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 [75]
PLAINTIFFS’ MOTION FOR
CONDITIONAL CERTIFICATION OF
FLSA COLLECTIVE ACTION
Case No. 2:23-cv-00632-DBB
District Judge David Barlow
Before the court is Plaintiffs’ Motion for Conditional Certification of an FLSA Collective
Action.1
BACKGROUND
In their Complaint, Plaintiffs allege the following. Plaintiffs are former employees of
Defendant Dava Marketing, LLC (“Dava”).2 They provided video editing, design, and content
creation services to customers.3 As part of its business model, Dava requires its employees to
1 Motion for Conditional Certification of FLSA Collective Action (“Motion for Certification”), ECF No. 75, filed
Sep. 19, 2025.
2 First Amended Complaint (“Compl.”) ¶¶ 6–21, ECF No. 55, filed Feb. 3, 2025.
3 Id. ¶¶ 35–36.
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provide these services on very tight schedules, often resulting in after-hours work and
workweeks of longer than forty hours.4 Even though the Fair Labor Standards Act (“FLSA”)
requires employers to pay time-and-a-half compensation for overtime work above forty hours in
a week, Dava did not do so.5 Instead, Dava altered employee time records, banked overtime
hours for upcoming weeks, or paid straight time for overtime hours worked.6 Dava also
improperly classified some employees as “independent contractors” in order to avoid having to
fulfill FLSA requirements.7
Based on these allegations, Plaintiffs filed their Complaint which, in part, asserts claims
for FLSA overtime violations on behalf of DAVA employees, including misclassified
independent contractors.8 Now, Plaintiffs move for conditional certification of their collective
action under the FLSA.9 Dava does not oppose conditional certification of the collective action,
but it argues that Plaintiffs’ proposed collective definition is overbroad and that the notice must
be amended.10
STANDARD
The FLSA authorizes plaintiffs to bring a collective action for overtime wages on behalf
of “themselves and other employees similarly situated.”11 “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
4 Id. ¶¶ 37–39.
5 Id. ¶ 98.
6 Id. ¶¶ 99, 121.
7 Id. ¶¶ 86–92.
8 Id. ¶¶ 135–61.
9 Motion for Certification 5.
10 Opp’n to Motion for Conditional Certification of FLSA Collective Action (“Opp’n”) 1–2, ECF No. 88, filed Oct.
17, 2025.
11 29 U.S.C. § 216(b).
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‘opt-in’ rather than ‘opt-out’ basis.”12 “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.”13
To determine whether potential class members are similarly situated at the notice stage,
courts require “nothing more than substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan.”14 “The lenient standard is applied
because it recognizes that plaintiffs have been unable to conduct discovery.”15 At the conclusion
of discovery, the court moves to the second stage in the analysis and utilizes a stricter standard to
determine if class members actually are similarly situated.16
DISCUSSION
I. Conditional Certification
The court must first determine whether conditional certification of a FLSA collective
action is appropriate in this case. As previously noted, Dava does not oppose conditional
certification at this stage.17 In Thiessen v. General Electric Capital Corp., the Tenth Circuit
found that an ad hoc approach to conditional certification is appropriate.18 Under such an
approach, the court first makes an initial “‘notice stage’ determination of whether plaintiffs are
12 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.”).
13 Pichler, 2024 WL 3089897 at *3.
14 Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1102 (10th Cir. 2001) (quoting Vaszlavik v. Storage Tech.
Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)).
15 Madsen v. Sidwell Air Freight, No. 1:23-CV-0008-JNP, 2024 WL 1160204, at *2 (D. Utah 2024) (citing Pack v.
Investools, Inc., No. 2:09-cv-1042, 2011 WL 3651135, at *2 (D. Utah 2011)).
16 Thiessen, 267 F.3d at 1103.
17 Opp’n 1.
18 Thiessen, 267 F.3d at 1105.
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‘similarly situated.’”19 Then, after discovery, the court applies a stricter standard to determine if
the plaintiffs are similarly situated, accounting for plaintiff-specific facts.20 At this stage in this
case, the court must only make an initial determination, so even a finding that Plaintiffs
substantially allege “that the putative class members were together the victims of a single
decision, policy, or plan” is sufficient to warrant conditional certification and notice. 21
Here, substantial allegations of that nature are present. The Complaint alleges that
Plaintiffs and other Dava employees routinely worked longer than forty hours in a week due to
Dava’s policies on quick-turnaround times for projects.22 It also states that these overtime hours
were not compensated according to FLSA requirements because of widespread corporate
practices and official company policies.23 Plaintiffs allege that these FLSA overtime violations
affected other Dava employees, including some employees improperly classified as independent
contractors.24 These facts are sufficient at this stage to substantially allege that the proposed
collective members are similarly situated as “victims” of Dava’s overtime payment polices.25
The court finds that conditional certification of a collective action is appropriate in this case.
