Lightner v. DaVita, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03104-NYW-KAS
ANDUIN LIGHTNER, individually and on behalf of all others similarly situated,
Plaintiff,
v.
DAVITA, INC.,
Defendant.
______________________________________________________________________
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant’s Motion to Strike All Consent-To-
Join Forms (the “Motion”) [#104]. Plaintiff filed a Response [#113] in opposition to the
Motion [#104], and Defendant filed a Reply [#123]. The Motion [#104] has been referred
to the undersigned for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal
Rule of Civil Procedure 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). Memorandum [#106].
The Court has reviewed the briefs, the entire case file, and the applicable law. Based on
the following, the Court RECOMMENDS the Motion [#104] be DENIED. However, the
Court also RECOMMENDS that, if regular opt-in notice issues in this case, that court-
approved corrective notice be issued to the opt-in plaintiffs and that those opt-ins sign
and file new court-approved consent forms, which address the deficiencies identified in
this Recommendation.
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I. 	Background
Plaintiff Anduin Lightner filed this collective action on November 21, 2023, alleging
violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, based on
Defendant’s alleged failure to pay overtime. Compl. [#1]. Plaintiff contends that Defendant
DaVita, 	Inc., 	a 	nationwide 	healthcare 	provider, 	failed 	to 	compensate 	nurses 	and
technicians for overtime resulting from missed meal breaks. Id. Plaintiff alleges that
Defendant’s practice of requiring nurses and technicians to work through their meal
breaks, while also deducting 30 minutes of pay per shift for the meal breaks they did not
actually take, deprived those employees of overtime compensation in violation of the
FLSA when they worked more than 40 hours per week. Id., ¶¶ 3, 21, 23-30, 33. Plaintiff
also alleges that Defendant requires nurses and technicians to clock out for rest breaks
during their shifts even when those breaks are shorter than 20 minutes in duration. Id.,
¶¶ 22, 33. Accordingly, Plaintiff asserts a single claim, alleging a violation of 29 U.S.C. §
207 for failure to pay overtime wages. Id., ¶¶ 5, 36-44. She asserts this claim on behalf
of current and former DaVita nurses and technicians who, from three years prior to the
lawsuit’s filing to the present, did not receive overtime pay. Id.1
Six 	days after 	initiating 	this 	lawsuit, Plaintiff 	began filing 	consent forms 	of
individuals who purportedly desire to opt-in to the action. Consent to Join Forms [#5-1].
________________________
1 Plaintiff’s counsel previously brought a collective action against Defendant based on the same
alleged practices. Bowling v. DaVita, Inc., No. 21-cv-03033-NYW-KAS. Therein, the District Judge
granted “conditional certification, but only with respect to nurses and technicians who worked at
DaVita during the relevant time period in . . . nine states: Arkansas; Florida; Georgia; Louisiana;
Oklahoma; New York; Tennessee; Texas; and Virginia.” Bowling v. Davita, Inc., No. 21-cv-03033-
NYW-KLM, 2023 WL 4364140, at *7 (D. Colo. July 6, 2023). On March 3, 2025, Plaintiff filed a
motion in this case seeking conditional certification for nurses and technicians in the remaining
41 states. Am. Motion for FLSA Conditional Certification and Court-Authorized Notice [#72] at 1
n.1.
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To date, Plaintiff has filed 37 consent forms. Consent to Join Forms [#1-1, #5-1, #11-1,
#12-1, #34-1, #45-1 through #50-1, #52-1 through #58-1].2 On March 3, 2025, Plaintiff
filed an Amended Motion for FLSA Conditional Certification and Court-Authorized Notice.
[#72]. Therein, Plaintiff relies on the filed consent forms to support her conditional
certification request. Id. She also references 28 additional opt-in plaintiffs for whom
Plaintiff’s counsel has not filed consent forms. Id. at 3 (citing Exhibit 25 [#65-25] to original
Motion for FLSA Conditional Certification and Court-Authorized Notice [#65]).
During discovery, Defendant deposed several opt-in plaintiffs. Motion [#104] at 63.
The depositions revealed that Plaintiff obtained their participation through solicitation
emails and social media advertisements. Id.4 Defendant contends the advertisements
and emails contain false, misleading, vague, and generic information. Id. at 12-21. Based
on this, Defendant requests the Court strike the filed consent forms and declare void all
others in Plaintiff’s counsel’s possession. Motion [#104] at 5.5 Defendant also seeks to
strike the consent forms because they “are legally deficient and misleading” in that “the
forms make no mention of whether the opt-ins ever worked for DaVita, let alone the opt-
ins’ dates of employment and position.” Id. at 12 (emphasis omitted).
