[co-authors: Leon Liu, James Chen, Helen Li]
Welcome to QuickHits. This brief newsletter covers recent cases, legal developments, and key questions affecting the evolving U.S.-China relationship and related business and legal environments. It’s produced by attorneys from Dickinson Wright PLLC, a U.S.-based law firm, and JunHe Law Offices, a Chinese law firm.
In this issue, we look at the U.S. Department of Justice’s June 9, 2025, Guidelines on its new enforcement approach to the Foreign Corrupt Practices Act (FCPA), and consider how they may affect companies operating in China and the U.S.
DOJ’s New FCPA Guidance and the China Effect
What Happened? On June 9, 2025, the U.S. DOJ issued fresh “Guidelines for Investigations and Enforcement of the FCPA” (“Guidelines”). The new Guidelines attempt to ensure that FCPA enforcement is in line with the Trump Administration’s policy interests by guiding enforcement of the FCPA to 1) limit “undue burdens” on U.S. companies operating abroad and 2) target enforcement and investigations against issues that “undermine U.S. national interests.” In addition to providing insight for prosecutors, regulators, companies, and compliance professionals, the Guidelines deliver insight to help the public understand the Trump Administration’s FCPA enforcement priorities.
Why Did It Happen? On February 10, 2025, the Trump Administration paused enforcement of the FCPA in order to realign its enforcement guidance with the Trump Administration’s foreign and domestic policy agenda. While the DOJ issued a general “white collar enforcement plan” in May 2025, until now, the public had been somewhat in the dark about the Trump Administration’s specific FCPA enforcement priorities and prosecutorial approach. As such, the Guidelines were highly anticipated in order to elucidate how the current DOJ would pursue FCPA investigations and enforcement actions.
Why Is It Important? An evaluation of the May 2025 “white collar enforcement plan” in conjunction with the new Guidelines reveals a prominent shift in enforcement priorities from the Biden Administration. Broadly speaking, for example, the Guidelines appear to line up with the Trump Administration’s “America First” agenda. While much of the focus will be on cartels, transnational organized crime, and prioritizing “serious misconduct,” there also appears to be a renewed emphasis on actions that harm U.S. companies and U.S. national security interests.
This renewed focus stands to present heightened complications and attention for non-U.S. companies competing with U.S. companies abroad. This may be especially true for Chinese companies, who were singled out in the May 2025 “white collar enforcement plan” with respect to securities fraud enforcement. While recent talks between the U.S. and China appear to have had a positive impact on the relationship, the Guidelines raise the specter that the U.S. may seek to gain an advantage in trade discussions, including leveraging heightened enforcement of the FCPA against Chinese companies.
What Does This Mean For Me? The Guidelines identify four different factors for prioritizing the enforcement of the FCPA. Although each factor may affect companies differently, two stand out as likely to have a disproportionately greater impact on both Chinese companies and multinationals operating in China.
1. “Safeguarding fair opportunities for U.S. companies.” The DOJ’s enforcement priority here appears to be focused on investigations and enforcement against foreign companies (i.e. non-U.S. companies) whose actions have harmed a U.S. company. While the DOJ states that it will not focus on companies and individuals based on nationality, one primary purpose of the Guidelines is to protect the competitiveness of U.S. enterprises, implying that companies that belong to nations competitive to the U.S. (like China) may be in the DOJ’s sight lines.
Additionally, the DOJ stated that this factor’s enforcement focus will also consider whether the alleged misconduct “deprived” a U.S. company or individual of an economic opportunity. On its face, this would create a heightened risk of investigation of Chinese companies competing against U.S. companies for any type of state-funded or state-affiliated opportunity around the world.
Chinese companies, as well as other non-U.S. companies may, therefore, need to consider heightened compliance standards to reduce the risk of FCPA scrutiny from the DOJ. This could include, for instance, conducting renewed risk assessments and maintaining particularly clear and accurate records of its actions. Chinese multinational companies and state-owned enterprises (“SOEs”) with global economic interests, assets, and/or operations abroad, particularly in the U.S., can be subject to the long-arm jurisdiction of United States, which would include the FCPA. For example:
- Companies with U.S. operations, investments, shareholders, employees, or business partners;
- Entities active in key focus areas or sectors flagged as priorities in the Guidelines (such as critical infrastructure); and
- Corporations engaging in business potentially perceived as harmful to the competitiveness and/or best interests of U.S. entities.
These companies should be acutely aware of the Guidelines and customize their programs accordingly.
2. “Advancing U.S. national security.” The Guidelines specify that any alleged misconduct implicating critical U.S. national security interests will be considered an FCPA priority. Here, the DOJ identifies misconduct in sectors that involve “key infrastructure or assets” as focal points. The DOJ also specifically mentions U.S. national security, depending on U.S. strategic business advantages in “critical minerals, water ports, or other key infrastructure or assets,” implying heightened scrutiny for companies in the mining, shipping, and construction industries.
In China, the concept of critical infrastructure is broad, encompassing important industry sectors such as energy, transportation, water conservancy, finance, public services, and defense technology. These sectors in China are typically dominated by SOEs at all levels (or large private companies). The DOJ’s language in the Guidelines with respect to “critical U.S. national security interests” signals that such Chinese companies, especially SOEs and large private companies in key industry sectors, could face heightened risks of FCPA enforcement, and would therefore benefit from stronger FCPA compliance policies, monitoring, controls, and training customized to meet the priorities of the Guidelines.
Moreover, while the DOJ defines national security interests as “deep-sea ports, critical minerals, and key infrastructure or assets,” China’s view of national security is a bit more expansive. Given the fluctuating nature of how the governments of the U.S. and China view industries potentially implicating national security interests, companies operating in those areas may expect Chinese laws protecting data and national security to figure more prominently in FCPA investigations. This may, in turn, create more complex cross-border headaches for companies seeking to comply with obligations under both U.S and Chinese law. As such, Chinese companies, as well as other non-U.S. companies in these industries, would be wise to examine their current compliance programs and, as necessary, integrate more vigorous protocols tailored to the Guidelines to help mitigate FCPA enforcement risk.
Conclusion: Notably, the factors set forth in the Guidelines are expressly “non-exhaustive,” creating further margin for discretion beyond the enumerated factors. Also, it is likely that the DOJ’s listed “national security interest” sectors will evolve and expand based on the current business and political environment. The Guidelines create a new business environment for Chinese companies and non-U.S. entities that will require careful, strategic planning, as well as a fulsome understanding of the business and legal systems of both countries to navigate developing FCPA priorities.
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