The new, more restrictive enforcement guidelines recalibrate FCPA enforcement to more closely align with the enforcement objectives set out in the Executive Order. The stated overarching goals are to limit unnecessary burdens on American companies operating abroad and target conduct that “undermines U.S. national interests.” Contrary to prior speculation portending the demise of FCPA enforcement, the new guidelines establish that FCPA enforcement will continue under this Administration, albeit with a redirected focus.
Background and policy shift
In February 2025, President Trump’s Executive Order paused the initiation of new FCPA cases and directed the DOJ to review its enforcement approach to better align with the Trump administration’s foreign policy objectives and to reduce what the Order characterized as “overexpansive and unpredictable FCPA enforcement against American citizens and businesses.”
The DOJ's June 9, 2025 Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (the Guidelines) now set forth the operative framework for all future FCPA actions (and those currently under review), emphasizing a more targeted and strategic enforcement posture. The Guidelines advance the key enforcement objectives outlined in the Executive Order, directing DOJ prosecutors to focus on the following non-exhaustive factors when evaluating whether to pursue FCPA investigations and enforcement actions: (1) the total elimination of cartels and transnational criminal organizations (TCOs); (2) safeguarding fair opportunities and ensuring the competitiveness of U.S. companies; (3) advancing U.S. national security interests, by rooting out corruption in key strategic sectors, such as defense, intelligence, and critical infrastructure; and (4) prioritizing investigations of “serious misconduct.”
The Guidelines are consistent with the DOJ’s May 2025 “White Collar Enforcement Plan” which also aligned DOJ white collar criminal enforcement priorities with the Trump Administration’s foreign policy and highlighted its goal of protecting American businesses. Additional insights and context for the Guidelines were provided by Matthew Galeotti, Head of the DOJ’s Criminal Division, in remarks delivered on June 10 at the American Conference Institute’s Global Anti-Corruption, Ethics & Compliance Conference in New York.
Key FCPA enforcement policy changes
Primary factors for consideration in initiating an FCPA investigation or enforcement action
The Guidelines highlight the following non-exhaustive factors that DOJ prosecutors must now consider when evaluating whether to pursue FCPA investigations and enforcement actions.
Total elimination of cartels and TCOs
Bribery schemes involving cartels or transnational criminal organizations are now a top enforcement priority, consistent with the Executive Order and with Attorney General Bondi’s February 5, 2025 memorandum, Total Elimination of Cartels and Transnational Criminal Organizations. The DOJ will focus resources on dismantling criminal networks that threaten U.S. interests. The Guidelines provide that a primary consideration in pursuing an FCPA investigation or enforcement action is whether the misconduct (1) is associated with the criminal operations of a cartel or TCO; (2) uses 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. Thus, the Guidelines provide more clarity around the types of activities that would be deemed to facilitate the criminal operations of cartels and establishes that the relevant link to cartels and TCOs may be indirect, such as through association with corrupt foreign officials having ties to these criminal enterprises.
Safeguarding fair opportunities for U.S. businesses abroad
The Guidelines state that foreign bribery can hurt law-abiding U.S. companies by undermining their competitiveness and putting them “at a serious economic disadvantage,” noting that historically “the most blatant bribery schemes” have been committed by foreign companies. Consequently, another key factor in the enforcement decision will be 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.” While the Guidelines state that this does not necessarily mean that enforcement will focus on individuals or companies based on their nationalities, they do make clear that enforcement decisions will turn to a large extent on whether American companies or citizens were harmed by the conduct in question. Mr. Galeotti also addressed this point in his remarks, emphasizing that the vindication of U.S. interests “is not about the nationality of the subject or where the company is headquartered.”
Advancing U.S. national security
In keeping with the overarching theme of protecting U.S. interests, the Guidelines provide 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.” The Guidelines specifically identify sectors such as defense, intelligence, and critical infrastructure as areas where corruption can harm American national security interests.
Prioritizing investigations of serious misconduct
Emphasizing the Executive Order’s directive that FCPA enforcement should not penalize American citizens and business for “routine business practices in other nations,” the Guidelines direct prioritization of cases involving serious misconduct. Accordingly, they direct that FCPA investigations and enforcement shall focus on alleged misconduct that “bears strong indicia of corrupt intent,” such as those involving substantial bribe payments, sophisticated efforts to conceal bribes, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice. Additionally, the Guidelines direct prosecutors to “focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures.”
