FOR PUBLICATION



### UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LORENZO DOMINGUEZ, individually, on behalf of others similarly situated, and on behalf of the general public,

Plaintiff

- Appellee

,

v.

BETTER MORTGAGE CORPORATION,

Defendant

- Appellant

. No. 22

- 55731

D.C. No.
8:20

- cv

- 01784

- JLS

- KES

OPINION

Appeal from the United States District Court
for the Central District of California Josephine L. Staton, District Judge, Presiding

Argued and Submitted June 6, 2023 Pasadena, California

Filed December 7, 2023

Before: Milan D. Smith, Jr., David F. Hamilton, * and Daniel P. Collins, Circuit Judges.

* The Honorable David F. Hamilton, United States Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation.2 D OMINGUEZ V

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Opinion by Judge David F. Hamilton ; Partial Concurrence and Partial Dissent by Judge Collins

SUMMARY **

Labor Law

The panel (1) affirmed the district court’s order imposing a communication restriction on the defendant employer in a putative collective and class wage

- and

- hour action under the Fair Labor Standards Act and state law; and (2) dismissed for lack of jurisdiction the employer’s appeal from the district court’s order nullifying agreements between the employer and current and former employees.

The lead plaintiff objected after his former employer responded to his lawsuit seeking unpaid overtime wages by trying to persuade employees to agree not to join any collective or class action and to encourage employees to settle their claims individually. The district court found that the employer’s communications were misleading and
coercive. The district court therefore nullified the new employment agreements and release agreements, and it ordered the employer to communicate with current and former emp loyees about wage

- and

- hour issues only in writing and with prior approval.

The panel held that the employer’s appeal was timely, even though the district court’s order imposing the

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.D OMINGUEZ V

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communication restriction was entered on May 17, 2022, more than 30 days before the filing of the notice of appeal, because the employer filed in substance a motion to reconsider the restriction, thus tolling the time to file the notice of appeal. The emp loyer timely filed its notice of appeal within 30 days of the district court’s order refusing to modify the May 17 order.

The panel held that, in this interlocutory appeal, it had jurisdiction under 28 U.S.C. § 1292(a)(1) to review the communication restriction because the restriction, which imposed a prior restraint, was injunctive in

nature. Affirming in part, the panel he ld that the restriction was both justified and tailored to the situation created by the employer’s misleading and coercive communications, and
the district court therefore did not abuse its discretion in imposing the restriction.

Dismissing in part, the panel held that it lacked jurisdiction to review the district court’s order nullifying new employment agreements and release agreements signed in response to the employer’s communications that the
district court found to have been m isleading and
coercive. The panel held that it lacked jurisdiction to
consider the merits of the nullification order because the issue was raised in an interlocutory appeal and did fit any exception, such as pendent appellate jurisdiction, that would
allo w for review.

Judge Collins concurred in Parts II and III(A) of the opinion, concluding that the panel had appellate jurisdiction over the district court’s order requiring the employer to obtain prior court approval before engaging in certain communications with potenti al class members. As to the merits of the employer’s challenges to the communications4 D OMINGUEZ V

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order, imposing a prior restraint, Judge Collins wrote that he
would vacate that order and remand for further consideration, and he therefore dissented from the majority’s contrary disposition. Concurring in the judgment in part, Judge Collins agreed with the majority’s ultimate conclusion that the panel lacked appellate jurisdiction over the further portions of the district court’s orders nullifying certain agreements between the employer and some of its employees.

COUNSEL

Anton Metlitsky (argued), O’ Melveny & Myers LLP, New York, New York; Adam J. Karr, O’ Melveny & Myers LLP, Los Angeles, California; Paul A. Holton, O’Melveny & Myers LLP, Newport Beach, California; Susannah K. Howard and Racquel B. Martin, O’Melveny & Myers LLP,
San Fra ncisco, California; for Defendant- Appellant.

Matthew C. Helland (argued) and Daniel S. Brome, Nicholas Kaster LLP, San Francisco, California; C. Andrew Head and Bethany A. Hilbert, Head Law Firm LLC, Chicago, Illinois;
for Plaintiff

- Appellee.D OMINGUEZ V

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OPINION

HAMILTON, Circuit Judge:

This appeal presents recurring issues facing district

courts in managing whether and how prospective parties are brought into wage

- and

- hour lawsuits under the collective action procedures of the federal Fair Labor Standards Act
and class actions brought under state laws. See generally Hoffman

- La Roche v. Sperling , 493 U.S. 165 (1989) (collective actions); Gulf Oil Co. v. Bernard , 452 U.S. 89 (1981) (class actions)

. In wage

- and

- hour cases like this one,

s uch issues can arise

, for example, when an employer tries to discourage current and former employees from participating and thus to minimize the employer’s exposure
in the lawsuit

. Here, the lead plaintiff in this suit seeking unpaid overtime wages objected after his former employer responded to his lawsuit by trying to persuade employees to agree not to join any collective or class action and to encourage employees to settle their claims individually.

The district court found that the employer ’s communications to solicit these agreements were misleading
and coercive

. The court therefore nullified the new employment agreements and release agreements

, and the

court ordered the employer to communicate with current and former employees about wage and hour issues only in writing and with prior court approval. Other district courts
in this circuit and elsewhere have addressed similar conduct.
See

, e.g. , Camp v. Alexander , 300 F.R.D. 617, 620, 624

– 26 (N.D. Cal. 2014) ( collecting cases, requiring curat ive notice

, and invalidating opt

- out agreements where defendant obtained them using misleading information).6 D OMINGUEZ V

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.