________________________
2 Plaintiff since withdrew two of those forms, Notice of Withdraw of Consent Form [#41, #51], and
Defendant recently filed a Stipulation of Dismissal regarding nine other opt-in plaintiffs. Stipulation
of Dismissal Without Prejudice of Certain Opt-Ins [#133].
3 Page number citations refer to the numbering stamped at the top of each page by the Court’s
docketing system, not to the document’s original numbering.
4 In Bowling, the Court denied Plaintiff’s request to issue notice via social media. Bowling, 2023
WL 4364140, at *9. Here, Plaintiff did so prior to requesting conditional certification and court-
authorized notice.
5 Defendant also requests that a corrective notice issue if regular opt-in notice ultimately issues
in this case. Motion [#104] at 24; Reply [#123] at 13.
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II. 	Legal Background
The FLSA sets out required standards governing the payment of minimum and
overtime wages to employees. 29 U.S.C. §§ 206, 207. FLSA collective actions may be
maintained “only by and among employees who are ‘similarly situated.’” Norwood v. WBS,
Inc., No. 15-cv-00622-MSK-KMT, 2016 WL 7666525, at *1 (D. Colo. Sept. 29, 2016). The
FLSA’s collective action mechanism is a two-step process requiring prospective class
members to affirmatively opt-in to the litigation. See Bowling, 2023 WL 4364140, at *1
(discussing two-step FLSA conditional certification/decertification approach); 29 U.S.C.
§ 216(b) (“No employee shall be a party plaintiff to any [FLSA] action unless he gives his
consent in writing to become such a party and such consent is filed in the court in which
such action is brought.”). Generally, once a court conditionally certifies a collective action,
it authorizes a plaintiff to send out notices and opt-in consent forms to potential plaintiffs.
Hoffman-LaRoche Inc. v. Sperling, 493 U.S. 165, 169-70, 172 (1989); see also Harris v.
Startek USA Inc., No. 1:22-cv-00437-RM-SKC, 2023 WL 3976432, at *2 (D. Colo. Mar.
31, 2023) (noting that authorization of notice follows conditional certification).
III. 	Analysis
A. 	Whether 	Plaintiff’s 	Counsel 	Used 	Misleading 	and 	False 	Solicitation
Communications
Plaintiff began soliciting potential opt-in plaintiffs via emails and social media
advertisements at least as early as mid-October 2023—about one month before this
lawsuit’s filing and about three months after conditional collective certification was granted
for nurses and technicians in nine states in Bowling v. DaVita, No. 21-cv-03033-NYW-
KLM. Reply [#123] at 7; Consent Forms [#5-1] at 1, 4-5, 7,9 (bearing dates of October 26,
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27, 28 and 31, 2023); see also Solicitation Emails [#104-4]; Social Media Advertisements
[#104-9].
“Section 216(b) of the FLSA authorizes trial courts to provide that court-approved
notice be sent to potential collective action members to inform them of an action and allow
them an opportunity to opt in.” Flores v. J & T Harvesting LLC, --- F. Supp. 3d ----, 2025
WL 2966105, at *1 (D. Colo. 2025). “Employees must receive ‘accurate and timely notice
concerning the pendency of the collective action, so that they can make informed
decisions about whether to participate.’” Felps v. Mewbourne Oil Co., 460 F. Supp. 3d
1232, 1240 (D.N.M. 2020) (quoting Aguilar v. Mgmt. & Training Corp., No. 16-cv-050-
2017 WL 4277139, at *6 (D.N.M. Jan. 27, 2017)). The “notice should describe the nature
of FLSA collective action, the FLSA claim and remedies, and offer the recipient the
opportunity to opt-in to the action by filing a consent.” Pena v. Home Care of Denver, LLC,
No. 19-cv-00069-CMA-NYW, 2019 WL 5577947, at *2 (D. Colo. Oct. 29, 2019) (internal
quotation marks omitted). The notice “should also advise recipients of their right to be
represented by counsel for the original plaintiff, to obtain independent representation, or
to participate pro se.” Id. “The Court has broad discretion regarding the details of the
notice sent to potential opt-in plaintiffs. This discretion requires a court to ensure that the
notice is ‘fair and accurate.’” Flores, 2025 WL 2966105, at *1.
Here, Defendant contends that Plaintiff’s pre-certification communications with
potential opt-ins contained information that was false or misleading in at least four
respects: (1) they misrepresent that the Court in Bowling v. DaVita made evidentiary
findings concerning meal break violation claims; (2) they inaccurately describe allegations
as proven facts; (3) they suggest that DaVita’s liability has been established and opt-in
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plaintiffs simply need to claim their unpaid wages; and (4) they fail to accurately describe
the litigation as one about overtime pay. See Motion [#104] at 12-18. Upon review, and
for 	reasons 	explained 	below, 	the 	Court 	agrees 	that 	the 	communications 	contain
misleading and arguably false information.
