Recent Guidance from DOJ on the Duress Defense to FCPA Liability

In the latest OPR, which DOJ released in January 2022, the government provided a near-instant response to a company that was faced with whether it could make a demanded payment when a company’s employee was threatened with imminent physical harm in a foreign jurisdiction. By providing a rapid response to the company within 24 hours, and then marshalling a formal opinion two months later, DOJ signalled that it is now willing to engage more quickly with companies facing Foreign Corrupt Practices Act (“FCPA”) issues, and for the first time in a long time, DOJ has breathed fresh life into the process of obtaining formal opinions in FCPA cases.

Primer on DOJ’s OPR Process

DOJ’s FCPA OPR process allows companies to request an opinion from DOJ as to whether “certain specified, prospective – not hypothetical – conduct” conforms with DOJ’s enforcement policy regarding the anti-bribery provisions of the FCPA. The FCPA Opinion Procedure is set out in the Code of Federal Regulations¹ and further explained in the DOJ and Security and Exchange Commission’s (“SEC”) A Resource Guide to the U.S. Foreign Corrupt Practices Act (released in 2012 and updated in July 2020).² The process affords companies the opportunity to request an opinion from DOJ regarding whether their proposed activity would violate the FCPA and trigger an enforcement action.

The process allows a requestor company to seek DOJ’s opinion on specific, prospective actions as opposed to purely historical or hypothetical conduct. A requestor must disclose “all relevant and material information bearing on the conduct” in question, and DOJ “may request whatever additional information or documents it deems necessary.”³ DOJ must then conclude its review within 30 days of receiving a completed request or any supplemental information DOJ seeks. The Department’s determination in an OPR applies only to the party or parties that submit the request; therefore, other parties cannot specifically rely upon it. The SEC does not have a comparable process; however, its position is to follow DOJ’s determination in an OPR.⁴

Since it was introduced in 1980, the OPR process has rarely been utilized, with only 62 OPR opinions related to the FCPA published — and only two opinions have been released since 2014.⁵ One of the main criticisms of the OPR process is its lengthiness and consequential impracticality for companies facing potential corruption issues in transactional due diligence or other real-world situations where time is of the essence. The OPR process requires the disclosure of detailed facts and often requires a back-and-forth dialogue with DOJ before an opinion can be issued. OPR No. 20-01, which was the last OPR opinion published before OPR No. 22-01, had a turnaround of nine months before the submission and DOJ’s opinion. Such a lengthy process is often impractical for companies facing transactional deadlines or business decisions and likely has chilled the interest of companies that otherwise would take advantage of the opinion procedure.

The Facts of OPR 22-01

In October 2021, the requestor company’s vessel was in international waters while awaiting entry into the port of Country Y. The vessel incorrectly anchored, however, in Country A’s waters due to a miscommunication with its shipping agent.

Country A’s navy intercepted the requestor’s vessel, directed it to its port, confiscated crew and vessel documents, and detained the captain in jail. At the time of his detention, the captain suffered from serious medical conditions that would have worsened with detention and endangered his life.

A third party purporting to act on behalf of Country A’s navy (the “Third Party Intermediary”) approached the requestor company and demanded a financial payment of $175,000 to release the captain and allow the crew and vessel to leave Country A’s waters. The requestor sought an explanation and a formal basis for the payment to ensure that the payment would be made pursuant to a fine or other penalty resulting from a legal or regulatory violation, if any. These requests were made to no avail. The requestor also sought assistance from U.S. governmental agencies to end the captain’s detention and allow the crew to leave Country A, but these efforts also were not successful.

The requestor thus sought an OPR as to whether DOJ would bring an enforcement action under the FCPA’s anti-bribery provisions against the requestor if the requested payment was made.

Given the urgency of the situation, DOJ provided a preliminary opinion to the requestor company within 24 hours. DOJ stated that, relying on the facts as presented to it, it did not intend to take an enforcement action against the requestor company. On November 19 and December 21, 2021, the requestor company provided more information responding to DOJ’s questions.

DOJ Findings

On January 21, 2022, DOJ indicated it would not pursue enforcement action if the requestor company made the payment.

The FCPA prohibits payments to any person if they may be offered, given or promised to a government official in order to assist the firm in obtaining or retaining business for or with, or directing business to, in that country. Under this “business purpose” test, DOJ concluded that the payment in OPR 22-01 was not motivated by an intent to obtain or retain business. The requestor company had no business in Country A, and its dealings with the latter were only as a result of unfortunate events, mainly being given the wrong coordinates. In other words, the primary purpose of the payment was not to corruptly influence a government official to obtain or retain business, but rather, to “avoid imminent and potentially serious harm to the captain and crew of the vessel.”⁶ DOJ thus concluded that the defense of duress was available to the requestor company in these circumstances.

The DOJ made an additional distinction from circumstances where a company is threatened with severe economic or financial consequences, which can arise in countries where companies are attempting to forge business links with government actors. These situations of pure economic coercion may give rise to FCPA exposure, as these are cases where it would be possible for the company to walk away.

Finally, DOJ acknowledged that the requestor company sought official documentation from Country A on the alleged violation and appropriate fine and sought to bring the payment demand to the attention of the U.S. governmental authorities. The attempts to exhaust all other avenues before considering making the payment were made in accordance with the FCPA guide.⁷

Takeaways

DOJ’s conclusions rested on a number of unique circumstances in this case. First, that the requestor did not have ongoing or anticipated business in Country A and only interacted with Country A as the result of the erroneous coordinates suggests that companies doing business in high-risk countries have different economic incentives that may weigh against a duress defense. Second, the facts clearly suggest the captain was in imminent risk of harm caused by his detention, so how and whether such a duress defense can be raised if detention does not result in any harm or threat of harm to a company’s employee remains unsettled by DOJ’s opinion.

What this means for you

In breaking with its past practice, DOJ moved with commendable speed to provide guidance to the requestor in OPR 22-01, such that the requestor could proceed with assurance that its conduct would not raise FCPA liability. In the past, companies considering whether certain conduct created FCPA liability may have been deterred from seeking guidance from DOJ because of the significant delay in receiving guidance. Today, however, DOJ’s recent willingness to provide guidance within hours, and not months, of a request that raises urgent issues means that companies would be well advised to seek guidance on how to request DOJ’s input and direction when faced with an issue raising FCPA concerns.

¹ Foreign Corrupt Practices Act Opinion Procedure, 28 C.F.R. part 80 (current as of July 1, 1999), available at https://www.justice.gov/sites/default/files/criminal-fraud/legacy/2012/11/14/frgncrpt.pdf.

² Crim. Div. of U.S. Dept. of Justice & Enf’t Div. of U.S. Sec. & Exch. Comm’n, A Resource Guide to the U.S. Foreign Corrupt Practices Act, July 2020, available at https://www.justice.gov/criminal-fraud/file/1292051/download.

³ Supra at note 1, Sec. 80.7 [Additional Information], at 2.

⁴ Sec. & Exch. Comm’n,Release No. 34-17099 (Aug. 29, 1980), available at http://www.sec.gov/news/digest/1980/dig082980.pdf; Sec. & Exch. Comm’n,Release. No. 34-18255 (Nov. 13, 1981), available at http://www.sec.gov/news/digest/1981/dig111381.pdf.

⁵ https://www.justice.gov/criminal-fraud/opinion-procedure-releases

⁶ U.S. Dep’t of Justice, Foreign Corrupt Practices Act Review Opinion Procedure Release No. 22-1 (Jan 21, 2022). available at https://www.justice.gov/criminal-fraud/page/file/1466596/download.

⁷ See upra note 2.