The Justice Department has published its second FCPA Opinion Procedure Release of 2010.
The Requestor in Release 10-02 is a U.S. non-governmental organization and a “domestic concern” under the FCPA. It’s a non-profit microfinance institution operating globally, providing loans and other basic financial services to the world’s lowest-income entrepreneurs. Funding comes from grants and donations by governments, NGOs, public and private organizations, and individuals.
The Requestor has a wholly-owned, self-sufficient subsidiary organized as a limited liability company in “a Eurasian country.” The so-called Eurasian Subsidiary wanted to contribute $1.42 million to a local microfinance institution through a grant.
The Requestor has been converting all of its local operations, including the Eurasian Subsidiary, to commercial entities licensed as financial institutions. The conversion will help the local entities attract capital and offer new services such as savings accounts, microinsurance, and remittances. The Eurasian Subsidiary’s $1.42 million grant to the local microfinance organization is required for the subsidiary’s license conversion.
During due diligence, the Requestor discovered that one of the board members of the local microfinance institution and its parent “is a sitting government official in the Eurasian country and that other board members are former government officials.”
Despite the presence of at least one foreign official on the target’s board, the DOJ gave the Requestor a green light for its subsidiary’s investment. The sitting foreign official has and will have no government role in the Requestor’s activities. And, under the law of the Eurasian country, sitting government officials can’t be paid for this type of board service.
Additional controls in the grant included staggered payments, ongoing monitoring and auditing, earmarking of funds to be spent, further prohibitions on compensating board members, and anti-corruption compliance provisions in the grant documents.
The Release said the purpose of the proposed grant is to obtain or retain business. The DOJ reasoned that the Eurasian Subsidiary’s nonprofit business is to be followed by for-profit business activity in the Eurasian country, and the proposed grant would be made as a condition precedent to obtaining a license to operate as a profit-making financial institution.
So, the DOJ said, the issue is whether the proposed grant would amount to the corrupt giving of anything of value to any officials of the Eurasian country in return for obtaining or retaining business. “Based on the due diligence that has been done and with the benefit of the controls that will be put into place, it appears unlikely that the payment will result in the corrupt giving of anything of value to such officials.”
Release 10-02 also includes a helpful discussion about charitable giving and the FCPA.
Download a copy of the DOJ’s FCPA Opinion Procedure Release No. 10-02 dated July 16, 2010 here.
All DOJ Opinion Procedure Releases can be found here.