DOJ's New FCPA Enforcement Guidelines: Continuity with a Twist

As directed in a February executive order instructing the Department of Justice (DOJ) to issue guidelines for future Foreign Corrupt Practices Act (FCPA) enforcement, Deputy Attorney General Todd Blanche released updated FCPA enforcement guidelines on June 10, 2025.¹ In the Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) (the Guidelines), DOJ instructs its prosecutors to consider the FCPA in the context of promoting US interests and competitiveness abroad. Specifically, the Guidelines contemplate “limiting undue burdens on American companies that operate abroad” and “targeting enforcement actions against conduct that directly undermines US national interests.” The Guidelines signal that FCPA enforcement will serve the Trump administration’s “America First” policy mandate, among other priorities. Notably, that same day, head of DOJ’s Criminal Division Matthew Galeotti elaborated on the Guidelines, emphasizing the “vindication of US interests” through FCPA enforcement.²

The Guidelines instruct prosecutors to target foreign bribery that undermines US competitiveness or US national security interests involving key infrastructure or assets, which involves a nexus with cartels, and/or serious misconduct and indicia of corrupt intent by individuals. The approach largely reflects and reiterates the white-collar enforcement priorities outlined by DOJ and the White House earlier this year. Specifically, the Guidelines expound on policy priorities set forth in the February executive order³ pausing FCPA enforcement temporarily and a memorandum from Deputy Attorney General Pamela Bondi regarding DOJ efforts with respect to cartels and transnational criminal organizations (TCOs).⁴ Notably, the Guidelines state that DOJ’s 180-day review of existing FCPA investigations and enforcement actions remains ongoing, and cases are being reviewed against the guidance set forth in the June 2025 memorandum. Many cases initiated under the previous administration that do not comport with these Guidelines have already been closed.

In our view, the new Guidelines demonstrate that predictions of the death of the FCPA prompted by the temporary pause were premature. Shifts in FCPA enforcement approach and priorities will focus on misconduct that (in the DOJ’s view) deprives US companies of business opportunities or threatens key infrastructure or assets seen as relevant to US national security interests. Enforcement risk for foreign companies and persons may well increase, particularly since the Guidelines assert that “the most blatant bribery schemes” have been attributable to foreign companies. That said, US companies and persons are not off the hook. As discussed in more detail below under Practical Implications, both US and foreign companies that engage in bribery in a context viewed as detrimental to US competitiveness or national security, or that are linked to international cartels, would remain an enforcement priority. Individuals involved in such conduct, or have engaged in particularly egregious conduct relating to foreign bribery, may still be at risk, regardless of nationality. The Guidelines’ emphasis on individual liability continues a trend in recent years to ensure individuals are held accountable for white-collar crime. Companies should continue to bolster their compliance programs and processes and conduct internal investigations to position themselves to seek a declination if they identify potential misconduct implicating the FCPA. 

In sum, while FCPA enforcement is expected to continue, and some priorities mirror or extend prior enforcement priorities, much uncertainty remains in light of the significant personnel changes within DOJ and the extent to which broader administration priorities may influence future FCPA enforcement. It is also noteworthy that the Guidelines are silent with regard to other types of criminal laws that are often charged in connection with foreign bribery schemes, such as money laundering and wire fraud. Finally, the Securities and Exchange Commission (SEC) also has authority to enforce the FPCA and its enforcement priorities remain to be seen.

Here is what companies should know about the Guidelines and how they could impact your business activities going forward.