First, at least one of the email solicitations states, “[a] federal judge in July 2023
found enough evidence against DaVita to move forward with meal break violation claims
on a collective action basis for 9 states where the nurses/technicians worked in that case.”
Solicitation Emails [#104-4] at 7. That statement refers to a July 6, 2023 order issued by
the District Judge in Bowling v. DaVita, No. 21-cv-03033-NYW-KLM, who is also the
District Judge in this case.
That order concerned a motion for conditional certification of a collective of hourly-
paid nurses and technicians at DaVita locations in nine states who did not receive
overtime pay for weeks in which they worked more than 40 hours because of having time
deductions for meal breaks they did not actually take. Bowling, 2023 WL 4364140, at *3.
At the outset of her analysis, the District Judge expressly noted that that “the Court does
not weigh evidence, resolve factual disputes, or reach the merits of the pending claims at
the conditional-certification stage.” Id. The District Judge identified the discrete issue she
needed 	to 	determine: 	“whether 	the 	[employees] 	are 	similarly 	situated,” 	and 	she
considered workplace policies, deposition testimony, and timesheets. Id. at *5-6. Based
on that “evidence, coupled with the allegations in the [a]mended [c]omplaint,” the District
Judge “conclude[d] that [the plaintiff] ha[d] raised substantial allegations that the [o]pt-[i]n
[p]laintiffs were subject to the same decision, policy, or plan and has met the lenient
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conditional-certification standard[.]” Id. at *6 (emphasis added). The District Judge did not
make any evidentiary findings.
Because the District Judge did not make any evidentiary findings, the solicitation
email’s assertion that “[a] federal judge in July 2023 found enough evidence against
DaVita” is misleading, if not “patently false” as Defendant asserts. See Motion [#104] at
13. Moreover, this statement misleadingly implies that a judicial determination of liability
has been made, when that is not so.
Second, the communications repeatedly assert allegations as proven facts. For
example, the communications repeatedly declare that DaVita makes deductions for meal
breaks even if the employee was on duty. Solicitation Email [#104-4] at 3, 7 (stating,
“DaVita is capitalizing on that by making deductions for meal breaks even when you’re
on duty” and “[m]y investigation revealed that DaVita makes deductions for meal breaks
even when healthcare workers remain on duty or skip their breaks entirely”); Social Media
Advertisements [#104-9] at 2, 3, 5, 9 (“An intense investigation revealed that DaVita
makes deductions for meal breaks even when healthcare workers remain on duty or skip
their breaks entirely” and “Hospital automatically deducting 30 minutes from shift”).
However, DaVita denies that it has a policy to deduct meal break time even if the break
was not taken. See Motion [#104] at 16 (referring to deposition testimony of Plaintiff and
opt-ins who realized that their time records and paystubs do not show deductions);
compare Compl. [#1] ¶ 2 (“Defendant deducted thirty (30) minutes from the total time
worked by nurses and technicians each shift so as to account for these hypothetical meal
periods”) with Answer [#13] (denying allegations concerning time deductions). Cf. Self v.
TPUSA, Inc., No. 2:08cv395, 2008 WL 4372928, at *4 (D. Utah Sept. 19, 2008) (ordering
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amendment to solicitation website to reflect that the statements “are merely [the]
[p]laintiff’s contentions rather than established, uncontested facts in the lawsuit.”); Taylor
v. CompUSA, Inc., No. CIVA1:04CV781-WBH, 2004 WL 1660939, at *3 & n.7 (N.D. Ga.
June 29, 2004) (ordering that further pre-notice communications exclude “unqualified,
misleading statements,” such as “CompUSA management deliberately implemented a
corporate wide policy that encouraged or implicitly forced hundreds [of employees] to
work thousands of uncompensated hours”).
Third, the communications strongly suggest, if not blatantly assert, that unlawful
pay practices are, in fact, occurring and that back wages are, in fact, owed. Thus, a reader
of these communications could reasonably conclude that Defendant is, in fact, liable for
violating the law. As examples, the Court points to the following statements in solicitation
emails:
• 	Lead the way in correcting unlawful pay practices and help your
fellow workers[.]
• 	Let’s align your compensation with the reality of your job. It’s not just
fair; it’s the law.
• 	DaVita nurses and technicians are claiming back wages for working
through meal breaks without pay and being denied pay for rest
breaks.
• 	You should not feel guilty for asking for fair wages you earned[.]
• 	[H]elp other nurses as a leader fixing illegal pay practices[.]
• 	How do you make a claim for backpay?
