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No.: 07-01
Date: July 24, 2007
Foreign Corrupt Practices Act Review
Opinion Procedure Release
The Department has reviewed the FCPA Opinion request
of a U.S. company (the "requestor") that was
submitted on June 29, 2007. The company is both an "issuer"
and a "domestic concern" within meaning of
the FCPA.
The requestor proposes to cover the domestic expenses
for a trip to the United States by a six-person delegation
of the government of an Asian country for an educational
and promotional tour of one of the requestor's U.S.
operations sites. The stated purpose of the visit is
to familiarize the delegates with the nature and extent
of the requestor's operations and capabilities and to
help establish the requestor's business credibility.
The requestor is interested in participating in future
operations in the foreign country similar to those it
conducts in the U.S. The visit will last for four days
and will be limited to domestic economy class travel
to one U.S. operations site only. The requestor also
intends to pay for the domestic lodging, local transport,
and meals for the six officials. The foreign government
plans to pay the costs of the international airfare.
The requestor has asked for a determination of the Department's
present enforcement intention under the FCPA.
The requestor has represented, among other things,
that:
- it does not currently conduct operations in the
foreign country or with the foreign government, although
it is interested in pursuing such opportunities in
the future;
- it has obtained written assurance, a copy of which
has been provided to the Department of Justice, from
an established law firm with offices in both the U.S.
and the foreign country that the requestor's sponsorship
of the visit and its payment of the expenses described
in the request is not contrary to the law of the foreign
country;
- it did not select the delegates who will participate
in the visit; rather, the foreign government selected
the delegates;
- to the requestor's knowledge, the delegates have
no direct authority over decisions relating to potential
contracts or licenses necessary for operating in the
foreign country;
- it will host only officials working for the relevant
foreign ministries and one private government consultant;
- it intends to pay all costs directly to the providers;
no funds will be paid directly to the foreign government
or the delegates;
- it will not pay any expenses for spouses, family,
or other guests of the officials;
- any souvenirs that the requestor may provide to
the delegates would reflect the requestor's name and/or
logo and would be of nominal value;
- apart from meals and receptions connected to meetings,
speakers, or events the requestor is planning for
the officials, it will not fund, organize, or host
any entertainment or leisure activities for the officials,
nor will it provide the officials with any stipend
or spending money; and
- all costs and expenses incurred by the requestor
in connection with the visit will be properly and
accurately recorded in the requestor's books and records.
Based upon all of the facts and circumstances, as represented
by the requestor, the Department does not presently
intend to take any enforcement action with respect to
the proposal described in this request. This is because,
based on the requestor's representations, consistent
with the FCPA's promotional expenses affirmative defense,
the expenses contemplated are reasonable under the circumstances
and directly relate to "the promotion, demonstration,
or explanation of [the requestor's] products or services."
15 U.S.C. §§ 78dd-1(c)(2)(A) and 78dd-2(c)(2)(A).
The FCPA Opinion Letter referred to herein, and this
release, have no binding application to any party which
did not join in the request, and can be relied upon
by the requestor only to the extent that the disclosure
of facts and circumstances in its request is accurate
and complete and continues to accurately and completely
reflect such facts and circumstances. |
