King Kong Bundy died this week. According to his New York Times (NYT) obituary, he “was massive even by wrestling standards. A bald, scowling goliath, he stood about 6 feet 4 inches tall and was said to weigh 450 pounds or more in his prime. His fellow wrestler Gorilla Monsoon [no shrinking violet] called him a “walking condominium,” and an announcer at a 1985 match sponsored by the World Wrestling Federation (now World Wrestling Entertainment) said that colliding with Bundy’s outstretched arm was like “running into a Sherman tank.”

Bundy had some epic battles with both Hulk Hogan and Andre the Giant in the early 1980s. He played the role of the heel but he did it with gusto. Even with his massive girth and stature, he could move surprisingly agilely. Most significantly for the WWF he was fun to watch. A heel for sure but he is part of those legends who made the WWF as it broke out into a national phenomenon in the mid-1980s.

The only Opinion Release of 2011 (11-01) may have left compliance practitioners initially scratching their heads. However, this collective head scratching is not because the Opinion Release is so difficult to understand and has no application to the everyday business of compliance, but for a polar opposite reason – the question posed to the Department of Justice (DOJ) is so straight-forward, and has been previously asked and answered, that it is difficult to understand how any first year compliance practitioner did not know the answer to it. Yet more than this facile analysis may have been going on.

Background

The Requestor was a US Company which facilitated international infant adoptions and it desired  to bring some foreign governmental officials over to the US to learn more about it. The foreign government selected the officials to travel, the travel was economy class and it involved no WAGs (wives and girlfriends). The trip was scheduled to be for two days and the US Company paid all the vendors, airlines, hotels, local transportation and food service providers directly. No cash was provided to the traveling officials and any gifts would be branded and of nominal value.

Requestor Representations

In addition to those statements by the Requestor, it also represented to the DOJ the following:

  • It had no non-routine business (e.g., licensing or accreditation) under consideration by the relevant foreign government agencies.
  • Its routine business before the relevant foreign government agencies consists primarily of seeking approval of pending adoptions. Such routine business is guided by international treaty and administrative rules with identified standards.
  • The Requestor did not select the particular officials who will travel. That decision will be made solely by the foreign government agencies.
  • Apart from the expenses identified above, the Requestor did not compensate the foreign government agencies or the officials for their visit, nor will it fund, organize, or host any other entertainment, side trips, or leisure activities for the officials, or provide the officials with any stipend or spending money.
  • The visit will be for a two-day period (exclusive of travel time), and costs and expenses will be only those necessary and reasonable to educate the visiting officials about the operations and services of U.S. adoption service providers.
  • The Requestor has invited another adoption service provider to participate in the visit.

DOJ Discussion

The DOJ cited to Opinion Releases 07-01 and 07-02 for the general rules around travel and entertainment for foreign officials. It then stated, “Based upon all of the facts and circumstances, as represented by the Requestor, and consistent with these prior opinions, 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-2(c)(2)(A). Therefore, the Department does not presently intend to take any enforcement action with respect to the planned program and proposed payments described in this request.”

Discussion

In his testimony before the House Judiciary Committee, then DOJ Representative Greg Andres spoke about the Opinion Release Procedure as one of the mechanisms by which the DOJ can not only bring transparency to the area of information relating to Foreign Corrupt Practices Act (FCPA) but also can allow businesses with substantive questions to seek and receive specific answers to queries regarding factual scenarios which they may face. So what are the requirements under the Opinion Release Procedure? Initially I would note that DOJ has posted on its website, the Foreign Corrupt Procedures Opinion Procedure, (28 C.F.R. part 8).

The stated purpose is noted as follows: “These procedures enable issuers and domestic concerns 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 [FPCA]” (§80.1). The requirements of the Opinion Release Procedure are (1) the submission must be in writing; (2) an original and copies must be provided; and (3) must be sent to address provided. (§80.2) In addition to these specific requirements there are certain general requirements listed. (§80.6) They include that complete copies of all operative documents and detailed statements of all collateral or oral understandings. The request must be signed by an appropriate senior officer.

While there is additional language in the Opinion Release Procedure that it only relates to the query submitted to the DOJ, does not bind any other agency or department and can change if different facts occur or that the DOJ can ask for additional information from the party making the request, it is required under the terms of the Opinion Request Procedure “within 30 days after receiving a request that complies with the foregoing procedure, respond to the request by issuing an opinion that states whether the prospective conduct, would, for purposes of the DOJ’s present enforcement policy, [violate the FCPA].” (§80.8)

So there may be an addition lesson learned from Opinion 11-01, which is that the Opinion Release Procedure can be straightforward. The DOJ can be available to assist in interpreting the FCPA based upon the facts and circumstances a company faces in the real world. I have argued for greater transparency by the DOJ in providing information for companies and the compliance practitioner and the Opinion Release Procedure is one of the mechanisms by the DOJ does provide transparency and information.

However there might be another aspect to this specific Opinion Release. While I had discussed the above points from the perspective of an outside counsel, in-house lawyer or compliance office who specialized in FCPA compliance work; the Opinion Release Procedure is designed so that any person or company may submit a query to the DOJ and could be utilized by a company that does not have either an in-house compliance practitioner or even a General Counsel (GC). Simply put, a question can be submitted to the DOJ as straight forwardly as with a one-page document setting forth the information required under the Opinion Release Procedure.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2019