In this appeal, t he employer challenges the district
court’s nullification of signed agreements and i ts restriction

on communications with employees

. The lead plaintiff
defends the district court’s actions on the merits and questions appellate jurisdiction. As explained below, we have appellate jurisdiction over the district court’s restriction on the employer’s communication with members of the putative class and collective action, and on the merits we affirm the restriction , finding it both justified and tailored to the situation created by the employer’s misleading and
coercive communications

. We lack appellate jurisd iction

, however, over the district court’s order nullifying agreements between the employer and current and former employees. We therefore do not reach the merits of the
nullification issue

.
I. Factual and Procedural Background

A. Th e Lawsuit is Filed

Lead p laintiff Lorenzo Dominguez worked for defendant Better Mortgage Corporation as an underwriter. He alleges
that Better Mortgage violated federal and state wage

- and

hour laws , primarily by failing to pay overtime to him and other mortgage underwriters. He sued in September 2020 under both the federal FLSA, which allows collective actions by similarly situated plaintiffs under 29 U.S.C. § 216(b), and California statutes, which may be applied through class actions under Federal Rule of Civil Procedure
23

.
B. The Employer’s Quick Response

Better Mortgage wasted no time in trying to reduce its
risk in the new lawsuit by reducing the size of the potential
class and collective action

. On October 19, 2020, BetterD OMINGUEZ V

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Mortgage held a virtual meeting with all then

- current underwriter employee s. Managers said they were “reviewing a legal claim against the company, alleging
that ... [underwriting] roles should be eligible for overtime pay.” Managers also said they did not believe th e allegation s

were true.
Managers then tried to persuade the current underwriters to sign agreements that would reduce the company’s exposure in th is lawsuit. The company offered the underwriters $5,000 each for quickly signing an agreement releasing their non

- FLSA claims in this lawsuit

. Better Mortgage managers also said in the same virtual meeting
that underwriters would receive a new mandatory

e mployment a greement , but they did not indicate how the new agreement differed from prior agreements . They said only vaguely that it w ould include “updates

. ”

Later in the evening o f October 19, Better Mortgage sent
the new e mployment a greement to underwriters by email.
Th e new a greement included a new clause requir ing
arbitration of all employment

- related claims

— and only in an
individual proceeding, not a class or collective a rbitra tion

. The new employment agreement did not mention the pending lawsuit. Better Mortgage management told the
underwriters that s igning the new agreement was a condition of continued employment.

That same evening, Better Mortgage also emailed
underwriters a form r elease a greement for this lawsuit, as discussed in the virtual meeting. The release agreement summarized the pending lawsuit, provided a link to the Dominguez complaint , and s aid that signing would waive “any and all claims (except those under the FLSA) that were
or could have been asserted in the Lawsuit.” The r elease8 D OMINGUEZ V

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a greement did not mention arbitration or explain that

, although employees w ould not be waiving claims under the
FLSA through this agreement , they would be waiving their ability to pursue those claims collectively by signing the new

e mployment a greement sent earlier in the evening

. Both proposed agreements came in email messages that warned in
bold font not to share the emails

. In some tension with that instruction, t he r elease a greement said that employees had a right to consult an attorney, but it added that Better Mortgage would not pay attorney fees for any consultation

. The next morning

, October 20, 2020

— after many underwriters had already signed the new e mployment

a greement

— Better Mortgage sent a “recap” email

. That email called attention, for the first time, to the new

e mployment a greement ’s arbitration clause. That email did not explain that the clause would bar collective pursuit of
claims in this lawsuit

. C. Response in the District Court

Almost a year later, o n October 1, 2021, plaintiff Dominguez filed a motion asking the district court to
invalidate both the new employment agreements and release agreements that had been signed by prospective plaintiffs. His motion also sought to restrict Better Mortgage’s ability to communicate with putative class and collective action members without court approval. When Dominguez filed that motion, no class had been certified under Rule 23, nor had the court approved collective treatment of the FLSA
cl aims. 1

1 On the same day that Dominguez filed his motion to nullify the signed agreements, Better Mortgage filed a motion asking the court to denyD OMINGUEZ V

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O n May 17, 2022

, the district court issue d the first of two orders at the center of this appeal. This first order (a) found that Better Mortgage obtained signatures on the new employment agreements and release agreements through
coerci on and misleading information, and (b) invalidated

new e mployment a greements and r elease a greements “as to any employee who was already employed at the time the agreements were presented.” The court also (c) ordered Better Mortgage to send a court

- approved curative notice to underwriters who had signed the employment agreement and told the parties to confer and submit proposed language for
the notice within fourteen days. Id. Last, the court (d) ordered Better Mortgage to refrain from communicating “with putative class members regarding the subject matter of this litigation” except in writing as approved by the court.
Id. Better Mortgage did not appeal the first order. 2

Counsel conferred but could not agree on language for
the court

- ordered curative notice. On May 31, 2022 , counsel
submitted a joint notice of their disagreements and their competing proposals. The parties disagreed on which

class certification. Better Mortgage argued that most putative members had signed the release agreement and the employment agreement containing the arbitration agreement. The court held argument on the
issue of class certification and denied Better Mortgage’s motion to deny
certification at the same time it nullified signed the agreements and said it would impose restrictions on communications.

2 As for the $5,000 individual payments already made by Better Mortgage under the signed r elease a greements, the district court “prohibit[ed] Defendant from requesting reimbursement” and reserved
for later in the lawsuit the question whether Better Mortgage might be entitled to an offset for payments already made. Better Mortgage has not raised any issue about payments in this appeal.10 D OMINGUEZ V

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employ ment agreements the court meant to invalidate as
well as on the scope of the communication restriction

. On July 21, 2022

, the district court addressed those dispute s in the second order at the center of this appeal. The

court made clear that it invalidated agreements “as to all putative class members” and rejected Better Mortgage’s interpretation of the communication restriction that would
have allowed the company to communicate with employees about “wage and hour matters (as opposed to the lawsuit specifically).” Better Mortgage then moved to stay the May 17 and July 21 orders pending resolution of the appeal. The

court granted a stay of the part of the second orde r “relating to the request by Defendant that was not addressed in the May 17, 2022 Order, namely, that Defendant have permission ‘to discuss wage and hour matters (as opposed to the lawsuit specifically)’ with members of the potential
class.” The court denied a stay of other portions of its orders. This appeal followed.

We explain next in Part II why this appeal is timely. In Part III, we turn to the communication restriction. We find that we have appellate jurisdiction over that challenge, and
we affirm that restriction on the merits. Finally, in Part IV, we explain why we do not have appellate jurisdiction over the district court’s order nullifying signed release agreements and new employment agreements with former employees and underwriters who were current employees in
October 2020.