II. Collective Definition
Although Dava does not oppose the conditional certification of a collective action at this
initial stage, it does dispute Plaintiffs’ definition of the collective.26 Plaintiffs propose the
following definition of the collective group:
19 Id. at 1102 (quoting Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 678 (D. Colo. 1997)).
20 Id. at 1103.
21 Id. at 1102.
22 Compl. ¶¶ 36–38, 53–54, 81–82.
23 Id. ¶¶ 57–60, 75–80.
24 Id. ¶¶ 81–85, 87.
25 See Thiessen, 267 F.3d at 1102.
26 Opp’n 4–5.
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All current and former employees who were paid by DAVA 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.27
Dava proposes certain changes:
All current and former non-exempt employees who were paid by DAVA on an
hourly basis to 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 claim unpaid overtime wages are due and owing from DAVA.28
Dava argues that Plaintiffs’ proposed definition is overbroad because it would provide
notice to all past and current DAVA employees without regard to whether they could
potentially have a claim under Plaintiffs’ theory of liability.29
Plaintiffs respond that each of Dava’s proposed additions to the definition is
unnecessary and will exclude potential collective members who should qualify under the
allegations in the Complaint. First, they argue that the “non-exempt” addition is improper
because it would exclude employees that were classified as exempt independent
contractors but who should have been considered employees for FLSA purposes.30 Under
the FLSA, only non-exempt employees are protected by the overtime provisions of the
statute.31 However, Plaintiffs allege that Dava improperly classified some non-exempt
employees as unprotected independent contractors.32 Because the parties disagree on the
employment status of some potential collective members, adding the “non-exempt”
27 Motion for Certification 6–7 (words and phrases that do not appear in the opposing party’s proposed definition are
emphasized).
28 Opp’n 5 (words and phrases that do not appear in the opposing party’s proposed definition are emphasized).
29 Id. 5–6.
30 Reply to Motion for Conditional Certification of FLSA Collective Action (“Reply”) 5–6, ECF No. 89, filed Oct.
23, 2025.
31 29 U.S.C. § 207(a)(1).
32 Compl. ¶¶ 148–61.
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language could create disputes about what information needs to be produced. It could
also dissuade potentially qualifying collective members from joining the suit because of
their official employment designation with Dava. Additionally, Dava’s concerns can be
properly addressed by other adjustments to the definition described below.
Second, Plaintiffs contend that the “on an hourly basis” language is inappropriate
because it “limit[s] the scope of Plaintiffs’ case and claimed damages to only unpaid
hourly overtime,” when the Complaint also requests damages relating to back pay, altered
time records, unpaid wages, and improper classification.33 However, many of these other
damages claims referenced by Plaintiffs relate to unpaid overtime benefits. Furthermore,
the FLSA provides for a collective action claim only to recover damages for certain
FLSA violations.34 The only listed provision that the Amended Complaint alleges Dava
violated as a basis for the collective action is the § 207 overtime provision,35 so Plaintiffs’
collective action claim is already limited by its own allegations to hourly overtime
violations. The “on an hourly basis” language does not limit the proposed collective, but
it does more clearly define the scope, so it is an appropriate addition.
Third, Plaintiffs object to what they call a “prequalification” condition that
collective members must “claim underpaid overtime wages are due and owing from
Dava.”36 They argue that this language improperly imposes an evidentiary burden on
prospective collective members to “prove their case” prior to joining the action.37
33 Reply 5.
34 29 U.S.C. § 216(b).
