As most of the readers of this blog will recall, I
recently discussed the substance of Opinion Release 11-01 and had some
additional comments regarding the relative ease by which a lawyer or compliance
office should have been able to research the question posed. I also opined that
the issue posed in Opinion Release 11-01 was not a question which needed to be
submitted to the Department of Justice (DOJ) for comment upon, as it was a
waste of the DOJ's resources and no doubt had a high cost in time and/or dollars
for either an in-house lawyer or outside counsel to formulate and submit.
However my "This Week in the FCPA"
colleague, Howard Sklar, speaking in our Episode
12, suggested that there might be another aspect to this specific Opinion
Release that I had not considered. While I had discussed the above points from
the perspective of an outside counsel, in-house lawyer or compliance office who
specialized in FCPA compliance work; the Opinion Release Procedure is designed
so that any person or company may submit a query to the DOJ. Howard suggested
that the Opinion Release Procedure could be utilized by a company which does
not have either an in-house compliance practitioner or even a General Counsel.
A question can be submitted to the DOJ as straight forwardly as with a one page
document setting forth the information required under the Opinion Release
In his testimony before the House Judiciary Committee,
DOJ Representative Greg Andres spoke about the Opinion Release Procedure as one
of the mechanisms by which the DOJ can not only bring transparency to the area
of information relating to Foreign Corrupt Practices Act (FCPA) but also can
allow businesses with substantive questions seek and receive specific answers
to queries regarding factual scenarios which they may face. So what are the
requirements under the Opinion Release Procedure? Initially I would note that
DOJ has posted on its website, the Foreign
Corrupt Procedures Opinion Procedure, (28 C.F.R. part 8).
The stated purpose of the Opinion Procedures is "These
procedures enable issuers and domestic concerns to obtain an opinion of the
Attorney General as to whether certain specified, prospective-not
hypothetical-conduct conforms with the Department's present enforcement policy
regarding the antibribery provisions of the [FPCA]" (§80.1). The
requirements of the Opinion Release Procedure are (1) the submission must be in
writing; (2) an original and copies must be provided; and (3) must be sent to
address provided. (§80.2) In addition to these specific requirements there are
certain general requirements listed. (§80.6) They include that complete copies
of all operative documents and detailed statements of all collateral or oral
understandings. The request must be signed by an appropriate senior officer.
While there is additional language in the Opinion Release
Procedure that it only relates to the query submitted to the DOJ, does not bind
any other agency or department and can change if different facts occur or that
the DOJ can ask for additional information from the party making the request,
it is required under the terms of the Opinion Request Procedure "within 30
days after receiving a request that complies with the foregoing procedure,
respond to the request by issuing an opinion that states whether the
prospective conduct, would, for purposes of the DOJ's present enforcement
policy, [violate the FCPA]." (§80.8)
So there may be an addition Lesson Learned from Opinion
11-01. This lesson is that the Opinion Release Procedure can be straight
forward. The DOJ can be available to assist in interpreting the FCPA based upon
the facts and circumstances which a company faces in the real world. I have
argued for greater transparency by the DOJ in providing information for
companies and the compliance practitioner and the Opinion Release Procedure is
one of the mechanisms by the DOJ does provide transparency and information.
Vive le RESIST.
The ToolKit RESIST is now available in Spanish and French, see here.
Episode 12 of This Week in the FCPA, Part I, is now up
and available here.
Visit the FCPA Compliance and Ethics Blog,
hosted by Thomas Fox, for more commentary on FCPA compliance, indemnities and
other forms of risk management for a worldwide energy practice, tax issues
faced by multi-national US companies, insurance coverage issues and protection
of trade secrets.
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© Thomas R. Fox, 2011
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