DOJ’s new FCPA guidelines: The next chapter in US foreign corruption enforcement

The Department of Justice (DOJ) has released long-awaited guidance (FCPA Guidelines) regarding its approach to enforcement of the Foreign Corrupt Practices Act (FCPA) following the Executive Order (EO) pausing FCPA enforcement.

The FCPA Guidelines, published on June 9, 2025 , emphasize a prosecutorial focus on protecting US interests, significant criminal conduct rather than routine business practices, and consideration of the impact on companies and individuals targeted by an enforcement action. It also provides a non-exhaustive list of factors to evaluate when determining whether to proceed with an investigation or enforcement action.

These new guidelines closely mirror the policy concerns animating the EO pausing FCPA enforcement, including protecting American economic interests and national security, and Attorney General Pam Bondi’s Memorandum (Bondi Memo) prioritizing enforcement against cartels and transnational criminal organizations (TCOs), as covered in our prior alert. The continued focus on key administration priorities suggests FCPA enforcement will occur in tandem with enforcement of other statutes targeting particular industries and entities that are potentially connected to the material support of terrorism. Please see our prior alerts on these topics here and here.

These guidelines have been applied to the DOJ’s existing FCPA cases, resulting in closure of a substantial number of ongoing investigations and enforcement actions. Additionally, all new investigations and enforcement actions must be approved by the Assistant Attorney General for the Criminal Division, suggesting greater control exercised above the level of the line prosecutor.

The new guidance reflects the changing enforcement priorities of the current Administration, but it also suggests that FCPA will be a continuing tool that DOJ (and likely the US Securities and Exchange Commission (SEC) as well) will use to achieve policy enforcement goals in conjunction with other enforcement statutes, albeit with a more favorable posture towards US companies navigating the complexities of operating abroad in good faith. Companies – in particular industries deemed critical to US policy interests and non-US companies competing with US companies – should be aware of a renewed risk of enforcement.

Background

President Donald Trump’s February 10, 2025 EO paused FCPA enforcement by DOJ for 180 days until it developed and published new guidelines for enforcement of the FCPA. SEC took similar actions, although they were not officially announced. The EO argued that the historical use of the FCPA harmed US national security and economic interests. After the 180-day pause, DOJ would evaluate past FCPA cases and propose remedial measures for any “inappropriate investigations.” The EO followed the Attorney General’s February 5, 2025 memorandum directing the Department to “prioritize [FCPA] investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs.”

In the interim, both DOJ and SEC have taken targeted actions to terminate certain ongoing investigations and prosecutions of individuals, and to modify select existing resolutions. Furthermore, there have been substantial personnel changes in both DOJ’s Fraud Section, which oversees all FCPA prosecutions, and SEC’s FCPA unit, with retirements and reassignments of long-standing career enforcement personnel substantially reducing the staff and prosecutors assigned to investigate and prosecute FCPA cases.

The new guidance

The FCPA Guidelines mirror the principles outlined in the Department’s White Collar Enforcement Plan and Corporate Enforcement Policy, announced on May 12, 2025, and which directed prosecutors to:

• Limit the “undue burden on American companies operating abroad”


• Target “enforcement actions against conduct that directly undermines US national interests”


• Focus on cases involving criminal conduct by individuals


• Proceed expeditiously, and


• Consider collateral impacts throughout the investigation and resolution process.

The FCPA Guidelines also outline four non-exhaustive factors for determining when DOJ will “pursue FCPA investigations and enforcement actions,” although the guidance notes that facts may not be known at the beginning of a matter and prosecutors must apply facts learned during the course of the investigation to the analysis.

The four non-exhaustive factors are:

A. Total elimination of Cartels and TCOs

The Administration’s focus on Cartels, TCOs and foreign terrorist organizations (FTOs) is reflected in its FCPA enforcement priorities. For purposes of FCPA enforcement, prosecutors will examine whether the misconduct:

1. “is associated with the criminal operations of a Cartel or TCO;


2. utilizes money launderers or shell companies that engage in money laundering for Cartels or TCOs; or


3. is linked to employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs.”

Notably, this guidance does not change other enforcement directives targeting Cartels, TCOs, and FTOs. Companies operating in regions where Cartels and TCOs are present must be aware of a heightened risk of enforcement.

DOJ appears to be broadening its enforcement tools and will be utilizing information from other enforcement agencies, including potentially the Drug Enforcement Agency, to identify geographic areas or specific entities to receive additional scrutiny. Using the techniques for narcotics investigations to examine corruption and money laundering is not a novel idea, but given the Administration’s focus, investigations may much more rapidly access intelligence and evidence originally gathered in drug investigations. Consequently, companies should carefully examine their conduct and use of third parties in particular regions to examine their potential risk exposure.

