An insight into the Opinion Procedure of the Foreign Corrupt Practices Act.

The Extra-Territorial coverage of the Foreign Corrupt Practices Act (FCPA) of 1977 and its applications to corporations with touchpoints to the United States of America, as well as the evolving nature of FCPA enforcement trends, have made it imperative for companies that are obligated to comply with the provisions of the FCPA to step out of their knowledge zone to seek clarification when faced with a situation that appears unclear.
The FCPA Opinion Procedure allows corporations to seek clarity on any perceived ambiguity in the FCPA’s provisions by enabling them to submit details of prospective conduct for review and the opinion of the Department of Justice (DOJ or Department) on whether such conduct or actions would breach the obligation imposed under the FCPA. Corporations need to take advantage of this opportunity to avoid misinterpretation or application of the provisions of the FCPA to allow what is prohibited under the FCPA, which will constitute a violation and attract sanctions.
FCPA Opinion procedure helps organisations make informed business decisions on complex compliance issues arising from daily commercial transactions. A formal mechanism for seeking the DOJ opinion is provided under Part 80 of the FCPA Opinion Procedure. Below are some essential points to know about the FCPA Opinion procedure.

1. A request for an FCPA Opinion must be submitted in writing. An original and five copies of the request should be addressed to the Assistant Attorney General in charge of the Criminal Division, Attention: FCPA Opinion Group.
2. The entire transaction, which is the subject of the request, must be actual, not hypothetical, and need not involve only prospective conduct.
3. An issuer must submit the request or domestic concern within the meaning of 15 U.S.C. 78dd–1 and 78dd–2, respectively, that is also a party to the transaction which is the subject of the request.
4. An FCPA Opinion shall not apply to any party that does not join in the request for the opinion.
5. Each request shall be specific and must be accompanied by all relevant and material information bearing on the conduct for which an FCPA Opinion is requested and on the circumstances of the prospective conduct, including background information, complete copies of all operative documents, and detailed statements of all collateral or oral understandings, if any.
6. The requesting issuer or domestic concern must fully and accurately disclose the conduct for which an opinion is requested.
7. Each request on behalf of a requesting issuer or corporate domestic concern must be signed by an appropriate senior officer with operational responsibility for the conduct that is the subject of the request and who has been designated by the requestor’s chief executive officer to sign the opinion request.
8. In appropriate cases, the DOJ may require the chief executive officer of each requesting issuer or corporate domestic concern to sign the request. All requests for other domestic concerns must also be signed. The person signing the request must certify that it contains a true, correct, and complete disclosure with respect to the proposed conduct and its circumstances.
9. If an issuer’s or domestic concern’s submission does not contain all of the information required by Section 80.6, the DOJ may request whatever additional information or documents it deems necessary to review the matter.
10. The DOJ must within 30 days of receipt of the opinion request or, in the case of an incomplete response to a previous request for additional information, within 30 days of receipt of such response.
11. Each issuer or domestic concern requesting an FCPA Opinion must promptly provide the requested information. A request will not be deemed complete until the Department of Justice receives such additional information.
12. Within 30 days after receiving a request that complies with the preceding procedure, the Attorney General or his designee shall 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.
13. No oral clearance, release, or other statement purporting to limit the Department of Justice’s enforcement discretion may be given. The requesting issuer or domestic concern may rely only upon a written FCPA Opinion letter signed by the Attorney General or his designee.
14. In any action brought under the applicable provisions of 15 U.S.C. 78dd–1 and 78dd–2, there shall be a rebuttable presumption that a requestor’s conduct, which is specified in a request, and for which the Attorney General has issued an opinion that such conduct conforms with the Department’s present enforcement policy, complies with those provisions of the FCPA.
15. Unless specified in section 80.10, an FCPA Opinion will not bind or obligate any agency other than the Department of Justice. It will not affect the requesting issuer’s or domestic concern’s obligations to any other agency or under any statutory or regulatory provision other than those specifically cited in the particular FCPA Opinion.
16. Neither the submission of a request for an FCPA Opinion, its pendency, nor the issuance of an FCPA Opinion shall in any way alter the responsibility of an issuer to comply with the accounting requirements of 15 U.S.C. 78m(b)(2) and (3). section 80.13
17. An FCPA Opinion will state only the Attorney General’s opinion on whether the prospective conduct would violate the Department’s present enforcement policy.
18. Any document or other material which is provided to, received by, or prepared in the Department of Justice or any other department or agency of the United States in connection with a request by an issuer or domestic concern under the preceding procedure shall be exempt from disclosure under 5 U.S.C. 552 and shall not, except with the consent of the issuer or domestic concern, be made publicly available, regardless of whether the Attorney General responds to such a request or the issuer or domestic concern withdraws such request before receiving a response.
19. A request submitted under the preceding procedure may be withdrawn before the Attorney General issues an opinion in response to such request.