FCPA opinion shines light on reasonable expenses for foreign officials

The opinion procedure release from Aug. 14—the first posted by the DOJ since January 2022—came in response to a request from a child welfare agency regarding whether its proposed payments on behalf of two foreign government officials visiting the United States to complete their post-adoption supervision requirements would violate the anti-bribery provisions of the FCPA.

Among the details of the request:

• Airfare, lodging, local transportation, meals, and recreational activities under $100 per person would all be paid directly to providers;
• The government officials would be visiting for business purposes, as the trip is required by their country’s adoption authority and is in line with an international treaty;
• The child welfare agency would not select which foreign officials visit and would not be hosting their spouses or families;
• Other adoption agencies were invited to participate in hosting the officials; and
• The officials would not receive a daily stipend, nor would their government receive any additional money.

The DOJ said it would not bring an enforcement action in such a case, determining the proposed expenses “reflect no corrupt intent of the requestor and appear to be reasonable and bona fide expenses directly related to ‘the promotion, demonstration, or explanation of [the requestor’s] products or services.’” The agency cited precedent set in previous FCPA opinions published in 2011 and 2012 regarding similar circumstances presented by other adoption services providers.

Though specific, the facts of the case in the release provide all companies an idea of how to avoid the payment of well-intentioned expenses being deemed “corrupt.”

FCPA opinion procedures are designed for U.S. companies to get the attorney general’s judgment on whether certain conduct is in line with the DOJ’s enforcement policy regarding the FCPA. The opinions have no binding application to any party other than the requestor and only to the extent the disclosure of facts and circumstances in its request and supplements is accurate and complete.