§  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]