consent to Join Form
Plaintiffs’ Amended Consent Form proposal incorporates only small changes from the
original in order to comply with the court’s Certification Order.57 It is approved.
C. Email Notice
The court approves Plaintiffs’ proposed email notice text with the exception of one
sentence about a claim website.58 That sentence, “You may also file a claim through the
following website: [Simpluris website]” must be removed.
53 Original Notice 3.
54 Certification Order.
55 See 29 U.S.C. § 256(b).
56 Notice Opp’n 6.
57 Proposed Written Consent Form for Mailing, ECF No. 96-2, filed Dec. 22, 2025.
58 Proposed Email Notice, ECF No. 96-3, filed Dec. 22, 2025.
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D. Text Notice
The court approves Plaintiffs’ proposed text notice text with the exception of any
reference to a claim website.59 The penultimate sentence must be changed to read, “If you wish
to participate in the case as a claimant for unpaid overtime wages, please check your email for
additional information.”
ORDER
Plaintiffs’ [97] Motion to Allow Website for Collective is DENIED. Plaintiffs’ [96]
Motion to Approve Notice Language for FLSA Collective is GRANTED in part pending the
ordered changes.
Signed February 4, 2026.
BY THE COURT
________________________________________
David Barlow
United States District Judge
59 Proposed Text Notice, ECF No. 96-4, filed Dec. 22, 2025.
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