On June 9, 2025, Deputy Attorney General Todd Blanche issued a memorandum (the Guidelines) on “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)” by the US Department of Justice (DOJ).
The Guidelines follow President Trump’s February 10, 2025, executive order (the Executive Order), which directed DOJ to “(i) cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made; (ii) review in detail all existing FCPA investigations or enforcement actions and take appropriate action with respect to such matters to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives; and (iii) issue updated guidelines or policies as appropriate, to adequately promote the President’s Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.” Read our prior Client Alert analyzing the Executive Order.
In a June 10, 2025, statement, Deputy Attorney General Blanche noted that the newly announced Guidelines will ensure that enforcement efforts “advance American interests” by “shifting prosecutorial resources to cases that clearly implicate U.S. national security and competitiveness.”
Adding further perspective the same day on the Guidelines, as well as on the Criminal Division’s May 12, 2025, White Collar Enforcement Plan, the Head of DOJ’s Criminal Division, Matthew Galeotti, stated at the American Conference Institute’s Conference on Global Anti-Corruption, Ethics & Compliance that DOJ’s Criminal Division views corporate enforcement as a priority and will continue to “vigorously pursue” white collar investigations.
This Alert summarizes updates to the DOJ’s current FCPA investigation and enforcement approach and offers key considerations and potential action items for companies in light of the Guidelines.
Key Updates to DOJ’s FCPA Investigation and Enforcement Approach
The Guidelines confirm that DOJ will continue to enforce the FCPA with a focus on certain priority areas. More specifically, the Guidelines outline non-exhaustive factors that prosecutors should consider when evaluating whether to pursue FCPA investigations and enforcement actions. These factors are generally consistent with, and expand on, the themes set forth in Attorney General Pam Bondi’s February 5, 2025, memorandum (Bondi Memorandum) focused on FCPA priorities as well as President Trump’s Executive Order.
- Total Elimination of Cartels and Transnational Criminal Organizations (TCOs): whether the alleged misconduct is directly or indirectly associated with a cartel or TCO, including if it utilizes money launderers or shell companies used by cartels or TCOs. The Guidelines describe this factor as a “primary consideration” and quote the Bondi Memorandum’s language that DOJ will “shift focus away” from cases that do not involve a connection to TCOs and cartels.
- Safeguarding Fair Opportunities for US Companies: whether the alleged misconduct unfairly disadvantages or results in economic injury to law-abiding US companies or individuals. Although the Guidelines seem to take aim at foreign companies (stating in a footnote that “most blatant bribery schemes have historically been committed by foreign companies”), the actual directives focus less on foreign companies (expressly stating that FCPA enforcement will not focus “on particular individuals or companies on the basis of their nationality”) and more on whether the conduct “disadvantage[s] law-abiding U.S. companies.” Put differently, US companies too could find themselves under scrutiny by DOJ if their actions harm other US companies or US national security interests.
- Advancing US National Security: whether the alleged misconduct involves bribery of corrupt foreign officials involving national security sectors or assets, including in the defense, intelligence, and critical infrastructure sectors. This is in line with the Executive Order, which specifically noted that “national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.”
- Prioritizing Investigations of Serious Misconduct: whether the investigation involves “serious misconduct.” The Guidelines state that enforcement should not focus on “routine” or “generally accepted” business practices and “courtesies” or conduct involving low dollar amounts; instead, enforcement is more appropriate when “the alleged misconduct bears strong indicia of corrupt intent tied to particular individuals, such as substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice.”
The Guidelines are clear that these four factors are “non-exhaustive” and note that “prosecutors are bound by the Principles of Federal Prosecution,” requiring them also to consider various other criteria in determining “whether to authorize particular new FCPA investigations and enforcement actions.”
The Guidelines also signal a desire to narrow the volume and potential burdens of FCPA investigations and enforcement actions, instructing prosecutors to:
- “consider collateral consequences” that may result from resolutions as well as “the potential disruption to lawful business and the impact on a company’s employees, throughout an investigation,” not just at the resolution stage;
- focus on cases in which “individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures” — suggesting a potential focus on individual liability versus corporate liability for individual bad actors;
- “consider the likelihood (or lack thereof) that an appropriate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct” — suggesting that, to the extent a foreign law enforcement authority is equally or better positioned and also willing to handle such a matter, a parallel investigation by US authorities, including DOJ, may not be warranted.
