On June 9, the U.S. Department of Justice (DOJ) issued the much-anticipated Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (the “FCPA Guidelines” or “Guidelines”) in response to President Trump’s February 10, 2025 Executive Order Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.
In the wake of the Executive Order, as well as a DOJ memorandum announcing that prosecutors would prioritize FCPA cases involving cartels and transnational criminal organizations (TCOs), there was much speculation regarding the extent to which FCPA enforcement would be narrowed during the Trump Administration.
Overall, the Guidelines make clear that FCPA enforcement will continue during this Administration, but enforcement will be focused on core areas of concern for the Administration and, in particular, issues that involve the vindication of U.S. interests. Specifically, the Guidelines set out four non-exhaustive areas of focus for FCPA investigations or enforcement actions where bribery negatively impacts U.S. interests.
These areas of focus include cases involving:
- Cartels and TCOs, even if indirectly or tangentially
- Bribes paid in connection with a bid involving a U.S. company (regardless of whether the bribe-paying company is American or foreign)
- U.S. national security interests, including corruption in sectors such as defense, intelligence and critical infrastructure
- Alleged misconduct that bears strong indicia of corrupt intent, rather than conduct that involves routine business practices or low-dollar, generally accepted business courtesies
More broadly, the Guidelines instruct DOJ prosecutors to focus on cases “in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures.” DOJ also will “proceed as expeditiously as possible in their investigations” and “consider collateral consequences, such as the potential disruption to lawful business and the impact on a company’s employees, throughout an investigation, not only at the resolution phase.”
Overall, the Guidelines make clear that FCPA enforcement will continue during this Administration, but enforcement will be focused on core areas of concern for the Administration and, in particular, issues that involve the vindication of U.S. interests.
The Guidelines’ 4 factors
As an initial matter, DOJ made clear that the four factors enunciated in the FCPA Guidelines are “non-exhaustive,” and therefore DOJ may investigate and enforce cases involving other types of conduct as well. In addition, the Guidelines acknowledge that prosecutors “may not have as much insight into all of the facts of a case at the beginning of a matter as when making charging decisions,” and should “account for new information learned during the course of an investigation in applying [the four] factors.” With that said, the clear message is that the primary focus of FCPA enforcement will be cases implicating the four enumerated factors.
The first factor specified in the Guidelines involve cases related to cartels and TCOs, consistent with the Administration’s broader prioritization of the elimination of such activity. Although previously it was not clear whether FCPA enforcement would focus only on bribes paid to or by cartels and TCOs, the Guidelines clarified that DOJ would adopt a broad view of what conduct may be connected to cartels and TCOs. In particular, the Guidelines direct prosecutors to consider not only whether the alleged misconduct “is associated with the criminal operations of a Cartel or TCO,” but also whether the alleged misconduct “utilizes money launderers or shell companies that engage in money laundering for Cartels or TCOs” or “is linked to employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs.”
The second factor detailed in the Guidelines is the safeguarding of opportunities for U.S. companies to compete abroad. The Guidelines emphasize that “companies that bribe foreign officials to obtain business can put their law-abiding competitors, including U.S. companies, at a serious economic disadvantage,” as well as “skew markets and disadvantage law-abiding U.S. companies and others for many years.” The Guidelines thus direct prosecutors to consider “whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals.” Moreover, for investigations which concern the “demand side” of bribery under the Foreign Extortion Prevention Act, prosecutors are similarly directed to consider whether U.S. entities “have been harmed by foreign officials’ demands for bribes.”
The Guidelines explicitly note that FCPA enforcement will not focus “on particular individuals or companies on the basis of their nationality,” addressing speculation that the FCPA would be used to target foreign companies and not U.S. companies. This is a broader approach that potentially wraps in U.S. companies, but also helps avoid the question of whether focusing only on foreign companies would be inconsistent with the O.E.C.D. Convention Against Bribery.
The third factor listed in the Guidelines is the advancement of U.S. national security interests. The Guidelines state that when “corruption occurs in sectors like defense, intelligence, or critical infrastructure, American national security interests may be harmed,” and therefore that FCPA enforcement will “focus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.” Although the Guidelines specifically refer to the defense, intelligence, and critical infrastructure sectors, this is a non-exhaustive list so other types of cases may also be deemed by DOJ to implicate national security interests.
The fourth factor in the Guidelines is the prioritization of investigations that concern serious misconduct. The Guidelines provide that FCPA enforcement should be focused “on alleged misconduct that bears strong indicia of corrupt intent tied to particular individuals, such as substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice.” FCPA enforcement should not, by contrast, “focus on alleged misconduct involving routine business practices or the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies.”
