Opinion Procedure Release Archives

A Surprising Snippet From The Recent Opinion Procedure Release

By Mike Koehler on August 23, 2023 in Opinion Procedure Release, Travel and Entertainment, Uncategorized

This prior post highlighted the DOJ’s recent FCPA Opinion Procedure Release (only the third FCPA opinion procedure release since 2014).

In the release, sought by a “child welfare agency based in the United States,” the DOJ stated that it did not intend to take any enforcement action based on information provided by the Requestor regarding certain expenses for two government officials from a foreign country traveling to the U.S. to visit with families that have adopted children from the Foreign Country.

While the overall conclusion of the release was hardly surprising, there was a surprising snippet from the release that could have been handled better by the DOJ.

DOJ Issues FCPA Opinion Procedure Release

By Mike Koehler on August 18, 2023 in Adoption, Affirmative Defense – Promotional Expenses, Opinion Procedure Release, Travel and Entertainment

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.

Earlier this week, the DOJ issued this opinion procedure release (dated August 14, 2023). It is only the third FCPA opinion procedure release since 2014.

The Requestor was a “child welfare agency based in the United States.”

Say What?

By Mike Koehler on March 3, 2022 in Opinion Procedure Release

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.