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In Praise of FCPA Opinion Releases

Tom Fox | April 15, 2014

One of the least-read sections of the U.S. Foreign Corrupt Practices Act is the section entitled, “Foreign Corrupt Practices Act Opinion Procedure.

This section allows companies to seek an opinion from the Department of Justice “as to whether certain specified, prospective—not hypothetical—conduct conforms” to the Justice Department's current enforcement policy on the FCPA. It is also one of the least-used provisions in the FCPA. Clearly, several companies could have saved themselves much trouble by petitioning the Justice Department for an opinion ruling, rather than allowing borderline practices to continue.

During the past three years, however, the Justice Department has issued several opinion releases that seemed to counter prevailing wisdom on whether a proposed transaction or proposed relationship would violate the law. In the FCPA guidance,...

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