II. Timeliness of the Appeal

The district court entered two orders covering the issues appealed, the first on May 17, 2022 , which announced the injunctive restriction on Better Mortgage’s communications
with underwriters and the nullification of signed agreements,D OMINGUEZ V

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. 11

and the second on July 21, 2022, which, among other things,
resolved issues about the corrective communication to
underwriters. Better Mortgage filed its notice of appeal on August 1, 2022. Counting from May 17, the notice of appeal
was filed after the applicable 30

- day jurisdictional deadline in 28 U.S.C. § 2107(a) and Fed. R. App. P. 4(a)(1)(A)

. Our jurisdiction depends on whether there is a sound basis for extending that 30

- day deadline. We find that there is.

Better Mortgage offers two principal grounds for extending the deadline. The first is that the district court’s second order on July 21 resolved a genuine ambiguity in the May 17 order regarding communications with potential class members and plaintiffs. If a later order materially changes
the substance of a n earlier order

, the later order can restart the clock for appeal of the entire earlier order, “even where the appeal concerns a different matter from that revised by
the district court.” U nited State s v. Doe , 374 F.3d 851, 854 (9th Cir. 2004) ; see also Burlington Northern Inc. v. United
States , 459 U.S. 131, 138 n.5 (1982) (appeal was timely where second order “‘[resolved] a genuine ambiguity in a judgment previously rendered’ and dealt with a question which was not ‘plainly and properly settled with finality’”) (quoting FTC v. Minneapolis

- Honeywell Regulator Co. , 344 U.S. 206, 211

– 12 (1952) (refusing to allow second order to restart clock for appeal because first order “was for all purposes final. It put to rest the questions which the parties had litigated.... It was neither ‘tentative, informa l nor incomplete’”)). 3

Dominguez argues that the district court’s May 17 order was not ambiguous but quite clear, requiring Better

3 A different holding in Minneapolis

- Honeywell was later superseded by

statute. See Catz v. Chalker , 566 F.3d 839, 841 n.1 (9th Cir. 2009).12 D OMINGUEZ V

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Mortgage to “communicate with putative class members regarding the subject matter of this litigation only in writing and with Court approval ” (emphasis in original). We do not need to resolve this debate over the clarity of that first order because we agree with Better Mortgage’s second argument for the appeal being timely

. The second argument is that Better Mortgage filed in substance a timely motion to reconsider that injunction, thus tolling the time to file a notice of appeal until the district
court ruled on its motion. See F ED

. R. A PP

. P. 4(a)(4)(A)(iv). Such a motion to reconsider or amend the May 17 order’s prior restraint was due within 28 days of that order. See F ED

. R. C IV

. P. 54(a) & 59(e). The parties filed their court

ordered joint document on May 31, which is well within that
allowed time

. 4 Accordingly, that document suffice s if it
constitute d a “motion to alter or amend” an “order from which an appeal lies.” F ED

. R. C IV

. P. 59(e) & 54(a).

A “motion” must be in writing unless it is made during a hearing or a trial, and it must “state the relief sought” and “state with particularity the grounds for seeking the order.”
See F ED

. R. C IV

. P. 7(b). In determining whether a document qualifies as a motion under Rule 59(e) to alter or amend an appealable judgment or order, we have made clear that “nomenclature is not controlling,” and a document “will be considered a Rule 59(e) motion to alter or amend the judgment [or appealable order] where it involves

4 That also happens to be within the 14

- day time limit for motions to
reconsider under the Central District of California’s Local Rules. See
C.D. C AL

. L. C IV

. R. 7

- 18. However, a local rule cannot shorten the 28

- day time limit specified in the national rules with respect to an order that
is appealable as of right. See F ED

. R. C IV

. P. 54( A ), 59( E ); see also F ED

. R. C IV

. P. 83(a)(1) (stating that a “local rule must be consistent with” national rules).D OMINGUEZ V

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reconsideration of matters properly encompassed in a
decision on the merits.” United States ex rel. Hoggett v. University of Phoenix , 863 F.3d 1105, 1108 (9th Cir. 2017) ( citations omitted ).

The substance of the parties’ May 31 joint statement
satisfies these criteria so that the document counts as a Rule 59(e) motion by Better Mortgage with respect to the May 17
order’s restriction on its communications with its current and
former underwriters. In t he joint statement

, Better Mortgage took the position that the phrase “subject matter of this lawsuit” should be expla ined to mean “only the lawsuit itself” and not any matter that is “part of the subject matter of the lawsuit,” such as the “wages and hours” of current employees. The document also set s forth Better Mortgage’s reasons for reques ting that “explanation”

— namely, that this clarification “is far more narrowly tailored,” as assertedly required by Gulf Oil

. T he document ma de clear that Better Mortgage wanted the district court to modify its May 17
order immediately to make clear that , despite having used

t he phrase “regarding the subject matter of the litigation,”
the order should not bar either communications with employees about “wage and hour matters” or communications for the purpose of “obtain[ing] factual
information to defend its elf in this litigation.” T he document set forth with sufficient particularity the ground on which Better Mortgage sought that modification . Thus, “look[ing] to the substance, not simply the title,” of the May 31
document “to determine whether it is in substance a motion to alter or amend the judgment,” Hoggett , 863 F.3d at 1108,
th e document count ed as a motion by Better Mortgage to alter or amend the May 17 order.

A ccordingly, the time for Better Mortgage to appeal the May 17 order did not begin to run until its requested14 D OMINGUEZ V

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modification was denied in the July 21 order. And because the notice of appeal was filed with in 30 days of the July 21 order, Better Mortgage’s appeal is timely and brings up before us both the May 17 order imposing the prior restraint and the July 21 order refusing to change it. That does not resolve all issues of appellate jurisdiction, however. 5

III. Th e Communication Restriction

We now turn to defendant’s chal lenge to t he second
order’s communication restriction in this interlocutory appeal. We first find that we have appellate jurisdiction over this challenge . We then affirm the restriction as a tailored response to defendant’s misleading and coercive communications intended to restrict the scope of the lawsuit.

