Daniel J. Mogin

The managing partner of MoginRubin LLP said he regards the private enforcement of antitrust law as a formidable instrument in the promotion of free enterprise and a powerful tool that market participants can wield to combat market interference so they can achieve business success.

He's in the last stages of settling for $376 million an antitrust class action against producers of corrugated paper products who allegedly engaged in illegal anticompetitive conduct in the sale of containerboard products. In re: Containerboard Products Antitrust Litigation, 10-cv-05711 (N.D. Ill., filed Sept. 9, 2010).

"We just got the final distribution approval order," Mogin said in late May. "Turns out there are $300,000 in unclaimed funds, so we are making a cy pres award to a couple of deserving recipients, the American Antitrust Institute and the University of Chicago Law School."

The case took a decade in part because of an overwhelming pile of documents--some 12 million pages or their equivalent--produced by seven defendants and third parties. To assay the vast trove he and co-counsel tried an experiment with a technique that was new and untried a few years back: the use of predictive coding, an artificial intelligence computer sorting procedure that can scan the paperwork and understand what it sees. "The system looks for keywords or combinations of words, and it learns as it goes," Mogin said.

But predictive coding was so new when the plaintiff team tried it that it cost them almost a year to make it work. "We were new to the process. We were too early with this technology," Mogin said. Problems abounded, including some pushback from judges on the case who were wary of advanced computer techniques. Also, the process was expensive. He retained a computer learning expert and, because those who connive to break the law are unlikely to speak of their illicit activities in plain terms, he also hired a computational linguist to program the software to seek language patterns that might signal conspiratorial activities.

"Yes, I'm glad we did it, and yes, I'm glad it's behind me," Mogin said. "We will see more of it, much more, in the future. The technology is greatly improved now."

Mogin also represents a proposed class of independent ATM operators who have allegedly been injured by the price-fixing practices and restrictions imposed by Visa Inc. and Mastercard Inc. "Our certification motion remains in the briefing stage," he said, as experts are deposed and allowed to comment on each others' contentions. National ATM Council Inc. v. Visa Inc., 1:11-cv-01803 (D. D.C., filed Oct. 12, 2011).

That case too has made slow progress. "The judges in D.C. are used to government merger control antitrust matters, which move much faster," Mogin said. "Also, the virus has cost us time. But we'll get there."

-- John Roemer