• 	We’re 	here 	to 	write 	a 	new 	chapter 	where 	you’re 	properly
compensated for the work you do.
• 	You’ve earned it, and claiming it is your right[.]
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• 	Your claim could be the tipping point in reforming industry-wide
practices[.]
• 	Let’s get you the compensation that mirrors the reality of your
dedication. Fair compensation isn’t just nice—it’s the law.
Solicitation Email [#104-4] at 3, 4, 6-8, 10-12.
And the Court points to the following statements in social media advertisements:
• 	DaVita nurses and technicians are claiming back wages for working
through their meal breaks without pay and being denied pay for rest
breaks[.]
• 	The law firm we’ve partnered with focuses on helping healthcare
workers recover their back pay and wages[.]
• 	The practice of infringing on workers’ meal breaks without paying
them amounts to a violation of the Fair Labor Standards Act -- which,
in short, means the company is not doing right by us.
• 	Join Hundreds of Healhcare Workers Who’ve Reclaimed Their
Earned Pay With Our Expertise[.]
Social Media Advertisements [#104-9] at 2, 3, 5.
These solicitation messages contain “[l]anguage that courts have found to be
problematic in FLSA collective actions”; namely, language that suggests “employees must
join the class if they wish to be awarded damages for lost wages.” Self, 2008 WL 4372928,
at *3 (collecting cases). Additionally, these communications are likely to cause a reader
to believe incorrectly that Defendant is in fact liable or that a court has found Defendant
liable, when the communications are really based on the plaintiff’s allegations or theory
of the case. See Vogt v. Tex. Instruments Inc., No. 3:05-CV-2244-L, 2006 WL 4660133,
at *6 (N.D. Tex. Aug. 8, 2006) (deeming communication misleading because its reference
to precedent implied certain victory). These communications “contain factual and legal
conclusions that may mislead potential plaintiffs as to their eligibility to participate in the
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action and the extent of [DaVita’s] potential liability.” Taylor, 2004 WL 1660939 at *3 & n.7.
The communications also mislead the reader to believe that the described wage policies
are Defendant’s uncontested polices and practices, when, in fact, the described policies
are mere allegations, which Defendant has vehemently denied. See Self, 2008 WL
4372928, at *4 (ordering modifications to communications that describe employer policies
as established, uncontested facts). Further, the communications mislead because they
are “overly certain about the prospects and scope of a possible plaintiffs’ victory.” Shaw
v. Interthinx, Inc., No. 13-cv-01229 REB-BNB, 2014 WL 12741157, at *3 (D. Colo. Feb. 7,
2014).
Fourth, the communications do not clearly communicate what this case is about:
“unpaid overtime wages” for compensable work performed during unpaid meal breaks
and compensable rest breaks of less than 20 minutes in duration. See Compl. [#1] ¶ 11.
Nowhere does the word “overtime” appear in the solicitation emails and social media
solicitations. The communications suggest, rather, that the FLSA entitles a nurse or
technician to pay irrespective of whether their work through meal breaks resulted in less
or more than 40 hours of work in any given week. See, e.g., Solicitation Email [#104-4] at
3 (intimating an automatic right to recoup backpay for “[wage] deductions for meal breaks
even when [the employee is] on duty”). However, skipped meal breaks only constitute
FLSA violations if they result in unpaid overtime. See Berríos-Nieves v. Fines-Nevarez,
Civil No. 18-1164 (JAG), 2019 WL 12043410, at *8 (D.P.R. Feb. 7, 2019) (deeming
allegations regarding lack of rest periods and meal breaks inactionable under the FLSA,
which “does not require that employers provide employees with rest or meal periods, nor
does it require employers to provide paid or unpaid leave.”); see also Sec’y of Labor v.
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Labbe, 319 F. App’x 761, 763 (11th Cir. 2008) (noting that a viable FLSA claim concerns
“a failure to pay overtime compensation and/or minimum wages to covered employees
and/or failure to keep payroll records in accordance with the Act.”) (citing 29 U.S.C. §§
206, 207, and 215(a)(2) and (5)); Santagata v. MiniLuxe, Inc., No. CV 18-428 WES, 2020
WL 2322851, at *1, 3 (D.R.I. May 11, 2020) (dismissing FLSA claim based on “denial of
compensation for working through . . . breaks” in absence of any allegation that working
through meal breaks without pay resulted in a more than 40-hour workweek) (citing 29
U.S.C. § 207(a)(1)).
In sum, Plaintiff’s solicitation communications are misleading and contain arguably
false information. The Court declines to set aside its own observations and accord
“presumptive weight” to the Texas State Bar’s “advertisement approval,” as Defendant
requests. See Response [#113] at 14. The Court more directly addresses the Texas State
Bar’s approvals in Section III(D), below.
