Curry v. Outsourced Associates & Staffing, LLC

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
Michelle Curry, individually and on behalf of
all other similarly situated employees,
Plaintiff,
v.
Outsourced Associates & Staffing, LLC DBA
NOW CFO, LLC and Does 1 to 100 inclusive,
Defendants.
MEMORANDUM DECISION AND
ORDER
Case No. 2:25-cv-76 DBB DBP
District Judge David Barlow
Magistrate Judge Dustin B. Pead
Before the court are two motions concerning communications between putative class
members and counsel for the parties.1 On April 22, 2205, the court granted Plaintiff’s Motion for
conditional class certification in part.2 First, Plaintiff seeks a protective order from the court
prohibiting Defendants from contacting or communicating with opt-in Plaintiffs or individuals
who are eligible to join the putative class outside the presence of counsel for Plaintiff.3 Plaintiff
further requests that the court order Defendants to issue a curative instruction informing putative
class member they have unilaterally contacted, that they are still eligible to join the collective
class.
Second, Defendants move the court for an order prohibiting Plaintiff from unauthorized
communications to putative class members.4 According to Defendants, the parties reached an
1 Plaintiffs’ Short Form Motion for Protective Order and Curative Instruction, ECF No. 42. Motion for Order
Prohibiting Plaintiff from Unauthorized Communications to Putative Class Members. ECF No. 57.
2 Memorandum Decision and Order granting in part Plaintiff’s Motion for Conditional Certification and Court-
Authorized Notice, ECF No. 26.
3 ECF No. 42.
4 ECF No. 57.
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agreement on the notice process to notify putative class members of this action. However,
Plaintiff seeks to call putative plaintiffs as part of the notice process. This is something which
Defendants argue was not part of their agreement.
For the reasons stated below, Plaintiff’s Motion is granted in part. Defendant’s Motion is
granted.5
BACKGROUND
Now CFO is a Utah Corporation that offers accounting, controller, and consulting
services.6 It has offices in 23 states and provides services to clients across the country.7 Now
CFO employs hundreds of consultants who are classified as non-exempt and overtime eligible.8
These consultants work under the supervision of regional market presidents, who authorize
consultants’ work and approve their time sheets. The Now CFO Employment Agreement for
non-exempt, full-time consultants provides that employees are paid for “all Client Billable
Hours.”9 This is defined as “billable hours worked for Employer’s Clients that are billed to
Clients for Employee’s services”.10
Plaintiff asserts that due to this policy in the Agreement, certain overtime eligible
consultants were not paid for hours they spend on non-billable work, such as team meetings
performance reviews, and training.11 Ms. Curry claims that consultants often worked more than
5 This mater is referred to the undersigned from Judge David Barlow for consideration of non-dispositive matters
under 28 U.S.C. § 636(b)(1)(A).
6 Complaint ¶ 10, ECF No. 1, filed Feb. 4, 2025.
7 Id. at ¶ 20.
8 Id. at ¶ 23.
9 Non-Exempt, Full-Time Consultant Employment Agreement (“Agreement”) IV.a.I., ECF 1-.
10 Agreement I d.
11 Complaint at ¶ 25-26
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forty hours a week but were not paid overtime.12 Ms. Curry worked as a consultant for Now
CFO from May 2023 to November 2024. She signed the Agreement with Now CFO at the
beginning of her employment.
On April 22, 2025, the court granted Plaintiff’s Motion for Conditional Certification in
part. Conditional certification was granted for “conditional certification for all persons who
worked as consultants, controller consultants, CFO consultants, or in other positions with similar
job duties, for NOW CFO at any time during the last three years and who signed a written
employment contract containing language indicating that they would only be paid for work billed
to clients.”13 The court ordered the parties to meet and confer “regarding the form, content and
substance of notice that will be sent, to whom it will be sent, and the methods by which it will be
sent.”14 The parties then engaged in various meet and confer efforts to reach an agreement
regarding the form of Notice and the details about how it will be sent, to whom, and by what
methods. Some disagreements regarding these matters remain between the partis.15 None,
however, prevent the court from deciding the current motions.
