DOJ FCPA Opinion Releases and Facilitating Payments Guidance Cited in House Oversight Document

111 opinion/2004/0401.pdf; US. Dept. oF Justice, FCPA Op. RELEASE 96-01 (Nov. 25, 1996) (travel, lodging, and meal expenses of regional government representatives to attend training courses in United States), available at http: //wwwjustice.gov/ criminal/fraud/ fepa/ opinion/ 1996/9601 .pdf; US. Dept. oF Justice, FCPA Op. RELEASE 92-01 (Feb. 1992) (training expenses so that foreign officials could effectively perform duties related to execution and performance of joint- venture agreement, including seminar fees, airfare, lodging, meals, and ground transportation), available at http ://www.justice.gov/ criminal/ fraud/fcpa/review/ 1992/r9201 pdf. 47 US, DEPT. OF JUSTICE, FCPA Op, RELEASE 11-01 (June 30, 2011); US. Dept. oF JusTIcE, FCPA Op. RELEASE 07-02 (Sept. 11, 2007); US. Dept. oF JusTICE, FCPA Op, RELEASE 07-01 (July 24, 2007); US. Dept. oF JusTICE, FCPA Op. RELEASE 04-04 (Sept. 3, 2004); US. Dept. oF Justice, FCPA Op. RELEASE 04-03 (June 14, 2004); US. Dept. oF JusTICcE, FCPA Op. RELEASE 04-01 (Jan. 6, 2004). 48 US, Dept. oF Justice, FCPA Op. RELEASE 96-01 (Nov. 25, 1996). ‘US, Dept. oF JUSTICE, FCPA Op. RELEASE 11-01 (June 30, 201 1); US. Dept. oF Justice, FCPA Op. RELEASE 07-02 (Sept. 11, 2007); US. DEPT. oF JusTICE, FCPA Op, RELEASE 07-01 (July 24, 2007); US. Dept. oF JUSTICE, FCPA Op. RELEASE 04-04 (Sept. 3, 2004); US. Dept. oF JusTICE, FCPA Op. RELEASE 04-01 (Jan. 6, 2004) . S9US. DEPT. OF JUSTICE, FCPA Op, RELEASE 04-01 (Jan. 6, 2004). ‘51 US, DEPT. OF JUSTICE, FCPA Op, RELEASE 08-03 (July 11, 2008). 'S US, DEPT. OF JUSTICE, FCPA Op. RELEASE 11-01 (June 30, 2011); US. Dept. oF Justice, FCPA Op, RELEASE 92-01 (Feb. 1992). ‘83 US, DEPT. OF JUSTICE, FCPA Op, RELEASE 08-03 (July 11, 2008). 154 Fy 'S5 Id; US. DEPT. OF JusTICE, FCPA Op, RELEASE 04-03 (June 14, 2004); U.S. Dept. oF Justice, FCPA Op. RELEASE 04-01 (Jan. 6, 2004); U.S. Dept. oF Justice, FCPA Op, RELEASE 07-01 (July 24, 2007). ‘S°US, DEpT. OF JUSTICE, FCPA Op, RELEASE 11-01 (June 30, 2011); US. Dept. oF JusTICE, FCPA Op. RELEASE 07-02 (Sept. 11, 2007); US. Dept. oF Justice, FCPA Op, RELEASE 07-01 (July 24, 2007); US. DEPT. oF JusTICE, FCPA Op. RELEASE 04-04 (Sept. 3, 2004); US. Dept. oF Justice, FCPA Op. RELEASE 04-03 (June 14, 2004); US. Dept. oF JUSTICE, FCPA Op. RELEASE 04-01 (Jan. 6, 2004). ‘87 US, DEPT. OF JUSTICE, FCPA Op, RELEASE 07-01 (July 24, 2007); US. Dept. oF JusTICE, FCPA Op, RELEASE 08-03 (July 11, 2008). 158 For example, DOJ has previously approved expenditures on behalf of family members or for entertainment purposes under certain, limited circumstances. See, e.g, U.S. DEPT. OF JUSTICE, FCPA REv. P. RELEASE 83-02 (July 26, 1983) (declining to take enforcement action against company seeking to provide promotional tour for foreign official and wife, where both had already planned a trip to the United States at their own expense and company proposed to pay only for all reasonable and necessary actual domestic expenses for the extension of their travel to allow the promotional tour, which would not exceed $5,000), available at http ://www.justice.gov/criminal/fraud/fcpa/review/ 1983/r8302.pdf. 159 Unlike the local law and bona fide expenditures defenses, the facilitating payments exception is not an affirmative defense to the FCPA. Rather, payments of this kind fall outside the scope of the FCPA’s bribery prohibition. Prior to 1988, the “facilitating payments” exception was incorporated into the definition of “foreign official? which excluded from the statute's purview officials whose duties were primarily ministerial or clerical. See Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, § 104(d)(2), 91 Stat. 1494, 1498 (1977) (providing that the term foreign official “does not include any employee ofa foreign government or any department, agency, or instrumentality thereof whose duties are essentially ministerial or clerical”). The original exception thus focused on the duties of the recipient, rather than the purpose of the payment. In practice, however, it proved difficult to determine whether a foreign official's duties were “ministerial or clerical.” §. REp. No. 100- 85, at 53. Responding to criticism that the statutory language “does not clearly reflect Congressional intent and the boundaries of the prohibited conduct.’ Congress revised the FCPA to define the exception in terms of the purpose of the payment. H. Rep. No. 100-40, pt. 2, at 77. In doing sO, Congress reiterated that while its policy to exclude facilitating payments reflected practical considerations of enforcement, “such payments should not be condoned.” /d. The enacted language reflects this narrow purpose. 10 Ty exempting facilitating payments, Congress sought to distinguish them as “payments which merely move a particular matter toward an eventual act or decision or which do not involve any discretionary action,” giving the examples of “a gratuity paid to a customs official to speed the processing of a customs document” or “payments made to secure permits, licenses, or the expeditious performance of similar duties of an essentially ministerial or clerical nature which must of necessity be performed in any event.” H.R. Rep. No. 95-640, at 8. 6! Section 30A(£)(3)(B) of the Exchange Act, 15 US.C. § 78dd-1(f)(3) (B); 15 US.C. §§ 78dd-2(h) (4) (B), 78dd-3(F)(4)(B). 182 Ty a 2004 decision, the Fifth Circuit emphasized this precise point, commenting on the limited nature of the facilitating payments exception: A brief review of the types of routine governmental actions enumerated by Congress shows how limited Congress wanted to make the grease exceptions. Routine governmental action, for instance, includes “obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country,” and “scheduling inspections associated with contract performance or inspections related to transit of goods across country.” ‘Therefore, routine governmental action does not include the issuance of every official document or every inspection, but only (1) documentation that qualifies a party to do business and (2) scheduling an inspection—very narrow categories of largely non- discretionary, ministerial activities performed by mid- or low-level foreign functionaries. United States v. Kay; 359 F.3d 738, 750-51 (5th Cir. 2004) (internal footnote omitted) (emphasis in original). 163 Nlon-Pros. Agreement, In re Helmerich & Payne, Inc. (July 29, 2009) [hereinafter Iz re Helmerich & Payne] , available at http: //wwwejustice. gov/ criminal/fraud/ fepa/ cases/ helmerich-payne/ 06-29-09helmerich- agree.pdf; Admin. Proceeding Order, In the Matter of Helmerich & Payne, Inc., Exchange Act Release No. 60400 (July 30, 2009) [hereinafter In the Matter of Helmerich & Payne] , available at http ://www.sec.gov/ litigation/ admin/2009/34-60400. pdf. 164 Criminal Information, Vetco Gray Controls Inc., e¢ al, No. 07- cr-4 No. (S.D. Tex. Jan. 5, 2007), ECF Nos. 1-2, available at hetp:// www.justice.gov/ criminal/fraud/ fcpa/ cases/vetco-controls/02-06- 07vetcogray-info.pdf. 1s Complaint, SEC v. Noble Corp., No. 10-cv-4336 (S.D. Tex. Nov. 4, 2010), ECF No. 1, available at http://www.sec.gov/litigation/ complaints/20 10/comp2 1728.pdé; Non-Pros. Agreement, In re Noble Corp. (Nov. 4, 2010), available at http ://wwwjustice.gov/criminal/ fraud/fcpa/cases/noble-corp/ 11-04-10noble- corp -npa.pdf; see also sources cited supra note 68. ‘66 Working Group on Bribery, 2009 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, at § V1 (recommending countries should periodically review their policies and approach to facilitation payments and should encourage companies to prohibit or discourage facilitation payments “in view of the corrosive effect of small facilitation payments, particularly on sustainable economic development and the rule of law”); Working Group on Bribery, United States: Phase 3, at 24 (Oct. 15, 2010), available at http ://www.oecd.org/dataoecd/ 10/49/46213841. pdf (commending United States for steps taken in line with 2009 recommendation to encourage companies to prohibit or discourage facilitation payments). ie? Facilitating payments are illegal under the U.K. Bribery Act 2010, which came into force on July 1, 2011, and were also illegal under prior UK. legislation. See Bribery Act 2010, ¢.23 (Eng,), available at http ff wwwilegislation.gov.uk/ ukpga/ 2010/23/contents; see also UK. Ministry OF JustTIcE, The Bribery Act 2010: Guidance About Procedures Which Relevant Commercial Organisations Can Put into Place to Prevent Persons Associated with Them from Bribing (Section 9 of the Bribery Act 201 0), at 18 (2011), available at http ://wwwjustice.govuk/ guidance/ docs/ bribery-act-20 10-guidance. pdf. 188 See, e.g, Non-Pros. Agreement, [n re Helmerich & Payne, supra note 163; Admin. Proceeding Order, In the Matter of Helmerich & Payne, supra note 163, 169 Tn order to establish duress or coercion, a defendant must demonstrate that the defendant was under unlawful, present, immediate, and HOUSE_OVERSIGHT_022613