B. 	Whether Language on Consent Forms is also Misleading
Defendant also seeks to strike the consent forms because they “are legally
deficient and misleading” in that “the forms make no mention of whether the opt-ins ever
worked for DaVita, let alone the opt-ins’ dates of employment and position.” Motion [#104]
at 12 (emphasis omitted). In response, Plaintiff argues that the consent forms “remain
valid” even if they do not include certain identifying information. Response [#113] at 4. In
support, Plaintiff presents two arguments. First, the FLSA only requires a prospective
party plaintiff to give “consent in writing” and ensure that “consent is filed in the court[.]”
Id. (citing 29 U.S.C. § 216(b). Second, Plaintiff argues that discovery has enabled
Defendant to determine whether the opt-in plaintiffs are similarly situated. See id. (noting
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that Phase I discovery enabled a “deep dive” that “resulted in clear identification of the
Opt-In Plaintiffs’ job titles, work locations, date of employment and positions[.]”). In reply,
Defendant maintains that individuals who do not qualify opted in because of the “legally-
insufficient consent forms.” Reply [#123] at 10. As an example, Defendant points to a filed
consent form that mentions claims for minimum wage violations and state law claims. Id.
at 10 (citing Consent Form [#45-1]). Additionally, Defendant asserts that discovery’s deep
dive revealed that nine opt-ins are ineligible to join the case: Seven are time-barred and
two never worked for Defendant. Id. at 11.
The Court’s review of the filed consent forms reveals the following: They do not
identify the case name, jurisdiction, or the corporate defendant; they do not identify what
position the opt-in plaintiff worked or when; they inappropriately apply to “any action or
proceeding that may be filed on [the opt-in plaintiff’s] behalf for such recovery”; they
require agreement “to be the named plaintiff and/or one of the named plaintiffs and a
representative of the class/collective action members in this case”; and they require
agreement to representation “by the Wage and Hour Firm, and any other attorneys or law
firms with which they choose to associate,” without any indication that the claimants were
notified that they may choose their own counsel or proceed pro se. See, e.g., Consent
Forms [#5-1], [#11-1], [#12-1], [#34-1]. Other consent forms contain the same issues but
also identify the lawsuit as brought “under the Fair Labor Standards Act and all applicable
state laws”—even though this lawsuit has no state law claims. See, e.g., Consent Forms
[#45-1], [#46-1], [#52-1], [#55-1].
While Defendant attacks the consent forms’ legal sufficiency and asks the Court to
strike them, Defendant cites no authority to support that position. And, based on the
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Court’s own research, courts opt for a more tailored approach. For example, in Threatt v.
Residential CRF, Inc., No. 1:05-CV-117, 2005 WL 2454164, at *3-4 (N.D. Ind. Oct. 4,
2005), the court considered consent forms that “blatantly overstate[d] the conditionally
certified class” by including employees outside the operative time period, employees of a
dismissed corporate entity, and all employees of the remaining corporate defendants, not
just employees at a specific, relevant subset of employees. Because the consent forms
overstated the class, the court suspected that “many of the individuals with consent forms
on the record may not be similarly situated to the [p]laintiffs and may not fall within the
class conditionally certified[.]” Id. at *4.
Nevertheless, the court declined to strike the consent forms and opted for a
carefully tailored approach: It ordered the plaintiffs to timely file amended, court-approved
consent forms for each opt-in plaintiff who has a filed consent form. Id. The court would
then deem each amended consent form to relate back to the original consent form’s filing
date and the amended form would “confirm to the [c]ourt that such opt-in plaintiff falls
within the description of the conditionally certified class.” Id. This approach, the court
reasoned, would avoid the “equitable tolling dilemma with respect to the statute of
limitations” that would likely arise if the court were to strike the filed consent forms. Id. at
*3-4.
In Reyes v. Topgolf International, Inc., No. 3:17-CV-0883-L, 2017 WL 11496868,
at *7 (N.D. Tex. May 15, 2017), the court determined that pre-certification consent forms
were misleading because they “fail[e]d to inform potential opt-in plaintiffs as to their right
to contact other counsel and . . . fail[ed] to disclose the effects of consenting to serve as
a class representative.” As a remedy, it declined to strike the consent forms. The court
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instead ordered the plaintiff to “contact each potential claimant who has executed the
original consent form . . . and provide a curative notice and consent form that amends all
of the misleading aspects” the court had identified. Id. at *9.
Like the consent forms in Threatt and Reyes, the consent forms in this case contain
deficiencies and are misleading. Also, like the courts in Threatt and Reyes, this Court
recommends denying the request to strike the consent forms and opting instead for a
carefully tailored approach.