The Guidelines further state that “[d]e minimis or low-dollar, generally accepted business courtesies,” which are “routine business practices in other countries,” will be deprioritized unless there are aggravating factors, such as concealment or obstruction. Large, concealed, or sophisticated bribery schemes remain subject to prosecution.
In deciding whether to pursue an investigation, the Guidelines also 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.” However, even in those cases where the conduct at issue does not implicate U.S. interests and the DOJ defers to its foreign counterparts for prosecution, Mr. Galeotti made clear that “the Criminal Division won’t hesitate … to provide assistance and ensure that those countries and regulators can vindicate their interests and pursue their mandates.”
Further considerations and guidance
Other potentially relevant factors
The Guidelines emphasize that the highlighted factors are not exhaustive, noting that prosecutors must still follow other applicable policies and relevant factors, such as those outlined in the Principles of Federal Prosecution, including the nature and seriousness of the offense and the deterrent effect of prosecution.
Senior DOJ Oversight, Expediency, and Consideration of Collateral Harm: All new FCPA investigations must now be authorized by the Assistant Attorney General for the Criminal Division or a senior DOJ official. Existing cases are now under review and may be terminated if they do not meet the updated guidance. The Guidelines instruct prosecutors to move “as expeditiously as possible” in their investigations and to take into consideration “collateral consequences, such as the potential disruption to lawful business and the impact on a company’s employees, throughout an investigation.”
Key takeaways
While it remains to be seen how the new Guidelines will play out in practice, they do signal that, contrary to prior speculation, enforcement of the FCPA is not dead, but rather, refocused to align with the Administration’s stated priorities. Under the Guidelines, the DOJ will continue to pursue FCPA investigations and enforcement actions, in a manner consistent with the Trump administration’s foreign policy focus on eliminating cartels and TCOs, prioritizing American interests and business opportunities abroad and advancing U.S. national security.
The Guidelines, along with the related remarks by the Head of the DOJ’s Criminal Division, clarify those priorities, illuminating that while misconduct relating to cartels and TCOs remains a key focus, other types of serious misconduct involving bribery and corruption will continue to be subject to DOJ scrutiny, and ultimately, prosecution. Thus, any company or individual could still potentially face enforcement, depending on the nature of the corrupt activity. Further, with respect to cartels and TCOs, the Guidelines indicate that even indirect or tangential association with these criminal enterprises, whether by association with a corrupt government official or employee or participation in associated money laundering activities, could lead to prosecution. Thus, companies operating in jurisdictions and sectors with high cartel or TCO activity need to be especially vigilant.
While the guidance indicates that a mere tangential nexus to the United States will no longer suffice for FCPA enforcement, it does make clear that misconduct occurring abroad will be pursued if it undermines the competitiveness of U.S. businesses or otherwise harms U.S. national security interests. Even though the Guidelines expressly disavow an enforcement policy of targeting non-U.S. companies and individuals in the pursuit of vindicating American interests, they do note that the most blatant bribery schemes have historically been committed by foreign companies, as reflected by the fact that the most significant FCPA enforcement actions have been overwhelmingly brought against foreign companies. Thus, foreign entities could continue to face heightened enforcement risk, particularly those operating in the defense, intelligence and critical infrastructure sectors, which the Guidelines have identified as posing corruption-related national security risk.
Even in those instances where the U.S. connection to the misconduct abroad is too attenuated to warrant a DOJ investigation or enforcement action, the guidance indicates that the Criminal Division will offer its assistance to foreign authorities prosecuting the misconduct. Thus, enforcement risk remains for corrupt activity abroad, for both U.S. and non-U.S. companies. Additionally, the Guidelines apply to the DOJ specifically, and not to the SEC, which has its own authority to civilly enforce the FCPA against U.S. issuers. Thus, there may continue to be civil liability risk, even in cases where the DOJ decides not to pursue criminal prosecution.
In sum, regardless of how the FCPA enforcement landscape may shift in response to the Guidelines’ restated priorities, there remains tangible enforcement risk for companies operating around the globe (both U.S. and non-U.S.), beyond just activity associated with cartels and TCOs. Accordingly, companies, particularly those operating in high-risk jurisdictions and sectors, should update their compliance risk assessments, conduct a gap analysis of their existing anticorruption compliance programs to ensure that they effectively map and mitigate against the redefined enforcement risks highlighted in the Guidelines, and, in light of the heightened focus on individual misconduct, ensure that their employees are properly trained on and sensitized to these compliance risks.
