IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID A. SYLVESTER,

Plaintiff,

v.

WINTRUST FINANCIAL 

CORPORATION, et al.,

Defendants.

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No. 12 C 01899

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

This is an action for violations of the Fair Labor Standard Act (“FLSA”) requirements 

that employers pay minimum wage and overtime to non-exempt employees who work more than

40 hours in a workweek. The plaintiffs are or were employed as loan originators by Wintrust 

Financial Corporation, Barrington Bank & Trust Company, N.A., and Wintrust Mortgage 

Corporation. They allege that the defendants improperly classified all of their loan originator 

employees as exempt from FLSA requirements based on the “outside sales” exemption, failed to 

pay them a minimum wage and overtime when they worked more than 40 hours in a workweek, 

and failed to maintain FLSA-mandated records. 

Pending before the Court are two motions. The plaintiffs move for further equitable 

tolling of the FLSA statute of limitations and the defendants move to stay pending arbitration the 

claims of some 50 opt-in plaintiffs. In addition, the parties have submitted competing proposals 

to govern the scope of discovery given the conditional certification of the collective action. For 

the reasons stated below, the Court denies the motion to extend equitable tolling of the FLSA 

statute of limitations, grants the motion to stay as to opt-in plaintiffs who are subject to 
arbitration agreements, and sets forth certain parameters to govern the scope of discovery going 

forward.

I. Plaintiffs’ Motion to Extend Tolling of the Statute of Limitations

Based on the parties’ agreed motion, the Court previously tolled the running of the 

otherwise applicable FLSA statute of limitations from December 13, 2012, to February 15, 

2013.1 See Dkt. 54, 57, 59, and 62. In conjunction with their motion for conditional certification 

of a collective action, the plaintiffs subsequently moved to extend the equitable tolling of the 

statute of limitations for putative collective members who had not yet received notice of this 

action and an opportunity to opt in. The Court denied that motion without prejudice, concluding 

that it could not equitably toll the running of a statute of limitations as to individuals who were 

not yet parties to the case.2 Dkt. 84 (2013 WL 5433593 (N.D. Ill. Sept. 30, 2013)) (“September

30 Order”). This ruling was predicated upon the Supreme Court’s opinion in Genesis Healthcare 

Corp. v. Symczyk, 133 S. Ct. 1523 (2013), in which it made clear that potential opt-in plaintiffs to 

a collective action are not parties to the case until such time as they actually opt-in. Id. at 1529.

Following conditional certification and notice to potential parties, plaintiffs’ counsel 

reports (and the docket reflects) that more than 100 individuals have opted into this case.

1 The FLSA prescribes a statute of limitations period of two years, “except that a cause of 

action arising out of a willful violation may be commenced within three years after the cause of 

action accrued.” 29 U.S.C. § 255(a).

2 In their motion, the plaintiffs state that in its September 30 order the Court noted that 

“tolling of the statute of limitations is particularly appropriate where, ‘[t]hrough no fault of the 

existing or potential plaintiffs, there has been further delay in ruling on the motion for 

conditional certification and court-authorized notice.’” Dkt. 134, at 4. That is not accurate. 

Although the Court noted that there had been further delay in ruling on the conditional 

certification motion that was not attributable to the plaintiffs, the Court did not state that tolling 

of the statute of limitations was therefore “particularly appropriate.” Rather, the Court held that it 

lacked jurisdiction to consider the tolling claims of potential opt-in plaintiffs and denied the 

tolling motion without prejudice. In the future, counsel should exercise greater care when 

characterizing the rulings of this (or any other) court.

2

 
Plaintiffs now move to further extend the period of tolling of the statute of limitations from 

February 15, 2013, to October 23, 2013, the date the last notice regarding the putative collective 

action was issued. They maintain that opt-in plaintiffs should not be prejudiced by the delay 

required to rule on the motion for conditional certification of the collective.3 The defendants 

object to further tolling, arguing that the opt-in plaintiffs have not demonstrated that further 

tolling is appropriate.

As the Court observed in denying the plaintiffs’ first motion to further extend the 

equitable tolling period beyond February 15, equitable tolling is an “extraordinary remedy,” Dkt. 

89, at 2, which should be granted only when claimants have exercised due diligence in 

preserving their legal rights. See Wallace v. Kato, 549 U.S. 384, 396 (2007) (equitable tolling is 

“a rare remedy to be applied in unusual circumstances”); Irwin v. Dep’t of Veterans Affairs, 498 

U.S. 89, 96 (1990) (“Federal courts have typically extended equitable [tolling] relief only 

sparingly.”); Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013) (“Equitable tolling is an 

extraordinary remedy and so is rarely granted.”) (internal quotation omitted). It is warranted only 

when the party has diligently pursued his or her rights and some extraordinary circumstance 

nevertheless prevented timely filing. Id. (citing Holland v. Florida, 560 U.S. 631, 649 (2010); 

see also McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013).

