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 DOMINGUEZ V. BETTER MORTGAGE CORP. 

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 employees 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.
DOMINGUEZ V. BETTER MORTGAGE CORP. 3

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 employer 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 held 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 misleading 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 

allow 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 potential class members. As to the 

merits of the employer’s challenges to the communications 
4 DOMINGUEZ V. BETTER MORTGAGE CORP. 

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 Francisco, 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.
DOMINGUEZ V. BETTER MORTGAGE CORP. 5

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, 

such 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 curative notice,

and invalidating opt-out agreements where defendant 

obtained them using misleading information).
6 DOMINGUEZ V. BETTER MORTGAGE CORP.

In this appeal, the employer challenges the district 

court’s nullification of signed agreements and its 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 jurisdiction, 

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. The Lawsuit is Filed

Lead plaintiff Lorenzo Dominguez worked for defendant 

Better Mortgage Corporation as an underwriter. He alleges 

that Better Mortgage violated federal and state wage-andhour 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, Better 
DOMINGUEZ V. BETTER MORTGAGE CORP. 7

Mortgage held a virtual meeting with all then-current 

underwriter employees. 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 the allegations 

were true. 

Managers then tried to persuade the current underwriters 

to sign agreements that would reduce the company’s 

exposure in this 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 

employment agreement, but they did not indicate how the 

new agreement differed from prior agreements. They said 

only vaguely that it would include “updates.”

Later in the evening of October 19, Better Mortgage sent 

the new employment agreement to underwriters by email.

The new agreement included a new clause requiring

arbitration of all employment-related claims—and only in an 

individual proceeding, not a class or collective arbitration. 

The new employment agreement did not mention the 

pending lawsuit. Better Mortgage management told the 

underwriters that signing the new agreement was a condition 

of continued employment.

That same evening, Better Mortgage also emailed

underwriters a form release agreement for this lawsuit, as 

discussed in the virtual meeting. The release agreement 

summarized the pending lawsuit, provided a link to the 

Dominguez complaint, and said that signing would waive 

“any and all claims (except those under the FLSA) that were 

or could have been asserted in the Lawsuit.” The release 
8 DOMINGUEZ V. BETTER MORTGAGE CORP.

agreement did not mention arbitration or explain that,

although employees would 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 

employment agreement 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, the release agreement 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 employment 

agreement—Better Mortgage sent a “recap” email. That 

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

employment agreement’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, on 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 

claims.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 deny 
DOMINGUEZ V. BETTER MORTGAGE CORP. 9

On May 17, 2022, the district court issued 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 

coercion and misleading information, and (b) invalidated 

new employment agreements and release agreements “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 release agreements, 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 DOMINGUEZ V. BETTER MORTGAGE CORP.

employment 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 

disputes 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 order “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, 
DOMINGUEZ V. BETTER MORTGAGE CORP. 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 an 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.” United States 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, informal 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 DOMINGUEZ V. BETTER MORTGAGE CORP.

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 FED. R. APP. 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 FED.

R. CIV. P. 54(a) & 59(e). The parties filed their courtordered joint document on May 31, which is well within that 

allowed time.

4 Accordingly, that document suffices if it 

constituted a “motion to alter or amend” an “order from 

which an appeal lies.” FED. R. CIV. 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 FED.R.CIV. 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. CAL. L. CIV. 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 FED. R. CIV. P. 54(A), 59(E); see also FED.

R. CIV. P. 83(a)(1) (stating that a “local rule must be consistent with” 

national rules).
DOMINGUEZ V. BETTER MORTGAGE CORP. 13

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 the joint statement, Better Mortgage

took the position that the phrase “subject matter of this 

lawsuit” should be explained 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 sets forth Better Mortgage’s

reasons for requesting that “explanation”—namely, that this 

clarification “is far more narrowly tailored,” as assertedly 

required by Gulf Oil. The document made clear that Better 

Mortgage wanted the district court to modify its May 17 

order immediately to make clear that, despite having used 

the 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 itself in this litigation.” The 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, 

the document counted as a motion by Better Mortgage to 

alter or amend the May 17 order. 