In addition, in determining whether the conduct rises to the level that warrants investigation by DOJ, the Guidelines direct prosecutors to “consider the likelihood (or lack thereof) that an appropriate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct.” DOJ recently attended the OECD Working Group on Bribery, which is a key forum for cooperation between DOJ and foreign authorities.
With that said, the clear message is that the primary focus of FCPA enforcement will be cases implicating the four enumerated factors.
Additional points of interest
In addition to the four factors, there are some additional points of interest announced in the FCPA Guidelines, some of which may signal a broader approach by DOJ in corporate investigations.
First, in order to initiate new FCPA investigations and enforcement actions, the Guidelines require authorization “by the Assistant Attorney General for the Criminal Division (or the official acting in that capacity) or a more senior Department official.” This is most likely to ensure that only cases aligning with the Guidelines are investigated.
Second, although prosecutors are directed by long-standing DOJ policy to consider “collateral consequences” when determining the appropriate resolution of a corporate criminal case at the end of an investigation, the FCPA Guidelines instruct prosecutors to also “consider collateral consequences, such as the potential disruption to lawful business and the impact on a company’s employees, throughout an investigation.”
Third, the Guidelines direct prosecutors to “focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures.”
Key takeaways for companies
Perhaps the most noteworthy takeaway for companies is that FCPA enforcement remains one of DOJ’s white-collar enforcement priorities, and the Guidelines offer prosecutors a reasonable amount of discretion to investigate and resolve FCPA cases. Indeed, the Guidelines acknowledge it may not be until the investigation is well under way that prosecutors will be able to determine whether a case fits within the framework of the Guidelines. As a result, companies would be well-advised to continue emphasizing a strong anti-corruption compliance program.
This, of course, would be sound advice even absent the new Guidelines given that anti-corruption compliance also overlaps with companies’ efforts to prevent other types of misconduct that are priorities of this Administration (e.g., sanctions, national security, and tariff and customs fraud), the fact that the statute of limitations for an FCPA violation is longer than the Guidelines may be in effect, and that other authorities (including foreign authorities and U.S. state authorities) have expressed their commitment to enforcing foreign bribery laws.
Notably, although the Guidelines also do not offer a clear pathway for companies to adjust their compliance programs to areas of focus for DOJ – and for the reasons stated above attempting to do so would not be advisable – they are relevant factors in making a decision whether to voluntarily self-disclose corrupt conduct. There are a number of factors companies should consider in making such a decision, and there are many downside risks to voluntarily self-disclosing. However, one overarching factor is whether DOJ would view the conduct as warranting an enforcement action if it were to learn of the misconduct absent the disclosure.
The Guidelines offer some insight into this determination. In combination with DOJ’s recently-announced revisions to its corporate voluntary disclosure program (the Corporate Enforcement Policy), the Guidelines should be an important consideration when undergoing a voluntary disclosure calculation.
The Guidelines also offer companies that do find themselves under scrutiny from DOJ or the SEC for FCPA violations additional opportunities for advocacy. Companies and defense counsel should consider how the evidence fits within the framework of the Guidelines’ factors, whether the misconduct can be clearly attributable to individual employees, whether foreign authorities are capable and better positioned to investigate the case, and the effects that the investigation has on the company’s business, resources, and employees, particularly if those collateral consequences are disproportionate to the conduct being investigated. These points can support an argument that a case should not be the basis for an enforcement action, or even investigated, but they may also be a way in which the company can limit the scope, duration and costs of an investigation.
Another takeaway is that companies operating in regions with cartel and TCO activity would be well advised to increase anti-corruption scrutiny. The fact that DOJ will be looking for cartel and TCO connections, even if indirect, means that companies’ use of a third party that is also being used by cartels or TCOs, or dealings with a foreign official who is being bribed by cartels or TCOs, could increase the likelihood of an FCPA enforcement action, potentially even if the company was not aware of these connections. Companies operating in sectors that implicate U.S. national security interests should likewise calibrate for the increased risk of an FCPA investigation or enforcement action if corruption were to occur.
Finally, although the Guidelines are specific to DOJ and not the SEC (which is responsible for civil enforcement of the FCPA against U.S. issuers), given this Administration’s view that independent agencies like the SEC must follow Administration policies and priorities, and given recent statements by SEC officials that they will follow DOJ’s lead on FCPA enforcement, it is likely that the SEC will adopt a very similar approach to FCPA enforcement. It remains to be seen, however, if the SEC will investigate and/or pursue some cases it believes warrant a civil remedy even if not a criminal one. Given the Guidelines’ emphasis on “serious misconduct” involving “strong indicia of corrupt intent,” as well as the directive to focus on cases where the misconduct can be attributable to specific individuals, it may be that there will be less SEC enforcement actions based on civil violations of the FCPA accounting provisions, which do not require a finding of intent or materiality.
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