DOJ publishes new Opinion Procedure Release on sponsored travel for foreign officials

The Department of Justice published a new Opinion Procedure Release (23-01) related to an adoption services company meeting a foreign government requirement to provide annual travel to officials to visit with some families that have adopted children from the foreign country “to ensure the success of the adoptions.”

In connection with this new requirement for adoption procedures, the Requestor (the company asking for the opinion) proposed to pay for certain expenses for two government officials for a five-day trip to Massachusetts, New York, and Washington, D.C.

The two officials would be chosen by an agency of the foreign government and would travel to the U.S. to complete post-adoption supervision, including meeting with families and their adopted children and meeting with the company’s leadership to learn more about its processes and regulations.

The company represented, among other things, that:

• It will pay for economy class airfare, domestic lodging at a mid-range hotel, local transportation, and meals (some of which will be in conjunction with family visits and meetings). The company will pay these costs directly to the providers.
• The company also proposes to organize and pay for the cost of certain recreation, such as a visit to a museum or city tour, with cost not exceeding $100 per person and paid directly to the provider.
• The company has no non-routine business (e.g., licensing or accreditation) under consideration by the relevant foreign government agencies. The company’s routine business includes seeking approval of pending adoptions from the relevant government agencies of the foreign country and complying with governmental post-adoption requirements. This business is guided by an international treaty and administrative rules with identified standards.
• The company will not select the particular officials who will travel. That decision will be made solely by the relevant foreign government agency.
• The company will pay the above-described costs for and host only the designated officials, not their spouses or family members.
• Any souvenirs provided to the officials will be of nominal value and include the company’s logo.
• The company has invited other adoption agencies accredited to provide adoption services to the foreign country to join it in hosting the foreign officials. At this time, no other agency has accepted the company’s invitation.
• Apart from the expenses identified above, the company will not compensate the foreign officials for their visit and will not provide them with cash or a daily stipend. All of the costs and expenses identified above will be paid directly to the providers.
• The company will not pay any additional money to the foreign country’s government or any other entity in connection with this trip.

The DOJ said, based on all the facts and circumstances as represented by the company, and to be consistent with prior FCPA Opinion Procedure Releases, it does not presently intend to take any enforcement action under the anti-bribery provisions of the FCPA.

The DOJ said the FCPA Opinion Procedure Release has “no binding application to any party other than the Requestor and can be relied on by the Requestor only to the extent that the disclosure of facts and circumstances in its Request and supplements is accurate and complete.”

In two previous Opinion Procedure Releases, the DOJ addressed similar topics in the adoption industry.

In FCPA Opinion Release 11-01 published June 2011, the DOJ stated it would decline to take enforcement action if the adoption services provider sponsored expenses for a trip of foreign government officials, including international airfare to the United States, lodging, local transportation, and meals.

In FCPA Opinion Release 12-02 published October 2012, the DOJ stated that it would not take an enforcement action where adoption agencies intended to pay expenses for a trip by 18 government officials from a foreign country, including travel, lodging, meals, local transportation, and entertainment events of nominal cost involving families who had adopted children from the foreign country.

In August 2020, three women were charged in a 13-count indictment for their alleged roles in an adoption scam involving Ugandan and Polish children with bribing Ugandan officials and defrauding adoptive parents, U.S. authorities, and a Polish regulatory authority. Two of the women were charged with FCPA offenses.

Last week, 3M Company agreed to pay the SEC $6.5 million in penalties and disgorgement to resolve FCPA offenses related to a subsidiary in China providing luxury travel to foreign officials.