Neither the Seventh Circuit, nor any other court of appeals (so far as the parties or this 

Court have been able to identify) has addressed the question of whether the delay inherent in the 

presentation and consideration of a motion for conditional certification of a collective action, 

3 The motion for conditional certification was filed on October 19, 2012 (more than seven 

months after filing of the complaint), and was fully briefed as of March 13, 2013. The motion 

was granted on September 30, 2013. As noted, a portion of the period during which briefing of 

the conditional certification motion was pending, to February 15, 2013, was tolled by agreement 

of the parties.

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which is a prerequisite to the provision of notice to potential members of the putative collective, 

warrants equitable tolling of the FLSA statute of limitations. In support of their argument, the 

plaintiffs rely on Judge Hart’s opinion in Bergman v. Kindred Healthcare, Inc., 949 F. Supp. 2d 

852 (N.D. Ill. 2013), and other district court opinions granting equitable tolling on the ground 

that a “long delay” in ruling on a conditional certification motion constitutes “an extraordinary 

circumstance that should not cause the opt-ins to lose out on the potential benefits of this 

lawsuit.” Id. at 860–61 (citing district court opinions that have granted equitable tolling on this 

basis). But see Bitner v. Wyndham Vacation Resorts, Inc., --- F.R.D. ---, 2014 WL 3698850, at 

*9 (W.D. Wis. July 25, 2014) (collecting cases granting and denying equitable tolling based on 

the delay necessary to rule on conditional certification motions).

This Court respectfully disagrees with Judge Hart’s analysis in Bergman. As an initial 

matter, that a court may take months to rule on a fully briefed motion is (unfortunately) not 

extraordinary; it is, rather, the predictable and common consequence of crowded court dockets 

generally and the particular circumstances of any particular judge’s docket specifically. 

Moreover, and putting aside potential differences in the complexity of such motions, clearly 

some period of time must be considered normal, rather than extraordinary, for a court to address 

a conditional certification motion. Garrison v. Conagra Foods Packaged Food, LLC, 2013 WL 

1247649, at *5 (E.D. Ark. Mar. 27, 2013) (“there is nothing extraordinary about a motion for 

conditional certification and the delay in notice while that motion is pending”). What that period 

is, however, the plaintiffs do not say; they simply contend that the statute of limitations should be 

tolled for the entire period that a conditional certification motion is under consideration (indeed, 

they even seek tolling to cover a portion of the period during which briefing was proceeding). 

That contention is plainly not consistent with the requirement that timely filing have been 

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prevented by an “extraordinary circumstance.” “To hold otherwise would be to opine that 

equitable tolling should be granted in every § 216(b) case as a matter of course during the 

pendency of a conditional class certification request, thereby transforming this extraordinary 

remedy into a routine, automatic one.” Longcrier v. HL-A Co., Inc., 595 F. Supp. 2d 1218, 1244 

(S.D. Ala. 2008).4

Even assuming arguendo that some portion of an unusually long delay in ruling on a 

conditional certification motion can constitute an extraordinary circumstance, the plaintiffs 

must—but cannot—also establish that opt-ins were prevented from joining the law suit by that 

delay. No ruling by this Court was necessary to permit the filing of another law suit or an opt-in 

notice in this suit; nothing prevented any former employee of the defendants from either filing 

their own law suit or filing an opt-in notice for this law suit before a ruling on the conditional 

certification motion was issued. Judge Hart’s opinion in Bergman states that this argument 

“ignores the realities of FLSA claims,” 949 F. Supp. 2d at 861, but does not explain why that is 

so. The plaintiff in this case filed his own law suit before anyone else obtained conditional 

certification of a collective action, and at least five other individuals opted in to this suit before 

the conditional certification order was granted.5 How the absence of a conditional certification 

ruling prevented other potential plaintiffs from asserting their rights, but not these five, the 

motion does not explain. See, e.g., Bitner, 2014 WL 3698850, at *10 (delay in ruling did not 

4 The plaintiffs offer no argument as to why a period of six months is “extraordinary.” 

Compare, e.g., Bergman, 949 F. Supp. 2d at 860 (delay of 2 years held to be extraordinary) with 

Bitner, --- F.R.D.---, 2014 WL 3698850, at *10 (delay of 7 months held not to be extraordinary); 

Greenstein v. Meredith Corp., 2013 WL 4028732, at *1–2 (D. Kan. Aug. 7, 2013) (11-month 

delay held not to be extraordinary); Young v. Dollar Tree Stores, Inc., 2013 WL 1223613 (D.