35 Compl. ¶¶ 135–147.
36 Reply 2–3.
37 Id. at 3.
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Plaintiffs also contend that this addition is redundant because anyone who opts in is
necessarily making such a claim.38 While the court agrees that defining the collective of
parties who may make a claim as those who have a claim is redundant, this proposed
change does touch on an important point. Not every hourly Dava employee can qualify as
a collective member with a potential claim for overtime violations, only those employees
that worked more than forty hours in one week and were not paid according to FLSA
requirements. Prospective collective members may not know if their overtime pay from
Dava met FLSA standards, but they must have worked overtime hours to even potentially
have a claim. Therefore, the definition should include language limiting the collective to
employees who worked more than forty hours in any workweek while employed with
Dava. This does not, as Plaintiffs suggest, somehow require “definitive proof” at the
outset.39
Finally, Dava states that the “most problematic” aspect of Plaintiffs’ definition is
its failure to include an “applicable limitations period” of three years plus the time the
case was stayed.40 However, Plaintiffs’ definition does include such a restriction, the
same one proposed by Dava.41 Additionally, Dava removes the word “sell” from the
description of employee duties.42 No justification is given for this change, and the court
does not see why it would be necessary. For these reasons, the court grants conditional
certification of the following collective definition:
38 Id.
39 Reply 3.
40 Opp’n 5–6.
41 Motion for Certification 6–7.
42 Opp’n 5.
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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.
III. Notice Requirements
The parties also disagree on several aspects of Plaintiffs’ proposed notice to prospective
collective members, including the methods of notice, the information that should be disclosed by
Dava, relevant time periods, a reminder notice, and the content of the consent to join form.43 The
court addresses each dispute in turn.
A. Methods of Notice
Plaintiffs propose sending out notices through U.S. Mail, email, and text messages, along
with links to a “case-specific website.”44 Dava responds that such duplicative notices “risk
duplication, inconsistent wording, and inadvertent disclosure to unintended recipients.”45 It
would have the court limit notice to a “single, court-approved, mailed and e-mailed notice.”46
Dava characterizes text messages as a “highly personal communication channel that should be
used sparingly.”47 It also argues that a website would seem like a recruitment tool that may
improperly suggest court endorsement.48
The purpose of FLSA notice procedures is to ensure that employees receive “accurate
and timely notice concerning the pendency of the collective action, so that they can make
informed decisions about whether to participate.”49 In our era of modern electronic
43 See Id. at 6–10.
44 Motion for Certification 14.
45 Opp’n 7.
46 Id.
47 Id. at 8.
48 Id.
49 Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).
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communication, courts routinely find that text messaging, along with mail and email, is an
effective and appropriate method to fulfill this purpose.50 The court agrees that a text message
notice is likely to be effective at informing potential collective members of their rights and is not
convinced that a single notice text would violate a “highly personal communication channel.”
However, Plaintiffs have not provided the court with the content or language of their proposed
text notice, so the court cannot approve it at this time. Plaintiffs may send a text notice, but it
must be proposed to the court and approved first.
Websites have occasionally been permitted as notice resources in FLSA collective action
cases.51 Here, Dava argues that a plaintiff-controlled site could “mislead potential opt-ins and
taint the process.”52 Plaintiffs do not provide any specific argument about why a website is
necessary in this case, stating simply that its language would be “objective.”53 They also do not
include any proposed language or contents for their website. In the absence of a specific website
proposal and any justification for a website in this case, Plaintiffs’ request for a website notice is
denied without prejudice.
B. Personal Information
To facilitate the different notice methods discussed above, Plaintiffs ask the court to order
Dava to provide them with a list of potential collective members.54 Specifically, Plaintiffs
50 See Felps v. Mewbourne Oil Co., Inc., 460 F. Supp. 3d 1232, 1241 (D.N.M. 2020) (“[C]ourts within this district
routinely approve notice by mail, email message, and text message.”); see also Morris v. MPC Holdings, Inc., No.
20-CV-02840-CMA-NYW, 2021 WL 4124506, at *3 (D. Colo. Sept. 9, 2021) (“The Court finds that text messages
and emails are appropriate avenues for providing notice in this case.”); Stenulson v. ROI Sols., LLC, No.
220CV00614DBBJCB, 2022 WL 294867, at *4 (D. Utah Feb. 1, 2022) (approving notice by mail and text message).
51 Stenulson, 2022 WL 294867, at *4; Turner v. ACD Direct, Inc., No. 1:12–CV–00208–DB, 2013 WL 12110065, at
*2 (D. Utah May 16, 2013).
52 Opp’n at 7.
53 Reply 8–9.
54 Motion for Certification 14–15.
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request production of each potential collective member’s “(1) name, (2) last known mailing
address, (3) last known telephone number, (4) last known personal email address, (5) dates and
location of employment, (6) date of birth, and (7) Social Security number (last four digits
only).”55 Dava argues that such personal information is overly invasive and unnecessary to
provide notice.56 Instead, it would provide “standard contact information” limited to names,
email addresses, and mailing addresses.57
“It is not uncommon for groups of plaintiffs to request information about putative class
members in FLSA collective actions.”58 Employers often have access to employee information
that would be difficult to obtain otherwise. As an initial matter, the court notes that telephone
numbers are necessary contact information in this instance because text message notices have
been approved. Employment dates and locations also seem reasonable to help ensure that
collective members have potential claims within the statute of limitations period.
