Also unlike the informal process, in a formal reparation proceeding the losing party may be required to pay the prevailing party’s attorney fees and costs. Because, in this day and age, attorneys’ fees can be very high, often exceeding the actual amount at issue, the possibility that attorneys’ fees might be assessed against you if you should lose, should never be taken lightly.
Determinations & Outcomes
Consideration of the evidence in support of and against a formal complaint can proceed in one of two ways: a determination based solely on the documents submitted by the parties, or after an oral hearing before the examiner (picture a trial minus the jury and elaborate courtroom). Generally the amount claimed in your complaint will determine the process utilized.
If the damages sought in your complaint total $30,000 or less (excluding interest), typically an oral hearing will not be held. Instead, within twenty days after the respondent’s answer, you may file a ‘verified opening statement,’ accompanied by pertinent documents.
If the respondent files an answering statement, you will have twenty days to file a reply, also accompanied by pertinent documents. All filings must be notarized and include a verification statement.
Because there will not be an oral hearing before the examiner (everything will be decided based on the documents provided), be sure to submit all the materials you may have in support of your claim for nonpayment. After the period for submitting evidence closes, the parties will also have twenty days to submit briefs, or written arguments, in support of their respective positions. Upon consideration of the evidence, the examiner will prepare his or her report and forward it to the USDA’s Secretary of Agriculture.
When seeking more than $30,000 in your complaint, you and/or the buyer may request an oral hearing before the examiner. If neither of you does so within the time allotted, you will both be deemed to have waived an oral hearing and agreed to have the case decided on the documents, as set forth in the previous paragraph.
Similarly, the examiner may suggest the parties agree to the documentary procedure; however, if one party does not waive an oral hearing or consent to the documentary procedure, an oral hearing will be scheduled.
Although USDA rules stipulate hearings should be conducted by audio-visual telecommunication (at an off-site, prearranged location), the examiner may allow the hearing to be conducted over the phone or by personal attendance (typically near the place where the respondent does business).
Before the actual oral hearing, you will need to submit written statements of anticipated oral testimony by your witnesses, which will limit their actual testimony at the hearing. As you might expect, as the complainant you will have the burden of proof at the hearing, i.e., you must prove to the examiner the terms of your transaction, that you satisfied your obligations under the deal, and the buyer failed to pay you.
Like in a “real” trial, your witnesses will be subject to cross examination, with the examiner excluding any evidence considered immaterial, irrelevant, unduly repetitious, etc. Before the hearing is closed, each party may file a claim for attorneys’ fees and expenses incurred in connection with the oral hearing.
