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It’s Been A While Since A DOJ FCPA Opinion Was Released

The FCPA, when enacted, directed the DOJ 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 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.

Pursuant to the governing regulations [1] 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.

[2]

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.  For instance, in its 2010 review of FCPA enforcement [3], 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 [4]). Prior to this, another FCPA Opinion released by the DOJ took, from start to finish, approximately eight month (see here [5]), another two months (see here [6]), and another seven months (see here [7]).

Even though the DOJ states in the FCPA Guidance [8] 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. If the Program is ever again to gain utility, the DOJ must issue opinions more promptly.

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