STANDARD
A “trial court has a substantial interest in communications … for single actions involving
multiple parties.”16 The Supreme court has observed that “class actions serve important goals but
also present opportunities for abuse.”17 Because of the potential for abuse, “a district court has
12 Id. at ¶¶ 77-79.
13 Memorandum Decision and Order granting in part Plaintiff’s Motion for Conditional Certification and Court-
Authorized Notice, at 9, ECF No. 26.
14 Id.
15 See Status Report filed by Plaintiff, ECF No. 34; Objections to Status Report filed by Defendants, ECF No. 36.
16 Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171, 110 S. Ct. 482, 486, 107 L. Ed. 2d 480 (1989).
17 Id.
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both the duty and the broad authority to exercise control over a class action and to enter
appropriate orders governing the conduct of counsel and parties.”18 This discretion is not
unlimited, however, and is to follow the relevant portions of the Federal Rules.19
Orders restricting communications must 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.”20 Courts have found abusive communications warranting an order entering
restrictions to include communications affecting class members' decisions regarding whether to
participate in the litigation.21 A court must consider the rights of the parties under the
circumstances in order to identify “the narrowest possible relief which would protect the
respective parties.”22
DISCUSSION
I. 	Plaintiffs’ Short Form Motion for Protective Order and Curative Instruction
Plaintiff moves the court for a protective order prohibiting Defendant from contacting or
communicating with op-in Plaintiffs, or individuals who are eligible to join this collective action
outside the presence of counsel for Plaintiff. Further, Plaintiff seeks an order from the court
requiring Defendant to issue a curative instruction informing the putative class members who
have been unilaterally contacted that they are still eligible to join the collective class.
18 Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S. Ct. 2193, 2200, 68 L. Ed. 2d 693 (1981).
19 Id.
20 Id. at 101.
21 See, e.g., Kleiner v. First Nat'l Bank, 751 F.2d 1193, 1203 (11th Cir. 1985) (prohibiting further communications
where Defendant's attempts to obtain opt-outs from putative class members “constituted an intolerable affront to the
authority of the district court to police class member contact”); Romano v. SLS Residential, Inc., 253 F.R.D. 292,
299 (S.D.N.Y. 2008) (prohibiting Defendant from contacting any potential plaintiffs or their family members
regarding the lawsuit, but recognizing that, as to those putative class members still residing in defendants' facility,
“the [d]efendants of course may have contact with them to the extent that they must continue to provide services to
whoever is in their care”).
22 Gulf Oil Co., 452 U.S. at 102.
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At the outset, the court notes that it allowed the parties to file overlength briefing and
considered that briefing. The court therefore does not address Defendant’s argument concerning
whether Plaintiff’s motion is properly brought as a short form discovery motion.
At the heart of this dispute is Defendants’ contact with putative Plaintiffs. According to
Plaintiff, Now CFO agreed that the contact would stop. But it did not. Instead, Defendant has
reached out to putative class members regarding whether they were paid for work they
performed. In fact, “Defendant has been sending payments to putative collective class members
that ostensibly are designed to compensate a given class member for time they worked that was
not paid.”23 Defendant has not been providing any information regarding this lawsuit to those
individuals it contacted and characterizes it as a “routine audit.” Plaintiff is concerned that this is
“poisoning the well” and will depress interest in joining the collective class as Defendant has
used unsolicited settlement offers.
Defendant provides it has paid over $500,000 to its consultants based on their self-reports
after being contacted. And most importantly, Defendant’s communications have not encouraged
anyone from not opening into the collective class. Therefore, any blanket protective order
prohibiting future communications with the putative class members is improper. There is no
“clear record” warranting such a restriction.
