United States Court of Appeals 

for the Fifth Circuit 

No. 21-40720 

Damonie Earl, individually and on behalf of all others 

similarly situated; Linda Rugg, individually and on behalf 

of all others similarly situated; Alesa Beck, 

individually and on behalf of all others similarly 

situated; Timothy Blakey, Jr.; Stephanie Blakey; 

Marisa Thompson, individually and on behalf of all others 

similarly situated; Muhammad Muddasir Khan; John 

Rogers, individually and on behalf of all others similarly 

situated; Valerie Mortz-Rogers, individually and on 

behalf of all others similarly situated; James LaMorte; 

Brett Noble, individually and on behalf of all others 

similarly situated; Ruben Castro, individually and on 

behalf of all others similarly situated; Fritz Ringling, 

individually and on behalf of all others similarly 

situated; Litaun Lewis, individually and on behalf of all 

others similarly situated; Lance Hogue, Jr., 

individually and on behalf of all others similarly situated, 

Plaintiffs—Appellees, 

versus

The Boeing Company; Southwest Airlines Company, 

Defendants—Appellants. 

United States Court of Appeals 

Fifth Circuit 

FILED 

December 22, 2021 

Lyle W. Cayce 

Clerk 

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2 

Appeal from the United States District Court 

for the Eastern District of Texas 

USDC No. 4:19-cv-507 

Before Elrod, Oldham, and Wilson, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

The defendants in this class action lawsuit have moved for a stay of 

discovery while this court reviews their appeal under Federal Rule of Civil 

Procedure 23(f). We grant the defendants’ stay motion. 

I. 

 This is a class action lawsuit against the Boeing Company and 

Southwest Airlines for allegedly conspiring to conceal design defects in 

Boeing’s 737 MAX 8 aircraft (the “MAX”) and thereby defrauding airline 

ticket purchasers. Plaintiffs allege that Boeing and Southwest were able to 

inflate the prices of airline tickets by concealing defects in the MAX. 

Widespread public knowledge of the MAX’s defects would have lowered the 

demand for air travel on airlines flying the MAX, the theory goes, so prices 

would have decreased and plaintiffs would have paid less for their tickets. 

Plaintiffs seek damages under the Racketeer Influenced and Corrupt 

Organizations Act (“RICO”), 18 U.S.C. § 1962. 

On September 3, 2021, the district court certified four classes of 

plaintiffs. These classes encompassed persons who purchased or otherwise 

bore the economic burden for tickets on Southwest or American Airlines 

between August 29, 2017, and March 13, 2019, for routes where MAX 

aircraft were in use. Boeing and Southwest petitioned for permission to bring 

an interlocutory appeal of the class-certification decision. See Fed. R. Civ. 

P. 23(f). We granted Boeing and Southwest permission to appeal on 

September 30, 2021. 

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Boeing and Southwest then moved the district court to stay discovery 

pending the Rule 23(f) appeal. On November 19, 2021, the district court 

granted the motion in part and denied it in part. The district court stayed 

discovery pertaining to class membership during the pendency of the appeal. 

But the district court allowed all other discovery to proceed, including 

discovery on the merits. Boeing and Southwest then filed this motion in our 

court, asking us to stay all discovery until the Rule 23(f) appeal is resolved. 

II. 

 We have authority to stay proceedings in the district court while a 

Rule 23(f) appeal is pending. See Fed. R. Civ. P. 23(f). To decide whether 

to grant a stay, we consider four factors: (1) whether the movant makes a 

strong showing that it is likely to succeed on the merits; (2) whether the 

movant will be irreparably injured without a stay; (3) whether other 

interested parties will be irreparably injured by a stay; and (4) where the 

public interest lies. Nken v. Holder, 556 U.S. 418, 426 (2009). 

 Our court has not decided what deference is owed to district courts 

when considering whether to stay discovery pending a Rule 23(f) appeal. But 

we note that several of our sister circuits have concluded that district courts 

enjoy significant discretion in choosing whether and to what extent to stay 

discovery pending appeal. See, e.g., Blair v. Equifax Check Servs., Inc., 181 

F.3d 832, 835 (7th Cir. 1999) (stating that “Rule 23(f) is drafted to avoid 

delay” and suggesting that stays of discovery should issue infrequently 

during Rule 23(f) appeals). We need not decide the specific level of deference 

owed to the district court here, because even under the deferential standard 

articulated in cases like Blair, a stay is appropriate by virtue of Boeing and 

Southwest’s “demonstration that the probability of error in the class 

certification decision is high enough that the costs of pressing ahead in the 

district court exceed the costs of waiting.” Ibid. Stated differently, even 

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under a deferential standard of review, Boeing and Southwest have shown 

that all four Nken factors favor a stay of discovery during the pendency of 

their Rule 23(f) appeal. 

