A somewhat rare citing that should be of interest to those following Foreign Corrupt Practices Act enforcement: The Department of Justice has published an FCPA advisory opinion.

The FCPA opinion procedures allow issuers and domestic concerns to get the Attorney General's opinion on whether certain conduct is in line with the Department's enforcement policy regarding the statute's anti-bribery provisions. Opinion Releases can only be relied upon by the requestor and have no binding application to any other companies.

The latest opinion details a situation "that's clearly within bailiwick of the FCPA," since it involves the hiring of a foreign official, which is major red flag, notes John Davis, chair of the international department in the law firm Miller & Chevalier.

In this case, a U.S. company that was hired by a U.S. government agency to build a facility in a foreign country sought an opinion on whether it could pay a contracted salary to a foreign official through a sub-contractor. The U.S. government agency, at the request of the foreign country, instructed the U.S. company to hire the foreign official.

The DoJ said that, based on the facts and circumstances detailed in the release, it wouldn't take any enforcement action. The opinion notes that the foreign official is being hired under an agreement between the U.S. government agency and the foreign country; the position is separate and apart from the individual's position as a foreign officer; the individual wouldn't be in a position to influence any act or decision affecting the requestor and wouldn't perform any services on behalf of or receive any direction from the company in either capacity.

"Consistent with other FCPA opinion releases, this reinforces that the FCPA doesn't completely ban every transaction with any and all foreign officials or entities that might be owned or controlled by foreign officials," says Davis.

FCPA opinion requests, which can help shed some light on the DoJ's interpretation of the statute and give companies some comfort that they won't find themselves in the DoJ's crosshairs, are relatively rare. Only 31 have been issued since 1993.

"Many companies have been hesitant to use this process for couple of reasons," says Davis. One is the amount of time it can take. Even though an opinion may be issued fairly quickly, Davis says the time required to do the fact-gathering necessary just to request an opinion can be substantial. "It's often more time than companies have or want to take," he says.

Of course, another reason handing over detailed information about a transaction to a prosecutor might seem like a less-than-attractive proposition is the risk that the DoJ could potentially use it to build an enforcement action or require changes to a transaction that could hinder or kill it.

Davis says the release is also a reminder of the factors companies need to consider in any transaction that might involve a foreign official, including who's selecting the individual in question; whether they're qualified for the job; how much they'll be paid and how; whether their duties as a foreign official intersect in any way with the role for which they're being hired, and whether they have any potential influence through those duties on the company, among others.

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RELATED EVENTTo hear about the FCPA Opinion directly from officials at The U.S. Department of Justice, register for Compliance Week’s 5th Annual Conference, May 24-26, at The Mayflower Hotel in Washington, D.C. Speaking will be Acting U.S. Deputy Attorney General Gary Grindler, Assistant Attorney General Lanny Breuer, Chief of the Fraud Section Denis McInerney, and others.