Finally, under the Guidelines, any new FCPA investigation or enforcement action will require approval by top DOJ officials, i.e., must be authorized by “the Assistant Attorney General for the Criminal Division (or the official acting in that capacity) or a more senior Department official.” This policy also will help ensure that new matters fall within the scope of the Guidelines and thus may further limit the volume of new cases.
Implications and Takeaways
Exactly how the Guidelines will be implemented, and the extent to which future enforcement will depart from the past, remains to be seen.
There are certain themes in the Guidelines that are consistent with prior policy statements and enforcement actions:
- The DOJ, under multiple prior administrations, focused on individual accountability.
- The majority of the most significant FCPA enforcement actions were brought against non-US companies (as indicated in the Guidelines).
- President Biden’s first National Security Study Memorandum (which was followed by the United States Strategy on Countering Corruption) “establish[ed] countering corruption as a core United States national security interest” and directed creation of a strategy to, among other things, “[h]old accountable corrupt individuals [and] transnational criminal organizations.”
But the Guidelines also reflect changes. DOJ has outlined a more targeted approach to FCPA enforcement. Some of the priority sectors are new (especially cartels) and differ from the sectors that have been subject to enforcement sweeps in the past.
Nevertheless, broadly speaking, the Guidelines make clear that DOJ’s enforcement of the FCPA will continue, with an even greater emphasis on criminal prosecution of corrupt acts that harm US economic or national security interests, and potentially less concern about routine gifts and business entertainment or facilitation payments.
It also remains to be seen how the civil enforcement program of the Securities and Exchange Commission (SEC) will fit into this new FCPA enforcement regime. Although the Acting Deputy Director of Enforcement stated in March 2025 that the SEC is “obviously going to follow the lead of the DOJ,” during a recent congressional hearing, incoming SEC Chair Paul Atkins said he did not believe the SEC was affected by the Executive Order pausing FCPA enforcement. Whether the SEC ultimately will take a similar approach to the DOJ in its FCPA enforcement is not yet known.
With all this in mind, there are areas companies may wish to assess to mitigate risk and enhance their FCPA compliance programs:
- Companies should evaluate connections in their business to priority enforcement areas (including geographies presenting cartel and TCO risks and in industries or sectors with national security implications) and prioritize focusing their compliance efforts on any high risk areas of business. This could include focusing training, guidance, auditing, monitoring, and other high-touch efforts on areas in the business that present heightened risks.
- Companies having business or interests where cartels or TCOs operate should review their operations to ensure that they fully understand any and all touchpoints with cartels — which have been known to demand payments for free transport of goods, general protection payments, or other benefits from multinational companies. These kinds of interactions may also implicate the Foreign Narcotics Kingpin Designation Act.
- Foreign (non-US) government tenders — particularly when competing against US companies — is another potentially high risk area, especially in the priority sectors (e.g., defense, intelligence, infrastructure, deep water ports, critical minerals). Companies that bid on non-US government tenders/contracts should seek to identify these higher-risk transactions and consider deploying additional compliance oversight to these activities.
- Although the Guidelines disclaim a focus on foreign companies based on their nationality, foreign private issuers and non-US companies that could come within DOJ’s jurisdiction, especially those in the priority sectors, should ensure that their compliance programs are robust to mitigate the risk of becoming the target of investigations.
- Although the Guidelines note that DOJ will prioritize cases involving “substantial” bribery versus those involving “generally accepted business courtesies,” companies should not reduce their controls around business courtesies (e.g., gifts, meals, hospitality). There are still limitations in many countries around what government officials can accept. And compliance controls help ensure that business courtesies stay within appropriate limits (and do not become “significant,” whether in isolation or over time). Companies should continue to implement and promote their controls around business courtesies, and also would be well-served to leverage data analytics and other tools to identify patterns, trends, or policy violations in their business courtesies (and other transactions) that may reveal more significant issues.
The new Department of Justice Guidelines should be considered in the context of building a risk-based, effective compliance program. They also should inform how companies think about enforcement risk and strategy when issues arise. For example, the new Guidelines should be taken into consideration when evaluating (1) whether the facts might be of interest to DOJ; (2) whether self-disclosure may be warranted; and (3) whether there are factors that could be used to argue against further DOJ investigation or enforcement (e.g., foreign law enforcement alternatives, impact on the company, etc.).
Whether the Guidelines ultimately represent a sea change or a more incremental shift in FCPA enforcement, companies should be mindful of these updates and adjust their compliance programs and strategy accordingly.
