DOJ Resumes FCPA Enforcement Under New Guidelines Prioritizing the Protection of American Interests

DOJ Issues New Guidelines for FCPA Investigations and Enforcement

On June 9, 2025, Deputy Attorney General Todd Blanche issued a Memorandum titled "Guidelines for Investigations and Enforcement of the FCPA." The Guidelines build on the Executive Order (discussed in our previous Commentary), which paused FCPA enforcement for up to 180 days and instructed the DOJ to issue revised policies designed to promote American interests. They also provide more detailed criteria for implementing the February 5, 2025, Memorandum from Attorney General Pam Bondi titled, "Total Elimination of Cartels and Transnational Criminal Organizations," which directed FCPA prosecutors to prioritize bribery cases involving human smuggling and narcotics and firearms trafficking by TCOs and cartels. 

The Guidelines are intended to limit undue burdens on American companies that operate abroad and prioritize enforcement actions against substantial misconduct that directly undermines U.S. economic and national security interests. An overarching goal of the Guidelines is to vindicate the interests of law-abiding U.S. companies against competitors that obtain an unfair business advantage by bribing foreign officials.

In furtherance of these objectives, the Guidelines require prosecutors to consider the following non-exhaustive factors when deciding whether to bring an FCPA investigation or enforcement action.

• Matters Involving Cartels and TCOs: A "primary" consideration is whether the alleged misconduct: (i) is associated with the criminal operations of a cartel or TCO; (ii) utilizes money launderers or shell companies that engage in money laundering for cartels or TCOs; or (iii) is linked to employees of state-owned entities or other foreign officials who have received bribes from cartels or TCOs. This enforcement priority is consistent with the Executive Order and the Attorney General's February 5, 2025, Memorandum, and indicates that the DOJ may focus attention on particular regions, including Latin America and South America. However, this marks a notable departure from previous enforcement practices, as historically, FCPA cases involving cartels and TCOs have been rare.
• Matters that Safeguard Opportunities for U.S. Companies: Another important factor is whether the alleged FCPA misconduct deprived specific and identifiable U.S. entities access to fair competition and/or resulted in economic injury. DOJ prosecutors are to consider this same issue with respect to investigations and prosecutions of potential violations of the Foreign Extortion Prevention Act ("FEPA"), which criminalizes the demand side of bribery. During a speech on June 10, 2025, the Head of the DOJ's Criminal Division, Matthew Galeotti, noted that "[i]t is not about the nationality of the subject or where the company is headquartered. In plain terms, conduct that genuinely impacts the United States or the American people is subject to potential prosecution by U.S. law enforcement." 

While the DOJ has thus emphasized that this enforcement shift is not intended to place an increased focus on particular individuals or companies on the basis of their nationality, the emphasis on U.S. companies' access to fair competition is an obvious indication that bribery of foreign government officials by non-U.S. companies will draw particular scrutiny from the DOJ, at least to the extent that the bribe payments put any U.S. companies at a competitive disadvantage. Indeed, the Guidelines make a point of noting that "[t]he most blatant bribery schemes have historically been committed by foreign companies, as reflected by the fact that the most significant FCPA enforcement actions—measured both by the scope of misconduct and the size of the monetary penalties imposed—have been overwhelmingly brought against foreign companies."

• Matters that Advance U.S. National Security: Another key consideration is whether the alleged misconduct presents an urgent threat to U.S. national security, which could result from the bribery of corrupt foreign officials involving key infrastructure or assets (e.g., minerals, deep water ports) that are critical to the U.S. defense and intelligence industries. 
• Significant Corruption: FCPA enforcement will also focus on misconduct that signals corrupt intent tied to particular individuals—such as substantial bribe payments, proven and sophisticated efforts to conceal such payments (such as money laundering), fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice—rather than routine business practices or low-dollar, generally accepted business courtesies (e.g., travel and entertainment) or facilitation payments. 

These non-exhaustive factors are not determinative on their own, and the Guidelines state that a wide range of considerations may be evaluated in particular circumstances. Indeed, the Guidelines note that prosecutors may need to begin investigations without knowing whether these non-exhaustive factors apply, as uncovering the relevant facts often requires further inquiry. Overall, these factors indicate that future FCPA enforcement efforts will focus on significant bribery schemes that pose risks to U.S. national interests or involve cartels and TCOs, and that the DOJ retains substantial discretion in determining whether to initiate FCPA investigations and enforcement actions.

The Guidelines also include notable procedural changes to FCPA enforcement. Moving forward, prosecutors must:

• Obtain Senior Authorization to Initiate a New FCPA Investigation: Prior to initiating any new FCPA investigation or enforcement action, prosecutors must receive authorization from the Assistant Attorney General for the Criminal Division or a more senior DOJ official—all of whom are political appointees. Previously, new FCPA cases could be initiated by career DOJ prosecutors.
• Consider the Impact of the Investigation on the Company: Prosecutors must consider the disruption to lawful business and the impact on a company's business operations throughout an FCPA investigation. Thus, prosecutors must proceed with their investigation as expeditiously as possible and consider the "collateral consequences" throughout an investigation and not just at the resolution phase.
• Consider Deferring to Another Enforcement Authority: The Guidelines also emphasize that prosecutors should prioritize cases that warrant investigation by the DOJ (e.g., where U.S. interests are implicated) and consider whether to defer to appropriate regulators or foreign enforcement authorities that are willing and able to address the alleged misconduct. Notably, in his June 10 remarks, Galeotti made clear that "the Criminal Division won't hesitate to work with our foreign counterparts or domestic regulators to provide assistance and ensure that those countries and regulators can vindicate their interests and pursue their mandates." The Guidelines, however, do not specify whether the DOJ intends to continue its longstanding practice of conducting parallel investigations in coordination with the Securities and Exchange Commission ("SEC") and foreign regulators.
• Focus on Individual Accountability: Under the Guidelines, FCPA enforcement will also focus on individuals, particularly those who have engaged in substantial misconduct, while the prosecution of corporations based solely on "nonspecific malfeasance" is discouraged. During his remarks, Galeotti explained that this factor marks a shift in focus towards the "specific misconduct of individuals, rather than collective knowledge theories [of corporate liability]." 

The Guidelines note that, in determining whether to investigate or prosecute an FCPA matter, DOJ prosecutors must still follow other applicable policies, including the Department's Principles of Federal Prosecution of Business Organizations, which require prosecutors to consider, among other factors, the nature and seriousness of the offenses and the deterrent effect of prosecution. In addition, the Guidelines provide that the DOJ retains prosecutorial discretion to continue or terminate any previously ongoing enforcement actions based on the totality of the circumstances. During the FCPA enforcement pause following the Executive Order, the DOJ reportedly closed nearly half of its then-pending FCPA investigations. The Guidelines and other relevant Department policies will govern current and future FCPA investigations enforcement actions.

Observations

The shift in FCPA enforcement priorities and practices signaled by the Guidelines provide an opportunity for companies to re-evaluate relevant aspects of their corporate compliance programs, including risk assessments, third-party management, and internal investigations. In this regard, key takeaways from the Guidelines include the following:

• "U.S. Interest" Considerations Will Drive DOJ FCPA Enforcement: The Guidelines indicate that foreign bribery that undermines U.S. interests will result in elevated DOJ enforcement risk, whereas alleged misconduct that involves routine business practices or has a minimal impact on U.S. interests will likely not be investigated by the DOJ. It is conceivable that, like non-U.S. companies, U.S.-headquartered companies could undermine U.S. interests through the conduct of foreign subsidiaries or otherwise, and the Guidelines explicitly heighten the FCPA enforcement risk for non-U.S. companies that undermine U.S. interests through foreign bribery.
• FCPA Enforcement Will Center on Schemes Involving Substantial Bribe Payments and Strong Indicia of Corrupt Intent by Individuals: The Guidelines effectively direct DOJ prosecutors to distinguish between FCPA matters of seriousness sufficient to warrant investigation and prosecution, on the one hand, and those that lack sufficient seriousness, as measured by, among other things, the amount of the payment(s) at issue ("de minimis or low-dollar") or the nature of the interaction with the foreign official(s) involved ("routine business practices'). While the Guidelines also expressly recognize the "affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country," they do not provide additional clarity to assist in the often judgmental determination of whether a particular transaction is appropriately deemed bona fide, routine, or low-dollar, under the circumstances. The DOJ's express disavowal of collective knowledge theories of corporate liability should generally mitigate the risk of over-aggressive enforcement efforts directed at corporate entities, though companies should remain mindful of the operation of respondeat superior liability and the extent to which, under that doctrine, the conduct and mental state of individual employees and agents can readily be imputed to their employers and principals.
• FCPA Enforcement Priorities Could Still Change: Companies and personnel should be aware that additional adjustments in FCPA enforcement priorities may occur within this and future administrations and that the five-year statute of limitations for FCPA charges remains in place. Moreover, the Guidelines do not directly impact the anti-corruption enforcement priorities of the SEC, which is charged with civil enforcement of the FCPA's provisions against issuers, including the books-and-records and internal controls provisions. Indeed, to date, the SEC has not announced any changes to its FCPA enforcement priorities. 
• The Continuing Prospect of Inter-Country Cooperation and the Attendant Enforcement Risks: The Guidelines also do not impact the anti-corruption enforcement priorities of foreign enforcement authorities, several of which have reaffirmed their commitment to aggressive anti-bribery enforcement. For many years, U.S. enforcement officials with the DOJ and other agencies have worked closely with domestic and foreign counterparts in investigating and prosecuting international bribery. The Guidelines signal that the DOJ intends to at least continue cooperating with these jurisdictions. In particular cases, companies and their personnel should be aware that they may still face enforcement risk in non-U.S. jurisdictions, even as the risk of DOJ FCPA enforcement may diminish. Indeed, the United Kingdom's Serious Fraud Office, France's Parquet National Financier, and Switzerland's Office of the Attorney General of Switzerland recently announced the creation of a new task force to enhance their anti-corruption cooperation and coordination (discussed in our previous Commentary). In addition, U.S. companies would be well advised to consider the potential impact of inter-country geopolitical conflict on international enforcement risk—for example, FCPA or FEPA enforcement directed at companies or foreign officials based in jurisdictions with which the U.S. government is in political conflict could elevate the risk that authorities in those jurisdictions would launch investigations and enforcement actions against U.S. companies and their employees, in response.