Securities Regulation Daily Wrap Up, ENFORCEMENT—DOJ freshens guidance on FCPA enforcement, (Jun 11, 2025)
The guidance was prompted by an earlier Trump Administration executive order that had paused most FCPA cases being handled by the DOJ.
Deputy U.S. Attorney General Todd Blanche, in a recent memo to the DOJ's head of the criminal division, set forth guidance on the use of the Foreign Corrupt Practices Act (FCPA) in investigations and prosecutions. The FCPA guidance was prompted by an earlier Trump Administration executive order that paused FCPA cases being handled by the DOJ pending the issuance of additional guidance by the attorney general, although some cases could still proceed during the pause if they were expressly authorized by the attorney general. The guidance addresses DOJ policy only and, like the earlier executive order, leaves many open questions regarding civil FCPA enforcement by the SEC, although California has said it could fill voids left by federal law enforcement as could overseas regulators.
The DOJ guidance has as its central thesis an approach to FCPA enforcement that is cognizant of undue burdens on U.S. companies with overseas operations and which prioritizes FCPA cases where the targeted conduct “directly undermines U.S. national interests.”
According to the memo, DOJ prosecutors must adhere to these goals by following a set of general principles regarding FCPA enforcement, including: (1) emphasize individual conduct rather than “attribute nonspecific malfeasance to corporate structures”; (2) pursue investigations in an expeditious manner; and (3) take into consideration “collateral consequences,” which include “the potential disruption to lawful business and the impact on a company's employees” (the memo directs prosecutors to mull these latter considerations “throughout an investigation” and not merely “at the resolution phase”).
Moreover, the memo states that the decision whether to pursue specific FCPA investigations and enforcement actions must be based on the application of a non-exhaustive list of factors. A footnote to the memo urges prosecutors to reconsider the level of detail regarding the facts of a particular case throughout the investigation and charging decision because the facts may evolve to become more detailed as a case progresses. However, although some of the factors to be considered address cartels and transnational criminal organizations (TCOs), according to a footnote to the memo, those factors would not apply to other DOJ initiatives to eliminate cartels and TCOs. The Assistant Attorney General for the Criminal Division (or a more senior DOJ official) must authorize any new FCPA investigations or enforcement actions.
The first factor directs prosecutors to consider whether an FCPA case involves conduct related to the criminal operations of a cartel or TCO, involves money laundering or shell companies that engage in these acts for cartels or TCOs, or involves employees of state-owned entities (or other foreign officials) that have received bribes from cartels or TCOs. Both President Trump and U.S. Attorney General Pamela J. Bondi have issued directives about the total elimination of cartels and TCOs.
The second factor asks whether the targeted conduct deprived U.S entities of fair access to competition and/or produced economic harm to “specific and identifiable” U.S. entities or individuals. The memo further explained that cases would not be brought based on nationality, but rather on divergence from DOJ principles about fair competition in the context of the FCPA.
A third factor emphasizes the role of national security in the decision to pursue FCPA enforcement actions. Here, the memo notes that corruption often thrives in locations where governments are weak. DOJ, thus, plans to focus on the “most urgent” cases of foreign bribery that involve “key infrastructure or assets.”
The fourth factor places emphasis on serious violations of the FCPA as opposed to “routine business practices” or “de minimis or low-dollar, generally accepted business courtesies.” This focus was part of the Trump Administration’s executive order on FCPA enforcement. The memo also noted that the FCPA contains exceptions and provides for affirmative defenses in some instances. As a result, the memo stated that enforcement should focus on conduct “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.” The memo further noted that the prioritization of FCPA cases also involves mulling whether a foreign law enforcement authority may pursue the same alleged misconduct.
Lastly, the memo notes that the Principles of Federal Prosecution apply to FCPA charging decisions and that the DOJ retains discretion to continue or terminate “filed indictments and corporate resolutions” depending on the “on the totality of the circumstances.”
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