A. Appellate Jurisdiction Over the Communication

Restriction

The district court’s restriction was injunctive in natur e

. Jurisdiction exists over appeals from “ [i] nterlocutory orders
of the district court s ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions

... .” 28 U.S.C. § 1292(a)(1). The statute provide s jurisdiction to review an interlocutory order that is
not labeled as an injunction yet has the “ ‘ practical effect ’ of

5 Plaintiff Dominguez argues that the joint statement cannot be considered a motion under Rule 59(e) because it did not comply with the format and other requirements of the Local Rules of the Central District
of California. A ny such defect as to form d id not preclude a document
that wa s filed within the Rule 59(e) time limit from serving as a Rule 59(e) motion that resets the time for filing an appeal. See Feldman v.
Allstate Ins. Co. , 322 F.3d 660, 665

– 66 (9th Cir. 2003) (motion to reconsider extended time to appeal despite failure to comply with district
court’s local rule requiring a statement that parties conferred before motion was filed).D OMINGUEZ V

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. 15

granting or denying an injunction” and threatens “serious and perhaps irreparable harm if not immediately reviewed.”
Abbott v. Perez , 138 S. Ct. 2305, 23 1 9 (2018) ( q uoting
Carson v. Am erican Brands, Inc. , 450 U.S. 79, 83 (1981) )

. The communication restriction at issue here prevents Better Mortgage from communicating with employees about wage and hour matters absent court approval. This aspect of
the order is injunctive in nature

. That is sufficient for appellate jurisdiction under Section 1292(a)

. Great Rivers
Co

- op. of Southeastern Iowa v. Farmland Industries, Inc.

, 59 F.3d 764, 765

– 66 (8th Cir. 1995) (exercising jurisdiction under § 1292(a) in appeal from district court order restricting communications with potential class members and requiring corrective notice); cf. Aguilar v. Walgreen Co ., 47 F.4th 1115, 1121

– 22 & n .8 (9th Cir. 2022) (distinguishing Great
Rivers and dismissing interlocutory appeal where district court order invalidating opt

- outs from class action did not require or prohibit any speech).

B

. Merits of the Communication Restriction

Before addressing the more difficult jurisdictional problem presented by the appellate challenge to the order nullifying the new employment agreements and release agreements, we resolve the merits of Better Mortgage ’s challenge to the communication restriction.

Better Mortgage argues that the district court abused its discretion in issuing any restriction on communications given the facts. In the alternative, Better Mortgage argues that even if some restriction was justified, the order issued was too broad in scope.

The Supreme Court recognizes that district courts have
the duty and the power to oversee communications from16 D OMINGUEZ V

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both defendants and class counsel with potential class members and FLSA collective action participants

, but also
that this power must be exercised cautiously. In Gulf Oil Co.
v. Bernard

, 452 U.S. 89, 101 (1981), the Court taught that a district court may issue “an order limiting communications between parties and potential class members ... based on a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the righ ts of the parties.” This p ower flows from Federal Rule of Civil Procedure 23(d)(1)

, which allows district courts to “issue orders that ... impose conditions on the representative parties or on intervenors ... [and] deal with similar procedural matters.”

In Hoffman

- La Roche v. Sperling , 493 U.S. 165, 167

– 68 (1989) , the Court applied the same principles to a court order regulating communications with potential p laintiffs in a collective action proceeding under the Age Discrimination in Employment Act

, which uses the collective action procedures of the FLSA. See 29 U.S.C. § 626(b), incorporating § 216(b). Hoffman

-La Roche cited Gulf Oil and said that the “same justifications” for a district court exercising control over communications in a class action
exist in a collective action. 493 U.S. at 171. The FLSA’s
enforcemen t provision grants the court “managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper

way , ” including by regulating communications with prospective parties to ensure they are brought into an action in an efficient manner while being notified clearly and accurately of claims they may have and available options for pursuing relief. Id. at 170

– 71. At the same time, caution is essential: “In exercising the discretionary authorit y to oversee the notice

- giving process, courts must be scrupulousD OMINGUEZ V

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. 17

to respect judicial neutrality. To that end, trial courts must take care to avoid even the appearance of judicial
endorsement of the merits of the action. ” Id . at 174.

Here, Better Mortgage beat plaintiffs’ counsel and the district court to the punch, sending communications to potential plaintiffs before the court could begin to oversee joinder. T he court found that those communications were misleading and coercive

. The court therefore issued the communication restriction and began overseeing distribution
of a curative notice. We review case management orders
such as these for an abuse of discretion. See Gulf Oil , 452
U.S. at 103. District courts have “broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties.” Id. at 100;
see also Hoffman La

- Roche , 493 U.S. at 171.

The district court carefully parsed Better Mortgage’s
communications and determined that they were misleading

. The district court’s detailed order shows a careful analysis of the prior communications and how those communications affected the employees’ understanding of their options in
th is pending l awsuit

. The misleading and coercive nature of
these efforts was clear. For example, the court noted that employees had to sign the new employment agreement to continue working for Better Mortgage. Compoundin g this pressure was the fact that the arbitration clause in that agreement would prevent collective pursuit of claims in this
suit

. This coercive tactic

— telling employees they would be fired if they did not agree to have claims already being
asserted on their behalf in a pending lawsuit channeled out
of th at collective and class action in a federal court into
individual arbitrations

— smacks of retaliation and
interference with both federal and state statutory rights. See generally Lambert v. Ackerley , 180 F.3d 997, 1002

– 0 4 (9th18 D OMINGUEZ V

. B ETTER M ORTGAGE C ORP

.

Cir. 1999) (“The FLSA’s anti

- retaliation clause is designed to ensure that employees are not compelled to risk their jobs in order to assert their wage and hour rights under the Act.”) ; Cal. Lab. Code § 98.6 (a) (forbidding retaliati on against employee for making “a written or oral complaint that he or she is owed unpaid wages”).

Moreover, the release agreement presented to employees said signing would waive “all claims (except those under the FLSA),” giving the misleading impression that FLSA claims ( often pursued through collective action) would remain
available. As the district court found, “ despite the Release Agreement’s statement that the FLSA claims were not
waived

, ” it “does not explain that putative class members were forfeiting their right to bring the FLSA claims asserted in the pending suit if they signed the Employment Agreement

. ” The interaction between the agreements was unexplained and confusing.