Furthermore, we can expect FCPA to be used in connection with statutes that criminalize “providing material support to terrorism” (eg, 18 U.S.C § 2339B). These statutes have similarly broad extraterritorial jurisdiction and both can be interpreted to have application to an expansive range of conduct. For example, “material support” under 18 U.S.C § 2339B is itself a broad concept and can be triggered by providing “any property, tangible or intangible, or service” to a designated foreign terrorist organization.

B. Safeguarding fair opportunities for US companies

This Administration has placed significant emphasis on aligning its enforcement policy to US economic interests, and the FCPA EO highlighted its belief that overzealous FCPA enforcement against US companies and citizens “actively harms American economic competitiveness.” Reflecting those policy directions, the FCPA Guidelines describe how bribery distorts markets and undermines the rule of law, harming US businesses, who are forced to compete with parties that engage in corrupt conduct. While also acknowledging that the vast majority of past FCPA enforcement actions have involved non-US companies, the FCPA Guidelines strongly imply that non-US companies will continue to be a particular focus of FCPA enforcement going forward. However, in an attempt to not breach international treaty obligations, the FPCA Guidelines state that targets will not be driven by nationality, but instead based on those that undermine the rule of law and competitive markets. The Head of DOJ’s Criminal Division Matthew Galeotti stressed that “the through-line is that these Guidelines require the vindication of U.S. interests […] It is not about the nationality of the subject or where the company is headquartered.” Rather, DOJ’s enforcement focus will be on conduct that “genuinely impacts the United States or the American people.” In those cases where the conduct at issue does not implicate US interests, the Criminal Division “won’t hesitate” to work with its foreign counterparts or domestic regulators “to provide assistance and ensure that those countries and regulators can vindicate their interests and pursue their mandates.”

The FCPA Guidelines also make reference to the Foreign Extortion Prevention Act (FEPA), which targets foreign government officials who solicit or accept bribe payments. FEPA will remain a priority, and the FCPA Guidelines direct prosecutors to “consider whether specific and identifiable US entities or individuals have been harmed by foreign officials' demands for bribes.” There have been no publicly reported enforcement actions under FEPA, and there may be significant legal and political barriers to pursuing such cases.

The combination suggests that DOJ will be looking to get information from and protect US companies who are losing business to US and non-US companies. In particular, they will be seeking information from US companies about their competitors who are paying bribes to foreign officials. Given the overall posture, it is possible that US companies could benefit from disclosing information about their competitors and foreign officials demanding bribes, even if the US company has historically violated the FCPA’s provisions. While not quite rising to the amnesty provisions for the DOJ Antitrust division, the new provisions strongly suggest that DOJ will provide significant benefits to those informing of misconduct by their competitors.

C. Advancing US national security

The FCPA Guidelines quote the FCPA EO’s declaration that “American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets” (emphasis added). The FCPA Guidelines then point to the December 2017 National Security Strategy: “[t]errorists and criminals thrive where governments are weak, corruption is rampant, and faith in government institutions is low. Strategic competitors often exploit rather than discourage corruption and state weakness to extract resources and exploit their populations.”

In addition, the FCPA Guidelines make explicit the industries and sectors of investigatory focus: “When this corruption occurs in sectors like defense, intelligence, or critical infrastructure, American national security interests may be harmed. FCPA enforcement will therefore focus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.”

Given these references, companies in areas that this Administration has emphasized are of critical national security interest should pay particular attention, including those directly involved in defense/aerospace, artificial intelligence and advanced technology, and critical infrastructure. Companies adjacent to those, including minerals and mining, chip technology, and construction should also be aware of heightened exposure to investigations in these industries.

D. Prioritizing investigations of serious misconduct

Addressing the FCPA EO’s admonishment against penalizing routine global business practices, the FCPA Guidelines emphasize that the FCPA contains a statutory exception for facilitation payments and an affirmative defense for “reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country.” According to the guidance, FCPA enforcement will focus on “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.” This suggests a more expansive application of the facilitation payment exception to include conduct that previously would have been considered criminal.

Under these new FCPA Guidelines, we would expect DOJ to decline cases based only on hospitality, low value payments for permits or licenses that are incidental to a project, and other facilitation payments, when no other aggravating factors are present. While this has been an informal enforcement policy historically, this new formal guidance will equip companies with stronger policy arguments to shut down investigations of more marginal cases that may be only technical violations or are consistent with widespread local practice.

The FCPA Guidelines also directs prosecutors to consider whether foreign law enforcement “is willing and able” to pursue the conduct. International anti-corruption enforcement has changed significantly in the past decade, leading to greater international cooperation and non-US enforcement. At the urging of the US government, many other countries have adopted new anti-corruption laws and expanded anti-corruption enforcement resources, all leading to large multi-jurisdiction resolutions involving significant penalties.

In response to the original pause, other governments and even individual states have suggested they would increase their own enforcement focus on corruption. Particularly when the misconduct is lower in value or narrower in scope and where US interests are not obvious, we are likely to see greater deference to foreign law enforcement to bring their own independent cases. Whether foreign law enforcement actually is able to pursue those investigations absent US involvement still remains to be seen.

