§ 1.723   Damages.

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

   (b) In all cases in which recovery of damages is sought, the complaint
   must include 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 prove the amount of such damages; or

   (2) If any information not in the possession of the complainant is
   necessary to develop a detailed computation of damages, an explanation
   of:

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

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

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

   (c) 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.

   (d) 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 bifurcate the case and
   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.

   (e) If a complainant exercises its right under paragraph (c) of this
   section, or the Commission invokes its authority under paragraph (d) of
   this section, the complainant may initiate a separate proceeding to
   obtain a determination of damages by filing a supplemental complaint
   within sixty days after public notice (as defined in § 1.4(b)) of a
   decision that contains a finding of liability on the merits of the
   original complaint. Supplemental complaints filed pursuant to this
   section need not comply with the requirements in § § 1.721(c) or
   1.722(d), (g), (h), (j), and (k). The supplemental complaint shall be
   deemed, for statutory limitations purposes, to relate back to the date
   of the original complaint.

   (f) 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:

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

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

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

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

   (g) The Commission may, in its discretion, end adjudication of damages
   by adopting a damages computation method or formula. In such cases, 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 30 days of the release date of the damages order,
   parties shall submit jointly to the Commission either:

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

   (2) 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

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

   (h) In any proceeding to which no statutory deadline applies, the
   Commission may, in its discretion, suspend ongoing damages proceedings
   to provide the parties with time to pursue settlement negotiations or
   mediation under § 1.737.

   [ 83 FR 44832 , Sept. 4, 2018]

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