Department Of Justice Announces FCPA Guidelines

On June 10, 2025, the Deputy Attorney General issued the highly anticipated Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) ("Guidelines"),¹ complying with the directive in President Trump's February 10, 2025 Executive Order² (the "Executive Order") to issue updated guidelines to promote the President's authority to conduct foreign affairs and promote American interests. Echoing language from the Executive Order, the Guidelines are aimed at ensuring prosecutions are carried out in accordance with President Trump's directive by "(1) limiting undue burdens on American companies that operate abroad, and (2) targeting enforcement actions against conduct that directly undermines U.S. national interests." The overriding theme of the Guidelines and related remarks by the Head of the Criminal Division³ is that FCPA investigations and enforcement actions must serve U.S. interests.⁴

Against the backdrop of Attorney General Bondi's February 5, 2025 Memorandum⁵ and the Executive Order, there are no surprises in the Guidelines. Rather, the Guidelines affirm areas of focus laid out in the February 5 Memorandum and the Executive Order and establish the following considerations for the investigation and prosecution of FCPA matters:

• Whether the alleged misconduct is associated with the criminal operations of a cartel or TCO, utilizes money launderers or shell companies associated with 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 is identified as a "primary consideration" in the guidance.
• Whether the alleged misconduct deprived "specific and identifiable" U.S. entities of fair access to compete or resulted in economic injury to "specific and identifiable" American companies or individuals. The Guidelines reference the penalties and scope of past FCPA enforcement actions and note that the "most blatant bribery schemes have historically been committed by foreign companies." The Guidelines also reference the Foreign Extortion Prevention Act and note that the Department will conduct investigations and bring prosecutions under the FEPA when specific and identifiable U.S. entities and individuals have been harmed by foreign officials' demands for bribes. The Guidelines are, however, explicit that FCPA enforcement will not "focus on particular individuals or companies on the basis of their nationality," a statement no doubt intended to blunt criticism that the Department intends to pursue only non-U.S. companies.
• Whether the alleged misconduct presents a threat to U.S. national security due to the involvement of key infrastructure or assets or because the corruption occurs in the defense or intelligence sectors.
• Whether the alleged misconduct bears strong indicia of corrupt intent such as substantial bribe payments, sophisticated concealment or other fraudulent conduct in furtherance of the bribery scheme. The Guidelines reference the FCPA exception for facilitation payments and the affirmative defenses under the FCPA of payments lawful under local law and reasonable and bona fide payments related to business activities. The Guidelines make explicit that enforcement actions "shall not" focus on low-dollar amounts or generally accepted business courtesies.

Notably, both the Guidelines and the parallel remarks made by Matthew Galeotti, the Head of the Criminal Division of the DOJ, at the American Conference Institute Conference on Global Anti-Corruption, Ethics & Compliance emphasize that the Guidelines are not exhaustive.⁶ Additionally, discussing the Guidelines, Mr. Galeotti noted that "no one factor is necessary or dispositive."

While the substance of the Guidelines is in line with what many practitioners have expected, the Guidelines do establish some notable procedural changes.

• First, the Guidelines state that the initiation of all new FCPA investigations and enforcement actions must be authorized by the Assistant Attorney General (or the official acting in that capacity) for the Criminal Division or a more senior Department official. The authority to open FCPA investigations formerly had been the provenance of the DOJ's Fraud Section and the DOJ's FCPA Unit.
• Second, the Guidelines explicitly direct prosecutors to consider the disruption to lawful business and the impact on a company's business throughout an investigation—establishing the need to consider "collateral consequences" throughout an investigation and "not just at the resolution phase."
• Third, the Guidelines also direct prosecutors to consider the likelihood that foreign regulators are willing and able to investigate and prosecute the misconduct, signaling deference to foreign authorities in the absence of compelling U.S. interests.

• In addition, the Guidelines state that "prosecutors shall focus on cases in which individuals have engaged in misconduct and not attribute nonspecific malfeasance to corporate structure." During his remarks, Mr. Galeotti explained this aspect of the Guidelines as directing focus on "specific misconduct of individuals, rather than collective knowledge theories." This language signals that the DOJ may take a stricter approach to the FCPA's knowledge requirement in corporate cases.

