Here are some of the developments in antitrust news this past week that we found interesting and are following.

Clinton Questions Plans for Health Insurers to Merge.  Hillary Clinton is indicating the antitrust approach a new Clinton administration may take with her recent comments that two major health insurers preparing multibillion dollar acquisitions could tip “the balance of power” too far away from consumers.  The Democratic presidential candidate has said she has “serious concerns” with the proposed acquisition of Cigna by Blue Cross-Blue Shield insurer Anthem, and plans by Aetna to acquire Medicare Advantage coverage provider Humana.

FedEx, TNT say no EU antitrust objections to $5 billion merger.  EU antitrust regulators have no objections to FedEx’s 4.4 billion euro ($5 billion) acquisition of Dutch peer TNT Express, according to the companies.  With a European market share of 17 percent, the combined company would be Europe’s second-largest delivery services business, behind Deutsche Post’s DHL but ahead of UPS.  The deal would also strengthen FedEx’s position as the world’s No.3 player.

Electrolux offers to settle U.S. antitrust fight over appliance deal.  The U.S. Department of Justice is reacting negatively to an offer by AB Electrolux to settle its fight with the Justice Department over whether it will be allowed to buy General Electric’s appliance business.  Electrolux claims it is working with third parties who may be interested in buying divested assets.  While the Justice Department did not reject the settlement, a government lawyer indicated the parties were far apart, stating “We’re on Earth and they’re on Mars.”

Yahoo to Team Up With Google in Internet Search, Advertising.  Yahoo hopes to lean on Google’s expertise in Internet search and advertising in an attempt to boost its revenue.  Yahoo’s proposed three-year partnership with Google must still be approved by antitrust regulators.  Although Yahoo tried to team up with Google in 2008 as part of its defense against a takeover attempt by Microsoft, that deal unraveled after the U.S. Justice Department threatened to block the partnership on the grounds that it would thwart competition.

Here are some of the developments in antitrust news this past week that we found interesting and are following.

Deutsche Telekom Said to Weigh New Antitrust Complaint Against Google.  Deutsche Telekom, the German telecom company, is expected to file a formal antitrust complaint against Google’s Android mobile software with European competition authorities in the coming weeks, according to sources.  Deutsche Telekom, which owns a controlling stake in T-Mobile US, the cellphone carrier, is an outspoken critic of United States tech companies’ dominance over how Europeans access online services.   The complaint, which may be submitted by early November, focuses on whether Google uses its Android mobile operating system to unfairly promote its own products like Google Maps and online search over those of rivals.

U.S. Judge Says Apple e-Books Antitrust Monitor’s Term to End.  U.S. District Judge Denise Cote  has agreed to not extend the term of a court-appointed monitor assigned to review Apple’s antitrust compliance program despite the difficult environment the monitor faced in dealing with the iPad maker.  The decision of the federal judge in Manhattan follows a recommendation by the U.S. Justice Department to not extend the appointment of Michael Bromwich, who was named monitor after Apple was found liable for conspiring to raise e-book prices.  The court noted that Bromwich had “persevered and made numerous recommendations to Apple for the improvement of its antitrust compliance program,” the vast majority of which Apple implemented.

AB InBev, SABMiller Brew Up $100 Billion Deal.  The world’s two biggest brewers have agreed to create a company making almost a third of the world’s beer after SABMiller accepted an offer worth more than $100 billion from larger rival Anheuser-Busch InBev.  There are significant antitrust hurdles to such a combination, particularly in the United States, where the companies would control about 70 percent of the beer market.  If the deal survives antitrust scrutiny, it would rank in the top five mergers in corporate history and be the largest takeover of a UK company.

Fantasy Sports Trade Association Subpoenaed by U.S. Prosecutor: WSJ.  The fantasy sports industry’s main trade association has been subpoenaed by the U.S. Attorney’s Office in Tampa, Florida in an ongoing federal investigation into potential antitrust violations or fraud among the large fantasy sports sites, the Wall Street Journal reported.  The subpoena ordered the Fantasy Sports Trade Association to produce copies of the minutes of its board meetings, according to the report.

Here are some of the developments in antitrust news this past week that we found interesting and are following.

Apple ‘own worst enemy,’ U.S. antitrust monitor says in report. Apple’s antitrust compliance program has improved, but the company continues to throw up roadblocks to a court-appointed monitor overseeing the program, the monitor reported to a federal judge. Michael Bromwich, who was assigned to monitor Apple’s internal antitrust policies after U.S. District Judge Denise Cote found the company liable for conspiring to raise e-book prices, said Apple was acting as “its own worst enemy” by continuing to raise objections to his requests for information.

EU’s Vestager Not Planning to Rush Google, Gazprom Antitrust Cases. The European Union’s antitrust case against Gazprom will continue despite concessions from the Russian gas producer, meant to settle charges it abused its dominance in eastern and central Europe, according to the EU’s antitrust chief. European Competition Commissioner Margrethe Vestager also reported that it would take time to conclude the EU’s five-year-old Google case, as she reviewed the internet search group’s reply to charges of favoring its services over rivals.

Supreme court won’t hear challenge to baseball antitrust immunity. The U.S. Supreme Court has rejected a challenge to Major League Baseball’s long-standing exemption from U.S. antitrust laws brought by San Jose as part of the California’s city’s effort to become the new home of the Oakland Athletics. The court’s decision not to take the case means a January appellate ruling that said San Jose cannot seek a court order allowing the Athletics to move to the city remains intact.

A View from Constantine Cannon’s London Office

By James Ashe-Taylor and Yulia Tosheva

The European Parliament formally adopted the revised Directive on Payment Services (PSD2) today.

The new law, proposed by the European Commission in July 2013, aims to enhance consumer protection, innovation and security of payment services.  Among the key changes introduced by the new rules are the following:

Introduction of strict security requirements for the initiation and processing of electronic payments and the protection of consumers’ financial data.

Opening the European Union payment market for companies offering innovative payment services based on access to payment accounts – the so-called “payment initiation services providers” and “account information services providers.”

Enhancing consumers’ rights in numerous areas, including reducing the liability for non-authorised payments and introducing an unconditional (“no questions asked”) refund right for direct debits in euros.

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By David Scupp

Last week, the United States Court of Appeals for the Ninth Circuit ruled that the NCAA may restrict colleges from compensating student-athletes beyond the cost of attendance, handing the NCAA a partial victory in its continuing courtroom fight against athletes’ rights.

The Ninth Circuit affirmed in part and vacated in part Judge Claudia Wilken’s landmark holding in O’Bannon v. National Collegiate Athletic Association, et al., an antitrust class action brought by former All-American UCLA basketball player Ed O’Bannon, challenging the NCAA’s restrictions on compensation to Division I basketball and FBS football players for use of their name, image, and likeness (“NIL”).

After a bench trial, Judge Wilken analyzed the legality of the NCAA’s restrictions under the rule of reason, and permanently enjoined the NCAA from enforcing its blanket restriction on FBS football and Division I basketball collegiate athletes receiving any portion of the licensing revenue generated from the use of the players’ NILs.  Specifically, Judge Wilken identified two less-restrictive alternatives to achieve the limited pro-competitive benefits of the current NCAA restrictions: (1) allowing schools to award stipends to athletes up to the full cost of attendance, thereby making up for any shortfall in their grants-in-aid, and (2) permitting schools to hold a portion of their licensing revenues in trust, up to $5,000 per year, to be distributed to athletes in equal shares after they leave college.  Our analysis of the district court’s opinion can be found here.

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