New DOJ opinion for transactions involving foreign government-owned assets
The U.S. Department of Justice (hereinafter “DOJ”) has issued an opinion letter (catalogued as FCPA Opinion No. 20-01) stating that it does not intend to take enforcement action under the Foreign Corrupt Practices Act (hereinafter “FCPA”) against a U.S.-based investment advisor planning to pay something akin to a “finder’s fee” to a foreign state-owned investment bank. This opinion, issued in August 2020, marks the first time in six years that the DOJ has issued guidance under the FCPA Opinion Procedure Regulations, a process by which companies can request the DOJ’s formal opinion as to whether certain conduct conforms with its FCPA anti-bribery enforcement policies.
The opinion is noteworthy because there are also compliance takeaways that might be gleaned for other companies contemplating merger or acquisition activity involving assets owned by a foreign government.