 On the likelihood of success on the merits, Boeing and Southwest have 

made a strong showing that our court is likely to reverse the class-certification 

decision. Because the district court certified the class action under Rule 

23(b)(3), the court was required to find “that the questions of law or fact 

common to class members predominate over any questions affecting only 

individual members.” Fed. R. Civ. P. 23(b)(3). Here, it is likely that such 

predominance is lacking because “[q]uestions of individual damage 

calculations will . . . overwhelm questions common to the class.” Comcast 

Corp. v. Behrend, 569 U.S. 27, 34 (2013). Under plaintiffs’ theory of injury, 

they would be owed damages for the difference between the ticket price they 

were charged and the ticket price they would have been charged if the MAX’s 

alleged defects had been widely known and deflated ticket prices. In order to 

show Rule 23(b)(3) predominance on the question of damages, then, 

plaintiffs must show that the price-deflating effect of public knowledge of the 

MAX’s defects would have been fairly uniform across all the various routes 

and dates (over 18 months) involved in this lawsuit. But both the plaintiffs’ 

and the defendants’ expert testimony suggest plaintiffs will not be able to 

make that showing. The substantial predominance questions raised by 

Boeing and Southwest’s Rule 23(f) petitions thus give Boeing and Southwest 

a significant likelihood of success on appeal. 

 On irreparable harm, Boeing and Southwest again have made a strong 

showing. The district court recognized that the classes in this case contain 

thousands or millions of members, and discovery for a class action suit of this 

magnitude will be very costly and time-consuming. Boeing and Southwest 

assert that they have already spent millions of dollars in defense costs and 

that plaintiffs’ escalating discovery demands will impose millions more in 

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unrecoverable costs absent a stay. The district court also recognized that 

discovery has become more contentious as this case has proceeded. And it is 

undisputed that Boeing and Southwest’s discovery costs will be 

unrecoverable even if the class certification is reversed on appeal. 

 In light of these concerns, the district court’s approach was to enter a 

partial stay. It stayed discovery “pertaining to class membership,” but 

allowed all other discovery to proceed. The district court’s primary 

justification for this approach was its conclusion that the named plaintiffs’ 

claims would remain even if class certification is reversed on appeal. Thus, 

on the district court’s view, discovery on the merits will eventually proceed 

anyway, so Boeing and Southwest would not be irreparably harmed by the 

denying a full stay. 

There are at least three problems with that. First, Boeing and 

Southwest also challenge the plaintiffs’ standing. And if Boeing and 

Southwest succeed on their standing challenge, even the named plaintiffs will 

be unable to proceed with the suit. See Rivera v. Wyeth-Ayerst Lab’ys, 283 

F.3d 315, 319 (5th Cir. 2002) (“Standing may—indeed must—be addressed 

even under the limits of a rule 23(f) appeal.”). Second, even if only the class 

certification is reversed on appeal, the proportionality requirement imposed 

by Federal Rule of Civil Procedure 26(b) would impose far different 

constraints on discovery by eleven named plaintiffs than it would for classes 

of millions of air travelers.*

 Third and finally, the district court’s order 

*

 The crux of our disagreement with Judge Elrod appears to be on this point. Judge 

Elrod claims that limiting discovery to liability solves this problem because “defendants’ 

liability does not vary based on class size” and “discovery—at least on liability—is 

inevitable.” Post, at 10–11 (Elrod, J., dissenting). We respectfully disagree with both 

assertions. Plaintiffs seek to recover for airline ticket premiums they allegedly paid due to 

defendants’ fraud. Whether defendants are liable for eleven ticket premiums or millions of 

them depends on the class certification question, so defendants’ liability does vary based on 

class size. And because of Rule 26(b)’s proportionality requirement, it is not 

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threatens to exacerbate rather than alleviate the contentious discovery 

disputes in this case because it fails to draw a workable line between 

permitted and non-permitted discovery. The parties have already engaged in 

voluminous motions practice disputing the propriety of various discovery 

requests, and the district court’s approach would likely further litter the 

record with disputes over whether a given discovery request falls within the 

parameters of the district court’s partial stay. Boeing and Southwest have 

thus shown that denying a full stay will subject them to irreparable harm. 

 We now consider the final two stay factors: whether a stay would 

irreparably harm other interested parties, and where the public interest lies. 

