In its first Foreign Corrupt Practices Act (“FCPA”) Advisory Opinion of 2011, the U.S. Department of Justice (“DOJ”) has addressed an issue of perennial concern for covered corporations and individuals — what is the scope of the FCPA’s “promotional expenses” exemption under the FCPA?1 Advisory Opinion 11-01, dated June 30, 2011, reviews the request of a U.S. “domestic concern” (the “Requestor”), which sought to pay for the travel of representatives from two foreign agencies to learn about the adoption services provided by the Requestor, and clarifies the circumstances under which companies can benefit from an exception to FCPA liability for payment of the reasonable travel, food, and entertainment expenses of “foreign officials.”
In its relatively brief Advisory Opinion, the DOJ announced—consistent with the Advisory Opinions it has issued to date — that it does not presently intend to take any enforcement action against the Requestor. This was because the proposed expenses were “reasonable” under the circumstances described by the Requestor, consistent with the nature of similarly approved expenses in past Advisory Opinions, and within the socalled “promotional expenses” exception to the FCPA’s anti bribery provisions. Advisory Opinion 11-01 provides a useful opportunity for corporations and corporate officers to review what the DOJ considers to be the trademark features of bona fide “promotional expenses” under the FCPA.
Below we offer a summary of the Advisory Opinion’s analysis. We also provide lessons learned from our own experience in regularly advising corporations on proper promotional expenses payments under the FCPA, as well as from successfully seeking and obtaining an Advisory Opinion for a client regarding such promotional expenses issues.
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