The US Department of Justice has issued new guidance regarding enforcement of the Foreign Corrupt Practices Act (FCPA) in a June 9 memorandum from Deputy Attorney General Todd Blanche. The memorandum formalizes a shift in FCPA enforcement priorities by directing prosecutors to focus on misconduct that causes identifiable harm to US interests, prioritize cases involving individual wrongdoing, and avoid burdensome investigations into companies absent evidence of systemic issues given the impact that prolonged investigations and prosecutions can have on employees. The new guidance also imposes new, heightened procedural requirements for initiating FCPA investigations and enforcement actions, removing discretion from the Fraud Section and vesting it in the front office of the Criminal Division. These changes mark a pivot in how FCPA cases will be evaluated, opened, and pursued.
In early February 2025, newly confirmed Attorney General Pam Bondi issued a directive to Department of Justice (DOJ) that instructed prosecutors to scale back and reshape DOJ’s approach to FCPA enforcement. The directive introduced a number of significant changes, including: (1) prioritizing investigations into only foreign bribery schemes that facilitate the operations of cartels and transnational criminal organizations; and (2) suspending certain provisions in Section 9-47.110 of the Justice Manual, including a provision that requires FCPA cases to be investigated and prosecuted by trial attorneys in the Fraud Section and a provision that requires authorization by the Criminal Division for investigations and prosecutions of FCPA cases.
Shortly thereafter, on February 10, 2025, President Trump issued an executive order directing the DOJ to pause active FCPA investigations for 180 days while DOJ reviewed past and existing FCPA actions and issued revised guidance. The order further directed that future FCPA investigations and enforcement actions be governed by the forthcoming guidance and require attorney general approval. Framed as a “temporary recalibration,” the order signaled a sharp shift in approach to FCPA enforcement compared to prior administrations. Among other things, the order cited the burden of FCPA compliance on US businesses and the need to prevent overreach in regulating conduct abroad, so that the new guidance “promotes American competitiveness and efficient use of federal law enforcement resources.”
Since that time, uncertainty as to the future of FCPA enforcement has permeated, with some investigations against individuals and companies being dismissed or closed, while others authorized to proceed, with little to no explanation of the logic behind DOJ’s decisions.
First, DOJ’s newly issued FCPA guidelines include procedural and substantive changes to the department’s policy. Under the updated guidelines, DOJ will no longer initiate FCPA investigations or enforcement actions without explicit authorization from the Assistant Attorney General for the Criminal Division or a more senior official. This procedural change removes the Fraud Section’s independent authority to initiate matters, signaling a centralized and more selective enforcement strategy.
Second, the guidelines direct prosecutors to consider new, non-exhaustive factors in determining whether to bring an FCPA investigation or enforcement action. These factors include:
DOJ’s revised FCPA guidance represents a substantive realignment of FCPA enforcement priorities away from a systematic approach involving the investigation not just of individual wrongdoers but the companies for which they work or act as agents generally resulting in some sort of corporate resolution with large financial penalties. While the statute remains in effect, companies operating abroad should expect a more targeted approach to enforcement that focuses on direct harm to US interests and misconduct by specific individuals.
While the guidelines are careful to state that enforcement is not selectively focused on particular individuals or companies based on nationality, DOJ also notes that “the most blatant bribery schemes have historically been committed by foreign companies,” and the guidance is unmistakably geared toward safeguarding opportunities for US companies.
In his remarks at the American Conference Institute’s Global Anti-Corruption, Ethics & Compliance Conference, DOJ Criminal Division Head Matthew R. Galeotti reiterated the thrust of the guidelines, stating that the “throughline is that these Guidelines require the vindication of U.S. interests” and otherwise “[c]onduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.” Since harm to US interests is a paramount factor in evaluating whether to pursue an FCPA investigation or action under the guidelines, this suggests that enforcement against US companies will become increasingly rare unless their conduct implicates US national security or causes direct economic harm to US entities, neither of which has been a hallmark of past domestic company prosecutions. The door clearly appears to be open to US companies complaining of foreign competitor behavior.
DOJ’s guidelines also leave open complex questions for multinational corporations where the lines between US and non-US entities are often blurred. Although Mr. Galeotti noted that DOJ’s new guidelines are “not about … where the company is headquartered,” the reality is that few companies prosecuted by DOJ for FCPA offenses are strictly either foreign or domestic; rather they have operations in both the United States and abroad. Indeed, they are those United States-based operations and employees that often accord the DOJ jurisdiction to prosecute. How the DOJ will consider and characterize those entities and their conduct, and whether they could be harming US interests despite operating in the United States, remains to be seen. Such global entities need to remain vigilant as to their operations outside the United States and whether their conduct might be viewed as undermining of US interests.
Finally, the guidelines sought to address a statement made in President Trump’s executive order that American citizens should not be penalized for undertaking “routine business practices in other nations” by emphasizing the exception to the FCPA for facilitation and expediting payments. Despite DOJ’s historically rare agreement with companies that certain payments constitute mere facilitation payments, the guidelines point to enforcement that focuses on far more substantial and sophisticated conduct. Notwithstanding this portion of the guidelines, companies must understand that the United States is one of only a handful of countries in the world with such an exception and so the payments described as being excepted from the FCPA in the guidelines may still constitute an offense in another jurisdiction, and compliance measures remain ever important.
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