On June 9, 2025, the U.S. Deputy Attorney General released new guidelines [PDF] for the U.S. Department of Justice's (DOJ) criminal investigation and enforcement of the Foreign Corrupt Practices Act (FCPA). These new guidelines follow President Trump's February 10, 2025 Executive Order, which "paused" the DOJ's enforcement of the FCPA for a period of 180 days. During this time, the U.S. Attorney General reviewed all existing FCPA investigations and enforcement actions to, among other things, "preserve Presidential foreign policy prerogatives", and to issue updated guidelines or policies to "prioritize American interests, American economic competitiveness with respect to other nations" (as we have previously written). The guidelines also come on the heels of the DOJ's May 12, 2025 release of its White-Collar Enforcement Plan [PDF], and accompanying revised Corporate Enforcement and Voluntary Self-Disclosure Policy [PDF].
The new FCPA guidelines signal that FCPA enforcement will indeed continue. The new guidelines, as well as the DOJ's new white-collar enforcement plan, suggest a continuation of U.S. anti-corruption enforcement targeted squarely at foreign companies, with important implications for Canadian companies.
Summary of new DOJ FCPA guidelines and white-collar enforcement plan
The new FCPA guidelines [PDF], taking the form of a memorandum addressed to the Head of the Criminal Division, open by echoing the sentiments expressed in President Trump's Executive Order, striving to limit undue burdens on American companies that operate abroad, and targeting enforcement actions against conduct that directly undermines U.S. national interests.
The guidelines set out certain key non-exhaustive factors that prosecutors now will be required to consider in evaluating whether to pursue FCPA investigations and enforcement actions, which will be applied to review all existing FCPA investigations and enforcement actions within 180 days. Those factors include the following:
- Associations with cartels and transnational criminal organizations: Prosecutors have been instructed to consider whether the alleged misconduct is associated with the criminal operations of a cartel or transnational criminal organization (TCOs), 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. This follows President Trump's earlier January 20, 2025 Executive Order which designated certain international cartels and other organizations as "Foreign Terrorist Organizations",
- Advancing U.S. national security: Prosecutors must focus enforcement efforts on the perceived "most urgent threats to U.S. national security" resulting from the bribery of corrupt foreign officials involving key infrastructure or assets, with a focus on the defense, intelligence, or critical infrastructure sectors.
- Consideration of foreign enforcement: The guidelines instruct prosecutors to consider whether foreign law enforcement is willing and able to investigate and prosecute the same misconduct when prioritizing cases. As we have previously written, Canada has a historical perception of lax anti-corruption enforcement, which may contribute to prosecutorial decision-making.
- Impact/injury to American companies and individuals: Prosectors must consider whether the alleged misconduct deprived U.S. entities or individuals of fair access to compete and/or resulted in economic injury to them. Notably, this is reflective of concerns at the time the FCPA was enacted, as well as the subsequent implementation of the OECD Convention.
- Demand-side bribery: Related to the above, the DOJ guidance explicitly references enforcement under the Foreign Extortion Prevention Act against "demand-side" bribery — where foreign officials demand or accept bribes — directing prosecutors to consider whether specific and identifiable U.S. entities or individuals have been harmed by foreign officials' demands for bribes (a longstanding gap in global anti-corruption enforcement).
- Prioritizing investigations of serious misconduct: Prosecutors must target enforcement 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), rather than alleged misconduct involving routine business practices or de minimis or low-dollar, generally accepted business courtesies.
Procedurally, prosecutors have been instructed to proceed as expeditiously as possible in their investigations and to 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.
All current and future FCPA investigations and enforcement actions will be governed by these new guidelines. Additionally, any new investigations and enforcement actions must be specifically authorized by the Assistant Attorney General for the Criminal Division of the DOJ (or the official acting in that capacity) or a more senior DOJ official.
The new FCPA guidelines also follow earlier guidance provided by the DOJ, which similarly prioritizes U.S. commercial interests. Namely:
- The DOJ Criminal Division's White-Collar Enforcement Plan [PDF], released May 12, 2025, similarly seeks to strike a balance between white collar enforcement and U.S. commercial and national interests. Notably, the plan signals that the DOJ will be prioritizing the investigating and prosecution of crimes involving trade and customs fraud, fraud that victimizes U.S. investors, individuals and markets (such as Ponzi schemes), sanctions, complex money laundering, cartels and TCOs (among other specifically identified "high-impact areas") — while minimizing unnecessary enforcement burdens on American enterprise.
- Accompanying the new plan, the DOJ also released a revised Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) [PDF] providing guidance for entities navigating potential investigations and enforcement undertaken by the DOJ. Among other things, the CEP outlines the outcomes that companies can expect when voluntarily self-disclosing, notably confirming that companies that voluntarily self-disclose and meet other criteria will generally receive a declination rather than simply a presumption of a declination. The CEP further (among other things) provided that companies meeting certain core requirements (i.e., that voluntarily self-disclose to the Criminal Division, fully cooperate, timely and appropriately remediate, and have no aggravating circumstances) will not be required to enter into a criminal resolution, and that outlined outcomes for "near miss" voluntary self-disclosures.
Implications for Canadian businesses
Historically, the most significant FCPA enforcement actions, both in terms of scope and monetary penalties, have been against foreign companies — something explicitly noted in the DOJ's new FCPA memorandum. That is unlikely to change following the recent FCPA guidance. Companies should expect a continuing trend where the DOJ's FCPA/white-collar crime enforcement will be significantly — and going forward, principally — focused on foreign entities and individuals.
Simultaneously, the DOJ's guidance signals heightened risks in sectors deemed to implicate U.S. national security (defence, intelligence and infrastructure) or in high-risk jurisdictions for cartels and TCOs. Canadian companies operating overseas in jurisdictions targeted by executive orders in this regard, or in industries that engage these concerns, should be especially live to the emerging enforcement approach.
Canadian businesses — particularly those with international operations — should continue to be keenly aware of compliance and legal risks presented by corrupt conduct, and should ensure their compliance frameworks are robust enough to withstand potential heightened scrutiny from U.S. authorities. Canadian companies are also subject to prohibitions in Canada against foreign bribery under the Corruption of Foreign Public Officials Act (the CFPOA) and domestic corruption under the Criminal Code. Pursuant to the CFPOA, Canadian citizens and permanent residents and entities formed/organized under the laws of Canada, or a province, who have been previously tried and dealt with outside of Canada for a corruption offence committed outside of Canada (such as under the FCPA) generally will be able to rely upon a defence of double jeopardy in respect of charges in Canada under the CFPOA bribery offence in respect of the same conduct.
To respond practically to Canadian enforcement trends and these new U.S. FCPA guidelines, Canadian companies should ensure they maintain robust internal controls to detect and address individual misconduct.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
