The Department of Justice (“DOJ” or the “Department”) just issued its most recent FCPA Opinion Release, only the second in 2014. The Requestor, a publicly traded U.S. consumer products company, sought an opinion as to whether DOJ would take enforcement action against the Requestor based on the pre-acquisition conduct of its acquisition target (the “Target Company”). In the brief opinion release, the Department concludes that the acquisition of a company does not create FCPA liability where none existed before. In other words, if conduct was beyond the jurisdictional reach of the FCPA before acquisition, later acquisition by a U.S. company does not retroactively create jurisdiction that covers the past conduct.

This conclusion is both unsurprising and entirely consistent with A Resource Guide to the U.S. Foreign Corrupt Practices Act, released in November 2012. But perhaps more interesting than what DOJ does say in Opinion Release 14-02 (the “Opinion”) is what DOJ does not mention: Opinion Release 08-02 (often referred to as the “Halliburton Opinion”). Even when discussing the post-acquisition integration approach of the Requestor, the seminal Halliburton Opinion is not mentioned, nor are the Halliburton Opinion’s onerous time limitations familiar to many veteran mergers-and-acquisitions attorneys. In its place are multiple references to “as quickly as practicable” in terms of the timing of integration, and a recognition that each deal is unique and needs a tailored approach. For close observers of this area, this should not be a surprise, but rather a reflection of the continuing evolution of the Department’s approach to FCPA compliance when it comes to mergers and acquisitions, and its move away from the strictures of the six-year-old Halliburton Opinion.