New factors for investigating and enforcing the Foreign Corrupt Practices Act were recently released by the head of the Criminal Division of the U.S. Department of Justice (DOJ) in "Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)," June 9, 2025. The memorandum aims to ensure that FCPA enforcement is carried out in accordance with President Trump's Executive Order, "Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security," 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. See Exec. Order No. 14209, 90 Fed. Reg. 9587 (Feb. 10, 2025).
Investigations of the DOJ Criminal Division's FCPA Unit were initially redirected through Attorney General Pamela Bondi's memo on "Total Elimination of Cartels and Transnational Criminal Organizations" (TCOs). In "the total elimination policy," Attorney General Bondi requires the DOJ's FCPA unit to "prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs." She also directs that they "focus away from investigations and cases that do not involve such a connection."
Executive Order Factors
As part of the revised approach, the DOJ memorandum introduced a non-exhaustive set of "Executive Order Factors" to guide prosecutors in evaluating whether to initiate FCPA investigations or enforcement actions. These factors are designed to help distinguish between routine international business activity and serious misconduct that warrants federal enforcement. DOJ has emphasized that companies with robust compliance programs and routine operations should not be the focus of aggressive prosecution. The considerations for U.S. companies are outlined here in order of their relevance to the compliance programs of U.S. companies, beginning with Factor D.
Factor D: Prioritizing Investigations of Serious Misconduct. President Trump's Order directs that FCPA enforcement should not penalize American citizens and business for "routine business practices in other nations." Order, § 1. Factor D clarifies that the DOJ will focus enforcement on serious, intentional corruption—not minor, customary or low-value conduct abroad. Priority will be given to major bribery schemes involving "substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme and efforts to obstruct justice," particularly where foreign authorities are unwilling or unable to prosecute. Memo, § I.D. Thus, companies should maintain strong compliance programs with sound controls so that conduct from routine operations is unlikely to cause aggressive FCPA enforcement action.
Factor C: Targeting Corruption that Threatens U.S. National Security. The Order underscores that "American national security depends in substantial part on the United States and its companies gaining strategic business advantages," including in critical minerals, deep-water ports and other essential infrastructure. Order, § 1. The DOJ will prioritize FCPA enforcement where foreign bribery undermines these interests—particularly in sectors tied to defense, intelligence or critical infrastructure. DOJ's focus will now be on the most urgent national security threats stemming from bribery in high-risk sectors.
Factor B: Protecting U.S. Companies from Corrupt Competitors: Promoting fair competition abroad is essential to safeguarding U.S. national security and economic prosperity. Foreign bribery distorts markets, undermines the rule of law and places law-abiding U.S. companies at a disadvantage when corrupt competitors secure contracts and profits through illicit payments. Enforcement will prioritize cases where American businesses or individuals were directly harmed, including where they are deprived of fair access to compete. Prosecutors will consider whether a foreign official's demand for a bribe caused identifiable harm to a U.S. company or citizen.
Factor A: Total Elimination of Cartels and Transnational Criminal Organizations: Executive Order 14157 directs the federal government to pursue the total elimination of cartels and TCOs, citing their infiltration of foreign governments and their threat to U.S. national security, foreign policy, and economic stability. See Exec. Order No. 14,157, 90 Fed. Reg. 8439 (Jan. 20, 2025). In response, Attorney General Bondi directed the DOJ's FCPA Unit to prioritize cases where foreign bribery enables or conceals the operations of Cartels or TCOs. This includes misconduct involving cartel-linked officials, shell companies used for money laundering or corrupt payments that support organized criminal networks. For companies, this shift increases exposure in jurisdictions where Cartels and TCOs exert influence over public officials, state-owned entities or commerce generally. FCPA enforcement in these areas will focus not only on the bribes themselves, but on the broader criminal context in which they occur—making due diligence and compliance monitoring even more critical in high-risk regions.
Looking Ahead
As we have previously advised, companies need to stay the course in terms of their anti-corruption policies and procedures, despite these changes in FCPA enforcement. Plus, State Attorneys General can bring state level anti-fraud actions. International anti-fraud laws may also apply to conduct largely within the United States.
United Kingdom's "Failure To Prevent Fraud" Corporate Criminal Offense
On September 1, 2025, the United Kingdom will implement a new corporate criminal offense of "Failure To Prevent Fraud (FTPF)," which applies to conduct outside the UK. The new offense will apply to companies in the U.S. and other countries if any part of a fraud was conducted in the UK, or if the actual gain or loss occurred in the UK. An organization will be criminally liable for fraud committed by their "associated persons" (including outside agents and employees of subsidiaries) if the fraud was committed "for the organization's benefit." This is the case even if that was not the associated person's primary intent (i.e., it applies even if they commit fraud primarily for their own personal benefit). FTPF will cover a wide range of fraud offenses, including fraudulent misrepresentation, financial misstatements or fraudulent trading. Examples include:
- Fraudulent representations/warranties in transaction documents;
- False statements made by directors to shareholders;
- Misrepresentations about the quality of products or services made by third-party agents or representatives to increase sales or improve the financial outlook of a company; and
- Financial statements by a U.S. company alleged to result in losses to UK investors.
FTPF will apply to entities considered a "large organization," which is one that meets at least two of the following criteria:
- More than 250 employees;
- More than £36 million ($46.7 million) in revenue; or
- More than £18 million in total assets.
Small organizations can be liable as well if they are a subsidiary of a large organization.
The regulated community must remain vigilant about the anti-fraud laws that remain in statute and regulation, even if they are not currently an enforcement priority. Enforcement priorities are likely to change at the end of this term, no matter which party controls the White House. Also, investigations into ongoing conduct and the statute of limitations for these violations will outlast the enforcement priorities of the current administration.
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.
