On June 9, 2025, the U.S. Department of Justice (DOJ) issued a memorandum from the Deputy Attorney General outlining new guidelines on evaluating whether to investigate and prosecute misconduct under the Foreign Corrupt Practices Act (“FCPA”). This memo—titled Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)—continue the changes spurred by Executive Order 14209. That EO, signed by President Trump on February 10, 2025, represents a relatively significant shift in FCPA enforcement priorities.
EO 14209 aims to recalibrate FCPA enforcement to avoid undue burdens on American companies while prioritizing U.S. economic competitiveness and national security. The EO also mandated a 180-day pause on new FCPA investigations and enforcement actions (barring exceptions approved by the Attorney General), a review of existing cases, and the issuance of updated guidelines.
For compliance officers and legal professionals, understanding these new guidelines for FCPA enforcement priorities will be critical to ensuring compliance. This article breaks down the key points of the memorandum with some of my own thoughts that may help provide some practical guidance for ensuring compliance in this evolving landscape.
Key Factors for the DOJ in Evaluating Whether to Pursue FCPA Investigations
The memorandum introduces a focused approach to FCPA enforcement, emphasizing specific priorities and considerations. Below are the key takeaways:
1. Focus on Cartels and Transnational Criminal Organizations
In following with the central theme of the initial EO, the DOJ will prioritize FCPA investigations linked to foreign bribery that facilitates the criminal operations of cartels and transnational criminal organizations (“TCOs”). As such, key factors include:
- Misconduct associated with cartel or TCO criminal operations.
- Use of money launderers or shell companies tied to cartels or TCOs.
- Bribes paid to employees of state-owned entities or foreign officials by cartels or TCOs.
This focus aligns with broader efforts of this Administration to dismantle criminal networks that threaten U.S. national security and economic stability. These priorities should also ultimately dovetail with sanctions compliance efforts within companies, as many of these cartels and TCOs are also subject to economic sanctions.
2. Safeguarding U.S. Companies’ Competitiveness
The DOJ recognizes that economic growth and expansion of U.S. business opportunities abroad is critical to U.S national security interests and economic prosperity. This includes maintaining the competitiveness of U.S. companies and industries. In this vein, the guidelines emphasize the importance of protecting U.S. companies from any unfair competition caused by bribes made to foreign officials. This essentially falls in line with President Trump’s “America First” promises.
With this foundation, the DOJ intends to prioritize cases where specific, identifiable U.S. entities or individuals suffer economic harm or are denied fair access to compete due to foreign bribery. It seems that FCPA may be used as protectionism for American industry. I wonder if this will implicate certain jurisdictional questions, especially if the offending companies solely conduct business elsewhere—for example, a purely domestic Chinese entity. The Trump Administration may attempt some kind of novel application of secondary liability in these types of cases, should they arise, much like his unique threats of “secondary tariffs” over the last month or two.
Furthermore, prosecutors will consider these same factors while conducting investigations and prosecutions under the Foreign Extortion Prevention Act (18 U.S.C. § 1352), which criminalizes the “demand side” of foreign bribery. As such, foreign officials soliciting bribes will be evaluated on whether specific and identifiable U.S. entities or individuals have been harmed by those demands.
3. Advancing National Security
The DOJ further intends to focus its FCPA enforcement efforts on bribery schemes that threaten U.S. national security, particularly those involving critical infrastructure, defense, or key assets like critical minerals or deep-water ports. This again follows a trend of the Trump Administration in focusing on rare earth minerals along with ports and waterways. This memo also lays out some industries that will likely receive greater focus, including defense, intelligence, and critical infrastructure.
The DOJ acknowledges that “[t]errorists and criminals thrive where governments are weak [and] corruption is rampant” and that this corruption is often fostered and exploited by bad actors for their own gain. To me, this signals that corruption indices, such as Transparency International’s Corruption Perception Index, will still be key in ascertaining FCPA risk for companies. If anything, it may be even more important now, as this guidance suggests that regions that score poorly will receive heightened enforcement priorities.
4. Targeting Serious Misconduct
In what may be the most impactful shift in FCPA enforcement priorities for most companies, these updated guidelines will move enforcement away from “routine business practices” or low-dollar courtesies, focusing instead on serious misconduct with clear corrupt intent. In order to identify “serious misconduct,” prosecutors will prioritize cases involving:
- Substantial bribe payments.
- Sophisticated efforts to conceal bribes.
- Fraudulent conduct
- Obstruction of justice.
The guidance further emphasizes that activities that are “routine business practices in other nations” should not be penalized. Furthermore, the guidance also highlights the exceptions for facilitating and expediting payments, as well as the “affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country.”