The FCPA Guidelines repeatedly reinforce that these policies are not exhaustive, and that a “myriad [of] factors must be considered when determining whether to investigate or prosecute,” pointing to the Principles of Federal Prosecution as an example of those factors. Nonetheless, we anticipate that the four substantive factors will play the primary role in filtering which cases are pursued and whether companies enter into resolutions or individuals are ultimately charged.

FCPA compliance programs

The FCPA Guidelines make no reference to corporate compliance programs, but DOJ has repeatedly emphasized the benefits of a strong compliance program designed to effectively prevent and promptly identify misconduct, including a recent change in the new Corporate Enforcement Policy, under which prompt remediation is a key criteria. Compliance programs remain an important feature of every company’s risk management framework, and robust compliance programs bring independent value to organizations that go beyond the enforcement benefits.

What should companies do now?

The June 9, 2025 DOJ FCPA Guidelines signal a more focused, risk-based approach to anti-corruption enforcement, with clear alignment to the Trump Administration’s priorities of protecting US national security interests, American competitiveness, and promoting fairness and efficiency. Companies may consider recalibrating their risk assessments, enhancing compliance programs to address high-impact risks, and ensuring internal investigations are robust and focused on individual accountability. Specifically, companies may consider:

• Reassessing their risk profiles to focus on exposure in areas now prioritized by DOJ – namely, transactions involving high-value contracts, dealings with state-owned entities, or business in regions with significant Cartel or TCO activity, particularly when these companies operate in sectors advancing US national security, such as defense, intelligence, or critical infrastructure. Companies should consider shifting resources away from the expansive audits and reviews of gifts, travel, and hospitality, and evaluate more carefully the relationships with high-risk third parties. Companies can expect the FCPA to be applied in conjunction with national security and terrorism-related statutes that have broad extraterritorial reach, as Cartels and other criminal organizations are designated as terrorist organizations and the line between alleged corrupt conduct and “terrorism” is narrowed. Risk assessments should specifically identify and address any touchpoints with foreign officials or entities that could be linked to criminal organizations, Cartels, and designated terrorist organizations, or that could impact US national security or economic interests.


• Implementing a more targeted and dynamic compliance program. The FCPA Guidelines underscore the importance of robust, risk-based compliance programs that can detect and prevent high-impact misconduct. Companies may consider ensuring that their compliance programs are tailored to address the specific risks highlighted by DOJ – including sophisticated bribery schemes, money laundering, and concealment efforts – and that they are dynamic, with regular updates to reflect evolving enforcement priorities and emerging risks in global operations.


• Reemphasizing focus on individual accountability and serious misconduct when conducting internal investigations. DOJ’s guidance emphasizes individual accountability and the need to attribute misconduct to specific actors rather than corporate structures. Internal investigations should be thorough in identifying culpable individuals, especially senior personnel, and in documenting efforts to remediate and prevent recurrence. Companies should be prepared to demonstrate to DOJ that they have taken swift, effective action in response to serious misconduct, including cooperation with authorities and implementation of remedial measures. Companies are encouraged to ensure that they are carefully reviewing their hotline complaints and ensuring that any allegations are quickly evaluated and effectively investigated.


• Documenting collateral consequences and business disruption. Prosecutors are now directed to consider the potential disruption to lawful business and the impact on employees throughout the investigation, not just at resolution. Companies may consider documenting and communicating the potential collateral consequences of enforcement actions, both internally and to DOJ, as part of their defense and mitigation strategies. Importantly, these arguments can be made throughout the investigation, so companies are encouraged to narrow the scope of any document requests to minimize business interruption and impact on the management of the business.


• Reengaging with DOJ and SEC in appropriate circumstances. With the release of the pause, companies should evaluate whether and how best to re-engage with DOJ and SEC on pending matters or historical cases. If they had paused their own self-reporting efforts, consider how the new guidelines may suggest an adjustment in the Administration’s approach to any active investigations or new reportable allegations, as well as practices for considering voluntary self-disclosure. As Galeotti stressed in his recent remarks: “This is the time for companies to self-report. It is the time to do the work, come in early, cooperate, and remediate.” And for those who do not, he further states that DOJ will “move swiftly and aggressively to bring cases against individuals and companies.” Some companies, especially companies who are closely aligned with US national and economic interests, may be in a position to receive a declination for their own historical misconduct if they inform on competitors and the foreign officials who demanded bribes from them.


• Keeping in mind that guidance is not binding. Like in all DOJ guidance memoranda, the first footnote provides that the guidance creates no enforceable rights for those investigated. FCPA enforcement as a practical matter largely remains on hold but now companies have some understanding of the priorities that will lead to enforcement. For all companies, however, the FCPA remains in effect with a minimum five-year statute of limitations.

For more information, please contact the authors.