Kirkland's Paul Clement messes with Texas judge in antitrust appeal

Signage is seen outside of the law firm Kirkland & Ellis LLP in Washington, D.C., U.S., August 30, 2020. REUTERS/Andrew Kelly
  • Appellate veteran says Houston federal judge has prejudged merits of Pulse Network's lawsuit
  • Visa's lawyers at Gibson Dunn call claims against judge a 'distraction'

(Reuters) - Kirkland & Ellis' Paul Clement argued on Wednesday that a Houston federal judge's statements in court showed disdain for antitrust plaintiffs and are grounds for reviving a lawsuit and removing him from the case.

Clement, representing Discover Financial Services Inc subsidiary Pulse Network LLC, urged the 5th U.S. Circuit Court of Appeals to reinstate the antitrust lawsuit against Visa Inc and take U.S. District Judge Lynn Hughes off the case if it is sent back to the trial court.

The hearing marked the 5th Circuit's latest scrutiny of Hughes, who has served on the bench since 1985 and faced criticism over statements in other cases.

"We get more requests for reassignment for this particular judge than any other judge in the circuit—maybe more than for all the other judges in the circuit combined," Circuit Judge Jerry Smith told Clement. Smith heard the case with Circuit Judges Don Willett and Stuart Duncan.

Clement did not comment on Wednesday. Hughes declined to comment. A lawyer for Visa, Allyson Ho of Gibson, Dunn & Crutcher, did not return a message seeking comment.

Clement formerly served as U.S. solicitor general during the George W. Bush administration, and he's argued more than 100 cases at the U.S. Supreme Court. He told the appeals court he did not request reassignment "lightly."

Pulse runs ATM and debit networks and has accused Visa of anticompetitive conduct that has bolstered the company's market power. Visa's lawyers deny the allegations.

Hughes dismissed Pulse's lawsuit in 2018 in what Clement on Wednesday called a "meandering seven-page opinion, citing not a single circuit precedent." Hughes determined Houston-based Pulse didn't have legal standing to sue.

Clement said Hughes "just doesn't take antitrust cases or antitrust plaintiffs very seriously, and isn't really willing to roll up his sleeves to do the hard work to figure out how this market works."

Pulse's appellate brief quoted court statements from Hughes including remarks such as "there are more bad antitrust cases than any other single category" and "the only real monopolies are ones supported by the government."

In a court filing, Ho argued that Pulse's bid for reassignment on remand was "a distraction from its lack of antitrust standing" and "an opportunistic attempt to end-run a series of discovery orders Pulse decided not to appeal."

The case is Pulse Network LLC v. Visa Inc, 5th U.S. Circuit Court of Appeals, No. 18-20669.

For Pulse: Paul Clement and Erin Murphy of Kirkland & Ellis

For Visa: Allyson Ho and Andrew Tulumello of Gibson, Dunn & Crutcher

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