Daniel J. Mogin

Antitrust Litigation

Daniel J. Mogin has been litigating antitrust matters for more than 30 years, especially since he formed a partnership with Jonathan Rubin in 2017. “Our intent was to focus as much of our resources as possible on antitrust and sort of be all things antitrust to all people,” he said.

The firm’s experience in the field means he and it are regularly brought in late to help in antitrust litigation or to handle the antitrust aspects of a complex matter.

He joined a potential class action against orthodontics company Align a few months after the suit was filed. Litigation between the maker of the Invisalign device and competitors uncovered what he called the company’s anticompetitive efforts to monopolize the market for the expensive intraoral scanners that dentists use to model a patient’s teeth. Simon and Simon PC v. Align Technology Inc., 3:20-cv- 03754 (N.D. Cal., filed June 5, 2020).

Mogin is the lead counsel for the class of ATM operators accusing MasterCard and Visa of conspiring to fix the interchange fees charged to process ATM transactions. “They have a rule in place that prohibits anybody from charging less, so there’s really no competition, especially as between those two,” he said.

The case began 12 years ago. “As you can imagine… you can’t really wage a war of attrition with those guys,” Mogin said. The court did certify the proposed class, but that ruling is now on appeal. National ATM Council Inc. v. Visa Inc., 21-7109 (D.C. Circ., filed Oct. 7, 2021).

He was also brought in to handle the antitrust side of a very complex lawsuit filed by a family-owned hotel company in San Diego accusing a major hospitality union of anticompetitive practices. In an attempt to unionize the company hotels, the union has used the California Environmental Quality Act and political pressure to block development, Mogin said. Evans Hotel LLC v. Unite Here! Local 30, 3:18- cv-02763 (S.D. Cal., filed Dec. 7, 2018).

The unusual case requires reconciling conflicting aspects of labor law and antitrust law, plus CEQA. Mogin said one judicial officer called it “a real law review kind of case.”

– Don DeBenedictis