©2023 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 31 equitable tolling. Unlike a class action, the claims of putative members of a collective action continue to waste away until they join the case as opt-in plaintiffs. Under certain circumstances, the doctrine of equitable tolling can be used to grant putative opt-ins the tolling they would have received if they had joined the lawsuit at an earlier date. It is usually premised on an argument that putative members of the collective action were somehow prevented from receiving notice of the lawsuit or acting on their rights. Most courts have found the doctrine inapplicable to the claims of absent collective action members. For example, in Dixon v. Edward D. Jones & Co., L.P.,239 the employer filed a motion to dismiss the complaint and also sought to stay discovery pending the outcome of that motion. The court granted the stay, holding that the employer had shown a likelihood of success on the merits of that motion, and that class or collective-wide discovery would be a substantial hardship.240 Plaintiffs sought equitable tolling, arguing that the stay would prejudice putative members of the collective action because their claims would continue to waste during the pendency of the stay. But the court noted that this was an argument advanced for the benefit of parties who are not yet in the case; the plaintiffs who were already in the case would suffer no diminishment in their suit because their claims were already tolled. The court refused to consider the rights of absent parties: “Because possible future collective members are not ‘non-moving parties’ to this motion, the Court will not base its determination on speculation about how such unknown individuals might be affected by the stay.”241 The court reasoned that equitable tolling was an extreme and disfavored remedy.242 In order to obtain equitable tolling, a litigant must show that she has been pursuing her rights diligently, but that some extraordinary circumstance stood in her way.243 But it is the person who is seeking the benefit of tolling who must show that; the court held it was impossible for the plaintiffs already in the case to show that for putative plaintiffs who had not yet joined: “In determining whether future putative plaintiffs have diligently pursued their rights, it would make little sense for the Court to consider the diligence of a plaintiff who has already filed suit and is not in need of tolling.”244 Moreover, there is nothing about a stay of discovery that would prevent putative members of the collective action from joining the suit: “Equitable tolling is to be granted rarely, and only in extraordinary circumstances. Plaintiffs have not identified any reason that a stay of discovery will bar any person with a viable EPA claim against Defendants from asserting that claim. Therefore, applying the doctrine of equitable tolling here would render the practice routine.”245 2. Recent Cases Involving Class Action Certification When plaintiffs proceed under state equal pay statutes, they must meet the more rigorous standards applicable to federal Rule 23 class actions or similar state-specific class action requirements. If they can meet those standards, however, they are often rewarded with a much larger class, because those classes are “opt-out” classes rather than “opt-in” classes. Under the collective action mechanism of the EPA, if putative members of the collective action do not opt into the lawsuit, then they are not a part of the collective action. Class actions, on the other hand, automatically include every employee who meets the class definition unless they affirmatively choose to opt out of the class action. When combined with the arguably more lenient standards for establishing a prima facie case that are available under some state equal pay statutes, this can provide powerful incentive for plaintiffs to pursue a class action under state law, rather than the federal EPA. 239 Dixon v. Edward D. Jones & Co., L.P.,239 No. 4:22-cv-00284-SEP, 2022 WL 4245423 (E.D. Mo. Sept. 15, 2022). 240 Id. at *3. 241 Id. at *4 (quoting Physicians Home Health Infusion, P.C. v. UnitedHealthcare of the Midwest, Inc., No. 4:18-cv-01959 PLC, 2019 WL 4644021, at *3 (E.D. Mo. Sept. 24, 2019)). 242 Id. at *6. 243 Id. at *7. 244 Id. 245 Id. at *9.
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