§ 1.722   Damages.

   (a) If a complainant wishes to recover damages, the complaint must contain a
   clear and unequivocal request for damages.

   (b) If a complainant wishes a determination of damages to be made in the
   same proceeding as the determinations of liability and prospective relief,
   the complaint must contain the allegations and information required by
   paragraph (h) of this section.

   (c) Notwithstanding paragraph (b) of this section, in any proceeding to
   which  no statutory deadline applies, if the Commission decides that a
   determination of damages would best be made in a proceeding that is separate
   from  and  subsequent to the proceeding in which the determinations of
   liability and prospective relief are made, the Commission may at any time
   order  that  the  initial proceeding will determine only liability and
   prospective relief, and that a separate, subsequent proceeding initiated in
   accordance with paragraph (e) of this section will determine damages.

   (d) If a complainant wishes a determination of damages to be made in a
   proceeding that is separate from and subsequent to the proceeding in which
   the  determinations  of liability and prospective relief are made, the
   complainant must:

   (1) Comply with paragraph (a) of this section, and

   (2)  State  clearly  and  unequivocally  that the complainant wishes a
   determination of damages to be made in a proceeding that is separate from
   and subsequent to the proceeding in which the determinations of liability
   and prospective relief will be made.

   (e) If a complainant proceeds pursuant to paragraph (d) of this section, or
   if the Commission invokes its authority under paragraph (c) of this section,
   the complainant may initiate a separate proceeding to obtain a determination
   of damages by filing a supplemental complaint that complies with § 1.721(e)
   and paragraph (h) of this section within sixty days after public notice (as
   defined in § 1.4(b) of this chapter) of a decision that contains a finding of
   liability on the merits of the original complaint.

   (f)  If  a  complainant  files a supplemental complaint for damages in
   accordance with paragraph (e) of this section, the supplemental complaint
   shall be deemed, for statutory limitations purposes, to relate back to the
   date of the original complaint.

   (g) Where a complainant chooses to seek the recovery of damages upon a
   supplemental complaint in accordance with the requirements of paragraph (e)
   of  this  section, the Commission will resolve the separate, preceding
   liability complaint within any applicable complaint resolution deadlines
   contained in the Act.

   (h) In all cases in which recovery of damages is sought, it shall be the
   responsibility of the complainant to include, within either the complaint or
   supplemental complaint for damages filed in accordance with paragraph (e) of
   this section, either:

   (1) A computation of each and every category of damages for which recovery
   is  sought, along with an identification of all relevant documents and
   materials or such other evidence to be used by the complainant to determine
   the amount of such damages; or

   (2) An explanation of:

   (i) The information not in the possession of the complaining party that is
   necessary to develop a detailed computation of damages;

   (ii) Why such information is unavailable to the complaining party;

   (iii) The factual basis the complainant has for believing that such evidence
   of; damages exists;

   (iv) A detailed outline of the methodology that would be used to create a
   computation of damages with such evidence.

   (i)  Where a complainant files a supplemental complaint for damages in
   accordance with paragraph (e) of this section, the following procedures may
   apply:

   (1)  Issues  concerning  the  amount, if any, of damages may be either
   designated by the Enforcement Bureau for hearing before, or, if the parties
   agree, submitted for mediation to, a Commission Administrative Law Judge.
   Such Administrative Law Judge shall be chosen in the following manner:

   (i) By agreement of the parties and the Chief Administrative Law Judge; or

   (ii) In the absence of such agreement, the Chief Administrative Law Judge
   shall designate the Administrative Law Judge.

   (2) The Commission may, in its discretion, order the defendant either to
   post a bond for, or deposit into an interest bearing escrow account, a sum
   equal to the amount of damages which the Commission finds, upon preliminary
   investigation, is likely to be ordered after the issue of damages is fully
   litigated,  or  some lesser sum which may be appropriate, provided the
   Commission finds that the grant of this relief is favored on balance upon
   consideration of the following factors:

   (i) The complainant's potential irreparable injury in the absence of such
   deposit;

   (ii) The extent to which damages can be accurately calculated;

   (iii)  The  balance  of  the hardships between the complainant and the
   defendant; and

   (iv) Whether public interest considerations favor the posting of the bond or
   ordering of the deposit.

   (3)  The  Commission  may,  in its discretion, suspend ongoing damages
   proceedings for fourteen days, to provide the parties with a time within
   which  to  pursue  settlement  negotiations and/or alternative dispute
   resolution procedures.

   (4) The Commission may, in its discretion, end adjudication of damages with
   a  determination of the sufficiency of a damages computation method or
   formula. No such method or formula shall contain a provision to offset any
   claim of the defendant against the complainant. The parties shall negotiate
   in good faith to reach an agreement on the exact amount of damages pursuant
   to the Commission-mandated method or formula. Within thirty days of the
   release date of the damages order, parties shall submit jointly to the
   Commission either:

   (i)  A  statement detailing the parties' agreement as to the amount of
   damages;

   (ii) A statement that the parties are continuing to negotiate in good faith
   and a request that the parties be given an extension of time to continue
   negotiations; or

   (iii) A statement detailing the bases for the continuing dispute and the
   reasons why no agreement can be reached.

   (j) Except where otherwise indicated, the rules governing initial formal
   complaint proceedings govern supplemental formal complaint proceedings, as
   well.

   [ 66 FR 16616 , Mar. 27, 2001]

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