I have written about Judge Lynn Hughs of Houston before. See my prior posts here and here. He is in trouble with the Fifth Circuit, again. In Pulse Network v. Visa, Inc., No. 18-20669 (5th Cir.), the court of appeals removed Judge Hughes from this suit. The higher court found Judge Hughes had made a “gratuitous comment” which expressed “ingrained skepticism” about the plaintiff’s claims. The court of appeals noted in a footnote that Judge Hughes had been removed from five other cases.

The appeal concerned a ruling by the judge that Pulse Network lacked anti-trust standing to pursue its allegations against. In its suit, Pulse accuses Visa of dominating the market of debt card networks. Pulse argued on appeal that the judge had pre-judged the suit. For example, noted the plaintiff, in 2015 in the early stages of the case, at an early conference, Judge Hughes had “repeatedly insisted that the challenged Visa policies did not harm competitors,” and that merchants weren’t forced to pay a fixed monthly fee. The plaintiff noted those are some of the key factual disputes in the case.

Bias Toward Anti-Trust Lawsuits

Judge Hughes had also commented that are more bad antitrust lawsuits out there than any other type of lawsuit. He said the only genuine monopolies are those supported by the government. He said Standard Oil Co. was not a real monopoly. He was apparently referring to the lawsuit by the U.S. government against Standard Oil Company which resulted in its break-up in 1911. It was the first significant action under the Sherman Antitrust Act of 1890. Over 100 years later, the judge is still upset about that case.

The Fifth Circuit noted that any one of these comments by itself would not serve to show judicial bias. But, taken together, they raise legitimate concerns that the judge bears ingrained bias against the plaintiff’s claims. Judge Hughes blocked discovery by Pulse continually. After four years of litigation, Pulse had been prevented from conducting discovery on critical issues.

The higher court noted that when Visa moved to dismiss the case early in 2015, it took Judge Hughes nine months to issue a one sentence order denying the motion. When Visa later moved for summary judgment in 2017, it took the judge ten months to grant the motion.

Gratuitous Comments

Judge Hughes does indeed in many cases comment gratuitously on peripheral issues. In a discrimination case in 2013, Judge Hughes for no apparent reason discussed diversity efforts in schools of higher education. “And what does a diversity director do, go around and (paint) students different colors so they think they were mixed?” he asked, for no reason related to the actual lawsuit. The plaintiff in that case was Indian. Judge Hughes for no reason related to the case, insisted that the plaintiff was really Caucasian. He also often severely limits or prohibits discovery in a lawsuit. If ever one person was not suited to being a Judge, it is Lynn Hughes.

See ABA Bar Journal report here for more information.