FCPA Guidelines Released

Deputy Attorney General Todd Blanche has issued new enforcement guidelines governing the Foreign Corrupt Practices Act (FCPA), consistent with the President's mandate to give US firms more latitude to compete overseas.  The new rules restore what the Administration has called the “proper bounds” of FCPA enforcement and reorient prosecutorial discretion toward conduct that demonstrably undermines American strategic and economic interests.

The memorandum outlines a revised framework for initiating and pursuing FCPA cases, with a sharper focus on protecting U.S. national interests and curbing investigations perceived as unduly burdensome to American companies operating overseas.

The guidelines follow a 180-day pause on new FCPA investigations mandated by the Executive Order titled “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.” The new framework is intended to restore what the Administration has called the “proper bounds” of FCPA enforcement and reorient prosecutorial discretion toward conduct that demonstrably undermines American strategic and economic interests.

Key Enforcement Priorities

The memorandum directs prosecutors to consider four core factors when deciding whether to pursue FCPA investigations:

1.  Connections to Cartels and Transnational Criminal Organizations (TCOs):  Prosecutors are instructed to prioritize bribery cases that facilitate the criminal operations of cartels and TCOs, particularly where foreign officials or intermediaries are tied to such entities. The guidance reflects Attorney General Pamela Bondi’s prior directive to treat cartel-related bribery as a national security threat.
2.  Harm to U.S. Companies:
   The guidelines emphasize enforcement actions where bribery has demonstrably disadvantaged identifiable U.S. firms or individuals in international markets. The goal, according to the memo, is to ensure fair access to foreign contracts and safeguard the competitiveness of American businesses.
3. National Security Implications:
   Special priority will be given to cases involving bribery connected to key infrastructure sectors—such as critical minerals, defense, and strategic ports—where foreign corruption could compromise U.S. national security or empower adversarial regimes.
4. Serious and Deliberate Misconduct:
   Routine business practices, facilitation payments, or minor customary courtesies will generally fall outside the scope of enforcement. Prosecutors are directed to focus on substantial bribe schemes, efforts to conceal payments, fraud in furtherance of corruption, and obstruction of justice.

Structural and Procedural Changes

Under the new policy:

• All new FCPA investigations must be approved by the Assistant Attorney General for the Criminal Division or a higher official.
• The Department will consider the impact on lawful business operations and corporate employees not only at the resolution phase but throughout the investigative process.
•  Corporate liability must be grounded in specific individual misconduct; collective knowledge theories are disfavored.
• Where appropriate, deference will be given to capable foreign authorities with jurisdiction to prosecute the same conduct.

Looking forward

The DOJ is conducting a comprehensive review of all existing FCPA investigations and enforcement actions initiated before the Executive Order. Those that do not meet the revised criteria may be closed or referred to foreign or civil enforcement counterparts.

These updated enforcement principles reflect a broader recalibration of anti-corruption enforcement under the Trump Administration, which has expressed concern that prior FCPA actions penalized American firms for conduct tolerated or incentivized abroad, with minimal nexus to U.S. interests. 

Legal Community Relieved

The initial reaction from the Foreign Corruption Bar is receptive, with Akin Gump taking the client alert headline award with "DOJ Hits Play."  

While the Akin note aknowledges the potentially looser enforcement eforcement prospects, authors Gerald Moody and team point out that the "25 prosecutors will be dedicated to FCPA enforcement—presumably those within the DOJ’s FCPA Unit—down from roughly 40 prosecutors assigned to the FCPA Unit just a year ago. While this represents a notable reduction, the current number of prosecutors remains above historical levels and reflects DOJ’s continued commitment to allocating substantial resources to FCPA enforcement."

"While the statute remains in effect, companies operating abroad should expect a more targeted approach to enforcement," notes Sandra Moser and her team at Morgan Lewis in Washington.   

"The guidelines point to enforcement that focuses on far more substantial and sophisticated conduct," she writes, referring to 'facilitation and expediting payments.'

"Notwithstanding this portion of the guidelines, companies must understand that the United States is one of only a handful of countries in the world with such an exception and so the payments described as being excepted from the FCPA in the guidelines may still constitute an offense in another jurisdiction, and compliance measures remain ever important.

DAG Memo June 9, 2025: [Link] 

Executive Order 14209 – Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security [Link]

Revised Criminal Division Corporate Enforcement and Voluntary Self-Disclosure Policy

Criminal Division White-Collar Enforcement Plan Plan [May 12, 2025]