Key Takeaways

• Protecting competitiveness of US companies will be paramount—with a focus on the supply-side and demand-side of foreign bribes. Targeting individuals and companies that pay bribes to foreign officials, where the bribe results in a disadvantage to US business interests, will be FCPA enforcement targets. While the Guidelines note that FCPA enforcement will not target individuals or companies by nationality, there is a strong emphasis on “safeguarding fair opportunities for US companies” and “vindicating US interests” where a US company or person may have lost an opportunity due to bribe payments from a competitor. The Guidelines also encourage FCPA prosecutors to consider how US interests have been harmed by demand-side bribery (bribe requests from foreign officials), suggesting that enforcement under the relatively new Foreign Extortion Prevention Act (FEPA) may well increase.
• Promoting US national security interests through FCPA enforcement signals a renewed focus on critical infrastructure sectors and echoes the administration’s “America First” policy. Perceived threats to US national security interests will be a focus for DOJ when bringing future FCPA cases. The Guidelines instruct prioritization of cases involving “key infrastructure or assets,” defined in EO 14209 to include secure access to critical mineral⁵ supply chains or deep-water ports, which the administration has described as “critical to American national security.”⁶ Foreign bribery cases in the defense, intelligence, and critical infrastructure (e.g., technology, agriculture, natural resources, and shipping terminals) sectors⁷ will also be a focus for FCPA enforcement. The Guidelines echo the administration’s “America First” policy as well as discourse around discouraging foreign actors from obtaining majority investment stakes in “critical infrastructure.” Thus, FCPA enforcement is directly tied to foreign policy and geopolitical interests and could be country specific. For example, focusing on enforcement matters where the People’s Republic of China, or other “foreign adversaries,” have won access to critical minerals or infrastructure as the result of bribery. These areas are also broader than they appear at first blush; for example, critical minerals are necessary for semiconductors and all manner of goods used by consumers every day, and not only for US government defense purposes.
• FCPA liability for criminal conduct by cartels and Transnational Criminal Organizations (“TCO”) will be a driver for enforcement. DOJ will target alleged misconduct that has a nexus with cartels or TCOs. It is important to note that the Guidelines suggest that conduct involving any connection to cartels or TCOs tied to the alleged violation, whether direct or indirect, will be prioritized. Thus, these are not only matters where connection may be relatively clear, but also include matters involving intermediaries (such as agents or shell corporations) that engage in money laundering for these criminal syndicates, as well as foreign officials or employees of state-owned enterprises (SOEs) who are linked to cartels. Relatedly, jurisdictions that involve higher risk of these types of connections (e.g., between cartels and government actors), such as Mexico, have already seen an increased presence of US law enforcement at US diplomatic installations, foreshadowing a heightened focus on potential misconduct there.
• Corporate self-disclosure is incentivized. The Guidelines align with DOJ’s stated desire to further incentivize corporate self-disclosures, as expressed in a May Criminal Division memorandum stating that white-collar enforcement proceedings should be guided by “focus, fairness, and efficiency”⁸ and the recent revisions to the Corporate Enforcement Policy (CEP)⁹ that provide for a declination when a company meets the DOJ’s standards for voluntary self-disclosure, full cooperation, and appropriate remediation. In a shift from prior administrations, companies that do not qualify as having voluntarily disclosed can still qualify for a non-prosecution agreement (NPA) with reduced post-settlement compliance requirements.
