FCPA Enforcement Not Forgotten: DOJ Issues New Guidelines

Takeaways

• DOJ’s new FCPA guidelines focus on cases that impact national security, economic competitiveness, or involve transnational criminal organizations.
• Minor or customary payments and cases where foreign authorities can prosecute may fall outside enforcement priorities.
• U.S. companies remain at risk and should reassess compliance programs, particularly in high-risk sectors or regions.

Four months ago, President Trump “paused” enforcement of the Foreign Corrupt Practices Act (FCPA) because, in the words of his Executive Order, the Administration was concerned the FCPA was being “stretched beyond” its purpose and was harming economic competitiveness. His Executive Order directed the U.S. Department of Justice (DOJ) to issue “updated” guidance and policies for FCPA matters. On June 9, 2025, Deputy Attorney General Todd Blanche complied with this directive and issued a memorandum entitled “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA).” The Guidelines set forth the parameters for renewed FCPA enforcement, the goal of which is to ensure investigations and prosecutions (1) do not place undue burden on U.S. companies operating abroad and (2) “target” conduct that “directly undermines U.S. national interests.” (Guidelines at 1)

The Guidelines direct prosecutors to consider four “non-exhaustive” factors when deciding whether to proceed with an FCPA matter. The first factor builds on DOJ efforts against drug trafficking organizations. Prosecutors should consider using the FCPA (1) if the bribery “is associated with the criminal operation of drug trafficking groups or Cartels and TCO [Transnational Criminal Organizations];” (2) if the persons or companies that are the subject of the investigation launder money for these groups; or (3) if foreign government employees or other foreign officials received bribes to assist Cartels or TCOs. (Guidelines at 2)

The second factor is whether the bribery places U.S. companies at a “serious economic disadvantage.” The Administration reiterates that a key FCPA goal is to allow U.S. companies to compete and to prevent economic market distortions that are “undermining of the rule of law.” Similarly, the third factor—whether U.S. national security interests are implicated—is especially significant when the corruption takes place in the defense, intelligence, or critical infrastructure sectors. FCPA enforcement here, the Guidelines explain, is fully appropriate for “urgent threats” to national security. (Guidelines at 3)

The fourth “non-exhaustive” factor is a catch-all. It instructs federal prosecutors to prioritize “investigations of serious misconduct” so as not to penalize U.S. companies. Under the Guidelines, DOJ investigations of potentially improper corporate conduct that involves small amounts of money or may be considered accepted business practices or customs may not warrant FCPA enforcement. Furthermore, DOJ should consider whether foreign law enforcement authorities are “willing and able” to investigate and bring prosecutions in evaluating whether to pursue the misconduct. (Guidelines at 4)

The “new” Guidelines focus on many of the same factors that have been traditionally used for FCPA enforcement in past administrations. It is common practice to consider the seriousness of the alleged misconduct in DOJ prosecutions. Prosecutors routinely consider factors such as (1) the impact of the illegal conduct on U.S. business interests and (2) the strength of the evidence of corrupt intent, such as trying to conceal evidence of “the bribery or efforts to obstruct justice.”

What is new in the Guidelines is the inclusion of Cartels and TCOs, which are designated as “Global Terrorists.” Previously, enforcement against these groups was usually based on drug trafficking or fraud statutes. The Guidelines now endorse the use of the FCPA, especially since these groups and their members have “infiltrated into foreign governments across the Western Hemisphere.” (Guidelines at 2)

The Guidelines have averted the anticipated death of FCPA prosecutions. But the Guidelines reflect a narrowed view of when the anti-corruption laws should be invoked. The Guidelines also continue the Trump Administration’s emphasis on prosecuting individuals for criminal conduct and not penalizing companies that were unaware of the misconduct or misled by employees who personally benefited from it. Yet, the Guidelines expressly reserve the right to terminate any existing prosecution, even those that are presently pending in court. Time will tell whether the Guidelines signal a period of revitalized FCPA enforcement or whether the Administration’s recent trend of dismissing cases against U.S. companies and individuals will take precedence. One lesson is clear: companies, whether large or small, that have business abroad, especially in known areas of drug trafficking or industry sectors that implicate U.S. economic or national security interests, need to remain diligent and active in updating their compliance programs to reduce FCPA risks.