Key Takeaways for Companies

While AG Bondi's February 5 Memorandum and the Executive Order raised significant questions about the future of FCPA enforcement under the Trump Administration, the Guidelines issued today indicate that FCPA enforcement will continue and provide insight into the DOJ's considerations for opening, investigating and resolving FCPA cases where it believes U.S. interests are served. In light of the issuance of the Guidelines, companies should consider:

• Any abandonment or roll-back of FCPA compliance that some may have contemplated in the wake of the Executive Order would be unwise and ill-advised, particularly for non-U.S. entities who may find themselves competing with U.S. companies for business.

• The Guidelines indicate that FCPA enforcement should be targeted to a specific and undoubtedly narrower set of circumstances than the approach taken in the past. For example, it stands to reason that travel and entertainment cases and certain cases predicated on internal accounting control violations—both robust areas of enforcement over the years—may not present the severity of harm contemplated for DOJ enforcement under the Guidelines.

• Given the focus on cartels and TCOs, the next three years could see greater scrutiny of certain geographies—like Mexico—over other geographies that have more historically been at the center of FCPA investigations and resolutions.

• The need to prioritize substantial bribery schemes that impact U.S. companies or interests could result in a shift away from conduct that technically meets the FCPA's jurisdictional requirements, as such conduct (e.g., meetings in the U.S. that would meet the criteria of section dd-3) may be seen as insufficiently tied to U.S. interests.

• Companies under DOJ investigation (especially long-running investigations) should continue to evaluate, document and consider periodically raising to the DOJ the collateral consequences and impact of those investigations, as they are more likely to receive a sympathetic ear from the DOJ than in prior administrations.

• It remains to be seen how the SEC will fit into this new FCPA enforcement regime and whether the SEC will adopt the DOJ Guidelines, whether formally or informally, when considering its own FCPA enforcement.

• Most importantly, as we noted in our client alert on the Executive Order,⁷ the FCPA remains U.S. law and carries a statute of limitations of five years (which may be extended far longer under certain conspiracy theories and when evidence is formally sought from overseas); FCPA violations committed today or in the next few years may be reviewed, and potentially prosecuted, under a different administration. It is important that companies remain vigilant to ensure that they have compliance programs in place that can prevent and detect violations of the statute and procedures in place to appropriately escalate and resolve issues when they do occur.

Footnotes

1. See Memorandum from the Deputy Attorney General, Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) (June 9, 2025), https://www.justice.gov/dag/media/1403031/dl.

2. Exec. Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025), https://www.whitehouse.gov/presidential-actions/2025/02/pausing-foreign-corrupt-practices-act-enforcement-to-further-american-economic-and-national-security/.

3. See Guidelines at 4; Department of Justice, Head of Justice Department's Criminal Division Matthew R. Galeotti Delivers Remarks at American Conference Institute Conference (June 10, 2025), https://www.justice.gov/opa/pr/head-justice-departments-criminal-division-matthew-r-galeotti-delivers-remarks-american.

4. Notably, the Guidelines are silent on the continued role and efficacy of prior FCPA Guidance such as the two versions of the FCPA Resource Guide issued by the Department in conjunction with the SEC. https://www.justice.gov/criminal/criminal-fraud/file/1292051/dl?inline.

5. See Memorandum from the Att'y Gen. to all Dep't Emps., Total Elimination of Cartels and Transnational Criminal Organizations at 4 (Feb. 5, 2025), https://www.justice.gov/ag/media/1388546/dl?inline.

6. Department of Justice, Head of Justice Department's Criminal Division Matthew R. Galeotti Delivers Remarks at American Conference Institute Conference (June 10, 2025), https://www.justice.gov/opa/pr/head-justice-departments-criminal-division-matthew-r-galeotti-delivers-remarks-american.

7. See WilmerHale, President Trump and Attorney General Bondi Announce Significant Shift in FCPA and Other Corporate Enforcement Priorities (February 11, 1025), https://www.wilmerhale.com/en/insights/client-alerts/20250211-president-trump-and-attorney-general-bondi-announce-significant-shift-in-fcpa-and-other-corporate-enforcement-priorities.

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