On September 1, 2010, the Department of Justice (“DOJ”) issued its third Foreign Corrupt Practices Act (“FCPA”) Opinion Procedure Release of the year. Release 10-03 was submitted to DOJ on March 9, 2010, with supplemental information submitted by the Requestor most recently on August 2, 2010. The Requestor is a U.S. limited partnership and is pursuing a resource infrastructure initiative with a foreign government. The approach is novel and the market is dominated by a consortium of established parties. Because of this, the Requestor determined that it required assistance in entering into discussions with the foreign government.
The Requestor plans to contract with a consultant that is a U.S. partnership with a U.S. owner and that is registered as an agent of the foreign government under the Foreign Agents Registration Act, 22 U.S.C. § 61. The consultant “has extensive contacts in the business community and the government in the foreign country, has previously and currently holds contracts to represent the foreign government and act on its behalf, including performing marketing on behalf of the Ministry of Finance, and lobbying efforts in the United States.”
Because of the consultant’s prior role in representing the foreign government, and because the consultant will continue to represent the foreign government subsequent to its work with the Requestor, the Requestor has put in place certain safeguards to ensure that no conflict of interest will arise. While working for the Requestor, the owner of the consultant will not perform any work for the foreign government. Other employees of the consultant may perform such work but those employees will be walled off from the representation of the Requestor. Additionally, neither the consultant nor the owner has any decision-making authority on behalf of the government, and none of the employees of the consultant are foreign officials. Finally, the Requestor has secured a local law opinion that states that it is permissible for the consultant to represent both the foreign government and the Requestor at the same time. This arrangement will be disclosed to the Ministry of Finance. B
ased on these facts, DOJ indicated that it does not intend to take any enforcement action with respect to this proposal. DOJ noted that it has, in the past, considered proposed business arrangements with individuals who act on behalf of foreign governments under the Opinion Procedure and issued favorable Opinion Releases. In this case, DOJ explained that for purposes of the contract with the Requestor, the consultant and its owner are not acting on behalf of the foreign government and are therefore not foreign officials. The Opinion Release states that the protective measures taken by the Requestor are sufficient to ensure that the consultant will not be acting as a foreign official and that, therefore, DOJ will not take any action against the Requestor.