Page 92 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

Chapter 9

DOJ Opinion
Procedure

DOJ OPINION PROCEDURE

DOJ’s opinion procedure remains a valuable mechanism for companies and individuals
to determine whether proposed conduct would be prosecuted by DOJ under the FCPA. 423

Generally speaking, under the opinion procedure process, parties submit information to

DOJ, after which DOJ issues an opinion about whether the proposed conduct falls within its

enforcement policy. All of DOJ’s prior opinions are available online. 424 Parties interested in
obtaining such an opinion should follow these steps: 425

First, those seeking an opinion should aware that FCPA opinions relate only to the FCPA’s

evaluate whether their question relates to actual, anti-bribery provisions. 428
prospective conduct. 426 The opinion procedure Second, before making the request, the
cannot be used to obtain opinions on purely company or individual should check that they
historical conduct or on hypothetical questions. are either an issuer or a domestic concern, as
DOJ will not consider a request unless that portion only those categories of parties can receive an
of the transaction for which an opinion is sought opinion. 429 If the transaction involves more than

involves only prospective conduct, although the one issuer or domestic concern, consider making
transaction as a whole may have components a request for an opinion jointly, as opinions apply
that already have occurred. An executed contract only to the parties that request them. 430
is not a prerequisite and, in most—if not all— Third, those seeking an opinion must put

instances, an opinion request should be made their request in writing. The request must be
before the requestor commits to proceed with a specific and accompanied by all relevant and
transaction. 427 Those seeking requests should be material information bearing on the conduct and

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