The FCPA, when enacted, directed the Attorney General to establish a procedure to provide responses to specific inquiries by those subject to the FCPA concerning conformance of their conduct with the DOJ’s “present enforcement policy.”
However, it’s been a while since a DOJ FCPA opinion was released. To be specific, the last time the DOJ issued a so-called FCPA opinion procedure release was November 7, 2014. This represents the longest gap in the history of the program.
This post provides a general overview of the DOJ’s FCPA Opinion Procedure Release Program and highlights reasons why it has largely been viewed as a useless program despite DOJ efforts (including recently) to encourage greater use.
Pursuant to the governing regulations of the so-called DOJ Opinion Procedure Release Program, only “specified, prospective—not hypothetical—conduct” is subject to a DOJ opinion. While the DOJ’s opinion has no precedential value, its opinion that contemplated conduct conforms with the FCPA is entitled to a rebuttable presumption should an FCPA enforcement action be brought as a result of the contemplated conduct.
Since the program went live in 1980, the DOJ has issued approximately sixty releases on a wide range of issues from charitable contributions to gifts, travel and entertainment, to third parties.
Nevertheless, the Opinion Procedure Release Program is rarely utilized by business organizations subject to the FCPA and it is generally viewed as an ineffective source of FCPA information (among other reasons, the real human beings who drafted the releases are long gone from the government – a deficiency of all forms of “who occupies the seat now” forms of government guidance).
In its 2010 review of FCPA enforcement, the OECD stated:
“So far, the FCPA Opinion Procedure has been used very little by the private sector to obtain DOJ advice on prospective transactions. […] The non-governmental participants in the on-site meetings cited several reasons for the infrequent use of the Opinion Procedure. For instance, legal and private sector representatives felt that the Opinion Procedure is only useful in limited situations where the prospective fact situation is narrow and not going to change. They also find that the response time, which is 30 days after the request is complete, is too long in certain situations, such as entering joint ventures and mergers and acquisitions, where a company normally needs to make decisions relatively quickly. […] The most pervasive concern of the private sector representatives was that availing themselves of the Opinion Procedure could expose them to potential enforcement actions by the DOJ, as well as provide competitors with information about their prospective international business activities.”
As to the time periods, the last FCPA Opinion released by the DOJ took, from start to finish, approximately six months (see here). Prior to this, another FCPA Opinion released by the DOJ took, from start to finish, approximately eight months (see here), another two months (see here), and another seven months (see here). If the FCPA opinion procedure program is ever again to gain utility, the DOJ must issue opinions more promptly (but then again it must resolve instances of FCPA scrutiny more promptly than the current 4.5 year average).
Even though the DOJ states in the FCPA Guidance that the Opinion Procedure Program “is a valuable mechanism for companies and individuals to determine whether proposed conduct would be prosecuted by DOJ under the FCPA,” for the reasons mentioned above the program is largely viewed as being useless.
Nevertheless, the DOJ has long encouraged business organizations to use the program.
For instance, in this 2006 speech Assistant Attorney General Alice Fisher stated:
“Over the years, the FCPA opinion procedure has generally been underutilized, with only a handful of opinions being requested each year. But as Assistant Attorney General, I want the FCPA opinion procedure to be something that is useful as a guide to business. It serves both of our interests to avoid FCPA violations before they occur, and the opinion procedure is one way to make that happen.”
See here for a recent FCPA Flash podcast with Fisher (now in private practice) in which she further discusses the opinion procedure program.
As highlighted in this prior post, in July 2018 Deputy Assistant Attorney General Matthew Miner stated:
“[N]ot enough companies are taking advantage of [the opinion procedure process]. I’ve recently reviewed the list, and the most recent incident of use is from 2014. That shouldn’t be the case. […] In our view, the opinion process is a tremendous resource and we want to encourage greater use of it going forward.”
In the meantime, the FCPA community waits.
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