On February 10, 2025, President Trump issued Executive Order 14209, titled “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security,” with the stated purpose of eliminating “overexpansive and unpredictable” Foreign Corrupt Practices Act (FCPA) enforcement and preventing harm to “American economic competitiveness.” The immediate stated impact of EO 14209 is a moratorium on new FCPA investigations and enforcement actions by the Department of Justice (DOJ) (with limited exceptions) during a 180-day review period.
Throughout this review period (which may be extended for an additional 180 days), the executive order directs the attorney general to (1) review “guidelines and policies governing investigations and enforcement actions” under the FCPA and (2) review in detail all existing FCPA investigations or enforcement actions with an eye toward restoring “proper bounds on FCPA enforcement.”
The executive order indicates that the attorney general’s revised FCPA guidelines and policies will be applicable to both pending and future FCPA enforcement actions. Furthermore, it directs that the attorney general may use the revised guidelines and policies to take “additional actions, including remedial measures with respect to inappropriate past FCPA investigations and enforcement actions.” The practical import of this authority is unclear because, among other things, the executive order does not define the scope of the “remedial measures” applicable to “past” investigations and enforcement actions.
Finally, although this executive order is directed only at the DOJ, and not the Securities and Exchange Commission (SEC) (which also maintains a robust FCPA civil enforcement program involving publicly traded companies), the SEC, as a practical matter, will also likely pause at least some of its FCPA enforcement program as it awaits the arrival of the DOJ’s revised FCPA guidelines and policies.
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- Congress has not repealed the FCPA, so issuers and individuals should adhere to a culture of compliance and stay the course. It would be imprudent to consider major revisions to compliance policies and procedures until the revised DOJ guidelines and policies are released. In addition, issuers that operate outside U.S. borders are still subject to foreign anti-corruption laws such as the U.K. Bribery Act.
- Even if the DOJ and SEC under the Trump administration materially shift their focus away from corporate FCPA enforcement, this pivot does not eliminate the risk of potential enforcement for violations that occur during the upcoming four years. The statute of limitations for FCPA violations is a minimum of five years from the last act, and so long as the FCPA is not repealed, any violations today could possibly be prosecuted by a future administration. Only the oldest conduct may escape prosecution under what are anticipated to be more relaxed guidelines and policies.
- In the short term, FCPA investigation and enforcement programs at the DOJ — and perhaps the SEC — will noticeably slow down while the attorney general’s review takes place, which, under the terms of the executive order, could take up to a year.
- A likely preview of the upcoming revised guidelines and policies, moreover, was recently released by the DOJ. On February 5, 2025, Attorney General Pam Bondi issued a memo titled “Total Elimination of Cartels and Transnational Criminal Organizations.” This memo unambiguously deemphasized corporate FCPA enforcement by instructing the DOJ’s FCPA Unit to “prioritize investigations related to foreign bribery that facilitates the criminal operations” of cartels and transnational criminal organizations, and “shift focus away from investigations and cases that do not involve such a connection.”
- Ultimately, the revised DOJ guidelines and policies will likely cause a dramatic reduction in the volume of new DOJ and SEC FCPA investigations and enforcement actions for at least the duration of the Trump administration. It is also likely that some pending DOJ and SEC FCPA investigations will be closed without any charges being filed.
