DOJ issues updated guidance focused on protecting US companies

On June 9, 2025, US Department of Justice (DOJ) Deputy Attorney General Todd Blanche issued “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)” (Guidelines), instructing prosecutors regarding how to investigate and enforce potential FCPA violations in accordance with the Trump Administration’s priorities going forward.¹

As discussed in a prior legal alert, on February 10, 2025, President Trump signed an executive order directing the Attorney General to pause FCPA investigations and enforcement actions, review ongoing FCPA investigations and enforcement actions, and issue updated FCPA enforcement policies and guidelines.²

Since then, the DOJ has not brought new FCPA charges and has moved to dismiss several – but not all – pending prosecutions. For example, on April 2, 2025, the DOJ moved to dismiss a case charging two former technology executives with FCPA violations after delaying the trial, which was initially scheduled for March 2025.³ The DOJ also dismissed a criminal information and deferred prosecution agreement (DPA) with an American waste management company more than six months before the DPA’s expiration, and terminated two ongoing three-year monitorships imposed on a Swiss commodities company pursuant to a DPA 15 months early.⁴

The newly issued Guidelines reiterate the Trump Administration’s prior rationale for pausing FCPA enforcement, stating that the Guidelines will limit “undue burdens on American companies that operate abroad” and target “enforcement actions against conduct that directly undermines U.S. national interests.”

The Guidelines also direct prosecutors to consider four “non-exhaustive factors” in considering whether to initiate new FCPA investigations or enforcement actions: (1) total elimination of cartels and transnational criminal organizations; (2) safeguarding fair opportunities for US companies; (3) advancing US national security; and (4) prioritizing investigations of serious misconduct.

1. Total Elimination of Cartels and Transnational Criminal Organizations: In accordance with President Trump’s January 20, 2025 executive order and Attorney General Bondi’s February 5, 2025 memorandum, Total Elimination of Cartels and Transnational Criminal Organizations,⁵ prosecutors are directed to consider whether the alleged misconduct is associated with a transnational criminal organization (TCO) or cartels. This priority extends to misconduct involving money launderers or shell companies operating on behalf of TCOs or cartels, as well as foreign officials who have received bribes from TCOs or cartels.
2. Safeguarding Fair Opportunities for US Companies: The DOJ will target companies that bribe foreign officials to obtain or retain business thereby putting “law-abiding competitors, including U.S. companies, at a serious economic disadvantage.” To that end, the Guidelines observe that “[t]he most blatant bribery schemes have historically been committed by foreign companies” and that “the most significant FCPA enforcement actions – measured by both the scope of misconduct and the size of the monetary penalties imposed – have been overwhelmingly brought against foreign companies.” While the Guidelines state that the DOJ will “not focus[] on particular individuals or companies on the basis of their nationality,” they nevertheless confirm a focus on conduct that deprived “specific and identifiable U.S. entities of fair access to compete” or has “resulted in economic injury to specific and identifiable American companies or individuals.” The Guidelines specifically note that this factor will be weighed in determining whether to investigate and prosecute foreign officials who demanded or received bribes that harmed US persons under the Foreign Extortion Prevention Act.⁶
3. Advancing US National Security: Referencing the executive order that paused FCPA investigations and enforcement actions, as well as President Trump’s 2017 National Security Strategy, the Guidelines instruct prosecutors to focus on corruption and bribery that threaten US national security. Specifically, prosecutors should prioritize corruption involving the defense, intelligence, and critical infrastructure sectors.
4. Prioritizing Investigations of Serious Misconduct: Prosecutors will de-prioritize corporate conduct involving “routine business practices” and “de minimis or ‘low-dollar,’ generally accepted business courtesies.” Instead, prosecutors will focus on misconduct indicating that individuals had corrupt intent, such as large bribe payments, “proven and sophisticated efforts to conceal bribe payments,” and other intentional actions to bribe or obstruct justice. The Guidelines remind prosecutors to be “mindful” of the FCPA’s exception for facilitation payments and the reasonable and bona fide expenditure and local law affirmative defenses.

In addition to the factors outlined above, the Guidelines stress that prosecutors must also follow other applicable policies and relevant factors, such as those outlined in the DOJ’s Justice Manual. The Guidelines also note that the DOJ retains full prosecutorial authority in continuing to pursue “cases that have already entered the judicial process – such as filed indictments and corporate resolutions.”

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After the February 2025 executive order pausing FCPA investigations and enforcement actions, many assumed that the FCPA was dead, or that it was at least on the back burner. The new Guidelines, however, confirm that the FCPA is still very much in play. The DOJ’s focus has just shifted to align with the Trump Administration’s priorities and “America First” theme.

Foreign companies – particularly those operating in areas implicating national security, including the defense, intelligence, and critical infrastructure sectors – should be on particularly high alert when competing with US companies for business. The Guidelines were specifically issued to limit “undue burdens on American companies that operate abroad” and to target “conduct that directly undermines U.S. national interests.”⁷

The Guidelines indicate that existing FCPA cases that have already been reviewed following the February 2025 executive order “have been evaluated based on the principles set forth in this memorandum.” They further state that “[a]ll current and future investigations and enforcement actions” will also be governed by the Guidelines. How the DOJ proceeds with respect to those actions will provide additional insight into how the Trump Administration will approach the FCPA going forward.

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1. Guidelines for Investigations and Enforcement of the Foreign Corrupt Practice Act (FCPA).
2. Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025); Executive Order signals major shift in FCPA enforcement—for now.
3. Motion to Dismiss, United States v. Coburn et al., No. 2:19-cr-00120 at ECF No. 1034 (D.N.J. Apr. 2, 2025) and Order Granting Motion to Dismiss, id. at ECF No. 1036 (Apr. 3, 2025).
4. Motion to Dismiss, United States v. Stericycle, Inc., No. 1:22-cr-20156 at ECF No. 21 (S.D. Fla. Apr. 21, 2025) and Order Granting Motion to Dismiss, id. at ECF No. 22 (Apr. 28, 2025); Consent Motion to Modify Conditions of Probation, United States v. Glencore International A.G., No. 1:22-cr-00297 at ECF No. 63 (S.D.N.Y. Mar. 20, 2025) and Government’s Notice Concerning Defendant’s Monitor, United States v. Glencore Ltd., No. 3:22-cr-00071 at ECF No. 68 (D. Conn. Mar. 19, 2025).
5. Memorandum from Atty General Pamela Bondi, Total Elimination of Cartels and Transnational Criminal Organizations (Feb. 5, 2025), https://www.justice.gov/ag/media/1388546/dl?inline.
6. Foreign Extortion Prevention Act, 18 U.S.C. § 1352.
7. Emphasis added.