I say this may be the most impactful shift because I think this may be an area that makes companies review existing policies. I know I’ve received many requests from clients to review potential gifts or courtesies that they planned for various foreign officials (such as employees from a state-owned company) that were relatively innocuous—however, they still wanted guidance from outside counsel just to make sure.
Furthermore, some of the trickiest issues I’ve seen stem from local customs in foreign cultures. In many countries, fancy gifts are just a part of the culture. It can be seen as offensive to refuse acceptance, even if the gifts exceed policy thresholds. Many times these gifts do not have any strings attached and are given solely as part of the culture without any expectation of return. These situations can make it difficult to strike a balance with compliance. With the new guidance, many of these situations may no longer be seen as problematic.
I’ve also seen situations like these arise in areas where employment favors are expected. Nepotism is an ugly word, but there are several areas where most people obtain their employment through pointed requests from friends or colleagues. This can be especially problematic when the one making the request is a senior leader that works at a state-owned company your company does significant business with. Those situations can raise FCPA concerns, sometimes significantly so.
All that said, it’s not clear where this line will be drawn exactly, but I am confident it is further away from generic courtesies than it has been in the past. While I do not recommend going too far down that line, it may be worth reevaluating existing policies to see if any new exemptions may be worthwhile.
Practical Compliance Guidance for the New FCPA Enforcement Guidelines
These changes to FCPA enforcement certainly have the compliance world buzzing. Companies large and small are working through these nuances and are looking for advice on how to navigate the new landscape. For starters, I would certainly caution against relaxing existing FCPA compliance, for many reasons. First, it still remains to be seen how these guidelines will be applied in practice. I believe that many—if not all—prior FCPA enforcement actions would still be prosecuted under these new guidelines. Many would clearly be considered “serious misconduct” as they possessed several of those factors—substantial bribes, sophisticated concealment, fraud, etc.
Second, there may be a sharp “snap back” if Democrats take back the Executive branch in a few years. Understand that these new guidelines do not materially change the FCPA itself, it just adjusts the DOJ’s current enforcement priorities. Don’t bank on being able to claim in a few years that certain bribery was actually “legal” under these new guidelines.
So what do we do with these new guidelines? There are several ways that we can use this information to enhance FCPA compliance programs.
1. Assess Risk Exposure to Cartel/TCOs and Critical Industries
First, take a closer look at your business operations in jurisdictions where cartels and TCOs are known to operate, such as Latin America and South America. Conduct a targeted or refreshed risk assessment for these parts of the business and evaluate whether or not you may have new or increased FCPA exposure. Consider these areas to be higher risk and make sure that additional risk is weighted properly in your risk-based procedures.
Additionally, evaluate your operations and identify any touchpoints to critical industries. Focus on those areas that have been important to the Trump Administration to this point, such as critical earth minerals, waterways and ports, defense, and other areas of national security. Many of these industries already had significant government touchpoints, so it may not change much. However, the magnifying scope just got bigger, so make sure your controls are lock tight.
2. Refresh and Enhance Due Diligence Efforts
Following this risk assessment(s), consider refreshing your due diligence on entities that you’re working with in these regions. If you’re not already doing so, include an adverse media screening for each entity. I generally recommend adverse media screenings for high-risk entities. It helps identify several additional issues that may not otherwise be obvious. Connections with cartels, for example, may not necessarily lead to immediate designation on a restricted list. However, suspicions, rumors, and allegations can pop up in the adverse media screening, which can then be evaluated and actioned depending on the severity.
3. Provide Frontline Employees with Proper Training and Support
Conduct targeted training for employees that may have new or heightened risk profiles considering the changes. Ensure your frontline employees are empowered to identify potential red flags and ensure they know how to contact legal and compliance if they have any concerns. These employees can be your eyes and ears to better support your compliance efforts.
4. Document Competitive Harms for Potential Disclosures
Finally, consider disclosures if you have actual evidence that a foreign official solicited a bribe or other foreign companies are engaging in corrupt activity. If you do happen to come across corrupt activity, it doesn’t necessarily mean that bribery is now fair game under these new standards. Rather, disclosures can lead to the government cleaning up the bad behavior to better put your company back onto a level playing field.
5. Revisit Gift and Entertainment Policies, Procedures, and Thresholds
Consider re-evaluating existing gifts and entertainment procedures with these new guidelines in mind. That could mean adjusting thresholds, modifying certain elements, or adding certain exemptions to allow for local customs in certain jurisdictions. However, be very discerning with any of these changes. Just remember—it can be really easy to loosen these controls, but extremely difficult to tighten them back up in the future if it’s warranted.