Key Takeaways
- On June 9, 2025, Deputy Attorney General (DAG) Todd Blanche announced the Department of Justice’s (DOJ) pause in Foreign Corrupt Practices Act (FCPA) enforcement was over and issued new guidelines for investigations and enforcement of the FCPA.
- Top-priority FCPA investigations will be those relating to cartels or transnational criminal organizations (TCOs), foreign bribery that disadvantages U.S. companies by depriving them of fair access to compete, and foreign bribery that undermines U.S. national security in areas like defense, intelligence or critical infrastructure.
- DOJ will also prioritize the prosecution of individuals (including foreign officials under the Foreign Extortion Protection Act, or FEPA) and avoid attribution of general misconduct to corporate entities. All new FCPA investigations or enforcement actions must be authorized by the Assistant Attorney General for the Criminal Division (or the official acting in that capacity) or a more senior Department official.
- Companies should continue robust anticorruption compliance programs, as foreign nations may target the U.S. in retaliation and the next administration may significantly adjust enforcement priorities.
Overview
U.S. Department of Justice (DOJ) Deputy Attorney General Todd Blanche issued a memorandum on June 9 (the Memo), announcing DOJ will resume enforcement of the Foreign Corrupt Practices Act (FCPA) after its brief hiatus. The Memo realigns FCPA investigation and enforcement with the administration’s overall “America First” approach, prioritizing U.S. strategic interests, U.S. business opportunities overseas, and the eradication of cartels and transnational criminal organizations (TCOs).[1] As such, DOJ announced it has closed nearly half of the foreign bribery investigations opened in the last administration to redouble its enforcement efforts under the new guidelines.
The Memo encourages prosecutors to target individuals – rather than entire corporate entities – who have engaged in serious criminal misconduct disadvantaging U.S. interests. Prosecutors must decline prosecution of de minimis conduct constituting routine business practices or customary courtesies and focus instead on serious misconduct that “directly undermine[s] national interests.” Prosecutors should do so while “limiting undue burdens on American companies that operate abroad.”
One of the most significant aspects of the memo is the requirement that the mere initiation of an FCPA investigation or enforcement action be authorized by the Assistant Attorney General for the Criminal Division or a more senior Department official. Previously, such high-level authorization was only required to bring formal charges under the FCPA.
New Guidelines
The new guidelines prioritize FCPA enforcement in the following areas:
Eliminating Cartels and Transnational Criminal Organizations. This enforcement priority comes as no surprise, as the administration has repeatedly named cartel activity and TCOs as a threat to U.S. national security. Accordingly, a primary consideration in determining whether to pursue an FCPA investigation or enforcement action is whether the alleged misconduct “(1) is associated with the criminal operations of a Cartel 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.”
Safeguarding Fair Opportunities for U.S. Companies. The Memo also emphasizes the importance of U.S. companies’ ability to compete, noting that bribes of foreign officials skew markets, undermine the rule of law, and put law-abiding U.S. companies and others at a disadvantage. While the memo explicitly recognizes that the most significant FCPA enforcement actions have been brought against foreign companies, the Department will target all serious misconduct that undermines U.S. corporate access to business opportunities in foreign markets, no matter the nationality of the offender.
To that end, prosecutors must consider whether the alleged misconduct deprived specific U.S. entities of fair access to compete or resulted in economic injury to specific American companies or individuals. Likewise, in conducting investigations and prosecutions under the Foreign Extortion Prevention Act (FEPA), 18 U.S.C. § 1352, which criminalizes the “demand side” of foreign bribery, prosecutors should consider whether specific U.S. entities or individuals have been harmed by foreign officials’ demands or bribes.
Advancing U.S. National Security. DAG Blanche’s memo instructs prosecutors to prioritize investigation and prosecution of foreign bribery involving “key infrastructure or assets” and to watch for corruption harmful to the U.S. in sectors “like defense, intelligence, or critical infrastructure.”
