On April, 19, 2010, the Department of Justice ("DOJ") issued its first Foreign Corrupt Practices Act Opinion Procedure Release of the year, 10-01. Release 10-01 was submitted to the DOJ on February 24, 2010, with supplemental information being provided on March 19, 2010. The Release advises a U.S. Company (the "Requestor") that it can hire a foreign official on a contracted salary without violating the FCPA.
The Requestor entered into a contract with a U.S. Government Agency to design and build a facility in a foreign country. Pursuant to an agreement between the Foreign Country and the U.S. Government Agency, the Foreign Country appointed an individual as the director of the facility. The U.S. Government Agency directed the Requestor to hire the individual for the position of facility director. The proposed service contract provides for a term of employment of one year and a rate of compensation of $5,000 per month. At the conclusion of the term of the contract, the U.S. Government Agency and Foreign Country anticipate that the obligation to compensate the individual will pass to the Foreign Country.
The individual currently serves as a paid officer for an agency of the Foreign Country. The individual’s position does not relate to the facility or his role as facility director. As a facility director, the individual will not perform any service on behalf of, or make any decisions affecting the Requestor.
Based on these facts, DOJ indicated that it does not intend to take any enforcement action with respect to this proposal. The Opinion Release explains that while the individual is a foreign official within the meaning of the FCPA, the individual is being hired pursuant to an agreement between the U.S. Government Agency and the Foreign Country, and will not be in a position to influence any act or decision affecting the Requestor. The Requestor did not have any role in selecting the individual and the individual’s position as facility director is separate from his position as a foreign official.