b'U.S. Department of Justice OpinionsThe DOJ has long established procedures throughIn declining to pursue a FCPA enforcement action, which issuers and domestic concerns can seek thethe DOJ noted that the FCPA prohibits payments to a opinion of the Attorney General as to whether certainforeign official but not to a foreign government or a specific prospective conduct they plan to undertakeforeign government instrumentality. The DOJ foundnot hypothetical conductconforms with thethat the proposed fee to the second subsidiary was a Departments present enforcement policy regardingpayment to a foreign government instrumentalitythe antibribery provisions of the FCPA.3 In 2020, thisrather than a foreign official and that the proposed fee opinion process was used only once. did not demonstrate a corrupt intent to influencea foreign official. August 14, 2020 DOJ Opinion Release:The DOJs opinion highlighted three points that under-Foreign Corrupt Practices Act Review, pinned its conclusion. First, the payment would be No. 20-01made directly into the subsidiarys corporate bank account, not to any individual. Second, there is no The DOJ announced that it would not pursue a FCPAreason to believe that the money would be diverted enforcement action against a U.S. investment manage- to any individual; the DOJ found that the payment ment firm regarding a proposed advisory fee. In 2017is transparent because the subsidiarys Chief the U.S. firm bought assets from a subsidiary of aCompliance Officer had certified that the payment foreign investment bank that was majority-owned bywould only be used for general corporate purposes a foreign government. A different subsidiary of theand would not be forwarded to any other entity, and foreign investment bank had provided the U.S. firm withbecause there are no indicia that [the] payment to the analytical and advisory services in connection with the[subsidiary] is intended to corruptly influence a foreign purchase. After the acquisition closed, the subsidiaryofficial. Third, the investment management firm and the that had assisted the U.S. firm requested a fee for thesubsidiarys chief compliance officer had certified that work it had performed. The requested fee equaledthe payment is commensurate with the services the $237,500, or 0.5% of the value of the assets, pursuant[subsidiary] provided and is commercially reasonable.4to a non-binding agreement between the U.S. firm and the second subsidiary. The investment management firm sought an opinion from the DOJ about whether the requested fee would violate the FCPA. 3 28 C.F.R. Section 80.1.4 As is typical of DOJ opinions, the DOJ cautioned the U.S. firm can only rely on the opinion to the extent that the disclosure of facts and circumstances in its opinion request was accurate and complete. 32'