The Department of Justice released a rare Foreign Corrupt Practices Act opinion letter in response to an inquiry from a company, highlighting an avenue of communication where companies can get answers to compliance concerns for planned future actions.
The inquiry asked whether a prospective fee paid to a foreign subsidiary of an investment bank that is indirectly majority-owned by a foreign government for services relating to a two-year process of the purchase of assets would run afoul of FCPA laws. The DOJ responded that the fee was paid to a subsidiary of a foreign government agency and not a government official, and shows no corrupt intent to influence a foreign official, and so would not prompt an enforcement action. The letter has no binding application to other cases, but can serve as a resource for checking compliance.
The FCPA opinion procedure has been in place since at least the 1980s, but department records show very little use of the practice, with the last opinion issued in 2014. Companies may hesitate to reach out to prosecutors in fear of attracting unwanted scrutiny, preferring to rely on outside lawyers, antibribery experts said in a Wall Street Journal article.
Another reason for the infrequent use of the system is the long time that the government takes to respond. The inquiry in question was raised in November of last year and the answer was made public last Friday.
Mike Koehler, a law professor at Southern Illinois University’s School of Law who runs a blog called “The FCPA Professor,” said to the Journal that the government has been trying to get companies to reach out with questions. “In recent years, the DOJ has encouraged business organizations to actively utilize this procedure,” he said.
Koehler has also clarified in recent posts that the FCPA applies only to payments to individual government officials and not to governments themselves. 
Stephanie Liu is assistant editor at Internal Audit 360°