Colo. Mar. 25, 2013) (10-month delay; tolling not warranted); Vargas v. General Nutrition 

Centers, Inc., 2012 WL 5336166, at *7–9 (W.D. Pa. Oct. 26, 2012) (11-month delay from filing 

of motion for conditional certification did not justify equitable tolling).

5 See opt-in filings at Dkt. 5, 37, 45, and 71.

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prevent others from timely joining the law suit, as evidenced by opt-ins prior to issuance of 

notice); Greenstein v. Meredith Corp., 2013 WL 4028732, at *2 (D. Kan. Aug. 7, 2013) 

(rejecting request for equitable tolling, in part because the “opt-in plaintiffs have had the same 

notice of their rights and obligations available to them as did the named plaintiff in this case”).

In asserting that the delay attendant to ruling on the conditional certification motion 

prevented them from asserting their rights, what the plaintiffs really mean is that potential opt-ins 

have no way to know of the filing of the putative collective action until notice is issued. That is 

not entirely true,6 but is in any event irrelevant. The question is not whether delay in issuing 

notice prevented others from learning about this law suit but whether such delay prevented them 

from discovering their own claims once those claims accrued.

7 The plaintiffs assert that those 

who opted in within the period permitted by the conditional certification order exercised the 

required diligence because they did not sit on their rights once notified of the potential claim 

against the defendants. But nothing in FLSA suggests that once one plaintiff has asserted a claim 

against an employer, all other potential plaintiffs are relieved of their respective obligations to 

exercise their own diligence with respect to the investigation and/or assertion of their own claims

against that employer. As the defendants point out, in asking the Court to issue a blanket tolling 

6 This law suit is, of course, public, so other potential plaintiffs could learn of it, and 

several evidently did, but the Court takes the point: most other potential plaintiffs are unlikely to 

know about the law suit until they receive court-approved notice.

7 A cause of action accrues within the meaning of § 255 “when there is a breach of duty 

by [the employer],” not when there has been some qualitative evaluation that there is, or may be, 

a viable legal claim. Unexcelled Chemical Corp., v. United States, 345 U.S. 59, 65 (1953). Here, 

that means that the plaintiffs’ claims accrued when they were paid (allegedly) less than required 

under FLSA. See, e.g., Cook v. United States, 855 F.2d 848, 851 (Fed. Cir. 1988) (“a claim for 

unpaid overtime under the FLSA accrues at the end of each pay period when it is not paid”);

Powers v. Centennial Commc’ns Corp., 2010 WL 746776, at *2 n.1 (N.D. Ind. Feb. 26, 2010) 

(“FLSA claims accrue at each regular payday”); Nehmelman v. Penn Nat’l Gaming, Inc., 790 F. 

Supp. 2d 787, 792 (N.D. Ill. 2011) (same).

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order, the opt-in plaintiffs effectively seek a ruling that none of them was on notice of a potential 

claim before they received notice of this law suit and their right to join it. The present motion 

provides no factual basis to support such a ruling.

Unquestionably, FLSA claims are vulnerable to the running statute of limitations but that 

is because Congress has not seen fit to toll the statute of limitations for putative collective 

members after the filing of a putative collective action. See 29 U.S.C. § 256(b). Congress plainly 

did not view the filing of a putative collective action to be an adequate reason to stop the clock 

on claims of other putative members of the collective, instead providing expressly that their 

cases “shall be considered to be commenced” on the date on which their own “written consent is 

filed.” Id. Issuing a blanket order tolling the limitations period for all putative members of a 

collective until such time as they have been given notice of the collective action would 

effectively overturn Congress’s view that the statute should run as to such individuals until they 

have filed an opt-in consent.

Accordingly, the plaintiffs’ motion to further extend equitable tolling of the statute of 

limitations to October 23, 2013, is denied. The denial is without prejudice, however, to the claim 

of any individual plaintiff who may seek to invoke equitable tolling based on his or her own 

particular circumstances rather than on the delay necessary to rule on the conditional certification 

motion.

II. Defendants’ Motion to Stay Pending Arbitration

In the September 30 Order, the Court also granted the defendants’ motion to compel 

arbitration as to two of the opt-in plaintiffs who had filed consents to join the suit. The 

defendants now seek to stay the claims of another 50 opt-in plaintiffs (out of approximately 119, 

in total) who, they assert, “are parties to written employment agreements with Wintrust that 

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contain valid and enforceable agreements to arbitrate the claims brought in this lawsuit.” The 

defendants maintain that the agreements should be enforced for the same reasons that the Court 

granted their first motion to compel.

The plaintiffs do not contest that they signed the contracts containing agreements to 

arbitrate, nor do they contest that the overtime and minimum wage claims they assert in this case 

fall within the scope of those agreements. They argue instead that “Wintrust’s practice of having 

its employees sign arbitration clauses purporting to waive the right to participate in collective 

actions after being served with the present collective action is unconscionable.” Dkt. 149, at 2. 

