Tactical dilatory practice in litigation: Evidence from EC merger proceedings

► An empirical example of pre-trial litigation with multiple bargaining periods is presented in a situation where delayed litigation has a socially desirable effect. ► This type of delay is strategically used to gain more time to settle the case and to avoid a lengthy in-depth investigation. ► The example is provided from the administrative litigation of EC mergers. ► Using analogies between civil and administrative litigation, these findings can have a more general implication. The economic analysis of delay in legal procedures has received considerable attention in the past. Some of these works focus on the determinants of delay in litigation but very little analysis has been dedicated to examining if tactical delay may actually help the settlement process. The paper shows that in European merger litigation merging parties may decide to tactically challenge discovery attempts, which causes a delay that is strategically used to gain more time to take the necessary steps to avoid a lengthy in-depth investigation. This type of delay can be beneficial to both merging parties and could also contribute to the saving of regulatory resources, and reduce the risks threatening the success of a potentially efficiency enhancing merger.