C. 	Identifying the Appropriate Remedy for Misleading Communications
Having determined that the solicitation communications are misleading and that
the consent forms are deficient and misleading, the Court next considers the appropriate
remedy.
Defendant asks the Court to strike and declare as void “all consent forms Plaintiff’s
[attorneys] have obtained to date” and to “not consider them in deciding Plaintiff’s
conditional certification motion.” Motion [#104] at 24. Additionally, Defendant states that
corrective notice should issue “if regular opt-in notice ultimately issues in this case.” Id.
In response, Plaintiff argues that “attorney advertising is protected by the First
Amendment to the United States Constitution, subject only to narrowly tailored restrictions
related to truthfulness and other important state interest.” Response [#113] at 2. Plaintiff
further argues that the Court may not restrict Plaintiff’s counsel’s First Amendment rights
because the Texas State Bar approved the advertisements and that “approval carries
presumptive weight” as to truthfulness and non-deception. Id. at 11, 14-15. Plaintiff
explains that the Texas State Bar’s Advertising Review Committee reviews all ads “with
an eye toward whether an ad is ‘false or misleading,’” and the Committee did not simply
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rubber stamp Plaintiff’s ads. Id. at 14. In essence, Plaintiff contends that the Texas State
Bar’s imprimatur moots the question of truthfulness and non-deception and, therefore,
the Court should leave the consent forms alone. The Court disagrees.
Here, the consent forms are a form of commercial speech because they are
“expression[s] related solely to the economic interests of the speaker and its audience.”
Vogt, 2006 WL 4660133, at *4 (deeming precertification solicitation communications
commercial speech) (quoting Cent. Hudson Gas & Elec. Corp. v. Pub Serv. Comm’n of
N.Y., 447 U.S. 557, 561 (1980)) (internal quotation marks omitted). Commercial speech
receives less constitutional protection than other forms of speech. Id. (citing Cent. Hudson
Gas., 447 U.S. at 563). Nevertheless, limitations on pre-opt-in communications with a §
216(b) potential plaintiff are not imposed “unless the communication undermines or
contradicts the Court’s notice, or is misleading, coercive, or otherwise improper.” Stransky
v. HealthONE of Denver, Inc., 929 F. Supp. 2d 1100, 1105-06 (D. Colo. 2013) (internal
quotation marks and citation omitted).
“[A]n order limiting communications between parties and potential class members
should be based on a clear record and specific findings that reflect a weighing of the need
for a limitation and the potential interference with the rights of the parties.” Gulf Oil Co. v.
Bernard, 452 U.S. 89, 101 (1981) (quoted in Self, 2008 WL 4372928, at *2)). Additionally,
a court should “identify[] the potential abuses being addressed” and carefully craft the
order to “limit[] speech as little as possible, consistent with the rights of the parties under
the circumstances.” Id. An order will generally “satisfy [F]irst [A]mendment concerns if it
is 	grounded 	in 	good 	cause 	and 	issued 	with 	a 	heightened 	sensitivity 	for 	[F]irst
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[A]mendment concerns.” Self, 2008 WL 4372928, at *2 (quoting Kleiner v. First Nat’l Bank,
751 F.2d 1193, 1205 (11th Cir. 1985)).
Even where pre-notice communications contain unreliable and possibly misleading
information, 	courts 	have 	declined 	to 	strike 	consent 	notices 	resulting 	from 	those
communications where a defendant has “failed to present any evidence that the
consenting plaintiffs were, in fact, misled.” Shaw, 2014 WL 12741157, at *3 (declining to
strike consent form where the recipient of a potentially misleading communication was
not misled) (citing Gerlach v. Wells Fargo & Co., No. C 05-0585 CW, 2006 WL 824652,
at 	*6-7 	(N.D. 	Cal. 	Mar. 	28, 	2006) 	(declining 	to 	order 	a 	corrective 	notice 	for 	a
communication that was “not sufficiently misleading or coercive” where no potential
collective action members who had received the communication were deposed to
determine whether they were misled)); but see Sandoval v. Serco, Inc., No. 4:18-CV-
01562, 2019 WL 2075910, at *7 (E.D. Mo. May 10, 2019) (striking all filed consent forms—
without any discussion of First Amendment considerations—and requiring use of a
curative, court-approved notice).
Courts have also declined to prohibit admission of evidence from opt-in plaintiffs
who relied on misrepresentations in solicitation communications. See, e.g., Self, 2008 WL
4372928. In Self, the court declined to strike consent forms or prohibit admission of
evidence 	from 	certain 	opt-ins 	even 	though 	solicitation 	communications 	presented
allegations about the defendant’s policies and the lawfulness of the defendant’s conduct
as uncontested and intimated that the reader had a definitive claim in a particular factual
scenario. 2008 WL 4372928 at *3-4. The court deemed such an action as “too extreme.”
