Client Alert: The Department of Justice Resumes Modified Enforcement of the Foreign Corrupt Practices Act

On June 9, 2025 the Department of Justice (DOJ) released guidelines for investigations and enforcement of the Foreign Corrupt Practices Act (FCPA) (the “Guidelines”). This guidance comes after President Trump’s February Executive Order that called for a temporary halt in the enforcement of the FCPA until DOJ “issue[d] revised FCPA enforcement guidance that promotes American competitiveness and efficient use of federal law enforcement resources.” In addition to the Guidelines, Matthew Galeotti, the Head of the Criminal Division of the DOJ, made remarks regarding the investigations and enforcement of the FCPA at the American Conference Institute Conference on Global Anti-Corruption, Ethics & Compliance.

Overall, the Guidelines and Galeotti’s corresponding remarks demonstrate a narrower approach to FCPA investigations and enforcement actions. This is evident in the new guidelines’ instruction to “focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures”; the instruction to “consider collateral consequences, such as the potential disruption to lawful business and the impact on a company’s employees” in determining whether to pursue an investigation; and the instruction to proceed “expeditiously.”

The Guidelines also set forth a list of non-exhaustive factors for prosecutors to evaluate when deciding whether to pursue FCPA investigations and enforcement actions:

A. Total Elimination of Cartels and Transnational Criminal Organizations

The Guidelines reflect DOJ’s previous indication of the prioritization of eliminating Cartels, transnational criminal organizations (TCOs), and foreign terrorist organizations (FTOs). According to the Guidelines, prosecutors are instructed to prioritize misconduct that “is associated with the criminal operations of a Cartel or TCO, involves money launderers or shell companies that engage in money laundering for Cartels or TCOs, or is linked to employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs.”  The Guidelines are consistent with Attorney General Pam Bondi’s February 5, 2025 memorandum prioritizing enforcement against Cartels and TCOs.

B. Safeguarding Fair Opportunities for U.S. Companies

The Guidelines focus on conduct that targets “conduct that directly undermines U.S. national interests” and limits “undue burdens on American companies that operate abroad.” Under the Guidelines, prosecutors are instructed to consider whether misconduct deprived an American company or individual from conducting business or otherwise created economic injury. They further direct prosecutors to “consider whether specific and identifiable U.S. entities or individuals have been harmed by foreign officials’ demands for bribes.”

C. Advancing U.S. National Security

The Guidelines direct that “FCPA enforcement will [] focus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.”  Key infrastructure and assets include threats involving the defense, intelligence, and critical infrastructure sectors.

D. Prioritizing Investigations of Serious Misconduct

The Guidelines highlight the FCPA statutory exception for facilitation payments and an affirmative defense for “reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country.” The Guidelines focus on “serious misconduct” that “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.” They also instruct prosecutors to contemplate whether foreign law enforcement “is willing and able” to pursue the conduct.

Although the Guidelines set forth factors for prosecutors to evaluate when determining whether to pursue FCPA investigations and enforcement actions, the Guidelines reinforce that they are “not exhaustive.”

Key Points

• DOJ will resume FCPA investigations and enforcement actions with a focus on eliminating cartels, other TCOs, and conduct that harms American companies.
• Prosecutors are directed to prioritize large-scale misconduct, not misconduct that involves routine business practices or low dollar value.
• DOJ emphasized its new guidance with a focus on reducing burdens on American companies to promote foreign business.

 

Conclusion

The Guidelines memorialize DOJ’s shift to prioritize drug cartel cases and TCOs, cases that involve substantial bribe payments, and focus on industries that are central to national security. The Guidelines also place emphasis on the February Executive Order’s directive to prevent the penalization of “American citizens and business” for “routine business practices in other nations” by targeting large scale misconduct, rather than low-dollar corporate misconduct generally accepted in foreign business practice.

For more information regarding DOJ’s new FCPA guidance or legal advice pertaining to the FCPA, please contact Brian Kidd, Taylor Fontan, or any other member of Sher Tremonte’s Investigations and Criminal Defense team. This was written by partner Brian Kidd and associate Taylor Fontan