Earl v. Boeing Company, 21 F.4th 895

Plaintiffs brought a putative class action under RICO alleging Boeing and Southwest conspired to conceal design defects in the 737 MAX, inflating ticket prices for passengers who bought tickets on routes flown by MAX aircraft between Aug. 29, 2017 and Mar. 13, 2019.
The district court certified four Rule 23(b)(3) classes; Boeing and Southwest obtained permission to appeal the certification under Fed. R. Civ. P. 23(f).
The district court entered a partial discovery stay: discovery into class membership was stayed, but merits discovery was allowed to proceed.
Boeing and Southwest asked the Fifth Circuit to stay all discovery pending the Rule 23(f) appeal, arguing irrecoverable costs and predominance problems if discovery continued.
The Fifth Circuit majority granted a full stay, applying the Nken stay factors and finding a strong likelihood that class certification would be reversed due to individualized damages issues and that defendants would suffer irreparable, unrecoverable discovery costs; the court also found plaintiffs had not shown specific irreparable harm from delay.
Judge Elrod concurred in part and dissented in part: she would have allowed merits discovery limited to liability, emphasizing deference to the district court, Rule 23(f)’s aim to avoid delay, and that liability discovery is inevitable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether to stay all discovery pending Rule 23(f) appeal	Partial stay proper; district court balanced equities and preserved merits discovery	Full stay required to avoid massive, unrecoverable discovery costs and waste if certification reversed	Granted full stay; appellate court found Nken factors favor stay
Likelihood of success on Rule 23(f) appeal (predominance)	Common issues (price-inflation) predominate across routes/dates	Damages are individualized; experts show price-deflating effect would vary (Comcast problem)	Defendants made strong showing that predominance likely lacking and reversal probable
Irreparable harm from proceeding with discovery (costs/spoliation)	Delay risks spoliation and prejudices plaintiffs; past discovery malfeasance alleged	Defendants will incur millions in unrecoverable discovery costs and contentious disputes; partial stay insufficient	Court found defendants would suffer irreparable, unrecoverable harm; plaintiffs failed to identify specific prospective spoliation
Public interest and harm to plaintiffs from a stay	Public interest and plaintiffs' interests favor continuing merits discovery; liability discovery should proceed	Public interest favors avoiding wasteful, duplicative discovery pending appeal	Court held public interest favors a stay to avoid unnecessary litigation costs; plaintiffs showed no plausible irreparable prejudice

Nken v. Holder, 556 U.S. 418 (2009) (stay factors for motions pending appeal)
Comcast Corp. v. Behrend, 569 U.S. 27 (2013) (class certification requires that damages methodology show predominance)
Blair v. Equifax Check Servs., Inc., 181 F.3d 832 (7th Cir. 1999) (Rule 23(f) drafted to avoid delay; stays should be infrequent)
Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315 (5th Cir. 2002) (standing can be addressed in Rule 23(f) context)
Weingarten Realty Invs. v. Miller, 661 F.3d 904 (5th Cir. 2011) (stay may be appropriate to avoid wasteful litigation costs)
Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017) (Rule 23(f) balances immediate review benefits against interlocutory appeal costs)
Sampson v. Murray, 415 U.S. 61 (1974) (monetary burdens alone do not constitute irreparable harm)
Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266 (11th Cir. 2000) (Rule 23(f) contemplates that discovery will often continue during appeals)
Texas League of United Latin Am. Citizens v. Hughs, 978 F.3d 136 (5th Cir. 2020) (movant bears burden to justify a stay)