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Id. at *5. Instead, the court ordered the plaintiffs to issue a curative notice and to require
the opt-ins to complete new consent forms. Id.
Here, the Court agrees that striking the consent forms is too extreme. This is
especially true because Defendant has failed to present evidence that the opt-ins in this
case were, in fact, misled by the solicitation communications. Though Defendant
intimates that the solicitation communications caused confusion, see Motion [#104] at 15-
16, the document Defendant cites does not clearly make that connection. In particular,
Plaintiff, 	three 	nurse 	opt-ins, 	and 	two 	technician 	opt-ins 	believed 	Defendant 	was
deducting 	30-minutes 	per 	shift 	from 	their 	time 	entries 	but 	realized—during 	their
depositions—that no time deductions occurred. See Def.’s Response to Pl.’s Opposed
Motion for FLSA Conditional Certification [#73] at 5. However, Defendant concedes that
“the Court cannot determine the extent to which each opt-in was influenced by misleading
communications[.]” Motion [#104] at 21. Further, at least one opt-in believed automatic
deductions occurred “because two FAs said they were [occurring]”—not because of
solicitation communications. See Def.’s Response to Pl.’s Opposed Motion for FLSA
Conditional Certification [#73] at 5.
The Court instead recommends that Plaintiff be required to (a) use an amended,
court-approved consent form, (b) contact each potential claimant who has executed the
original consent form and provide a curative, court-approved notice and consent form,
and (c) have all potential claimants execute the court-approved notice and consent form.
See Reyes, 2017 WL 11496868, at *9.
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D. 	Plaintiff’s Counsel’s Lack of Candor with the Court
Finally, the Court takes a moment to address Plaintiff’s counsel’s lack of candor
with the Court by way of statements that, like the solicitation communications and consent
forms, are misleading, if not patently false.
First, the Court addresses a statement by Plaintiff’s counsel, Gavin B. Kennedy,
that he is “admitted to practice in Colorado like the other attorneys here.” Apr. 21, 2025
Hr’g Tr. [#82] at 9:24-25. A search of the attorney database of the Colorado Supreme
Court’s Office of Attorney Regulation Counsel reveals that Mr. Kennedy is not admitted to
the Colorado bar, though he is admitted to the bar of the U.S. District Court for the District
of Colorado. This is corroborated by a visit to Mr. Kennedy’s law firm’s website, where
“Texas” and “U.S. District Court District of Colorado”—but not “Colorado”—are listed
among his bar admissions. See https://kennedyattorney.com/about-us/ (last visited Jan.
18, 2026).
Likewise, Attorney Ricardo J. Prieto, an attorney for Plaintiff who also appeared at
the April 21, 2025 discovery hearing with Mr. Kennedy is not admitted to the Colorado
bar, as revealed by a search of the Office of Attorney Regulation Counsel’s attorney
database. This is corroborated by a visit to Mr. Prieto’s law firm’s website, where “Texas
State Bar” and “United States Colorado District Court”—but not “Colorado”—are listed
among his bar admissions. See https://wageandhourfirm.com/about-us/ (last visited Jan.
18, 2026).
Through D.C.COLO.LAttyR 2(a), this District has adopted the Colorado Rules of
Professional Conduct as the standards for professional responsibility. Rule 3.3 of the
Colorado Rules of Professional Conduct requires candor toward the tribunal. In relevant
part, Rule 3.3 prohibits a lawyer from knowingly “mak[ing] a false statement of material
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fact . . . or fail to correct a false statement of material fact[.]” COLO. R. P RO. CONDUCT
3.3(a)(1). Comment 3 to that rule states, “an assertion purporting to be on the lawyer’s
own knowledge, as in . . . a statement in open court, may properly be made only when
the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably
diligent inquiry.”
Here, Mr. Kennedy obviously knew in what jurisdictions he was admitted to practice
law when he affirmatively stated that he is “admitted to practice in Colorado.” Giving Mr.
Kennedy the benefit of the doubt, the Court presumes that Mr. Kennedy meant to say that
he was admitted to practice in the U.S. District Court for the District of Colorado. However,
this sloppiness is practically misleading.
