The guidelines confirm that FCPA enforcement will continue but provide opportunities for foreign authorities to lead where US interests are not significantly impacted.
On 9 June 2025, US Department of Justice (DOJ) Deputy Attorney General Todd Blanche issued a memorandum outlining guidelines (the Guidelines) for investigations and enforcement actions brought by DOJ under the Foreign Corrupt Practices Act (FCPA). This follows on from the 10 February Trump administration executive order that paused new prosecutions under the FCPA for 180 days and ordered a review of existing FCPA cases. For more on the order, see this blog post.
The Guidelines outline non-exhaustive factors that DOJ prosecutors should consider when evaluating whether to investigate or prosecute FCPA cases. These factors reflect the administration’s priorities of dismantling drug cartels and transnational criminal networks, ensuring fair competition for US businesses, and safeguarding US national security interests. For more detailed information on the factors included in the Guidelines, see our Client Alert.
In this blog post, we explore how the Guidelines differ from UK enforcement priorities and the impact the Guidelines may have on UK and European enforcement.
An Opportunity for UK and European Prosecutors
The Guidelines confirm that the FCPA pause is over and that DOJ will focus future enforcement on cases that impact US business interests and national security, particularly in key infrastructure sectors such as critical minerals, deep-water ports, defence, and intelligence. Although the Guidelines state that DOJ will not specifically target foreign companies on the basis of their nationality, any international corporation that conducts activity which will have an impact on US business interests or national security in these named sectors should be prepared for the possibility of FCPA enforcement scrutiny.
On the other hand, the Guidelines indicate that foreign authorities may be expected to take the lead in cases that do not have a significant impact on US interests, where they have the capacity to do so. The Guidelines state that before prosecutors commence enforcement, they should assess whether an appropriate foreign authority is “willing and able to investigate and prosecute the same alleged misconduct” and, where US interests are not impacted, enforcement should be left to foreign regulators.
Under Director Nick Ephgrave, the UK Serious Fraud Office (SFO) has already shown its ambitions of tackling large, international corruption cases. Examples include the launch of an investigation earlier this year in conjunction with France’s Parquet National Financier (PNF) and the announcement of a new taskforce including the SFO, PNF, and the Office of the Attorney General of Switzerland to tackle international bribery and corruption cases.
We can expect this trend to continue, especially as the Guidelines leave room for UK and European regulators’ growing ambitions.
Focus on Individual Accountability
The Guidelines state that DOJ should “focus on cases in which individuals have engaged in misconduct” and “not attribute nonspecific malfeasance to corporate structures”. This reflects a focus on holding individual bad actors accountable, rather than attributing all individual misconduct to the corporation. While DOJ has long focused on individual accountability regardless of administration, this reflects a potential contrast with recent UK legislation which has focused on strengthening prosecutors’ tools to pursue corporate criminal liability and efforts to hold corporations accountable for failing to prevent violations.
In the UK, the Economic Crime and Corporate Transparency Act 2023 (ECCTA) reformed the “identification principle” for specific economic crimes. The historic “directing mind and will” test required the person committing the offence to be the “controlling mind” of the company in order for liability to be attributed to the company, which made it difficult to attribute criminal intent to large, complex organisations. ECCTA introduced a “senior manager” test, allowing prosecutors to attribute the mental state of a senior manager committing an offence to the organisation. The Crime and Policing Bill 2024-25, which is currently making its way through Parliament, aims to expand the senior manager test for corporate criminal liability to all criminal offences, with the aim of making corporate prosecutions easier.
These expansions to the test for corporate criminal liability reflect the UK’s renewed focus on holding large corporations accountable for criminal wrongdoing. Accordingly, international corporations should be mindful that corporate accountability is a continued area of focus in the UK. In particular, the SFO published a long-awaited update to its corporate cooperation guidance earlier this year which aims to incentivise cooperation and self-reporting. For more on this update, see this blog post.
Facilitation Payment Exception
The Guidelines reiterate that US prosecutors “must be mindful that the FCPA contains an exception for facilitating and expediting payments” and “provides affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country”. US and UK anti-bribery regimes diverge on this point, and the UK Bribery Act 2010 explicitly prohibits facilitation payments.
In light of the stated intention of DOJ to defer to foreign regulators in cases with limited US impact, companies with a nexus to the UK should remain cautious of facilitation payments, which may continue to expose them to liability with regulators outside the US.
Outlook
Going forward, non-US companies — including foreign private issuers accessing the capital markets in the US, and especially those in key sectors such as critical minerals, deep-water ports, defence, and intelligence — should be mindful that they may be a focus of DOJ enforcement activities. This comes at a time when UK prosecutors are also becoming more active, as evidenced by recent legislative reforms and collaborative efforts with European counterparts, which could leave international corporations exposed on multiple fronts.
As the global enforcement environment continues to evolve, companies must ensure robust compliance frameworks that align with the varied enforcement priorities of US and UK regulators, safeguarding their operations in an interconnected world.
