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No.: 07-03
Date: December 21, 2007
Foreign Corrupt Practices Act Review
Opinion Procedure Release
The Department has reviewed the FCPA Opinion Request
(the "Request") of a lawful permanent resident of the
United States (the "Requestor"). The person
is a "domestic concern"within meaning of the
FCPA. The Requestor proposes to make a payment required
by a family court judge in an Asian country to cover
certain litigation-related costs.
The Requestor is a party to disputed judicial proceedings
in the Asian country relating to the disposition of
real and personal property in a deceased relative's
estate. One of the Requestor's family members has defacto
control over the assets of the estate, a portion of
which the Requestor believes she legally owns. The estimated
value of the estate is equivalent to roughly $600,000,
consisting of approximately 30.4% in foreign securities,
40.6% in bank and postal accounts, and 29.0% in real
estate. In connection with the judicial proceedings,
the Requestor submitted an application for the court
to appoint an estate administrator pending the court"s
decision on the disposition of the estate assets. The
court then requested an advance payment equivalent to
approximately $9,000 to cover expenses related to the
court-appointed administrator and other miscellaneous
court costs. Due to misgivings about the legality of
such a payment under the FCPA, the Requestor withdrew
the application for appointment of an administrator.
In the coming months, if this Opinion Request results
in a favorable response, the Requestor plans to renew
such application and comply with the court's payment
requirement. 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:
- the Requestor has not yet made the advance payment
ordered by the foreign judge because she has withdrawn
her request for the appointment of an estate administrator;(1)
- nothing in the Requestor's communications with the
foreign court indicated that the requested payment
was sought for the purpose of influencing the court,
misusing the judge's official position, or inducing
the judge or the estate administrator to do anything
improper;
- the Requestor has obtained written assurance, a
copy of which has been provided to the Department
of Justice, from a lawyer who received law degrees
in both the U.S. and the foreign country, and who
is a member of an established law firm, that the Requestor's
proposed payment described in the request is not contrary
to, and is in fact explicitly lawful under, the written
law of the foreign country (the "legal opinion");
- the proposed payment would be made to the clerk's
office of the family court, not to the individual
judge presiding over the dispute;
- the Requestor would request an official receipt
and an accounting of how the funds are spent, both
of which, according to the legal opinion, are discretionary,
but often granted upon request; and
- the Requestor would request that the court refund
her any remaining amount of the payment not spent
in the proceedings, as the legal opinion states is
required under foreign law.
In addition, the Requestor has provided copies (and
translations) of the relevant provisions of written
foreign law and regulation that: (a) authorize a court,
in connection with the administration of an estate,
to "take necessary measures to preserve the estate;"
and (b) govern family law proceedings and grant courts
the authority to require parties to make advance payments
to cover necessary expenses.
The FCPA Opinion procedure enables a domestic concern
"to obtain an opinion of the Attorney General as to
whether certain specified, prospective - not hypothetical
- conduct conforms with the Department's present enforcement
policy regarding the antibribery provisions of the Foreign
Corrupt Practice Act."28 C.F.R. § 80.1.
The FCPA's antibribery provisions are implicated when
a payment is made in order to obtain or retain business
for or with, or to direct business to, any person. See
15 U.S.C. § 78dd-2(a). In this instance, in order to
provide the Requestor with the guidance she seeks, the
Department will assume that the proposed payment could
be reasonably understood to relate to the Requestor's
efforts "in obtaining or retaining business for
or with, or directing business to, any person."
Id. Thus, based on this assumption, the transaction
sufficiently implicates the FCPA's antibribery provisions
and is appropriately the subject of an FCPA Opinion.
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 for two reasons.
First, based on the Requestor's representations and
consistent with the FCPA, the payment will be made to
a government entity, the court clerk's office, rather
than a foreign official. Cf. 15 U.S.C. § 78dd-2(a)(1)
(emphasis added) ("It shall be unlawful to make
use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of any
offer, payment, promise to pay, or authorization of
the payment...to any foreign official...");
15 U.S.C. § 78dd-2(h)(2)(A) ("The term 'foreign
official' means any officer or employee or a foreign
government..."). Moreover, there is nothing to
suggest that the presiding judge or the estate administrator
will personally benefit from the funds after they are
paid into the government account belonging to the court
clerk's office. Second, consistent with the FCPA's law
affirmative defense, the contemplated payment is "lawful
under the written laws and regulations" of the
foreign country according to an experienced attorney
retained by the Requestor in the Asian country. 15 U.S.C.
§ 78dd-2(c)(1).
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 the Request is accurate
and complete and continues to accurately and completely
reflect such facts and circumstances.
_________________
(1) If
this Opinion Request results in a favorable response,
the Requestor intends to reapply for the appointment
of an estate administrator and comply with the court's
request for the advance payment.
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