In February 2025, President Trump signed an executive order directing the U.S. Department of Justice (DOJ) to pause enforcement of the Foreign Corrupt Practices Act (FCPA) and to update its guidelines for enforcing the FCPA. The DOJ lifted the pause and released its new guidelines for FCPA enforcement. Below are the key takeaways for companies that conduct business internationally.
- Enforcement will continue. Despite some speculation that the DOJ would effectively stop prosecuting foreign bribery during President Trump’s administration, the DOJ made clear that new FCPA enforcement actions are on the horizon.
- President Trump’s February 10, 2025, executive order stated that broad enforcement of the FCPA has disadvantaged U.S. businesses and harmed American economic competitiveness. The DOJ’s new guidelines state that more limited enforcement can make the FCPA a tool for pursuing the administration’s priorities and promoting American companies’ competitiveness overseas.
- The new guidelines note that the DOJ will focus its enforcement efforts on FCPA violations that involve large bribes, sophisticated concealment of bribes and related fraud, and efforts to obstruct justice.
- The DOJ is also focusing on foreign corruption connected to two White House priorities: cartels and national security.
- Involvement of a cartel or transnational criminal organization is a “primary consideration” for DOJ officials when deciding whether to investigate foreign corruption allegations. Enforcement will be more likely if the alleged misconduct is associated with a cartel, uses the same money launderers as a cartel, or is linked to a foreign government official who received bribes from a cartel.
- The DOJ is more likely to enforce the FCPA in industries that are key to U.S. national security, such as defense, intelligence, and critical infrastructure. The guidance notes that “terrorists and criminals thrive where governments are weak [and] corruption is rampant,” suggesting that the DOJ is also more likely to authorize FCPA enforcement actions against companies that pay bribes in countries that threaten U.S. national security interests.
- The DOJ may use the FCPA as a tool to help make U.S. businesses more competitive overseas. If an American company suffers economic injury or loses fair access to compete in a foreign country because its competitor bribed a foreign government official, the DOJ will be more likely to bring an FCPA action against the competitor. Presumably, this means that non-U.S. companies may face an increased risk of being targeted in FCPA enforcement actions if the DOJ has jurisdiction over them. The guidance expressly states that “the most blatant bribery schemes have historically been committed by foreign companies.” Notably, the Head of the DOJ’s Criminal Division, Matthew Galeotti, clarified in a related speech that the DOJ will not make FCPA enforcement decisions based on “the nationality of the subject or where the company is headquartered.”
The new guidelines also include changes to how the DOJ will investigate and prosecute FCPA cases. For example, all new FCPA investigations must be authorized by the Assistant Attorney General for the Criminal Division or a more senior DOJ official. This guidance is a departure from previous practice, where the FCPA Unit, a subunit within the Criminal Division, had the authority to open its own cases. In addition, investigations will likely be shorter and less disruptive because the guidelines require prosecutors to consider the effect of an investigation on a company’s business. Finally, the DOJ will consider the likelihood that foreign regulators will investigate and prosecute the same conduct.
Key Points to Consider
The DOJ’s new guidelines confirm active FCPA enforcement and provide insight into what the DOJ’s key considerations may be when investigating, charging, and resolving future FCPA enforcement actions. Given the recent updates, companies should consider the following recommendations:
- Continue to maintain robust anti-corruption policies and procedures.
- Evaluate whether business operations take place in geographic regions or industry sectors that may be subject to increased scrutiny, in light of the DOJ’s focus on cartels and national security.
- Consider that foreign companies may come under more scrutiny, particularly those that compete with U.S. companies for business.
- Remember that the statute of limitations for violations of the FCPA’s anti-bribery provisions is five years, and it is six years for violations of the FCPA’s accounting provisions; those limitations can be extended if the DOJ needs to gather information from foreign countries.
