The Fifth Circuit issued two separate opinions deciding procedural issues related to Rule 23(f) appeals of class certification that provide additional protections for defendants.

In Earl v. Boeing Co., — F.4th –, 2021 WL 6061767 (5th Cir. Dec. 22, 2021), a split Fifth Circuit panel issued a rare decision staying discovery while a Rule 23(f) appeal was under review. The Fifth Circuit acknowledged that, unlike other in circuits, there was no precedent dictating what level of deference was owed to the district court’s decision, but that was irrelevant because the district court’s decision not to stay discovery would be reversed even under a deferential standard of review. Judge Elrod disagreed with the majority, critiquing that the “panel majority gets it exactly backwards” because it reversed the district court even though defendants did not lift the “heavy weight” of deference accorded to district court rulings.

In Cleven v. Mid-America Apartment Communities, Inc., 20 F.4th 171 (5th Cir. 2021), the Fifth Circuit reversed the district court’s order granting class certification, using a Rule 23(f) appeal to address the merits of the district court’s interpretation of state law. The majority ruled that it was appropriate to consider the appeal because the district court’s incorrect interpretation of Texas state law affected the Rule 23(b)(3) predominance inquiry. Judge Dennis dissented, writing that the court did not have jurisdiction to consider the appeal—which he asserted raised only a merits question—and further criticizing the majority’s interpretation of state law.