Prioritizing Investigations of Serious Misconduct. The Memo reminds prosecutors that FCPA enforcement should not penalize U.S. citizens and businesses for routine business practices in other nations, noting that the FCPA contains an exception for facilitating and expediting payments (15 U.S.C. § 78dd-1(b)), as well as affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of a foreign country (15 U.S.C. § 78dd-1(c)). FCPA investigations and enforcement actions shall similarly avoid alleged misconduct that involves de minimis or low-dollar, generally accepted business courtesies. Instead, prosecutors should focus on alleged misconduct involving “strong indicia of corrupt intent tied to particular individuals.” The Memo provides four examples: (1) substantial bribe payments; (2) proven and sophisticated efforts to conceal bribe payments; (3) fraudulent conduct in furtherance of the bribery scheme; and (4) efforts to obstruct justice. To prioritize cases that warrant investigation by U.S. authorities, FCPA prosecutors should also consider whether an appropriate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct.
The Memo's Impact on FCPA Enforcement Moving Forward
Foreign Companies Face Increased Risk. Foreign companies, particularly those that compete with U.S. businesses abroad, should be on high alert and ensure that their anticorruption compliance programs address the heightened risk of U.S. investigation and prosecution for potential bribery-related acts. DOJ’s enforcement shift could result in a heavier focus on foreign corporations and may incentivize U.S. companies to report foreign competitors and foreign bribe-seekers to DOJ.
Foreign companies and individuals should also be ready to defend any potential corruption-related activity that has already occurred. They should consult with experienced counsel as soon as possible to determine whether voluntarily disclosing that information to DOJ could be beneficial, particularly in light of DOJ’s recent publication of its Corporate Enforcement and Voluntary Self-Disclosure Policy.[2]
Any Company Transacting with High-Risk Countries Faces Increased Enforcement Scrutiny. Although few companies intend to do business with cartels or TCOs directly, companies should be careful in their choice of business advisers, vendors and partners in countries with a significant cartel presence. DOJ intends to use the FCPA and FEPA to prosecute companies and individuals that can be linked – directly or indirectly – to a cartel or TCO through the provision of goods, services, money or other material support. Similarly, DOJ has indicated it will prosecute employees of state-owned entities or other foreign officials who have received bribes from cartels or TCOs.
Non-U.S. Companies in Defense, Intelligence and Critical Infrastructure Industries Are in DOJ’s Crosshairs. Considering their influence on U.S. national security interests, companies in the defense, intelligence or critical infrastructure sectors should expect extra attention from DOJ. Investigation of activities considered harmful to U.S. businesses and national security is likely to be prioritized over investigation of actions that only impact foreign markets and interests.
Restrictions on Prosecutorial Discretion Should Encourage Consistency in Enforcement. Notably, the new guidelines mandate that the initiation of all new FCPA investigations must be authorized by the Assistant Attorney General for the Criminal Division or a more senior Department official. This high-level approval requirement for the mere initiation of an FCPA investigation is a very significant change likely meant to enforce consistent and uniform adherence to the new anticorruption guidelines. It remains to be seen whether this requirement, combined with prosecutors’ obligation to consider an investigation’s disruptive effects on legitimate business operations, will result in decreased FCPA enforcement against U.S. corporations.
Conclusion
DAG Blanche’s Memo confirms that FCPA enforcement will continue under the new administration, albeit in a modified direction. U.S. companies should maintain robust anticorruption compliance programs, as other nations will continue enforcing their anticorruption laws and may retaliate for enhanced FCPA scrutiny of their officials and business entities. Moreover, the FCPA statute of limitations is five years, beginning from when bribes are paid, which can be late in a scheme. Thus, companies involved in this conduct may find themselves in a different enforcement environment four years from now, when violations can be prosecuted under potentially different DOJ guidelines.
Non-U.S. companies – especially those in the national security space – are well advised to review and update anticorruption policies and practices. Given the enhanced incentives for business competitors to report past or present misconduct to DOJ, foreign companies should speak with experienced counsel to determine next steps.
Finally, all individuals and corporate entities doing or facilitating business in countries with a cartel or TCO presence should immediately scrutinize their supply chains and banking streams to ensure they are not knowingly providing material support – directly or indirectly – to a criminal organization. The administration is determined to eradicate cartels and TCOs, as well as anyone or anything that supports them.
[1] Memorandum from Deputy Attorney General Todd Blanche, Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA), Dep’t of Just. (June 9, 2025).
[2] Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy, 0-47.120, Dep’t of Just., (May 12, 2025), available at: https://www.justice.gov/criminal/media/1400031/dl?inline.
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