February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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Top Three FARA Exemptions to Know

With the Department of Justice (“DOJ”) giving increased attention to Foreign Agent Registration Act (“FARA”) enforcement, companies that have international business operations or otherwise deal with foreign governments and firms need to take appropriate measures to ensure compliance with FARA’s onerous registration and disclosure requirements. Companies are potentially released from FARA’s disclosure requirements, however, if they meet one of FARA’s statutory exemptions. Below is a brief outline of three widely used exemptions.    

Commercial Exemption 

FARA’s Commercial Exemption includes “private and nonpolitical activities in furtherance of the bona fide trade or commerce” of a foreign principal. According to FARA’s implementing regulations, trade and commerce include the purchase and sale of property, services, or commodities. The Commercial Exemption also covers “political activities” undertaken for a foreign corporation “in furtherance of the bona fide commercial, industrial, or financial operations of the foreign corporation.” Not covered by the Commercial Exemption are activities “directed by a foreign government or political party” or that aim to “directly promote the public or political interests of the foreign government.” In determining whether the Commercial Exemption applies, due diligence into whether the foreign principal is closely affiliated with a foreign government, or where the commercial interests are intertwined with sovereign government interests is necessary.     

Lobbying Disclosure Act Exemption

Although registration and reporting under the Lobbying Disclosure Act (“LDA”) is far less burdensome than FARA, entities or agents engaged in lobbying actives and registered under the LDA for those same activities are exempt from registration under FARA. Pursuant to FARA’s implementing regulations, the LDA Exemption does not cover lobbying activities on behalf of a foreign government or foreign political party, or if either of the aforementioned are the principal beneficiaries of such activities.  

The Lawyer’s Exemption 

As its name suggests, the Lawyer’s Exemption releases those offering legal representation of foreign principals before courts or similar administrative proceedings from FARA registration, provided that the lawyer’s role is disclosed to the tribunal or agency. Notably, FARA’s implementing regulations limit the Lawyer Exemption so as not to exempt representation that “attempts to influence . . . domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.” 

There remains considerable uncertainty regarding the outer boundaries of these exemptions because they are not well defined, lack sufficient DOJ guidance, and are rarely discussed in case law. In light of the DOJ’s stated interest in strengthening FARA enforcement and the difficulty in determining whether an exemption applies, companies that have international business operations or otherwise deal with foreign governments and firms are advised to seek guidance from competent FARA counsel.

See our previous article Emerging Trend: DOJ Turns to Rarely Used FARA Statute in Recent Surge in Prosecutions, available here.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume IX, Number 350

About this Author

Melissa S. Ho Shareholder Phoenix Antitrust, Antitrust - Health Care Compliance, Fraud and Abuse, Stark, Financial and Securities Litigation, Financial Technology, Regulation Government Investigations, Health Care Litigation

Melissa Ho is a trial attorney with a detailed understanding of government regulations and business litigation. A former prosecutor, she is sympathetic to the disruption and chaos a government inquiry and criminal investigation can cause. 

Melissa defends individual clients against a wide variety of criminal allegations, including health care fraud, qui tam, RICO violations, bank fraud, real estate fraud, mortgage fraud, foreign corrupt practices, securities fraud, water and air quality violations, government corruption, procurement and public fraud, professional misconduct, civil...

Andrew T. Fox Phoenix Polsinelli Government Investigations Labor and Employment Commercial Litigation Litigation and Dispute Resolution

As a member of Polsinelli’s Government Investigations practice, Andrew assists clients in all aspects of white collar criminal defense and internal corporate investigations. Working to understand each client’s unique situation, he helps guide clients through government inquiries and provides counsel that aligns to their business strategies. Andrew has experience drafting briefs, memoranda and responding to discovery requests.

Prior to joining Polsinelli, Andrew served as a law clerk to The Honorable Judge Douglas L. Rayes on the United States District Court for the District of...