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Providing Something Of A Value Directly To A Foreign Government Is Not Necessarily An FCPA Issue

not so fast

This recent Wall Street Journal article titled “Miners Try to Get Covid 19 Vaccines Into Areas Where Shots Are Scarce” highlights how various mining companies are spending millions of dollars to support COVID-19 vaccination efforts in countries in which they do business including “offering support to local governments during the pandemic, from conducting screening and mobile testing to donating extra beds for hospitals and clinics.”

Examples of good corporate citizenship or decisions made to advance a business interest?

After all, as stated in the article “by helping governments administer the shots, many companies hope they can rapidly rescale production depressed by the pandemic …”.  As one mining executive stated in the article: “For us to operate efficiently and smoothly, we need to minimize the disruptions due to things like lockdown. Being part of a vaccination program makes complete business sense.”

Regardless of the true motives in supporting vaccination efforts (and the motives are likely mixed), do companies subject to the FCPA expose themselves to FCPA anti-bribery violations for doing so?


As stated in the FCPA Guidance: “The FCPA prohibits payments to foreign officials, not to foreign governments.”

Indeed, the issue of providing things of value directly to a foreign government has been addressed in certain DOJ opinion procedure releases.

For instance in Opinion Release 09-01 (2009) the DOJ opined that it did not intend to take any enforcement action with respect to a proposal to provide a foreign government with donated medical devices. In the words of the DOJ: “This is because, based on Requestor’s representations, the proposed provision of 100 medical devices and related items and services fall outside the scope of the FCPA in that the donated products will be provided to the foreign government, as opposed to individual government officials …”.

Likewise in Opinion Release 97-02 (1997) the DOJ opined that it did not intend to take any enforcement action with respect to a proposal to donate $100,000 directly to a foreign government entity responsible for construction of an elementary school in a region of an Asian country in which the company was constructing a plant. In the words of the DOJ: “As the requestor’s donation will be made directly to a government entity — and not to any foreign government official — the provisions of the FCPA do not appear to apply to this prospective transaction.”




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