Five Fast Reminders as Trump Pauses FCPA Enforcement
Late on February 10, 2025, President Trump issued an Executive Order (“EO”) instructing the Attorney General to pause Foreign Corrupt Practices Act (“FCPA”) enforcement for at least 180 days while the Attorney General reviews FCPA enforcement investigations and formulates “updated guidelines or policies ... to adequately promote the President’s Article II Authority to conduct foreign affairs and prioritize American business.” Following the review, FCPA enforcement actions must be “specifically authorized by the Attorney General.”
The EO is, typically, confusing in its intent, purpose, and effect. While the EO posits that national security depends on American companies, “gaining strategic business advantages,” American companies know full well that they generally benefit from strong anti-corruption norms, as they are better positioned than their foreign competitors to compete for business on merit.
Furthermore, FCPA enforcement has routinely targeted foreign, not domestic, companies. The list of largest FCPA settlements is dominated by foreign companies such as Siemens, Ericsson, and Russia’s Mobile Telesystems.
Regardless, even if the EO effectively kills the Department of Justice’s (“DOJ”) ability to pursue anti-bribery cases for the time being, companies considering their business practices should be aware of at least these five reminders.
- Beware Foreign Regulators: The days of American regulators being the only game in town for anti-corruption enforcement are long gone. Dozens of other countries now possess stand-alone anti-corruption agencies that are actively and aggressively enforcing their own anti-corruption laws. No matter the DOJ’s trajectory, misbehaving American companies could easily find themselves in the crosshairs of foreign regulators.
- Consider the SEC: Listed companies should also remember that the Securities and Exchange Commission (“SEC”) has its own FCPA jurisdiction. Trump’s executive order runs through the Attorney General and directly applies only to DOJ enforcement. But absent other directives, the SEC could act to fill the vacuum created by the DOJ standing down.
- Remember Your Contracts: FCPA clauses are standard in many types of commercial agreements, particularly international business deals. A DOJ pause in enforcement does nothing to alter a company’s contractual duties to comply with anti-corruption laws. Nor does it alter representations about ethical business practices that are contained in bid documents, funding agreements, and elsewhere.
- Five is Greater than Four: The FCPA has a five-year statute of limitations (six for the accounting provisions), and the DOJ has had little trouble stretching that limit to reach well into companies’ historic practices. Companies must remember that FCPA violations committed during Trump’s current term could still be prosecuted by the next administration, or beyond.
- Be Wary: The EO does not wipe the FCPA from the books, nor does it entirely foreclose new investigations and prosecutions. Instead, it raises the specter of a new era of FCPA enforcement more concerned with “the United States foreign policy objectives” than the neutral application of the law. What that will mean for any given company is anyone’s guess.
