Even with the absence of any major DOJ FCPA enforcement actions, DOJ issued an interesting FCPA Opinion Letter last week addressing application of the FCPA in circumstances where organizations face imminent serious bodily harm.  While the situation may appear to be unique, it is a factual scenario that occurs more often than DOJ recognizes.

In October 2021, a Requestor submitted an Opinion Letter application that presented compelling circumstances.  The Requestor, an owner of a vessel, explained that a Foreign Country’s Navy had seized its vessel. Arrested and detained the captain and detained the vessel and its crew.  Given the captain’s mental and physical health, the captain’s incarceration created an immediate threat of serious physical harm.  A third-party acting on behalf other Country’s Navy demanded a cash payment of $175,000 to release the captain, the crew and the vessel.  DOJ acted quickly and approved the Opinion Letter request.  The payment was made and the captain and crew were released.

The Requestor submitted additional information to DOJ, and a more formal Opinion Letter was released last week containing the full story and analysis. While the circumstances are relatively unique, DOJ’s analysis provides additional clarity surrounding the definition of “corrupt intent” and the “business purpose” test.

In this Episode, Michael Volkov reviews the recent Opinion Letter.