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The Corporate CounselorLJN NewslettersNewsSections

DOJ Guidance on Consultant Engagement

By Paul R. Berger and Noelle Duarte Grohmann
February 27, 2011

The Department of Justice (DOJ) issued guidance on Sept. 1, 2010 illuminating its approach to American companies' common practice of hiring consultants with ties to foreign governments to help negotiate business deals with those governments. DOJ Opinion Procedure Rel. 10-03, Foreign Corrupt Practices Act Review (Sept. 1, 2010), http://www.justice.gov/criminal/fraud/fcpa/opinion/.

“Domestic concerns” or “issuers” under the FCPA may request guidance from the DOJ in the form of an “opinion release” or “opinion procedure release” regarding possible enforcement action for specific conduct in which the company plans to engage. 28 C.F.R. pt. 80.4 (Foreign Corrupt Practices Act Opinion Procedure, Issuer or Domestic Concern). Opinion releases are public, but do not name the requesting company. Although specific to the requestor's facts ' which the DOJ assumes the requestor has presented accurately and completely ' opinion releases give useful insight into how the DOJ would approach similar fact patterns. The DOJ issued this opinion release about six months after it was requested, which is a fairly typical wait time.

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