Accordingly, the time for Better Mortgage to appeal the 

May 17 order did not begin to run until its requested 
14 DOMINGUEZ V. BETTER MORTGAGE CORP.

modification was denied in the July 21 order. And because 

the notice of appeal was filed within 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. The Communication Restriction

We now turn to defendant’s challenge to the 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 nature. 

Jurisdiction exists over appeals from “[i]nterlocutory orders 

of the district courts ... granting, continuing, modifying, 

refusing or dissolving injunctions, or refusing to dissolve or 

modify injunctions....” 28 U.S.C. § 1292(a)(1). The statute 

provides 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. Any such defect as to form did not preclude a document 

that was 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).
DOMINGUEZ V. BETTER MORTGAGE CORP. 15

granting or denying an injunction” and threatens “serious 

and perhaps irreparable harm if not immediately reviewed.” 

Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018) (quoting 

Carson v. American 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 from 
16 DOMINGUEZ V. BETTER MORTGAGE CORP.

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 rights of the parties.” This power 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 plaintiffs 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 

enforcement 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 authority to 

oversee the notice-giving process, courts must be scrupulous 
DOMINGUEZ V. BETTER MORTGAGE CORP. 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. The 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 

this pending lawsuit. 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. Compounding 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 that 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, 1002–04 (9th 
18 DOMINGUEZ V. BETTER MORTGAGE CORP.

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 retaliation 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 could 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 such 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.” 
DOMINGUEZ V. BETTER MORTGAGE CORP. 19

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 communicating with current employees 

in ways related to this lawsuit. 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 

communicating 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 DOMINGUEZ V. BETTER MORTGAGE CORP.

IV. Nullification of Agreements

We now turn from the communication restriction to the 

portion of the district court’s first order, issued May 17, 

2022, 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-cv00833-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., Nos. 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); County of Santa Clara v. Astra USA, Inc., No. C 

05-03740 WHA, 2010 WL 2724512, at *4–6 (N.D. Cal. July 

8, 2010) (finding letter to putative class from defendant was

misleading because of omitted information about case; 
DOMINGUEZ V. BETTER MORTGAGE CORP. 21

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 County, 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 in 
22 DOMINGUEZ V. BETTER MORTGAGE CORP.

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. Just 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 De 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. 
DOMINGUEZ V. BETTER MORTGAGE CORP. 23

appeal and does not fit any exception that would allow for 

review now.

Better Mortgage argues 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 

communication 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, our precedents establish that more is required for 

pendent 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. 2015) (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. County

of Los 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 

pendent 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 pendent 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 narrowly”). 
24 DOMINGUEZ V. BETTER MORTGAGE CORP.

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, we AFFIRM the communication 

restriction imposed by the district court in its orders of May 

17 and July 21, 2022. We DISMISS for lack of appellate 

jurisdiction defendant’s challenge to the portion of the 
DOMINGUEZ V. BETTER MORTGAGE CORP. 25

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 case 
26 DOMINGUEZ V. BETTER MORTGAGE CORP.

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 not 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 prohibited 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—
DOMINGUEZ V. BETTER MORTGAGE CORP. 27

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, under 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 interlocutory 

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 review 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. Beneficial 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 challenged 
28 DOMINGUEZ V. BETTER MORTGAGE CORP.

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 district court “carefully parsed” 

Defendant’s communications, see Opin. at 17, 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 

conceivably 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.
DOMINGUEZ V. BETTER MORTGAGE CORP. 29

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 current and newly hired 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 targeted 

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 faith 

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 affirmative 

representation might conceivably impair, as a practical 
30 DOMINGUEZ V. BETTER MORTGAGE CORP.

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 was 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 sufficient 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 after October 23, the link landed on that 

website’s “general case summary page” concerning the 
DOMINGUEZ V. BETTER MORTGAGE CORP. 31

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 misleading 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 Release 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 reevaluate 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 should 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 DOMINGUEZ V. BETTER MORTGAGE CORP.

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 jurisdiction 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 invalidation 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).
DOMINGUEZ V. BETTER MORTGAGE CORP. 33

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 the 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 appeal 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 parties 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 consideration 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 intertwined” pendent 
34 DOMINGUEZ V. BETTER MORTGAGE CORP.

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.