In the recently released FCPA guidance, the DOJ devoted an entire chapter to its FCPA opinions procedure releases — when to ask for one, how to make a request, and how to use the answer.
The DOJ’s opinions have always bee a de facto substitute for judicial interpretation. The releases don’t have the force of law behind them (except as to requestors), but they’re cited all the time by practitioners and compliance professionals as ‘official’ guidance from the government.
In fact the DOJ itself cited a number of releases in the new guidance.
So the releases — there have been 36 since 1993 — are important.
And now they’re easier to use.
On the DOJ’s website is a new index to the FCPA releases by subject. Topics include audit rights, charitable contributions, due diligence, payments to foreign governments, hiring foreign officials, gift, travel, and entertainment, joint ventures, defenses, and more.
There’s also a new pdf document that summarizes all of the opinion releases.
When an opinion concludes that the proposed conduct would not violate the FCPA, according to the DOJ, ‘a rebuttable presumption is created that the requestor’s conduct that was the basis of the opinion is in compliance with the FCPA.’
And each opinion also provides ‘non-binding guidance to the business community,’ the DOJ said, which is why the opinions are publicly available on the DOJ website.
The DOJ’s subject index of FCPA opinion procedure releases is here.
The release summaries can be downloaded in pdf here.
The new FCPA guidance is here.