Next, the Court addresses Mr. Kennedy’s arguments regarding the Texas State
Bar’s approval of his team’s solicitation communications.6 Here, the statements to the
Court are beyond sloppy. They are misleading—akin to the previously discussed
solicitation emails and social media advertisements. At the April 21, 2025 discovery
hearing, Mr. Kennedy explained that the Texas State Bar’s Ethics Advertising Review
Committee reviewed every communication Plaintiff’s counsel disseminated “with a fine-
tooth comb[.]” Apr. 21, 2025 Hr’g Tr. [#82] at 10:3-7. Mr. Kennedy represented that the
Committee looked at whether the communications contained misleading statements of
fact or law or any type of coercion or made an unreasonable promise or expectation that
a 	particular 	result 	was 	guaranteed 	or 	likely. 	Id. 	at 	10:8-12. 	Mr. 	Kennedy 	further
________________________
6 Notably, Plaintiff’s application to the Texas State Bar for advertisement approval was limited to
her email communications. Reply [#123] at 5 (citing Attorney Application for Texas Bar Approval
[#105-1]).
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represented that he “submitted [the solicitation communications] to [Texas] state bar [and]
they approved it[.]” Id. at 10:16-17.
However, materials from the Texas State Bar’s review reveals that it scrutinized
statements about the firm’s qualifications, credentials, and experience—not statements
about Defendant’s wage policies, whether Defendant violates the law, and whether
potential plaintiffs are automatically entitled to recoupment of back wages. Moreover, a
news article included in the submitted materials was not even about Defendant Davita;
rather, it was about a Dallas hospital’s purported lunch pay policies. See Notice of Filing
[#105-1] at 34 (Dallas Morning News article). On November 1, 2023, the Committee noted
that the submitted solicitation communications made “Unsubstantiated Claims and
Comparison” 	regarding 	the 	firm’s 	qualifications 	or 	services 	and 	set 	unjustified
expectations. Notice of Filing [#105-1] at 37. Accordingly, the Committee asked for
additional information. Id. The Committee then highlighted the following assertions it
seemed problematic:
• 	“Over 2,000 healthcare workers have hired my firm to represent them[.]”
For this statement, the Committee asked for “objective, [substantiating] documentation”.
Id. at 38.
• 	Badges for “Houston’s Top Lawyers” and “The National Trial Lawyers Top 100
Trial Lawyers”.
In connection with those badges, the Committee asked for the specific years when those
recognitions were received. Id. at 38.
On 	November 	13, 	2023, 	presumably 	after 	Plaintiff’s 	counsel 	provided 	the
requested substantiation, the Committee approved the solicitation emails. See Notice of
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Approval [#105-1] at 64-65; see also Notice of Approval [#89-1]. The Notice of Approval
further reveals that the Committee’s review was limited to “compliance with Part VII of the
TDRPC [Texas Disciplinary Rules of Professional Conduct] regulating lawyer advertising”;
it did not include “ethics issues that may be present[.]” Notice of Approval [#89-1] at 2.
Additionally, the Committee “reserve[d] the right to request substantiation of claims made
in the advertisement” and to “rescind approval” if “it is discovered that the communication
contains or implies false and otherwise misleading information[.]” Id. The Notice of
Approval contains no indication that the Committee ever requested substantiation of the
Davita-specific 	claims 	or 	insinuations 	made 	in 	the 	advertisement. 	Therefore, 	Mr.
Kennedy’s representation that the Committee reviewed the advertisements with a “fine-
tooth comb” is inaccurate and misleading and violates that Standards of Professional
Conduct, D.C.COLO.LAttyR 2, and Colorado Rule of Professional Conduct 3.3.
The Court takes this conduct seriously. Such conduct undermines the integrity of
these proceedings and requires greater expenditure of resources by the Court and by the
responding attorney. One can zealously advocate for a client without fudging or misstating
the facts or making outright misrepresentations to the Court. Counsel is warned that any
further misrepresentations will likely result in sanctions, referral to the Committee on
Conduct, or both.
IV. 	Conclusion
For the reasons stated above,
IT IS HEREBY RECOMMENDED that the Motion [#104] be DENIED.
IT IS FURTHER RECOMMENDED that, if regular opt-in notice issues in this case,
a court-approved curative notice be issued to each opt-in plaintiff who has signed a
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consent form and that each opt-in sign and file an amended consent form, on a court-
approved form.
IT IS FURTHER ORDERED that pursuant to Federal Rule of Civil Procedure 72,
the parties shall have fourteen (14) days after service of this Recommendation to serve
and file any written objections to obtain reconsideration by the District Judge to whom this
case is assigned. A party’s failure to serve and file specific, written objections waives de
novo review of the Recommendation by the District Judge, Federal Rule of Civil
Procedure 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate
review of both factual and legal questions, Makin v. Colo. Dep’t of Corr., 183 F.3d 1205,
1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s
objections to this Recommendation must be both timely and specific to preserve an issue
for de novo review by the District Court or for appellate review. United States v. One
Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.1996).
Dated: January 18, 2026 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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