However, the court is not convinced that it is necessary to compel the disclosure of
employee birth dates and social security numbers. Courts addressing requests for information
generally apply a balancing test that weighs the plaintiffs’ need to facilitate broad notice against
the putative collective members’ privacy interests.59 In this case, “there are legitimate privacy
concerns implicated by disclosing Social Security numbers” and dates of birth.60 Such
55 Id.
56 Opp’n 6.
57 Id.
58 Koehler v. Freightquote.com, Inc., 93 F. Supp. 3d 1257, 1265 (D. Kan. 2015).
59 Id.
60 Stenulson v. ROI Sols., LLC, No. 220CV00614DBBJCB, 2022 WL 294867, at *5 (D. Utah Feb. 1, 2022); see also
Koehler, 93 F. Supp. 3d at 1266 (“The Court concludes that the putative class members’ privacy interests outweigh
plaintiffs’ need for their social security numbers and dates of birth.”); Mott v. TSD Telecom Serv. LLC, No. 24-CV-
00185-RMR-SBP, 2025 WL 692564, at *5 (D. Colo. Mar. 4, 2025) (denying disclosure of social security numbers).
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information is highly personal and could create significant problems if it is leaked or improperly
disclosed. Furthermore, it is not necessary to effect notice. Plaintiffs contend that such
information is “helpful in tracking changes of address,”61 but the email and text notices make it
likely that putative collective members will receive notice even if their address has changed.62
Plaintiffs have not shown why this information is necessary, especially in light of its sensitive
nature.
The parties also dispute how long Dava should have to produce the information. Plaintiffs
argue for seven days,63 and Dava requests twenty-eight days to gather the information.64 The
court determines that a fourteen-day period is sufficient. Dava is ordered to provide Plaintiffs
with each collective member’s name, last known mailing address, last known telephone number,
last known personal email address, and dates and location of employment within fourteen (14)
days.
C. Opt-In Period
Plaintiffs argue that the court should authorize a ninety-day opt-in period for potential
collective members.65 They state that courts in the Tenth Circuit regularly authorize opt-in
periods of ninety days.66 Dava contends that the proposed period is “unreasonably long” and that
courts generally implement fifty or sixty-day periods.67 It does not provide any specific
arguments why ninety days is unreasonable in this case. Although Tenth Circuit courts often set
61 Reply 7.
62 See Stenulson, 2022 WL 294867, at *5.
63 Reply 6–7.
64 Opp’n 6.
65 Motion for Certification 14.
66 Reply 8.
67 Opp’n 8.
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sixty-day opt-in periods,68 ninety-day periods are also regularly found to be reasonable.69 In this
case, the court does not find Plaintiffs’ proposed ninety-day period to be unreasonable, especially
given that Dava has not demonstrated how it would be prejudiced by the ninety-day opt-in.70
D. Reminder Notice
In addition, Plaintiffs request authorization to send a reminder notice to collective
members who have not opted in after forty-five days.71 Dava again argues that the reminder letter
would essentially act as a recruitment tool rather than a neutral notice.72 Courts in the Tenth
Circuit are split about whether reminder notices in FLSA collective actions are appropriate.
Some courts reason that “single reminder notices . . . are typically permitted”73 and that such
notices “serve[] the FLSA’s broad remedial purpose by ensuring that ‘as many potential
plaintiffs as possible are informed of the collective action and their right to opt-in.”74 Other
courts reject reminder notices because they could be interpreted as an endorsement of joining the
action.75 Here, the court is persuaded that a reminder notice is unnecessary, especially given the
various methods of notice that have been approved. Allowing Plaintiffs to send notice via mail,
68 See Maxfield v. Utah Dep’t of Alcoholic Beverage Control, No. 4:21-CV-00099-DN-PK, 2025 WL 1348488, at *5
(D. Utah May 8, 2025); Pogue v. Chisholm Energy Operating, LLC, No. 2:20-CV-00580-KWR-KK, 2021 WL
5861184, at *10 (D.N.M. Dec. 10, 2021); West v. Bam! Pizza Mgmt., Inc., No. 1:22-CV-00209-DHU-JHR, 2023
WL 346309, at *4 (D.N.M. Jan. 20, 2023).