They also maintain that “the right to proceed collectively cannot be waived, [so] the arbitration 

clause cannot be enforced.” Id.

These are the very same arguments that the plaintiffs advanced in opposition to the 

defendants’ first motion to compel arbitration. See Dkt. 53; September 30 Order at 14–15. The 

plaintiffs assert at the outset of their response to the defendants’ motion that the arguments 

“assert newly developed facts,” but the only new facts set forth are that the defendants have 

secured arbitration agreements with another 50 opt-ins. The plaintiffs point out as well that there 

are three different versions of the arbitration agreement, but the differences between those 

agreements (which relate principally to whether they permit or preclude collective or joint 

arbitration proceedings) are not material to their enforceability. The plaintiffs already asserted, 

and the Court rejected, the argument that employment agreements waiving any right to pursue a 

claim collectively that were signed after the plaintiff initiated this putative collective action are 

unconscionable.8 Those agreements waived no substantive right under FLSA and, as the 

8 Only 20 of the 50-plus waivers were signed after this lawsuit had been filed. Thus, even 

if the unconscionability argument had merit, it would exempt from arbitration only those 20 optin plaintiffs.

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Supreme Court’s opinion in Genesis Healthcare teaches, even conditional certification of the 

putative collective “does not produce a class with an independent legal status, or join additional 

parties to the action.” 133 S. Ct. at 1530. Thus, individuals who had not opted into the suit had 

no rights deriving from the suit’s existence when they signed the arbitration agreement. See

September 30 Order at 17–19. The plaintiffs’ attempt to analogize to situations in which courts 

have barred defendants from contacting members of a putative class are for that reason simply 

inapposite; unlike putative class members, who are not required to opt into a class action,

potential members of a collective have no legal rights with respect to the putative collective 

action until they have opted to join it.

Further, and as the Court observed in the September 30 Order, numerous circuit courts 

(and district courts) have rejected the argument that arbitration agreements that waive class or 

collective action waivers are unenforceable because such proceedings constitute “concerted 

activity” that is protected under violate Section 7 of the NLRA. And further, after the Court 

issued the September 30 Order, the principal ruling on which the plaintiffs relied, the NLRB’s 

decision in In re D.R. Horton, 357 N.L.R.B. 184, 2012 WL 36274 (2012), was reversed by the 

Fifth Circuit, which held that “the NLRA does not contain a congressional command exempting 

the statute from application of the FAA,” and that waiver of the right to arbitrate collectively is 

permissible under the FAA. See D.R. Horton, Inc. v. N.L.R.B., 737 F.3d 344, 362 (5th Cir. 2013).

The plaintiffs acknowledge that the tide against them on this issue has strengthened yet provide 

no reason to throw them a lifeline.

The plaintiffs’ opposition to enforcement of the arbitration agreements raises no other 

arguments. Accordingly, the defendants’ motion to stay is granted. The claims of the individuals 

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who are subject to those agreements and who have opted into this case (listed at pages 2–4 of the 

defendants’ motion, Dkt. 145) are therefore stayed pending arbitration.

III. Scope of Discovery

Notwithstanding their ostensible dispute about the scope of discovery, the parties appear 

to agree that discovery should go forward on a representational basis; the debate about the scope 

of discovery concerns what fraction of the collective should be deemed to be representative. 

While the defendants observe that they should be able to depose all 61 members of the collective

whose claims are going forward, they seek only to depose 20 members (about one third of the 

collective) at present. The plaintiffs, by contrast, contend that depositions should be limited to 10 

percent of the members—that is to say, six.

Particularly in light of the effect of the ruling on the defendants’ arbitration motion on the 

size of this case (reducing the size of the collective by almost half), and the relatively small size 

of the collective in any event, the Court’s view is that discovery should extend to a more 

significant portion of the collective than the 10–20 percent advocated by the plaintiffs. As the 

authorities cited by the defendants observe, with a smaller pool, it is necessary to test a larger 

sample to avoid anomalous results. In this regard, the defendants’ request to issue document 

requests (but not interrogatories) to each of the members of the collective, and to depose up to 20 

members of the collective, is reasonable. Further, the selection of the deponents will be left to the 

defendants’ discretion, since the plaintiffs presumably have the ability to obtain information 

necessary to further support certification of the collective from any of the opt-in plaintiffs. If the 

plaintiffs wish to depose additional members of the collective, they may do so without limitation.

Any further details with respect to the scope of discovery will be addressed at the next 

status hearing.

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* * *

For the reasons set forth above, the plaintiffs’ motion to further extend equitable tolling 

of the FLSA statute of limitations is denied and the defendants’ motion to stay pending 

arbitration the claims of opt-in plaintiffs who are subject to arbitration agreements is granted.

Date: September 26, 2014 John J. Tharp, Jr.

United States District Judge

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