There are some things written in the Foreign Corrupt Practices Act space that are real head-scratchers.

This prior post was the first in the FCPA space to highlight the DOJ’s recent opinion procedure release concerning a proposed payment motivated, in part, to secure the release of a seized shipping vessel.

This law firm publication is titled “DOJ FCPA Opinion Encourages Corporate Disclosure” and asserts that the opinion “signals the benefits for proactive disclosure.”

This is truly an odd way to frame the issue as there can only be an opinion procedure release if an issuer or domestic concern seeks an opinion from the DOJ “as to whether certain specified, prospective–not hypothetical–conduct conforms with the Department’s present enforcement policy regarding the antibribery provisions of the FCPA.” That is why the issuer or domestic concerns is referred to as the “Requestor” in the opinion procedure releases.

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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 approximate 5.5 year gap 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.

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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 approximate five year gap 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.

Continue Reading