The district court also paid attention to the timing of

messages, to how the different messages presented inconsistent and thus confusing information, and to missing

content that c ould have helped employees better evaluate their options. In contrast, in Gulf Oil , the Supreme Court
vacated a communication restriction where the district court had “failed to provide any record useful for appellate
review.” 452 U.S. at 102. The Court required that restrictions be imposed only after “attention to whether the restraint is justified by a likelihood of serious abuses.” Id. at 104. The district court paid s uch attention here.

Gulf Oil added that such a restriction must provide “the narrowest possible relief which would protect the respective parties

. ” 452 U.S. at 102. The resulting order should be “carefully drawn ... limit[ing] speech as little as possible.”D OMINGUEZ V

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Id. The district court’s first order restricted communications “with putative class members regarding the subject matter of this litigation

. ” Better Mortgage responded by arguing that
the broad restriction was unconstitutional

. It asked that the restraint be narrowed to “permit Better [ Mortgage ] to discuss wage and hour matters (as opposed to this lawsuit specifically) with employees and obtain factual information to defend itself in this litigation .”

By this phrasing, Better Mortgage showed that it
intended to continue communicat ing with current employees in ways related to this l awsuit

. Perhaps Better Mortgage planned to discuss “wage and hour matters” without mentioning the lawsuit to employees, but its intent was to use the planned communications to assist its defense. The district court acted within its discretion in finding that narrowing the restriction as requested would have allowed Better Mortgage to circumvent the order and that the request
to narrow the restriction should be denied

, “[g]iven the Defendant’s history of misleading and coercive communications[.]”

Under the court’s restriction on communication, Better Mortgage remains free to communicate about the lawsuit
and issues central to it. But it needs to communicate in writing, and it needs prior court approval, which is
reasonable here

. Given Better Mortgage’s record in this lawsuit, including both the misleading and coercive communications in October 2020, and its desire to continue
communicati ng with potential class members to help build its defense in this lawsuit, the district court tailored its order appropriately and did not abuse its discretion.20 D OMINGUEZ V

. B ETTER M ORTGAGE C ORP

.

IV

. Nullific ation of Agreements

We now turn from the communication restriction to the portion of the district court’s first order, issued May 17

, 202 2 , nullifying new employment agreements and release agreements signed in response to the employer’s
communications that the court found to have been misleading and coercive.

This appellate challenge raises a question that has arisen
in a number of district courts in this circuit : when can a district court void a settlement or opt

- out agreement obtained through misleading or coercive communications? See, e.g., Kirby v. Kindred Healthcare Operating, LLC , No. 5:19

- cv

00833

- JLS

- DFM, 2020 WL 4639493, at *3

– 7 (C.D. Cal. May 1, 2020) (holding settlement agreements voidable because they were obtained using misleading communications; requiring distribution of corrective notice);

McKee v. Audible, Inc. , No. CV 17

- 1941

- GW(Ex), 2018 WL 2422582, at *11

– 12 (C.D. Cal. Apr. 6, 2018) (finding agreements null and void to extent they would limit class participation in current action because agreements had been obtained through misleading tactics); Balasanyan v. Nordstrom, Inc. , No s . 11

- cv

- 2609

- JM

- WMC, 10

- cv

- 2671

- JM

- WMC, 2012 WL 760566, *1

– 4 (S.D. Cal. Mar. 8, 2012) (invalidating arbitration agreements as to putative class
members because they were obtained by misleading communications); Guifu Li v . A Perfect Day Franchise, Inc.

, 270 F.R.D. 509, 518

– 19 (N.D. Cal. 2010) (declining to issue
total ban on communications between defendant and employees but invalidating opt

- out forms obtained using coercion); C ounty of Santa Clara v. Astra USA, Inc. , No. C
05

- 0 3740 WHA, 2010 WL 2724512 , at *4

– 6 (N.D. Cal. July 8, 2010) (finding letter to putative class from defendant was misleading b ecause of omitted information about case ;D OMINGUEZ V

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problem remedied by nullifying agreements but not requiring corrective communication). We approved a similar order nullifying class opt

- outs obtained by coercion in Wang v. Chinese Daily News, Inc. , 623 F.3d 743, 757 (9th Cir. 2010), vacated on other grounds, 565 U.S. 801 (2011), but
that issue arose in Wang only in an appeal from a final judgment.

This challenge also echoes issues decided by other
circuits. Those circuits have reasoned , consistent with the relevant portion of Wang

, that district courts have the power to remedy misleading and coercive communications used to obtain agreements from prospective plaintiffs that affect their participation in the pending lawsuit. See Fox v. Saginaw C ounty , 35 F.4th 1042 , 1045, 1048

– 50 (6th Cir. 2022) (affirming nullification of agreements with class
members reached using misleading communications after
class certification ); Degidio v. Crazy Horse Saloon & Rest.

Inc. , 880 F.3d 135 , 144 (4th Cir. 2018) (affirming denial of enforcement for arbitration agreements obtained by misleading information); see also Hoffman

- La Roche , 493 U.S. at 172 (noting possibility that improper communications would give rise to “the need to cancel consents obtained in an improper manner”) ; Billingsley v.
Citi Trends, Inc. , 560 Fed. App’x 914, 920

– 24 (11th Cir. 2014) (non

- precedential) (affirming denial of enforceability of arbitration agreements obtained through coercion and collecting district court decisions taking similar corrective action)

.
At oral argument we questioned whether the district court had the power to issue the nullification order in the first instance since the court appears to have attempted to adjudicate, at least temporarily, the rights and obligations of prospective plaintiffs who were not yet before the court in22 D OMINGUEZ V

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the form of an approved class or by filing consent forms to join the collective FLSA action

. 6

We recognize the potential benefit of providing guidance to district courts in this circuit on these questions, but we may not do so unless we have appellate jurisdiction over the issue in this appeal. We do not have it here.