  • In recent public remarks, DOJ Criminal Division head Matthew Galeotti emphasized the effort to incentivize self-reporting, stating, “This is the time for companies to self-report. It is the time to do the work, come in early, cooperate, and remediate. The Criminal Division’s policies give clear benefits to those who do. And for those who don’t, we will move swiftly and aggressively to bring cases against individuals and companies.”¹⁰
• DOJ is placing ever greater emphasis on whistleblowers. In May, DOJ reiterated its commitment to the Corporate Whistleblower Awards Program established by the prior administration in August 2024.  This program was originally created to incentivize individuals to report misconduct involving financial institutions, foreign corruption, domestic corruption involving bribes or kickbacks to government officials, and healthcare fraud involving private insurance plans. The current DOJ has retained those categories and added several others to incentivize whistleblower reports. In his recent remarks, Galeotti noted the importance of whistleblower tips and stated that DOJ has already “received tips related to drug trafficking and corruption, procurement fraud, healthcare fraud, and more.”¹¹
• The Guidelines direct prosecutorial resources to cases involving individual misconduct. The Guidelines underscore a focus on individual criminal conduct rather than cases that “attribute nonspecific malfeasance to corporate structures,” which Galeotti appears to have referred to as “collective knowledge theories.” Prosecutors are also instructed to factor in the disruption to company operations and the impact on employees during the investigation itself, not solely at the resolution stage. This approach aligns with the administration’s stated priority to shift DOJ resources away from purported overbroad enforcement against corporations.
• The focus on “serious misconduct” investigations foreshadows FCPA cases involving complex, deliberate bribery schemes and articulates how DOJ will evaluate cases worthy of FCPA enforcement. The Guidelines instruct the pursuit of “serious misconduct,” which is described as substantial bribe payments, sophisticated efforts to conceal said payments, fraudulent conduct in furtherance of the scheme, and actions taken with corrupt intent to obstruct justice. The Guidelines clearly deprioritize cases involving payments related to routine business practices or business courtesies, often involving de minimis amounts. This follows rhetoric in recent years that corporate compliance program resources may be weighed too heavily towards a focus on gifts and entertainment, rather than more substantive, and more difficult to monitor, areas of exposure. Indeed, the Organization of Economic Cooperation and Development (OECD) has taken the view that facilitation payments should be regulated as a matter of local law and that it is not “practical or effective” for them to be regulated (by way of criminalization) by countries outside of where such payments occur.¹²
• A new internal approval structure for opening FCPA investigations and enforcement matters is in place. New enforcement actions are subject to approval by the Assistant AG for the Criminal Division or more senior department officials. This internal process for vetting FCPA investigations and enforcement matters signals that the Fraud Division, which oversees the FCPA unit, will enjoy less autonomy and discretion in this regard than previously. This is likely designed to serve as a mechanism to ensure alignment with the administration’s policy objectives, and, in that regard, is consistent with the administration’s approach overall to the DOJ. Moreover, a similar process was recently implemented by the SEC’s Enforcement Division. While the approach could indicate scaled-down enforcement, at least in the short term, it may also cause the department to focus more on cases involving intentional, deliberate misconduct.

