DOJ Announces New FCPA Enforcement Guidelines

Key Takeaways:

• On June 10, 2025, the Department of Justice (DOJ) announced a set of considerations that will inform prosecutors' decisions to pursue FCPA actions going forward, aligning such prosecutions with President Trump's February 10, 2025 Executive Order and AG Bondi's February 5, 2025 Memorandum.
• These Guidelines identify an overarching goal of pursuing FCPA prosecutions that protect American interests, particularly as they touch on the focus areas of: cartels, transnational criminal organizations, national security, and circumstances where American entities are among the identifiable victims of bribery, such as through lost business opportunities.
• The Guidelines clarify that DOJ will focus on serious misconduct with evidence of individual corrupt intent, not small-dollar transactions or routine business practices. The Guidelines define serious misconduct expansively enough to capture many legacy prosecutions, and to provide discretion to proceed outside of the enumerated focus areas.

On June 10, 2025, Deputy Attorney General Todd Blanche issued new "Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)" (the "Guidelines"). Concurrently with the Guidelines release, the head of DOJ's Criminal Division, Matthew Galeotti, delivered public remarks commenting on the Guidelines and related policy pronouncements. The Guidelines follow AG Pam Bondi's February 5 Memorandum (discussed here) and President Trump's February 10 Executive Order (discussed here), which broadly announced a pause on FCPA enforcement to reevaluate existing investigations and develop new guidance for FCPA enforcement in accordance with the administration's priorities.

The Guidelines follow the language of those earlier pronouncements by articulating a set of priority enforcement considerations that correspond to specific concerns raised in the February 10 Executive Order, with an overarching goal of aligning FCPA prosecutions with advancing U.S. national interests.

The stated prosecutorial considerations for commencement of an FCPA investigation are therefore unsurprising, and include:

• Whether the alleged misconduct is associated with cartels or transnational criminal organizations (TCOs), including through some more attenuated connections, such as the use of money launderers that also support cartels or TCOs, or through payment of bribes to state-owned entities or officials who also received bribes from cartels or TCOs;
• 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 this factor plainly accounts for the nationality of identifiable victims, the Guidelines note that this factor will not focus on the nationality of the investigation's targets to advance U.S. national interests. This factor also specifically applies to prosecutions under the Federal Extortion Prevention Act (FEPA), which criminalizes the "demand side" of bribery (as discussed further here), indicating a continued intention to enforce the FCPA's relatively new companion law.
• Whether the alleged misconduct implicates national security interests, such as by implicating the defense or intelligence sectors or "key infrastructure or assets."
• Whether the alleged misconduct is "serious," as indicated by evidence of individual corrupt intent, as opposed to "de minimis or low-dollar, generally accepted business courtesies." This factor also includes consideration of the likelihood of enforcement by another jurisdiction's law enforcement apparatus.

In addition to the above factors tethered to the language of the February 10 Executive Order, the Guidelines also include a broad catch-all provision for "Additional Considerations," which reiterates that the Principles of Federal Prosecution found in the Justice Manual—and particularly the focus on the "nature and seriousness of the offense"—continue to apply. And notably, the factors set forth in the Guidelines are expressly "non-exhaustive," creating further margin for discretion outside of the enumerated factors.

The Guidelines' specific reference to FEPA prosecutions also stands out. By reference to FEPA in the factor concerning U.S. business interests, it appears that the administration intends to use FEPA in conjunction with the FCPA to implement its foreign policy and trade agenda. While FEPA targets the bribe-soliciting official directly, companies should take note that liability under the statute also runs to those who aid and abet the solicitor.

The Guidelines, while much anticipated, do not break much new ground in terms of priority considerations compared to the February 5 Memo and February 10 Executive Order. Nonetheless, they signal the end of the administration's FCPA "pause" and a return to enforcement activity aligned with the stated goals. Our past analysis and guidance thus remains ripe: The FCPA remains a valid enforceable law, and entities subject to it—particularly foreign companies—cannot abandon compliance efforts under a sense of perceived or anticipated laxity in enforcement. The Guidelines identify factors that should put entities operating in key focus areas and geographies on alert, but the factors themselves have also been defined more inclusively than may be suggested by the February 10 Executive Order itself—as evidenced by the inclusion of bribe payments to entities or officials that also receive payments from cartels and TCOs, or the consideration of the expansive concept of "key infrastructure and assets" within the consideration of national security interests. Moreover, the Guidelines include sufficient flexibility and discretion outside of the Executive Order's consideration to permit prosecution of cases perceived as serious enough, regardless of subject matter.

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