The fact that we have appellate jurisdiction over the restriction on future communications to prospective plaintiffs does not mean that we also have jurisdiction over the nullification of agreements already signed. J ust because part of the order being timely appealed is reviewable in an interlocutory appeal as injunctive in nature does not mean that every issue addressed in the same order may (or must) be appealed now. See D e Jesus Ortega Melendres v. Arpaio

, 695 F.3d 990, 999 (9th Cir. 2012) (“Mindful of the restraint that we must exercise in determining the scope of our pendent jurisdiction, we conclude that no other issue the
Defendants raise in this interlocutory appeal is ‘inextricably intertwined with’ or ‘necessary to ensure meaningful review’ of the preliminary injunction decision.”). We lack jurisdiction to consider the merits of the nullification of agreements because the issue is raised in an interlocutory

6 It is unclear how many people whose agreements were invalidated in the order were properly before the district court. The record indicates that at least two people signed the new employment agreement and, prior to the order invalidating the agreements, signed consent forms to be represented by Dominguez’s counsel and join this litigation. Those individuals submitted affidavits indicating that they worked for Better Mortgage prior to the rollout of the new agreements and continued their employment after the new agreements, meaning they must have signed the mandatory employment agreement. For many others who filed consent forms, it is unclear whether they signed the agreements at issue or instead terminated their employment with Better Mortgage.D OMINGUEZ V

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appeal and does not fit any exception that would allow for
review now

. Better Mortgage argu es that we have such jurisdiction
because the district court’s nullification of agreements is

“ inextricably intertwined ” with the communication
restriction or because reviewing the nullification is necessary to ensure meaningful review of the
communicatio n restriction. Both issues involve the same
facts and analysis of whether Better Mortgage’s communications were misleading and/or coercive

. Even if we were tempted to charge ahead with that theory, o ur precedents establish that more is required for pend e nt appellate jurisdiction than just having separate issues rest on common facts. E.g., United States v. Decinces

, 808 F.3d 785

, 792

– 93 (9th Cir. 20 15 ) (declining to find pendent appellate jurisdiction over issues beyond scope of proper interlocutory appeal)

. We have exercised pendent appellate jurisdiction over issues that are “inextricably intertwined” with proper issues for an interlocutory appeal, but that is a demanding standard. See

, e.g. , Streit v. C ounty of L os Angeles , 236 F.3d 552, 559 (9th Cir. 2001) (finding
denial of motion to dismiss and denial of summary judgment inextricably intertwined). We may find an additional issue
to be inextricably intertwined only if “we must decide the pend e nt issue in order to review the claims properly raised on interlocutory appeal ... [or] resolution of the issue properly raised on interlocutory appeal necessarily resolves the pend e nt issue.” Cunningham v. Gates , 229 F.3d 1271, 1285 (9th Cir. 2000) ; see also id. at 1284 (explaining that question of whether issues are inextricably intertwined is interpreted “very narrowl y”)

.24 D OMINGUEZ V

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.

Neither condition is satisfied here. Our decision to
affirm the communication restriction here does not resolve whether the nullification of agreements was also proper. There is substantial overlap, both factual and legal, but the outcome of one does not necessarily control the outcome of
the other. It is at least theoretically possible that prior misleading and coercive communications could justify a
forward

- looking communication restriction without necessarily nullifying agreements already signed.

As a final point on jurisdiction, we decline Better Mortgage’s request to treat its appeal as in part a petition for
a writ of mandamus. The district court’s order saying that agreements were being nullified does not amount to an extraordinary situation that could justify the “drastic” remedy of mandamus. See generally Kerr v. U.S. Dist. Ct.

, 426 U.S. 394, 402 (1976) ; Aguilar v. Walgreen Co ., 47 F.4th 1115, 1122

– 23 (9th Cir. 2022) (in wage

- and

- hour lawsuit, dismissing interlocutory appeal of district court order nullifying opt

- outs obtained by counsel seeking to pursue parallel lawsuit ; also denying writ of mandamus as
alternative route to immediate review )

. Better Mortgage also has not shown that it has a clear right to relief, that the nullification order is now causing it irreparable harm, or that a later appeal after final judgment would not be sufficient to
address the issue. See, e.g., Aguilar , 47 F.4th at 1123 (identifying factors applicable to petition for writ of mandamus). The district court has already indicated that the issue could be addressed later, at least with respect to payments made under the release agreements.

For these reasons, w e AFFIRM the communication restriction imposed by the district court in its orders of May
17 and July 21 , 202 2

. We DISMISS for lack of appellate jurisdiction defendant’s challenge to the portion of theD OMINGUEZ V

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district court’s order of May 17 nullifying new employment
and release agreements signed by prospective plaintiffs in
this case in the wake of defendant’s October 2020
communications.

COLLINS, Circuit Judge, concurring in part, concurring in the judgment in part, and dissenting in part:

I concur in Parts II and III(A) of the court’s opinion, which concludes that we have appellate jurisdiction over the district court’s order requiring Defendant

- Appellant Better Mortgage Corporation to obtain prior court approval before engaging in certain communications with potential class members in this putative class action. As to the merits of Defendant’s challenges to that order, I would vacate that order and remand for further consideration, and I therefore dissent from the majority’s contrary disposition. Lastly, I agree with the majority’s ultimate conclusion that we lack appellate jurisdiction over the further portions of the district court’s orders nullifying certain agreements between Defendant and some of its employees. See Opin. at 6

. Accordingly, I concur in part, concur in the judgment in part, and dissent in part.

I

With the following observations, I concur in the court’s analysis, in Part III(A) of the opinion, that we have jurisdiction under 28 U.S.C. § 1291.

