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

Trump’s Policies May Bring Fresh Wave of Deals.  With a man who is co-author of “The Art of the Deal” as president-elect, deal making can be expected to increase.  This rise will be determined by whether a Trump administration can govern with stability.  And then there is the biggest factor these days in deals — antitrust.  It all means that the long-term forces now pushing companies toward making deals are likely to continue, but with some big caveats, namely whether Mr. Trump can govern from a position of stability and consistency.

Google Lawyer Says Android Helps Rather Than Harms Competition.  Google’s Android mobile operating system boosts competition rather than hurts it, the company’s general counsel said on Thursday, in a rebuttal of EU antitrust charges that it uses the platform to crush rivals.  The comments by Google general counsel Kent Walker on a blog came a week after the U.S. technology group rejected two other EU accusations of unfairly promoting its shopping service and blocking competitors in online search advertising.  The Android case could potentially be the most damaging for Google.

U.S. Senate Panel Urges FTC to Launch Antitrust Probe of Mylan.  The U.S. Senate Judiciary Committee urged federal antitrust regulators on Monday to launch a probe into whether EpiPen maker Mylan broke the law by preventing schools from purchasing competing allergy treatments.  The bipartisan request to the Federal Trade Commission by Senate Judiciary Chairman Charles Grassley and Ranking Member Patrick Leahy comes just a few weeks before the committee is slated to convene a hearing to scrutinize a pending $465 million settlement that Mylan has said will resolve claims it underpaid rebates to state and federal Medicaid programs.

U.S. Urges Court to Overturn AmEx Antitrust Decision.  The U.S. government on Thursday asked a federal appeals court to reconsider a recent antitrust decision allowing American Express to stop merchants from encouraging customers to use rival cards that charge lower fees.  In its Sept. 26 decision, the U.S. Court of Appeals for the Second Circuit reversed a lower court ruling that had struck down AmEx’s “anti-steering” rules.  At issue are the more than $50 billion of fees that merchants pay annually to process transactions.

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

Mylan May Have Violated Antitrust Law in Its EpiPen Sales to Schools.  Schools across the country keep EpiPens in their nurses’ offices in case a student has a severe allergic reaction.  For years, Mylan Pharmaceuticals has been selling the devices to schools at a discounted price, giving them a break from rising costs.  But the program also prohibited schools from buying competitors’ devices — a provision that experts say may have violated antitrust law.

Uber Wins Halt to N.Y. Price-Fixing Lawsuit During Appeal.  A federal judge on Friday granted a request by Uber Technologies Inc. and its chief executive officer to put a passenger’s price-fixing lawsuit against them on hold while they appeal his refusal to let them arbitrate the dispute. Calling his decision a “close call,” U.S. District Judge Jed Rakoff in Manhattan said the defendants had not made a “strong showing” that their appeal would likely succeed, though they would face irreparable harm if arbitration were wrongfully denied.  But he said the appeals court could clarify whether Spencer Meyer, the Connecticut plaintiff, and others like him consent to arbitration when they buy services subject to conditions in “clickwrap” and “browsewrap” agreements found online.

Senate Committee to Scrutinize DuPont-Dow Merger.  The head of U.S. Senate Judiciary Committee has called for hearings next month on the proposed merger between the DuPont Co. and Dow Chemical, as well as on broader issues of consolidation within the seed and chemical industry.  Committee Chairman Sen. Chuck Grassley, R-Iowa, said Wednesday that Iowans are concerned that consolidation could result in higher production costs in an already declining agriculture economy.  The deal is being scrutinized by Justice Department and European antitrust authorities.

Tesla Wins U.S. Antitrust Approval to Buy SolarCity.  Tesla Motors Inc. has won U.S. antitrust approval to buy solar panel installer SolarCity Corp., moving closer to its goal of creating a carbon-free energy and transportation company.  The Federal Trade Commission said on Thursday that the deal was approved.  It was on a list of proposed transactions that were granted quickly because the merging partners have few or no overlaps.

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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A View from Constantine Cannon’s London Office

By Richard Pike

The United Kingdom announced today that the Consumer Rights Bill has passed its final legislative hurdle and has been adopted as the Consumer Rights Act 2015 – heralding a major overhaul of consumer protection law in the UK.

Schedule 8 of the Act contains radical new provisions designed to boost private antitrust enforcement in the UK.  Most noteworthy is the adoption of an opt-out class action remedy specifically, and uniquely, for claims alleging infringement of UK and European competition law.  Never before has there been any form of opt-out action in the UK for any purpose.

The class action provisions are intended to strike a balance between enhancing access to justice and avoiding the creation of what has been termed an “American litigation culture.”  As such, there are a number of limits on what will be possible.  First, the opt-out class will be limited to persons domiciled in the UK.  All other persons would have to opt in to obtain the benefit of actions that are brought, or else bring their own claims.  Second, contingency fees will be prohibited, and it is likely that the arrangements for fees and funding will effectively be set by the Competition Appeal Tribunal at the outset.  Third, it will be for the Tribunal to decide in each case whether it is appropriate to allow the case to proceed on an opt-out basis, an opt-in basis or not as a collective action at all.  The Tribunal will also be tasked with deciding whether the lead plaintiff is an appropriate person to represent the class.

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A View from Constantine Cannon’s London Office

By Yulia Tosheva and James Ashe-Taylor

The European Commission has announced that the European Parliament and the European Council have reached a long-awaited political agreement on the Commission’s proposal for a Regulation on Interchange Fees for Card-based Payment Transactions.

The Regulation will introduce maximum fees for four-party card schemes’ consumer debit and credit cards, prevent card schemes from forcing retailers to accept all types of cards regardless of their fees, and establish transparency rules for all transactions. The Commission has already ruled that interchange fees set by MasterCard are in violation of EU antitrust laws and, after a seven-year court battle, MasterCard lost its final appeal before the European Court of Justice in September 2014.

Interchange fees represent about 70% of the approximately 13 billion euros a year retailers pay banks to handle payment card transactions. The Regulation is expected to have a profound impact on the card industry as a whole but its effect is likely to be particularly felt in markets such as Germany, where average credit card rates stand at 1.8%, and Poland, where average debit card charges are 1.6%.

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