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FCPA Opinion Procedure

The 1988 Trade Act directed the Attorney General to provide guidance concerning the Department of Justice's FCPA enforcement policy to potential exporters and small businesses that are unable to obtain specialized counsel on issues related to the FCPA. To comply with this requirement, the Department has promulgated regulations establishing an Opinion Procedure. See 28 C.F.R. part 80. The Opinion Procedure provides a mechanism by which any U.S. company or national may request a statement of the Justice Department's present enforcement intentions, under the antibribery provisions of the FCPA, regarding any proposed business conduct. Through this procedure, the Attorney General will issue an opinion in response to a specific inquiry from a person or firm within thirty days of the request. An opinion will not be provided unless the request refers to prospective conduct relating to an actual, not a hypothetical, transaction. A favorable opinion from the Department of Justice creates a rebuttable presumption, applicable in any subsequent enforcement action, that the conduct described in the request conformed with the FCPA. In considering the presumption, a court will weigh all relevant factors, including but not limited to whether information submitted to the Attorney General was accurate and complete and whether the actual conduct diverged from that described in the request. An FCPA opinion, however, provides a safe harbor only to the requestor and provides no protection to any party that did not join in the request. Copies of releases issued regarding previous opinions are available on the Department of Justice's FCPA web site, www.usdoj.gov/criminal/fraud/fcpa.html. [updated November 2000] [cited in USAM 9-47.100; USAM 9-47.110]