Practical Implications

• The Guidelines indicate a continued interest in enforcement, with a changed focus. Furthermore, it is not entirely unprecedented that the administration has and continues to undertake a review of FCPA cases. Other new administrations have undertaken reviews of pending matters and enforcement priorities after coming into office.
• Anticipate additional congressional inquiries, as well as an increase in state and foreign cases and director and officer (D&O) civil cases over the next several years as reactions to a perceived federal pullback in DOJ FCPA enforcement. Indeed, the attorneys general in California and New York have already stated they will pursue overseas bribery cases, utilizing their own consumer protection laws, and several foreign governments have agreed to and begun enhancing their cooperation and enforcement efforts.
• US companies are likely to fare better than foreign companies, as are US citizens as compared with foreign nationals.
• Further, the enforcement prioritization may be expanded or changed – whether over the next few months, years, or in the next administration. Beyond that, as the Guidelines repeatedly emphasize, each case will depend on the facts and circumstances. To the extent a company identifies potential violations of the FCPA, they should not be ignored. As the updated CEP makes clear, declinations are to be provided when DOJ determines that a company has timely and voluntarily self-disclosed, fully cooperated, and remediated. In the FCPA context, declinations also may proceed based on additional factors and criteria to be determined on a case-by-case basis. Thus, even though the administration appears to be de-emphasizing investigations against entities as compared to individuals, FCPA issues cannot simply be ignored and need to be scrutinized.
• Companies operating in China and Latin America—and other jurisdictions where the administration is pursuing its national security priorities—can expect to be the focus of FCPA enforcement over the next four years and should take steps to preemptively identify areas of potential exposure.
• Given the expansive reach of cartels throughout much of Latin America, their ability to quickly adapt and respond to enforcement trends, and their increasing diversification into different methods of making money and integration into local economies, exposure may be particularly acute in this region. Specifically, companies operating across the Americas — not only Mexico — should conduct a risk assessment to identify operational areas that could be exposed to cartel activities and consider taking preemptive measures to strengthen existing compliance programs:
  • Evaluate whether your third-party management system is tailored to detect intersections with cartels and TCOs that often operate under the guise of illicit and legitimate businesses. Enhancing third-party due diligence, while a helpful interim step, would not necessarily identify the underlying risks stemming from links to cartels that are often embedded in legitimate business enterprises and organizations.
  • Develop or update compliance training and hotline guidance to help company personnel identify red flags related to cartel activity and to feel as comfortable as possible raising those flags or related concerns, considering the personal safety and security implications involved.
  • Assess all touchpoints within your business that could be influenced by cartel activities.
• Companies with considerable interactions with foreign officials and state-owned enterprises — particularly those stakeholders who have decision-making authority over processes that implicate US national security interests — should assess their government relations protocols and conduct enhanced third-party diligence for intermediaries permitted to interact on their behalf. Companies pursuing foreign government contracts, permits and licenses, concessions, or similar opportunities should implement additional compliance safeguards to detect and detect bribery, particularly those companies operating in the extractives, transportation and logistics, and communications and other sectors implicating critical infrastructure as defined by the US government.
• Management of internal reporting systems and whistleblower reports should receive additional attention and resources, particularly when operating in jurisdictions with elevated risk pursuant to the new Guidelines.
• Reevaluate your internal escalation criteria and develop an action plan in the event misconduct, which could implicate an FCPA violation with heightened reputational risk, is reported, such as conduct with a transnational crime nexus.
• When misconduct is reported, conduct preliminary assessment as expeditiously as possible to evaluate whether voluntary disclosure is warranted. Conducting an internal investigation to identify the root cause and assess whether the misconduct is isolated to an individual or is more pervasive will be critical to determining next steps.

While DOJ is seeking more than ever to incentivize and promote voluntary corporate disclosures, whether to make a disclosure in a particular case still requires not only timely but careful analysis. The extent to which the “America First” policy factors may influence the outcomes is still unclear. 

¹ 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 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, (hereinafter “Galeotti Remarks at ACI”).

³ Exec. Order 14209, 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/.

⁴ Memorandum from the Attorney General, Total Elimination of Cartels and Transnational Criminal Organizations (Feb. 5, 2025), https://www.justice.gov/ag/media/1388546/dl?inline.

⁵ The list of critical minerals, as defined by the Secretary of the Interior acting through the U.S. Geological Survey, can be found in the Federal Register: https://www.federalregister.gov/documents/2022/02/24/2022-04027/2022-final-list-of-critical-minerals

⁶ Fact Sheet: President Donald J. Trump Restores American Competitiveness and Security in FCPA Enforcement (Feb. 10, 2025), https://www.whitehouse.gov/fact-sheets/2025/02/fact-sheet-president-donald-j-trump-restores-american-competitiveness-and-security-in-fcpa-enforcement/; see also Exec. Order 14209.

⁷ These sectors are among the 16 listed as critical infrastructure by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”), https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors.

⁸ Memorandum from the Head of the DOJ Criminal Division, Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime (May 12, 2025), https://www.justice.gov/criminal/media/1400046/dl?inline.

⁹ Justice Manual § 9-47.120.

¹⁰ Galeotti Remarks at ACI (June 10, 2025).

¹¹ Id.

¹² Organization of Economic Cooperation and Development (“OECD”), Convention on Combating Bribery of Foreign Public Officials in International Business Transactions at 11, https://www.oecd.org/content/dam/oecd/en/publications/reports/2011/03/convention-on-combating-bribery-of-foreign-public-officials-in-international-business-transactions_037f7856/2bfa620e-en.pdf/_jcr_content/renditions/original./2bfa620e-en.pdf.