Implications of the New FCPA Guidelines on U.S./French Cross-Border Investigations

The new guidance on U.S. enforcement of the Foreign Corrupt Practices Act (FCPA) has significantly altered the landscape for cross-border investigations. President Trump’s February 10, 2025 Executive Order paused FCPA enforcement for 180 days, citing concerns that the historical use of the statute over-reached and harmed U.S. companies.

Following that short pause, the U.S. Department of Justice (DOJ) released its Guidelines for Investigations and Enforcement of the FCPA (FCPA Guidelines) on June 9, 2025. The FCPA Guidelines closely mirror the principles outlined in the Department’s White Collar Enforcement Plan and Corporate Enforcement Policy, announced in May 2025, which further clarified the administration’s intent to focus on FCPA enforcement that involves bribery impacting U.S. interests, including national security and business competitiveness.

The new guidance reflects the changing enforcement priorities of the Trump administration, but it also suggests that the FCPA will be a continuing tool that U.S. law enforcement authorities will use to achieve policy goals in conjunction with other civil and criminal statutes, albeit with a more favorable posture towards U.S. companies navigating the complexities of operating abroad in good faith. Companies – in particular, those operating in industries deemed critical to U.S. policy interests and non-U.S. companies competing with U.S. companies – should be prepared for a renewed risk of enforcement.

Shifting Enforcement Priorities and Cross-Border Dynamics

The FCPA Guidelines Redefine FCPA Enforcement with a Shift Toward U.S. Interests

The FCPA Guidelines outline four main factors for FCPA enforcement: (1) eliminating cartels and Transnational Criminal Organizations (TCOs); (2) protecting fair opportunities for U.S. companies; (3) advancing U.S. national security interests; and (4) prioritizing serious misconduct. The DOJ will use the FCPA alongside other statutes, such as those targeting material support for terrorism, sanctions and trade controls, and will focus on conduct that harms U.S. companies’ ability to compete abroad. Non-U.S. companies remain a particular focus, especially when they compete directly with U.S. companiesimpact U.S. interests. Where U.S. interests are not directly implicated, DOJ will likely defer to or assist foreign law enforcement, including French authorities, to pursue their own cases. This could result in more French-led investigations and resolutions, especially involving French companies or conduct in France where U.S. interests are not vested.

French Authorities Poised to Expand Anti-Corruption Enforcement

With the United States stepping back from global anti-corruption leadership, French authorities – especially the Parquet National Financier (PNF) – are expected to fill the gap. The PNF has already used the Convention Judiciaire D’Intérêt Public (CJIP), the French equivalent of a Deferred Prosecution Agreement (DPA), to resolve cases against both French and foreign companies. French authorities are well-positioned to intensify investigations of U.S. companies operating in France. The principle of non bis in idem (double jeopardy) does not always prevent French authorities from prosecuting companies or individuals already convicted in the U.S., so parallel or subsequent French actions remain possible even after a U.S. resolution.

DOJ Restructuring and New Credit Policy May Affect International Coordination

The Trump administration’s approach to white collar enforcement may strain international cooperation. The U.S. skipped the March 2025 OECD Working Group on Bribery meeting, raising concerns about its commitment to treaty obligations. DOJ’s internal restructuring – dismantling white-collar task forces and decentralizing FCPA enforcement to U.S. Attorney’s Offices (USAOs) – risks eroding institutional knowledge and established relationships with French authorities. USAOs lack the deep ties and informal cooperation channels that DOJ’s FCPA Unit and Office of International Affairs (OIA) have built with the PNF and AFA, which may lead to more formal, slower, and less coordinated cross-border investigations and compliance evaluations, negatively impacting companies facing enforcement in either jurisdiction.

The DOJ’s revised policy on credit for fines and payments made to foreign agencies in parallel enforcement proceedings (the New Credit Policy) may result in less credit for companies entering multi-jurisdictional resolutions. The New Credit Policy focuses on victim compensation and directs prosecutors to: (1) only credit payments to foreign authorities if those authorities are better equipped to compensate victims; and (2) not credit payment to other authorities when a company does not meaningfully attempt to coordinate resolutions. These recent changes place greater responsibility on companies to coordinate resolutions among the DOJ and foreign authorities – including the PNF – and significantly impacts how companies investigate matters, interact with potential victims, and negotiate and resolve parallel investigations when issues of victim compensation are involved.

