The federal antitrust agencies continue to aggressively challenge consummated transactions, including those not reportable under the Hart-Scott-Rodino Act. On May 7, 2010, the Federal Trade Commission (FTC) sued Dun & Bradstreet Corporation (D&B), challenging its February 2009 $29 million acquisition of Quality Education Data (QED) from Scholastic, Inc. The parties were not required to make a Hart-Scott-Rodino premerger filing due to the small size of the deal.

The FTC alleged that the acquisition, made by D&B’s subsidiary Market Data Retrieval (MDR), eliminated MDR’s closest competitor and gave MDR 90 percent of the market for kindergarten through 12th-grade educational marketing databases. The data sold by these companies is used to sell books, education materials, and other products to teachers and other educators nationwide.

The Commission approved the FTC’s Complaint 4 to 1 with Commissioner Rosch dissenting.

Under the Obama administration, the federal antitrust agencies have significantly increased their challenges of consummated transactions. The suit against D&B is the third challenge this year against a consummated deal. In addition, this demonstrates that the FTC will challenge not only consummated but also non-HSR reportable deals if it concludes that the transaction may significantly lessen competition in the relevant market. Further, the agencies added a section on consummated mergers in the recent draft Horizontal Merger Guidelines released on April 20, 2010.