August 30, 2023

DOJ issues first FCPA Opinion Procedure Release of 2023

On August 14, 2023, the DOJ issued Opinion Procedure Release No. 23-1, which addresses a request by a domestic adoption services provider.  The adoption agency asked if it could pay the travel expenses of and the cost of “certain recreation . . . not exceeding $100 per person” for foreign government officials who come to the United States to visit the offices of the requesting entity.  The agency said the purpose of the visits was for the officials to meet with adoptive families and children adopted from the foreign officials’ country, as well as for the officials to review and discuss with the adoption agency its procedures for facilitating successful adoptions.  The DOJ opinion stated that, based upon the facts provided, the proposed trips and expenses did not violate the FCPA.

The Foreign Corrupt Practices Act Opinion Procedure is a program codified in 28 CFR § 80 that enables issuers and domestic concerns to obtain an opinion from the Attorney General as to whether prospective conduct “conforms” with the DOJ’s “present enforcement policy regarding the anti-bribery provisions” of the FCPA.  Since 1993, the DOJ has published 42 Opinion Procedure Releases, although this is only the third such opinion since 2015.

In issuing its opinion, the DOJ stated it considered the following information provided by the adoption services provider.  According to the adoption agency, the foreign officials would be chosen by their own government, and the proposed trip would entail economy class travel, relatively modest accommodations, limited cultural and recreational activities, and would not include payment of expenses for family members.  All of the proposed expenses would be paid directly to vendors, and any souvenirs provided to the officials would be of nominal value and bear the logo of the requesting entity.

Citing two previous FCPA Opinion Releases (Numbers 11-01 and 12-02), the DOJ stated that it would not, based on the facts and circumstances represented by the requesting entity, take enforcement action under the anti-bribery provisions of the FCPA with respect to this conduct.  This conclusion was based on the fact that (1) the proposed expenses did not reflect a corrupt intent within the meaning of the FCPA, and (2) the expenses appeared to be reasonable and bona fide expenses directly related to the promotion, demonstration, or explanation of the requestor’s services.

Opinion Procedure Release 23-1