The sort of interlocutory order at issue here —which imposes a prior restraint requiring court approval before a defendant may communicate with the members of the putative plaintiff class

— goes beyond mere case26 D OMINGUEZ V

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management and is in the nature of an injunction “designed
to accord or protect some or all of the substantive relief sought by a complaint in more than temporary fashion.” In
re Lorillard Tobacco Co. , 370 F.3d 982, 986 (9th Cir. 2004) (emphasis added) (simplified); cf

. Gulfstream Aerospace Corp. v. Mayacamas Corp. , 485 U.S. 271, 279 (1988) (“An order by a federal court that relates only to the conduct or progress of litigation before that court ordinarily is not considered an injunction and therefore is n ot appealable under § 1292(a)(1).”). As such, that prior restraint is immediately appealable under 28 U.S.C. § 1292(a)(1). See Negrete v. Allianz Life Ins. Co. of N.A. , 523 F.3d 1091,
1096

– 98 (9th Cir. 2008) (asserting jurisdiction, under § 1292(a)(1), over a prior restraint precluding the defendant from engaging in settlement discussions involving related litigation); Great Rivers Co

- op. of Southeastern Iowa v. Farmland Industries, Inc. , 59 F.3d 764, 765

– 66 (8th Cir. 1995) (holding that an order that pro hibited the defendant from “making any statement that might be understood as counseling potential class plaintiffs to opt out of the class, and requiring the defendant to print in its newsletter a statement from plaintiffs regarding their litigation” was “ in the nature of an injunction” and appealable under § 1292(a)(1)); cf

. Cobell v. Kempthorne , 455 F.3d 317, 321

– 23 (D.C. Cir. 2006) (asserting jurisdiction, under § 1292(a)(1), over an order requiring the defendant to include certain compelled statements in its own communications).

However, in determining the scope of the “order” that is thus appealable, we must similarly be guided by the substance of the order, and not its form. Thus, the mere fact
that other issues are resolved in the same “order”

— i.e. , the same court document that contains the injunctive order

—D OMINGUEZ V

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does not suffice to bring them within the scope of the appeal authorized by § 1292(a)(1). See Puente Arizona v. Arpaio

, 821 F.3d 1098, 1102

– 03, 1108

– 10 (9th Cir. 2016) (holding that, even though the district court denied a “Rule 12(b)(6) motion to dismiss” in “the same order” in which it granted a preliminary injunction, the motion to dismiss ruling was not
reviewable on the § 1292(a)(1) appeal of the preliminary injunction); cf

. Yamaha Motor Corp. v. Calhoun , 516 U.S. 199, 204

– 05 (1996) (holding that, und er the differently worded provisions of § 1292(b), the entirety of the “order” that is certified for interlocutory appeal is reviewable on the ensuing appeal, including even portions of the order that do not involve the certified question that supports int erlocutory jurisdiction). Rather, our pendent jurisdiction under § 1292(a)(1) extends only to those other rulings, in the same or a different document, that resolve an issue that “is ‘inextricably intertwined’ with or ‘necessary to ensure meaningful revie w of’ the injunction.” Puente Arizona , 821 F.3d at 1109 (citations omitted).

Here, only the district court’s prior restraint on Defendant’s ability to communicate is in the nature of an injunction and therefore independently immediately appealable. The additional order that Defendant distribute a

court

- approved “corrective” notice informing putative class members about the lawsuit and explaining the court’s rulings (including its ruling invalidating certain agreements) is not itself immediately appealable, either under § 1292(a)(1) or
the collateral order doctrine of Cohen v. Benef icial Industrial Loan Corp. , 337 U.S. 541 (1949). See Aguilar v. Walgreen

, 47 F.4th 1115, 1121

– 22 & n.8 (9th Cir. 2022). Likewise, the district court’s further order invalidating the challenged28 D OMINGUEZ V

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.

agreements is not, by itself, immediately appealable as an injunction or as a collateral order. 1

II

I next address the merits of Defendant’s challenge to the prior restraint order before deciding whether I think we also have pendent jurisdiction over the order invalidating the agreements in question.

The prior restraint order was based on the district court’s conclusion that Defendant had engaged in coercive and misleading communications with putative class members who were current employees of Defendant. Although the majority contends that the distri ct court “carefully parsed” Defendant’s communications, see Opin. at 1 7 , most of the district court’s conclusions were either unsupported or overstated. In my view, only two aspects of Defendant’s communications raised the sorts of concerns that might

con ceivably justify a restriction on communication with putative class members under Gulf Oil

. First, Defendant immediately sent

— only to underwriters (whose employment classification is at issue in this litigation)

— a new and mandatory “Employment Agreement” that included an arbitration agreement that would effectively preclude those employees’ participation in
this class action or FLSA collective action. Defendant makes a substantial argument that, as an incident of conducting its business operations, it was entitled to revise

1 In its opening brief in this court, Defendant does not challenge the order to provide corrective notice, but it does insist that the order invalidating the agreements falls within the scope of this court’s pendent jurisdiction over the § 1292(a)(1) appeal of the prior restraint order. I address the
latter issue below. See infra section III.D OMINGUEZ V

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the terms of its employment agreements with at

- will employees to include arbitration provisions that are allowed by federal and state law. However, the problem with this argument in the present circumstances is that Defendant selectively implemented this policy by targeting it, at least in the first instance, only at the employees who were the subject of this lawsuit. Defendant points out that, three months later, it began rolling out the same revised Employment Agreement for all other c urrent and newly h ired employees, but that delayed additional action only serves to underscore the targeted nature of Defendant’s rushed efforts to thwart
this suit as soon as it was filed. The district court did not abuse its discretion in concluding that this sort of tar geted
and coercive communication made “for the purpose of undermining a class action” is sufficiently abusive to warrant invocation of the court’s power to regulate communications with putative class members under Gulf Oil

. See Fox v. Saginaw County , 35 F .4th 1042, 1050 n.3 (6th Cir. 2022).

Second, the district court did not abuse its discretion in concluding that Defendant’s proposed “Release Agreement,” which was sent to the same employees, contained “contradictory and confusing statements.” Specifically, while acknowledging that a “good f aith dispute” existed over whether signing employees were owed wages and other compensation, the Release Agreement also included language stating that such employees affirmatively “acknowledge[d] that [they had] been paid all wages owed [to them].” As the district court noted, the latter statement, which seemingly contradicted the acknowledgement of a good

- faith dispute as to whether any wages were owed, was wholly unnecessary to the release of the claims covered in the Release Agreement. Moreover, this a ffirmative representation might conceivably impair, as a practical30 D OMINGUEZ V

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.

matter, employees’ ability to successfully assert the FLSA
claims that were not covered by the Release Agreement.

