The Foreign Corrupt Practices Act 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.”
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.
The DOJ’s opinion procedure release program is rarely used.
Since 2020, the DOJ has issued only four opinions (see here).
The DOJ’s FCPA opinion procedure release program is not the only such program the DOJ offers.
As highlighted here, the DOJ also provides “advisory opinions” concerning the Foreign Agents Registration Act (FARA) – a federal law which requires, among other things, “the registration of, and disclosures by, an “agent of a foreign principal” who, either directly or through another person, within the United States (1) engages in “political activities” on behalf of a foreign principal; (2) acts as a foreign principal’s public relations counsel, publicity agent, information-service employee, or political consultant; (3) solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of a foreign principal; or (4) represents the interests of the foreign principal before any agency or official of the U.S. government.”
The DOJ’s FARA advisory process is very similar to the DOJ’s FCPA advisory progress in that the FARA process – in the words of the DOJ – “provide parties with the ability to make inquiries of the FARA Unit concerning the Department’s present enforcement intentions with respect to contemplated activities – such inquiries must reflect actual, contemplated transactions, and cannot be anonymous.”
Against, the backdrop of four DOJ FCPA opinions since 2000, it is interesting to note that during this same time frame the DOJ has issued approximately 70 FARA opinions. (See here).