Plaintiffs have not plausibly alleged that they or any other parties will be 

irreparably injured by delaying further discovery until the conclusion of the 

Rule 23(f) appeal. The district court cited generalized concerns about 

spoliation of evidence and avoiding significant delay in the overall resolution 

of the case. And plaintiffs point to alleged past discovery malfeasance by 

Southwest, including Southwest’s alleged destruction or non-production of 

highly relevant text messages. But neither the district court nor the plaintiffs 

have identified any specific prospective threat of spoliation. And because 

plaintiffs only seek money damages, it is not apparent why plaintiffs would be 

prejudiced by waiting on merits discovery until the end of the Rule 23(f)—

especially since discovery related to class membership is already stayed until 

the conclusion of that appeal. The upshot of a full stay here is that there will 

be one exhaustive round of discovery post-appeal, rather than two distinct 

rounds of discovery pending- and post-appeal. Finally, the public interest 

“speculation,” id. at 10 n.3, to note that plaintiffs will not be able to proceed with 

multimillion-dollar merits discovery if the value of their suit is reduced to hundreds or a 

few thousand dollars. Merits discovery—at least on the scale plaintiffs currently propose—

is thus hardly “inevitable.” 

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supports staying district court proceedings to avoid potentially wasteful and 

unnecessary litigation costs where, as here, the appellant has shown a 

substantial likelihood of success on appeal. See Weingarten Realty Invs. v. 

Miller, 661 F.3d 904, 913 (5th Cir. 2011). 

* * * 

IT IS THEREFORE ORDERED that appellants’ motion to stay 

trial court proceedings pending disposition of this Rule 23(f) appeal is 

GRANTED. 

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Jennifer Walker Elrod, Circuit Judge, concurring in part and 

dissenting in part: 

I respectfully dissent from the panel majority’s complete stay of all 

discovery in this case pending appeal. In staying all discovery, the panel flips 

Rule 23(f) on its head and places its burden on the wrong shoulders. I would 

instead allow discovery to proceed on the issue of defendants’ liability. 

The district court has carefully shepherded this case through two 

years of litigation. It did the same in its order granting limited discovery. The 

district court acknowledged that the defendants raise a substantial case on 

the merits about the propriety of class certification and carefully balanced the 

equities based on the purpose of the discovery at issue. The district court 

disallowed class discovery and allowed merits discovery while the class 

certification appeal is pending. It also took into account the potential loss of 

relevant evidence if discovery were not allowed to proceed.1

 In reaching its 

careful balance, the district court has heeded our guidance and can be trusted 

to do so again. 

Rule 23(f) contemplates infrequent stays and deference to the district 

court’s stay decision. Rule 23(f) was “drafted to avoid delay.” Blair v. 

Equifax Check Servs., Inc., 181 F.3d 832, 835 (7th Cir. 1999); Microsoft Corp. 

v. Baker, 137 S. Ct. 1702, 1709 (2017) (“Rule 23(f) was crafted to balance the 

benefits of immediate review against the costs of interlocutory appeals.” 

(quoting Brief for Civil Procedure Scholars as Amici Curiae at 6–7, 11–14)). 

To offset our broad discretion to grant class-certification appeals, Rule 

23(f)—together with the standard for stays pending appeal—provides that 

district court proceedings presumptively proceed. E.g., Prado-Steiman ex rel. 

1

 In the district court and before us now the plaintiffs raise serious concerns about 

the preservation of relevant text messages, privilege logs, and third-party documents. 

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Prado v. Bush, 221 F.3d 1266, 1273 n.8 (11th Cir. 2000) (“Rule 23(f) 

contemplates that in most cases discovery (at the very least, merits 

discovery) will continue [despite] an appeal of the class certification order.”).

Accordingly, “[s]tays are not favored and should be issued only when the 

party seeking the stay demonstrates that the probability of error in the class 

certification decision is high enough that the costs of pressing ahead . . . 

exceed the costs of waiting.” 5 James W. Moore et al., Moore’s Federal 

Practice § 23.88[2][d] (3d ed. 2021). As Judge Easterbrook, writing for the 

Seventh Circuit, has explained: Stays should be infrequent and Rule 23(f) 

“should not unduly retard the pace of litigation.” Blair, 181 F.3d at 835; see 

also A.A. ex rel. P.A. v. Phillips, No. 19-00770-BAJ-SDJ, 2021 WL 2589180, at 

*1 (M.D. La. June 24, 2021) (Jackson, J.). 

Rule 23(f) also contemplates deference to the district court’s stay 

decision. The district court’s “action and any explanation of its views should 

weigh heavily with the court of appeals.” Fed. R. Civ. P. 23(f) committee’s 

note to 1998 amendment;2 see also 6A Federal Procedure, Lawyer’s Edition 

§ 12:478 (2012); 32B Am. Jur. 2d Federal Courts § 1823 (2021). Deference in 

this context makes sense of the text and history of Rule 23(f), the district 

court’s knowledge of the record, parties, and course of litigation, and the 

inherently limited nature of appellate review.

Accordingly, Rule 23(f) requires defendants to carry a dual burden. 