By contrast, the district court’s remaining objections to
Defendant’s communications were insubstantial. The district court objected to the fact that the Employment Agreement “did not contain any reference to Plaintiff’s suit, did not attach Plaintiff’s complaint, or provide Plaintiff’s
counsel’s name and contact information.” But it would be
odd to include such lawsuit

- specific information in a generic employment agreement, and that information was separately provided with the Release Agreement, which wa s sent at the same time as the Employment Agreement (but in a separate email). The district court speculated that an employee nonetheless might read and execute the Employment Agreement without reviewing the Release Agreement, but
the court did not make s ufficient factual findings to support that surmise. The district court found only that “at least one underwriter reviewed and signed the Employment Agreement prior to reviewing the Release Agreement,” but Defendant produced objective computer

- log evidence showing that the employee in question opened and viewed the Release Agreement first . Defendant also presented uncontested evidence that that employee left Defendant’s employ two days later. Thus, the district court’s sole finding on this score was clearly erroneous.

The district court also noted that the link that the Release Agreement provided to Plaintiff’s counsel’s website was not operative after October 23, 2020 (a few days after the agreements were sent by email), but it can hardly be thought “misleading” for Defendant to have relied on what was then a working link to its opposing counsel’s own website. Moreover, even af ter October 23, the link landed on that website’s “general case summary page” concerning theD OMINGUEZ V

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lawsuit. The court also faulted the fact that the Release Agreement used statutory terminology such as “failure to provide meal and rest periods,” but it is hard to see how such language can be said to be coercive, abusive, or misleading.
Nor was it misl eading to say that employees could consult counsel before signing the agreements and that, if they did so, it would be at their own expense. Further, the fact that Defendant did not affirmatively undertake to estimate how
the settlement offer in the Relea se Agreement might “compare to the value of [a putative class member’s] claims” does not make its communications abusive or misleading so as to justify communication restrictions under Gulf Oil

. Given that only a few of the points identified by the district court had any validity, I would vacate the prior
restraint order and remand to the district court for it to re

evaluate the propriety of imposing such an onerous
restriction. Under Gulf Oil , such restrictions must be “carefully drawn” to “limit[] speech as little as possible” in light of the specific abuses that have been identified. See 452 U.S. at 102. Because the district court misapprehended the scope of the “potential abuses,” id ., it sh ould be required

to re

- examine the matter and to determine whether a more narrowly drawn limitation would be more appropriate. Indeed, the sweeping breadth of the prior restraint imposed
here

— which pointedly does extend to discussing “wage and hour matters” with current employees

— seems excessive.

III

The only remaining question is whether the conclusions I have set forth above would warrant our taking the additional step of formally vacating the district court’s order invalidating the Employment Agreement and the Release Agreement.32 D OMINGUEZ V

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.

As noted earlier, the order invalidating those agreements is not itself immediately appealable, and we have jurisdiction over that order only to the extent that it falls within our pendent jurisdiction over the prior restraint order. Our pendent jurisdict ion in an interlocutory appeal over an injunction under § 1292(a)(1) is limited to those issues that are “‘inextricably intertwined’ with or ‘necessary to ensure meaningful review of’” that injunction

— i.e. , the prior
restraint order. See Puente Arizona , 821 F.3d at 1109 (citations omitted). This test is met only if (1) the issues raised by the two orders are “so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal” or (2) “resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.” Cunningham v. Gates , 229 F.3d 1271, 1285 (9th Cir. 2000).

The first test is inapplicable, because, as the above analysis shows, the appeal of the prior restraint order can be fully resolved without having to take the additional step of deciding whether the challenged agreements should be
invalidated. The invalid ation of the agreements and the prior
restraint order were two distinct remedies that the court imposed based on its assessment of the same underlying predicate conduct concerning Defendant’s communications. To resolve the appeal over the prior restraint order, all that needs to be considered is that underlying conduct and the prior restraint remedy. The asserted “pendent” issue of whether the additional remedy of invalidation of the agreements should have been imposed is not one that “we
must decide .

. . in order to review the claims properly raised on interlocutory appeal.” Cunningham , 229 F.3d at 1285 (emphasis added).D OMINGUEZ V

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The second test presents a closer question. As I have explained, the district court’s evaluation of Defendant’s predicate conduct was flawed, and that defect might be thought to likewise vitiate the district court’s invalidation of the agreements. But th e test is whether the resolution of the “issue[s] properly raised on interlocutory appeal necessarily resolves the pendent issue,” id ., and that is not the case here. Whether the district court’s partially correct analysis of Defendant’s predicate conduct would or would not support continued invalidation of the agreements requires
consideration of further issues and is not automatically resolved by the disposition of the prior restraint appeal. Cf

. Marks v. Clarke , 102 F.3d 1012, 1018 (9th Cir. 1996) (holding that, because reversal of denial of qualified immunity to the defendants necessarily vitiated the district court’s grant of summary judgment on liability to the plaintiff, the latter order was within our pendent jurisdiction over the interlocutory app eal concerning qualified immunity). Moreover, one of the major issues presented by the attempted pendent appeal here is the propriety of the district court’s invalidation of agreements signed by persons who, at the time of that decision, were neither par ties to the action nor yet formally represented in the action as absent class members. No such issue is presented by the appeal of the prior restraint order itself. In sum, the fact that the attempted appeal of the agreement

- invalidation order requires c onsideration of additional issues beyond those necessary to resolve the prior restraint appeal means that it is not within our pendent jurisdiction. And that is particularly true given that “[w]e have consistently interpreted” our “inextricably intertwine d” pendent34 D OMINGUEZ V

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jurisdiction “very narrowly.” Cunningham , 229 F.3d. at
1284. 2

* * *

For the foregoing reasons, I concur in part, concur in the judgment in part, and dissent in part

.

2 Finally, on my view of the case, mandamus would be inappropriate. Although on this appeal we do not have the power ourselves to declare that the order invalidating the agreements must be reconsidered, any appellate ruling vacating the prior restraint order would have binding precedential effect that could be the subject of further motions practice
in the district court that might afford Defendant appropriate relief. And to the extent that any absent class member whose agreements were voided were to later succeed in obtaining relief as an absent class member in this action, Defendant could challenge the invalidation of the agreements in an appeal from the final judgment.