United States: Time's Up! Court Refuses To Equitably Toll Statute Of Limitations In EPA Action

Last Updated: July 27 2015
Article by Gerald L. Maatman Jr. and Howard M. Wexler

In a decision worth reading for all class action practitioners, especially those who face Equal Pay Act ("EPA") issues, Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York denied equitable tolling of the statute of limitations period in a high profile gender discrimination case. Judge Abrams' decision in Barrett, et al. v. Forest Laboratories, Inc., et al., 12-CV-5224 (S.D.N.Y. July 8, 2015), serves a great primer as to the differences between calculating the limitation periods in Title VII class actions as compared to EPA collective actions and the significant impact of these differences.

Background To The Case

Eleven current/former female employees brought individual and class claims under the EPA and Title VII alleging disparate pay based on their gender in July of 2012. Id. at 2. Plaintiffs' subsequently filed a First and Second Amended Complaint, which Defendants moved to dismiss and the Court decided in August 2014. Id.

In connection with a joint report in anticipation of the parties' Initial Conference, Plaintiffs, for the first time, raised the issue of equitable tolling for their EPA claims. Id. Notably, at no point during the entirety of the action – dating back to the filing of the Complaint in July 2012 – had the Court ordered or any party sought a stay of discovery. Id. Eventually, Plaintiffs filed a formal motion in January 2015 seeking to toll the statute of limitations from April 2013 (the date Defendants filed their motion to dismiss) through the date conditional certification for the collective action is granted.Id. at 3.

The Court's Decision

The Court began with a primer concerning the difference between collective actions and class actions with respect to the accrual of claims. Id.Relevant here, under the EPA (which incorporates various provisions of the FLSA), the statute of limitations for each plaintiff runs until the individual opts into the lawsuit by filing written consent. Id. at 4. Accordingly, such signed consent forms from class members do not relate back to the filing date of the Complaint as compared to Rule 23 class action claims, whereby "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. Equitable tolling creates an exception to the "potential harshness" of the FLSA's limitation period by allowing courts to extend the limitations period to avoid "inequitable circumstances," however, must be "cautious" in doing so...lest they transform it into the Rule 23 scheme."Id. A litigant seeking equitable tolling bears a "high burden" of establishing both: "(1) that [s]she has been pursuing [her] rights diligently; and (2) that some extraordinary circumstance stood in [her] way."Id. at 5.

Applying this "high burden" to the facts before it, the Court refused to equitably toll the statute of limitations as "Plaintiffs cannot reasonably argue that they have been diligent in pursuing their rights or that some extraordinary circumstance stood in their way to be diligent." Id.In so holding, the Court noted that Plaintiffs' argument that discovery was "effectively stayed" based on the Defendants' motion to dismiss did not hold water since the case was never stayed, nor did either party ask the Court to do so. Id. at 5-6. Accordingly, while there were delays in the briefing process and in the Court deciding Defendants' motion, Plaintiffs "failed to explain how these delays erected any barrier to their seeking the discovery necessary to pursue conditional certification"Id.at 7.

With respect to the second requirement for the Court to apply equitable tolling – that some extraordinary circumstance stood in their way – the Court distinguished the cases relied upon by Plaintiffs since in those cases (unlike in this case) where equitable tolling was ordered, there was "something – whether discovery disputes, a discovery stay, or the court's election to stay a certification motion pending a motion to dismiss" which prevented plaintiffs from notifying potential collective action members. Id. at 8-9.

Based on Plaintiffs' failure to satisfy either required test for the application of equitable tolling, the Court denied Plaintiffs' request since "to grant the exceptional remedy of equitable tolling for the pendency of a motion to dismiss when there was nothing standing in the way of a plaintiff's pursuing collective certification would be tantamount to tolling the statute of limitations for FLSA claims as a matter of course for all potential plaintiffs whenever the first plaintiff files her complaint – a result plainly contrary to the procedural rules that govern FLSA collective actions." Id.at 10-11.

Implication For Employers

This decision serves as a great reminder of the differences between class action certification and collective action certification and the real world impact of these differences as it pertains to the statute of limitations period. Given such differences, employers should always be mindful of the limitations period and that short of a court order otherwise, the limitations period continues to run in collective actions under the EPA and FLSA. While equitable tolling is a powerful tool for Plaintiffs' counsel in collective actions, this decision highlights the high burden that plaintiffs' counsel must satisfy to warrant its application in a particular case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Gerald L. Maatman Jr.
Howard M. Wexler
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions