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Harry Cassin
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Andy Spalding
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Jessica Tillipman
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Thomas Fox
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Marc Alain Bohn
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Bill Waite
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Russell A. Stamets
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New DOJ opinion on promotional expenses by non-profit adoption agencies

The DOJ’s second Opinion Procedure Release this year approved a plan by 19 non-profit adoption agencies to bring foreign officials to the United States to meet the staff at the agencies and families who have already adopted kids from the officials’ country.

The home country of the foreign officials isn’t named. It may be China.

The release was dated October 18 but just appeared on the DOJ’s website today.

The foreign officials being sponsored for the travel include 13 from the government ministry that oversees adoptions, and a presiding judge of the court that ultimately approves or disapproves adoption requests. The other officials are the director of the country’s agency that oversees orphanages, a minister in the office of the country’s head of government, and two members of the legislature.

While the FCPA prohibits most payments to foreign officials to obtain or retain business or gain an unfair advantage, there’s an exception for the payment of bona fide promotional expenses. See 15 U.S.C. § 78dd-2(c)(2)(A).

‘The expenses contemplated [by the adoption agencies],’ the DOJ said, ‘are reasonable under the circumstances and directly relate to “the promotion, demonstration, or explanation of [the adoption agencies’] products or services.”’

‘The Requestors,’ the DOJ said, ‘represent that the purpose of the trip is to allow government officials from the Foreign Country to learn more about the Requestors’ work, which includes processing adoptions in the Foreign Country. During the trip, the government officials will interview the Requestors’ staff members, inspect the Requestors’ files, and meet with families who adopted children from the Foreign Country.’

The proposed trip, the DOJ said, will consist of two days of meetings for each set of government officials (plus travel time).

The adoption agencies will pay for business class airfare on international flights for ministers, members of the legislature, and the director of the orphanage agency, and coach airfare for all other officials. Domestic travel will be coach for all of the government officials.

Two or three nights stay at a business-class hotel are included, along with meals during the stays. Reimbursement rates are based on U.S. General Services Administration guidelines.

Local transportation between the adoption agencies is also included.

None of the payments violate the local law of the foreign officials’ home country, the DOJ said.

The adoption agencies aren’t planning ‘to fund, organize, or host any other entertainment, side trips, or leisure activities for the officials,’ the DOJ said. And no family members of any officials are included in the trip.

Souvenirs, the DOJ said, will all have the logo of one of the adoption agencies and be of nominal value.

The officials won’t receive any stipends or spending money.


DOJ Opinion Procedure Release 12-02 (October 18) can be downloaded in pdf here.

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