Background
On June 9, 2025, the Deputy Attorney General of the United States Department of Justice issued “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)” (the “Memorandum”), which can be found here.
The Memorandum follows President Trump’s February 10, 2025 Executive Order, previously analyzed by us here, which directed DOJ to pause all ongoing FCPA enforcement matters or investigations for 180 days and, in the interim, to develop and issue updated guidelines or policies governing FCPA investigations and enforcement.
The Memorandum
Under the June 9 Memorandum, new FCPA investigations and enforcement actions will require the approval of the head of DOJ’s Criminal Division or a higher-ranking official, although it remains to be seen whether this authority will be delegated (either formally or as a matter of practice) to a lower-ranking official.
The Memorandum also outlines four “non-exclusive” factors that DOJ will consider in deciding whether to proceed with an FCPA investigation or enforcement action:
- Whether the alleged misconduct “(1) is associated with the criminal operations of a Cartel or [transnational criminal organization or “TCO”]; (2) utilizes money launderers or shell companies that engage in money laundering for Cartels or TCOs; or (3) is linked to employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs.”
- Whether the alleged misconduct “deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals.”
- Whether the investigation or enforcement action “focus[es] on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.”
- In light of the FCPA’s exception for facilitating and expediting payments, and affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of a foreign country, whether the conduct at issue involves substantial bribe payments, efforts to obstruct justice, sophisticated efforts to conceal bribery schemes, and fraudulent conduct in furtherance of those schemes.
The Memorandum contains several other points of interest, at least some of which apply beyond the FCPA context and to white-collar investigations generally. For example,
- The Memorandum directs prosecutors to focus on individuals that have engaged in criminal conduct, rather than “attribute nonspecific malfeasance to corporate structures.”
- The Memorandum also directs prosecutors to consider the factors outlined above and the collateral consequences of an investigation or enforcement action throughout an investigation, rather than just at the charging and resolution phases.
- The Memorandum notes that “the Department’s interests” “may differ” “in pursuing cases that have already entered the judicial process—such as filed indictments and corporate resolutions—versus those that have not[.]” This likely is intended to give DOJ some leeway in continuing to pursue cases that have already been indicted by a grand jury and are pending before a judge, even if they don’t fit neatly within the new criteria for bringing an FCPA enforcement matter.
Remarks of the Head of the Criminal Division
On June 10, the Head of DOJ’s Criminal Division, Matthew Galeotti, the individual who will have responsibility under the new policy for approving FCPA investigations and enforcement actions, amplified the guidance in the FCPA Memorandum during a speech in which he also discussed DOJ’s broader white collar enforcement priorities. Among other things, Galeotti:
- Echoed the Memorandum’s focus on prioritizing enforcement based on “specific misconduct of individuals, rather than collective knowledge theories,” in which prosecutors seek to aggregate disparate conduct of individuals within an organization to show misconduct by the organization as a whole.
- Encouraged companies to self-report misconduct, reiterating a theme in DOJ’s corporate enforcement priorities, issued last month, which we discussed here.
- Cautioned defense lawyers to “be conscientious about what, when, and how you appeal the decisions of Trial Attorneys and AUSAs” to supervisors. Galeotti stated that “seeking premature relief, mischaracterizing prosecutorial conduct, or otherwise failing to be an honest broker actively undermines our system. It also will be counter-productive to your appeals[.]”
Takeaways
- The release of the FCPA Memorandum, Mr. Galeotti’s remarks, and the issuance of DOJ’s corporate enforcement priorities last month, suggest that the DOJ is preparing to move forward with its white-collar enforcement agenda, albeit one that is shaped by the Trump administration’s stated, larger goals of increasing American competitiveness and national security.
- Under the Memorandum, (i) companies operating in regions with cartels and transnational criminal organizations and (ii) non-U.S. companies operating in the critical infrastructure, defense, and intelligence sectors appear to be most at risk for FCPA enforcement actions and investigations. The compliance and enforcement risks for these companies include not only the FCPA, but also sanctions-related statutes like the Trading With the Enemy Act and the International Emergency Economic Powers Act, and under terrorism-related statutes.
- The Memorandum’s focus on individual criminal liability and de-emphasis on attributing “nonspecific malfeasance to corporate structures” has implications for companies faced with a government investigations across a range of substantive areas, not just the FCPA, and may provide arguments for companies to avoid corporate liability in a variety of substantive areas of the law.
- Mr. Galeotti’s remarks also reiterate the importance for defense counsel of maintaining credibility and taking a measured approach when appealing the charging decisions of line prosecutors to their supervisors at U.S. Attorney’s Offices and Main Justice.
- At the same time, the Memorandum’s directive that prosecutors should consider DOJ priorities and the collateral consequences of an enforcement action throughout an investigation—and not just when deciding whether or not to file charges—may provide companies and defense counsel with additional opportunities for advocacy earlier in an investigation than might have previously been the case.
