DOJ Opinion Procedure
DOJ OPINION PROCEDURE
DOuJ's opinion procedure is a valuable mechanism for companies and individu-
als to determine whether proposed conduct would be prosecuted by DOJ
under the FCPA.** Generally speaking, under the opinion procedure process,
parties submit information to DOJ, after which DOJ issues an opinion about
whether the proposed conduct falls within its enforcement policy. All of DOJ’s
prior opinions are available online.*” Parties interested in obtaining such an
opinion should follow these steps:
First, those seeking an opinion should evaluate whether their question relates to actual, prospective conduct.’ The opinion procedure cannot be used to obtain opinions on purely historical conduct or on hypothetical questions. DOJ will not consider a request unless that portion of the transac- tion for which an opinion is sought involves only prospective conduct, although the transaction as a whole may have com- ponents that already have occurred. An executed contract is not a prerequisite and, in most—if not all—instances, an opinion request should be made before the requestor com- mits to proceed with a transaction.“ Those seeking requests should be aware that FCPA opinions relate only to the FCPAs anti-bribery provisions.“
Second, before making the request, the company or individual should check that they are either an issuer or a
domestic concern, as only those categories of parties can
404 If the transaction involves more than
receive an opinion. one issuer or domestic concern, consider making a request for an opinion jointly, as opinions only apply to the parties that request them.
Third, those seeking an opinion must put their request in writing. The request must be specific and accompanied by all relevant and material information bearing on the con- duct and circumstances for which an opinion is requested. Material information includes background information, complete copies of all operative documents, and detailed statements of all collateral or oral understandings, if any. Those seeking opinions are under an affirmative obligation to make full and true disclosures.“* Materials disclosed to DOJ will not be made public without the consent of the
party submitting them.”
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