First, defendants must meet the traditional Nken factors for a stay. Nken v. 

Holder, 556 U.S. 418, 426 (2009). Second, defendants must carry this burden 

2

 Committee Notes are “of weight” when interpreting the Federal Rules of Civil 

Procedure. Schiavone v. Fortune, 477 U.S. 21, 31 (1986) (quoting Miss. Pub. Corp. v. 

Murphree, 326 U.S. 438, 444 (1946)); Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 

(1988). 

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so convincingly that we are justified not only in granting the full stay, but in 

disregarding the district court’s decision to the contrary. 

Defendants have not carried this dual burden. Even assuming that 

class certification was improper, the named plaintiffs will be able to pursue 

their claims on remand. Because discovery—at least on liability—is 

inevitable, defendants cannot show that they would be irreparably injured in 

the absence of a total stay. Discovery will occur either way; the only 

questions are when and how much. Defendants have not shown that having 

to conduct inevitable discovery now, rather than later, will cause irreparable 

harm. See In re Cobalt Int’l Energy, Inc. Secs. Litig., No. H-14-3428, 2017 WL 

3620590, at *4 (S.D. Tex. Aug. 23, 2017) (Atlas, J.) (denying a stay pending 

a Rule 23(f) appeal because “the discovery will be necessary whether or not 

the appeal is successful”); see also Sampson v. Murray, 415 U.S. 61, 90 (1974) 

(“Mere injuries, however substantial, in terms of money, time and energy 

necessarily expended in the absence of a stay, are not enough [for an 

irreparable injury.]” (quoting Va. Petroleum Jobbers Ass’n v. Fed. Power 

Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958))); M.D. v. Perry, No. C-11-84, 

2011 WL 7047039, at *2 (S.D. Tex. July 21, 2011) (Jack, J.) (“The prospect 

of burdensome or expensive discovery alone is not sufficient to demonstrate 

‘irreparable injury’ . . . .”). 3

 

The panel majority identifies three problems with the district court’s 

partial stay, none of which are convincing. First, it notes that defendants 

“challenge the plaintiffs’ standing.” Ante at 5. But merely challenging 

plaintiffs’ standing is not enough; defendants must make a strong showing that 

3

 Indeed, defendants appear to assume that plaintiffs will drop their suits if classcertification is reversed. But there is no basis for that in the record, and speculation about 

irreparable harm is not irreparable harm. 

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plaintiffs lack standing. Because defendants have not made this showing, 

they cannot show a strong likelihood of success against the named plaintiffs. 

The panel majority’s second and third problems are solved by limiting 

discovery to liability. The panel majority observes that the district court’s 

stay would impose proportionality problems if class certification is reversed 

on appeal. Ante at 5. It further contends that the district court’s stay order is 

unworkable and will exacerbate the already-contentious discovery. Ante at 5–

6. 

Limiting discovery to liability solves both issues. First, defendants’ 

liability does not vary based on class size. And, as discussed above, discovery 

on liability will occur anyway because defendants have not shown a strong 

likelihood of success against the named plaintiffs. Because defendants’ 

liability will be determined in any event, they have not justified postponing it. 

Second, liability is a clear and enforceable line. There is hardly a brighter line 

than that between damages and liability. We trust district courts to enforce, 

and parties to respect, lines much duller than this.4

As to the final two Nken factors, the panel majority continues to fault 

plaintiffs for failing to carry a burden that is defendants’ to bear. Whether 

plaintiffs have plausibly alleged irreparable injury, spoliation of evidence, 

significant delay, or discovery malfeasance is beside the point. The defendants

must prove these factors and they fail to do so. Tex. League of United Latin 

Am. Citizens v. Hughs, 978 F.3d 136, 143 (5th Cir. 2020); Nken, 556 U.S. at 

4

 To the extent that discovery on liability would vary based on class size under Rule 

26(b), the district court is well aware of Rule 26(b)’s proportionality requirement and can 

enforce it ably on remand. The crux of the panel’s disagreement is the relevant baseline 

for defendants’ motion to stay all discovery. We must measure defendants’ motion against 

the baseline of allowing district court proceedings to continue. Measured accordingly, 

defendants have not carried their burden to postpone inevitable discovery. 

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433–34. Where discovery on liability is inevitable, its unjustified delay 

irreparably harms the plaintiffs and upends the public interest. 

Simply put, the panel majority gets it exactly backwards. Because 

some discovery will proceed regardless of class certification, defendants have 

not shown—as they must—an entitlement to staying all discovery. Nor have 

they lifted—again, as they must—the “heavy weight” we accord to the 

district court’s discovery rulings. I would instead limit discovery to liability 

and rely upon the very capable district court to manage it while the appeal 

proceeds. 

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