Although communications to potential class members may occur during this phase of the
case, such communications also provide “opportunities for abuse as well as problems for courts
and counsel in the management of cases.”24 “Abuse” in this context has been found to “include
23 Plaintiff’s Short Form Motion at 2, ECF No. 42.
24 Gulf Oil Co. v. Bernard, 452 U.S. at 99-100.
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communications that are misleading, coercive, or otherwise improper.”25 A sister court in this
district, has noted that “the law is clear that sending out settlement offers to putative class
members without disclosing sufficient information about a possible class action is abusive and
can justify invalidating releases and issuing corrective notice.”26 The Nakamura court though
declined to invalidate any releases or issue corrective notices at that time because the defendant
had already corrected their failures. In lieu of invalidating releases, the court chose to “wait until
after the class is certified and include a statement in the certification notice stating the court will
entertain applications to void any releases previously signed at that time.”27
Here the court is concerned with Defendants’ actions under the guise of an audit. The fact
that the survey sent to Defendants’ current and former employees was approved by Defendants’
counsel does not lessen this concern. Nor does it change the court’s concern that these “surveys”
may not be squarely characterized as releases. Defendants have made payments and
communicated with putative class members without disclosing information about this action.
That falls within the possible definition of abuse. Defendants seek to overcome this problem by
noting that the “surveys, phone calls, and checks were not coercive; the communications did not
reference this lawsuit or suggest that acceptance of a check barred any further recovery.”28
Remaining silent about this action while offering money is precisely the problem. This presents
25 McMullen v. Synchrony Bank, No. CV 14-1983 (JEB), 2016 WL 11129736, at *1 (D.D.C. June 20, 2016); See
Mevorah v. Wells Fargo Home Mortg., Inc., No. 05-1175, 2005 WL 4813532, at *3 (N.D. Cal. Nov. 17, 2005); Cox
Nuclear Medicine v. Gold Cup Coffee Srvs., Inc., 214 F.R.D. 696, 698 (S.D. Ala. 2003) (“Abusive practices ...
include communications that coerce prospective class members into excluding themselves from the litigation;
communications that contain false, misleading, or confusing statements; and communications that undermine
cooperation with or confidence in class counsel.”)
26 Jin Nakamura v. Wells Fargo Bank, Nat'l Ass'n, No. 17-4029-DDC-GEB, 2018 WL 994706, at *9 (D. Kan. Feb.
21, 2018).
27 Id.
28 Defendant’s Opposition to Plaintiff’s Motion at 5, ECF No. 46.
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the distinct likelihood for Defendants to seek exclusion of certain class members that accepted
payments.
Further, couple these actions with Defendants repeated assurances that they were
stopping contact, while continuing to reach out to putative class members, and there is enough to
warrant some type of intervention by the court.
The court seeks to balance Defendants need to communicate with its employees.
Therefore, Defendants may continue to communicate with their current employees regarding
business matters. This will allow Defendants to continue their operations in a reasonable manner.
Communication with former employees, however, does not serve the same purpose. The court
will prohibit communications with former employees. Defendants are further ordered to stop
communications with its current employees concerning money payments for time worked unless
Defendants fully disclose the present case and provide contact information for Plaintiff’s counsel
to those contacted. Plaintiff’s counsel is not to reach out to those employees unless they initiate
contact first. Further, the court is persuaded by the court’s approach in Nakamura. Once class
certification is completed, the court will entertain applications to void any releases previously
signed at that time. With this extra measure of protection, the court declines Plaintiff’s invitation
to issue a curative instruction. Thus, Plaintiff’s Motion is granted in part.
II. 	Defendants’ Motion for Order Prohibiting Plaintiff from Unauthorized
Communications to Putative Class Members
Defendants represent that through negotiations the parties reached agreement regarding
most issues for the form of Notice in this case. These included that “(1) the Notice would be
provided by mail, email, and text, (2) there would be a 60-day opt-in period, and (3) a second
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notice/reminder would be sent 30 days after the first Notice.”29 Despite these agreements,30
Defendants note that Plaintiff’s counsel now wants Defendants to produce the “contact
information for the potential opt-in plaintiffs, and that counsel intends to call these individuals on
the telephone to discuss the case.”31 Defendants therefore seek a protective order “precluding
Plaintiff’s counsel from contacting potential opt-in plaintiffs beyond the means set forth in the
Notice.”32 Defendants do provide that if a potential plaintiff reaches out to Plaintiff’s counsel,
then counsel can discuss the case, but following Plaintiff’s counsel’s method of initiating contact
will improperly solicit op-in participation.
