What Did the Last DOJ Advisory Opinion Say About Payment of Public Officials' Travel Expenses

On August 14, 2023, the Department of Justice of the United States (DOJ) issued an advisory opinion in the framework of the Foreign Corrupt Practices Act (FCPA) Opinion Procedure. There, the DOJ stated that it would not take any enforcement actions against an adoption service provider ( Requestor), who had proposed to pay for certain travel expenses of foreign public officials.

It was the Requestor that requested the opinion within the framework of a new requisite established by a foreign country that mandates its officials meet annually with families that have adopted children from this country to ensure the success of adoptions. In this context, the Requestor proposed the DOJ to pay for economy-class plane tickets, lodging at a mid-range hotel, local transportation, meals, and certain recreational activities (valued below USD 100 per person) only for the foreign public officials meeting because of the adoption program.

The Requestor also informed the DOJ that such expenses would be paid directly to suppliers (not to the public officials). The public officials would be selected solely by the foreign government, and no economic compensation would be granted to them for their visit. Also, the Requestor reported having no non-routine businesses before the foreign government agency.

After analyzing the case, the DOJ determined that paying “the proposed expenses reflected no corrupt intent of the Requestor and appear to be reasonable and bona fide expenses [affirmative defense under the FCPA] directly related to 'the promotion, demonstration, or explanation of the [Requestor’s] products or services.” This decision aligns with other FCPA opinions regarding adoption services the DOJ issued in 2011 and 2012.

Although the advisory opinions are not binding for parties other than requestors, these opinions are generally useful to understand the DOJ’s considerations and expectations regarding payment of expenses to foreign officials that may or may not violate the FCPA’s anti-bribery provisions.

Notwithstanding the above, multinational companies should also consider local laws and regulations when analyzing this kind of situations, since local prohibitions and exceptions may vary from those in the FCPA.

In short, besides the key highlights of this latest DOJ advisory opinion, companies operating globally should consider case-by-case analyses when deciding on payment of expenses to foreign public officials. Such analyses would allow companies to verify compliance with both the FCPA and local laws and regulations.