In an article entitled “Many Of The Bribery Allegations Against Wal-Mart May Not Be Illegal” Forbes reporter Nathan Vardi wrote that “many of the allegations reported in the New York Times could reasonably be interpreted as falling under the so-called “facilitating payments” exception.” I wondered what defense might be available to Wal-Mart where bribes of up to $244,000 could be construed as an exception to prosecution for bribery of foreign government official under the Foreign Corrupt Practices Act (FCPA). In this post we will visit the text of the FCPA and other Department of Justice (DOJ) commentary, look at some enforcement actions; one open investigation involving alleged facilitation payments and offer some guidance to the compliance practitioner on what may or may not constitute a facilitation payment under the FCPA.