DOJ releases new Opinion under the FCPA
On January 21, 2022, the Department of Justice of the United States of America (DOJ) has issued a new Opinion Procedure Release - OPR 22-01 - arising from a Request submitted on October 19, 2021, concerning a situation of detention, by “Country A” naval forces, of the captain and crew of a maritime vessel owned by the Requestor, after the captain has anchored in Country A’s waters inadvertently. Once onshore, the captain was detained in jail, despite his critical medical conditions.
Following the detention, a Third-Party Intermediary approached Requestor and demanded a financial payment on the amount of $ 175,000 to release the captain and crew and permit the vessel to leave Country A waters, alleging that this value referred to an official payment to the government of country A. The Requestor, however, was concerned that such payment was intended for one or more Country A government officials.
Facing such situation, Requestor sought an Opinion as to whether the DOJ would presently intend to bring an enforcement action under the FCPA’s anti-bribery provisions against Requestor if the payment happened.
The Opinion provides that "based on the specific facts presented by Requestor, the proposed payment would not trigger an enforcement action under the anti-bribery provisions of the FCPA because Requestor would not be making the payment 'corruptly' or to 'obtain or retain business'".
The payment referred by the Requestor, as described above, would be made not to obtain ou retain business for or with any person. Besides, “corruptly” means the intention or desire to wrongfully influence the recipient, accomplishing an unlawful result or a lawful result by unlawful methods or means. In that manner, being forced to pay the amount mentioned to rescue its vessel, captain and crew, the Requestor would not be seeking any kind of advantage, not being liable under the FCPA.
The Opinion is limited to the specific case presented, not having any biding application to any party other than the Requestor. However, it can represent how the DOJ interpret laws and situations, acting as a reference to Companies’ anti-corruption politics and procedures.
The full Opinion can be read on: https://www.justice.gov/criminal-fraud/page/file/1466596/download