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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.

The law firm publication continues:

“The opinion … suggests, more broadly, that it can be beneficial for companies to proactively disclose issues to DOJ. Although the opinion reaches the conclusion that the proposed conduct would not meet the elements of an FCPA violation, and although the facts seemed sympathetic for the Requestor, neither point in DOJ’s analysis is entirely obvious under current law. One might therefore conclude that the company’s decision to come forward and disclose the situation proactively inured to its benefit with respect to how DOJ saw the law applying to the facts. That general theme—that proactive self-disclosure ultimately benefits companies—is an increasingly common one across multiple DOJ components.”

The assertion that the DOJ’s ultimate analysis was not “entirely obvious under current law” is interesting as well as the opinion cites the FCPA’s legislative history, the statutory language of the FCPA, two FCPA judicial decisions, and the DOJ’s (and SEC’s) FCPA Resource Guide (recognizing of course that this does not represent the “law”).

In short, a truly odd law firm publication.


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