In response to Defendants’ motion, Plaintiff characterizes the request as “broad[,] all
encompassing”33 and not supported by the record in this case. As a baseline, a demonstrated risk
of abuse or misleading communication is needed to grant the restrictions sought by Plaintiff.34
The Supreme Court has provided that an “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.”35 Here there is no record supporting such limitations.
29 Motion for Order Prohibiting Plaintiff from Unauthorized Communications to Putative Class Members at 2, ECF
No. 57.
30 A narrow issue remains in dispute regarding the Notice process that has been submitted to the court. It is not
material to the present dispute.
31 Motion for Order Prohibiting Plaintiff from Unauthorized Communications to Putative Class Members at 3.
32 Id.
33 Plaintiff’s Opposition to Defendants’ Motion for Order Prohibiting Plaintiff From Unauthorized Communications
to Putative Class Members at 2, ECF No. 60.
34
35 Gulf Oil Co. v. Bernard, 452 U.S. 89, 101, 101 S. Ct. 2193, 2200, 68 L. Ed. 2d 693 (1981).
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Further, Plaintiff cites several cases where courts permitted discovery and did not limit it
as Defendants seek.36 This includes allowing phone calls.37 In essence, Plaintiff’s discovery
should not be limited, and if some putative class members become aware of this litigation from
Plaintiff’s counsel’s contact, this is not contrary to the purposes of the Fair Labor Standard Act.
Although some courts have allowed counsel to contact putative plaintiffs via telephone
calls, Plaintiff provides no authority for the proposition that having reached an agreement
regarding most of the notice process, that phone calls should now be added as part of that
process. The majority of cases cited by Plaintiff are distinguishable because the current case is
not in the post notice phase unlike most of Plaintiff’s cited authorities. Further, those courts that
allowed phone calls were part of the agreement reached by the parties. The court therefore will
grant Defendants’ Motion.
36 See In re Bank of Am. Wage & Hour Emp. Pracs. Litig., 275 F.R.D. 534, 543 (D. Kan. 2011) (allowing discovery
of the names and contact information of former bank employees who worked in certain positions as they may have
information about the policies or plans); Gieseke v. First Horizon Home Loan Corp., 2007 WL 445202, at *4 (D.
Kan. Feb. 7, 2007), aff'd as modified, 2007 WL 1201493 (D. Kan. Apr. 23, 2007) (permitting plaintiffs to collect the
social security numbers of putative class members whose notices have been returned as undeliverable); Graczyk v.
Weider Nutrition Grp., Inc., No. 2:04 CV 1065 DAK, 2005 WL 8175106, at *5 (D. Utah Dec. 28, 2005) (allowing
discovery of specific documents in personnel files); McReynolds v. Bigler, No. 88-1343-C, 1990 WL 129454, at *2
(D. Kan. Aug. 6, 1990) (providing for discovery of physician information because they “are percipient fact
witnesses, and as such, the information and opinions they possess should be freely accessible to both parties to the
litigation”).
37 Palczynsky v. Oil Patch Grp, Inc., No. 2:21-cv-1125 DHU KRS, 2025 WL 844172, at *9 (D.N.M. Apr. 7, 2025)
(“The Court sees also no reason why Plaintiffs should not be able to make follow-up phone calls to those putative
class members whose contact information appears to be incorrect or no longer valid.”); Porter v. W. Side Rest., LLC,
No. 13-1112-JAR-KGG, 2014 WL 1642152, at *13 (D. Kan. Apr. 24, 2014) (ordering the defendant to provide
plaintiff a list of first and last names, last-known addresses and telephone numbers); Pinkston v. Wheatland Enters.,
Inc., No. 11-CV-2498, 2013 WL 1191207, at *4 (D. Kan. Mar. 22, 2013) (permitting plaintiff’s counsel to contact
potential class members “only to verify contact information and to verify receipt of notice”).
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CONCLUSION
For the reasons set forth above Plaintiff’s Motion for Protective Order and Curative
Instruction is GRANTED IN PART.
Defendants’ Motion for Order Prohibiting Plaintiff from Unauthorized Communications
to Putative Class Members is GRANTED.
IT IS SO ORDERED.
DATED this 19 February 2026.
Dustin B. Pead
United States Magistrate Judge
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