69 Heitzman v. Calvert’s Express Auto Serv. & Tire, LLC, No. 22-CV-2001-JAR-ADM, 2022 WL 5241927, at *7
(D. Kan. Oct. 6, 2022).
70 See Bowling v. DaVita, Inc., No. 21-CV-03033-NYW-KLM, 2023 WL 4364140, at *9 (D. Colo. July 6, 2023)
(“[T]he Court cannot conclude that 90 days is unreasonably long, particularly where Defendant has not explained
how it will be prejudiced by a 90-day notice period.”).
71 Motion for Certification 14.
72 Opp’n 7.
73 Heitzman, 2022 WL 5241927 at *8.
74 Landry v. Swire Oilfield Servs., L.L.C., 252 F. Supp. 3d 1079, 1130 (D.N.M. 2017) (quoting Chhab v. Darden
Restaurants, Inc., No. 11 CIV. 8345 NRB, 2013 WL 5308004, at *13 (S.D.N.Y. Sept. 20, 2013)).
75 See Stenulson v. ROI Sols., LLC, No. 220CV00614DBBJCB, 2022 WL 294867, at *5 (D. Utah Feb. 1, 2022);
Bowling, 2023 WL 4364140 at *10; Cruz v. Connexion Point, LLC, No. 2:24-CV-00966-TC-DBP, 2025 WL
3063380, at *4 (D. Utah Nov. 3, 2025).
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email, and text ensures that potential collective members receive all the necessary information.
The ninety-day opt-in period then gives them sufficient time to decide how they wish to exercise
their rights. Under these circumstances, an additional reminder is unnecessary and may stray too
far toward endorsing the action.
E. Consent to Join
Finally, Dava objects to the content of Plaintiffs’ proposed Consent to Join form.76 The
proposed Consent form contains the following language:
I also designate the named Plaintiff in this action, the collective action
representative, as my agent to make decisions on my behalf concerning the
litigation, including the method and manner of conducting this litigation, entering
into settlement agreements, entering into an agreement with Plaintiff’s Counsel
concerning attorneys’ fees and costs, and all other matters pertaining to this
lawsuit.77
Dava argues that the designation of a “named plaintiff” to represent the collective action is
legally inaccurate because each individual who opts in must participate as a named plaintiff and
“there are no representatives.”78 Not so.
The plain language of the FLSA allows employees to maintain “[a]n action to recover”
against their employer for FLSA violations on behalf of “themselves and other employees
similarly situated.”79 Although employees who choose to opt in do become “party plaintiff[s],”
the original plaintiffs are still the ones who filed suit “in behalf of . . . themselves and other
employees.”80 These original plaintiffs are “representative plaintiffs” with statutory authority to
76 Opp’n 9.
77 Proposed Notice 8.
78 Opp’n 9.
79 29 USCA § 216(b).
80 Id.
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make decisions on behalf on the opt-in employees.81 It is therefore not incorrect for the Consent
to Join form to designate a representative to make decisions on behalf of the opt-in employees.
However, the proposed Consent form designates a singular “Plaintiff”82 when multiple named
plaintiffs are present in this case. To eliminate confusion, Plaintiffs are ordered to change the
Consent form to designate the “named Plaintiffs” in the action to more accurately reflect that
multiple representative plaintiffs are present here.
F. Proposed Notice
Two additional areas of the proposed notice also require revision. First, immediately after
noting that the court authorized the notice, the notice contains a directive to “return your form as
soon as possible.”83 This language should be removed and the sentence revised so that it does not
imply that the court is directing recipients to participate in the lawsuit. Second, the proposed
notice also contains an instruction that anyone who believes they have been treated unfairly
should contact Plaintiff’s counsel.84 The court will not issue a notice directing potential litigants
to a specific attorney for purposes of a separate retaliation claim. The sentence should be
removed.
ORDER
Plaintiffs’ [75] Motion for Conditional Certification is GRANTED in part.
81 See Hose v. Henry Indus., Inc., No. 13-2490-JTM-GEB, 2016 WL 2755809, at *5 (D. Kan. May 12, 2016)
(“[T]he [FLSA] does not appear to contemplate a Section 216(b) collective action simply by a group of ‘other
employees similarly situated’ (the opt-in plaintiffs) without a representative plaintiff filing on their behalf.”).
82 Proposed Notice 8.
83 Id. at 2.
84 Id. at 3.
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Signed December 8, 2025.
BY THE COURT
________________________________________
David Barlow
United States District Judge
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