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For The First Time In Nearly Six Years, The DOJ Issues An Opinion Procedure Release

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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.

As highlighted below, last week (for the first time since November 2014) the DOJ issued an opinion procedure release.

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It Has Been A While Since A DOJ FCPA Opinion Was Released

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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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It Has Been A While Since A DOJ FCPA Opinion Was Released

waiting

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

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

waiting

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.

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Deputy Assistant AG Miner On M&A Issues, The DOJ’s Opinion Procedure Program, And Other Issues (With Rebuttal)

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As highlighted in this prior post, while in private practice Matthew Miner criticized the “Yates Memo,” DOJ transparency, the deficiencies of DOJ guidance as a solution in the FCPA space, and the FCPA’s “foreign official” element.

Now that he is Deputy Assistant Attorney General and – in his words – “wear[ing] a different hat,” Miner largely read from the DOJ’s FCPA script in this speech yesterday.

This post excerpts Miner’s speech and provides various rebuttal points.

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