Key Practical Challenges for Companies Facing U.S./French Cross-Border Investigations

• French Blocking Statute (FBS): The FBS restricts sharing certain information with foreign authorities outside formal channels and includes criminal penalties for violations. Recent developments have enhanced the statute’s practical significance. DOJ prosecutors had developed expertise in navigating the FBS, but this knowledge may be lost as FCPA enforcement shifts to less experienced USAOs.
• Mutual Legal Assistance Treaties (MLATs): With informal cooperation waning, U.S. authorities may increasingly rely on the complex and slow MLAT processes to obtain evidence from France. French authorities or companies may also use French legal provisions to delay or restrict information transfers to the U.S., prolonging investigations.
• Data Privacy Regulations: The EU’s GDPR and France’s Data Protection Act impose strict requirements on data collection and transfer. Companies must ensure lawful bases for processing and transferring data, and parallel investigations may result in conflicting regulatory demands.
• Employment Law Constraints: French labor law provides strong protections for employee data and requires works-council consultations and notice periods before interviews or data collection, further complicating and delaying investigations.
• Whistleblower Protections: Sapin II and its 2022 implementing decree impose strict confidentiality on whistleblower identities and related information, with criminal penalties for breaches, which may further challenge compliance with broad U.S. investigative demands.
• Cross-Border Privilege Pitfalls: U.S. attorney-client privilege is broad, covering both in-house and external counsel, while French legal privilege (secret professionnel) is narrower and does not extend to in-house counsel. Documents privileged in the U.S. may not be protected in France, risking waiver of privilege in U.S. proceedings if produced to French authorities without appropriate legal protections.
• Recognition and Enforcement of Resolutions: Historically, U.S. and French authorities have coordinated to align penalties and credit fines imposed by the other jurisdiction. Reduced U.S. engagement may lead French prosecutors to proceed unilaterally, increasing the risk of inconsistent or duplicative resolutions. Unless foreign authorities are willing to decrease their penalties to accommodate DOJ’s presumption that they are in the best position to compensate victims under the New Credit Policy, companies in parallel proceedings may be more likely to face duplicative penalties.

Corporate Strategies for Navigating the New Enforcement Landscape

1. Engage Coordinated Counsel Early: Companies facing bribery allegations that could trigger U.S. and/or French anti-corruption laws should involve counsel in both the U.S. and France. Experienced white-collar counsel in both jurisdictions can ensure investigative plans account for the protections and challenges arising from both legal regimes, including the FBS, data privacy, privilege, and employment protections.
2. Design Robust Documentation Protocols: Keep detailed records of regulatory requests, data transfers, and legal justifications, especially for whistleblower reports. This demonstrates good-faith compliance and provides essential documentation if authorities later scrutinize the company’s cooperation.
3. Proactively Communicate with Authorities: Engage early with both U.S. and French authorities to explain legal constraints and advocate for the use of formal channels like MLATs to mitigate risks and promote cooperative relations.
4. Structure Privilege Safeguards: Attorney work product should be clearly marked as “prepared by counsel” and, where feasible, sensitive investigative tasks should be conducted through external French avocats and at the direction of U.S. counsel to enhance both U.S. work-product protection and French secret professionnel. Review all potentially responsive documents in light of U.S. privilege rules before responding to a PNF request.
5. Plan for Parallel Resolutions: Assess exposure under both U.S. and French law, negotiate settlement terms that account for potential future actions in the other jurisdiction, and ensure that victims’ rights are considered in order to receive credit from DOJ. Address explicitly the treatment of any CJIP fine in the event of subsequent DOJ action to help mitigate the risk of duplicative penalties.
6. Evaluate Voluntary Self-Disclosure: The strategic considerations surrounding voluntary self-disclosures are evolving. Where French authorities may proceed independently of the DOJ, self-reporting in France may secure cooperation credit and influence the factual record. Any decision regarding voluntary disclosure should be preceded by a thorough, jurisdiction and fact-specific analysis conducted by both U.S. and French counsel.

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