On June 30, 2011, the US Department of Justice (DOJ) released its first Foreign Corrupt Practices Act (FCPA) Opinion Procedure Release of 2011 (Opinion). The DOJ stated that it does not presently intend to take any enforcement action against a United States adoption provider (Requestor) that proposes to pay certain expenses for a trip to the United States by one official from each of two foreign government agencies to learn more about the services provided by the Requestor.1
The relevant facts noted in the Opinion are as follows:
- The Requestor has no non-routine business pending before the foreign government agencies that employ the officials;
- The sponsored program will last for approximately two days (not including travel time); and
- The Requestor intends to pay for economy class air fare, domestic lodging, local transport and meals.
Focusing on the fact that the Requestor represented that (1) the Requestor has no non-routine business (e.g., licensing or accreditation) under consideration by the relevant foreign government agencies, (2) the Requestor’s routine business before the relevant foreign government agencies consists primarily of seeking approval of pending adoptions, which is guided by international treaty and administrative rules with identified standards, (3) the Requestor will not select the particular officials who will travel, (4) the Requestor will host only the designated officials, and not their spouses or family members, (5) the Requestor intends to pay all costs directly to the providers and no cash will be provided directly to the officials, (6) any souvenirs that the Requestor gives the visiting officials would reflect Requestor’s business and/or logo and would be of nominal value, (6) apart from the expenses identified above, the Requestor will not compensate the foreign government agencies or the officials for the visit, nor will it fund, organize, or host any other entertainment, side trips, or leisure activities for the officials or provide the officials with any stipend or spending money, (7) the visit will be for a two-day period, and costs and expenses will be only those necessary and reasonable to educate the visiting officials about the operations and services of US adoption service providers, and (8) the Requestor has invited another adoption service provider to participate in the visit, the DOJ determined that the expenses contemplated are reasonable under the circumstances and directly relate to “the promotion, demonstration, or explanation of [the Requestor’s] products or services.”2 Accordingly, the DOJ determined that it does not presently intend to take any enforcement action with respect to the planned program and proposed payments described in the request.
Corporations considering inviting foreign officials to the United States or other destinations for promotional purposes, however, should be aware of the limited reach of this opinion. The DOJ emphasized the numerous representations made by the Requestor to ensure that the foreign officials’ trips would be limited to the purpose of promotion, demonstration or explanation of the Requestor’s products or services, and specified that the FCPA Opinion Release could be relied upon by the Requestor only to the extent that its representations are accurate and complete.
The fact that the Requestor even felt the need to seek such an opinion is a reflection of the uncertainty caused by the recent and unprecedented surge of governmental FCPA enforcement activity. Companies considering inviting foreign officials to the United States or other destinations for promotional purposes should confirm that any proposed expenditures related to foreign officials are in compliance with the Opinion.