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The Department of Justice (DOJ) may have pried back open the coffin of Foreign Corrupt Practices Act (FCPA) enforcement that many believed had been nailed shut by a February 10, 2025 Executive Order¹ suggesting its demise. 

After the president signed an Executive Order on February 10 titled Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025), the business and white-collar communities generally understood that the administration was pausing enforcement of the FCPA. In addition to directing DOJ to pause enforcement of the FCPA, the February 10 Executive Order also directed DOJ to issue updated guidelines governing FCPA enforcement.

On June 9, DOJ issued those guidelines in a memo entitled Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA).² The memo purports to ensure that FCPA investigations and prosecutions comply with the Executive Order 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.” It requires all new FCPA investigations to be authorized by the Assistant Attorney General (AAG) of the Criminal Division or a more senior official, and requires prosecutors to consider the following list of non-exhaustive factors:

Total Elimination of Cartels and Transnational Criminal Organizations

• Prosecutors are directed to “prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs.”
• Cases will be prioritized if they are associated with cartel operations, utilize money launderers or shell companies engaging in laundering for those entities, or involve foreign officials who have received bribes from those entities.

Safeguarding Fair Opportunities for U.S. Companies

• The department will prioritize cases that deprive U.S. companies of fair access to compete, or result in economic injury to specific U.S. companies or individuals.

Advancing U.S. National Security

• FCPA enforcement will focus on the most urgent threats to US national security involving key infrastructure or assets.

Prioritizing Investigations of Serious Misconduct

• FCPA enforcement will focus on substantial bribe payments, sophisticated attempts to conceal bribes, and efforts to obstruct justice.
• Prosecutors are expressly directed to be mindful of safe harbors and affirmative defenses to prosecution.

In a speech at a conference this week, Matthew R. Galeotti, the head of DOJ’s Criminal Division, explained that “the through-line is that these Guidelines require the vindication of U.S. interests.” ³ He clarified that going forward, “conduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.” He also expressed that much of the memo focuses on common-sense principles.

We make the following observations:

• FCPA enforcement still has a pulse, at least for allegations of serious misconduct.
• We encourage in-house counsel and compliance teams to explicitly reference the new guidance in their compliance materials.
• Companies that compete for business abroad with U.S.-based companies must remain vigilant in working their anticorruption compliance plans and diligently investigating corruption allegations. Non-U.S.-based companies are in the crosshairs of the administration’s prosecution guidelines. DOJ can and will enforce the FCPA where a competitor seeks to gain an unfair leg up against a U.S. corporation. 
• DOJ continues to encourage whistleblowers and self-disclosures and is touting its expanded whistleblower program. Whistleblowers may keep the wheels of FCPA investigations turning even if some within DOJ are hesitant.
• The memo gives U.S. companies a roadmap to defend against FCPA investigations. Companies addressing DOJ’s concerns can focus on the themes addressed in the memo, suggesting that conduct being investigated is minor, that U.S. companies will be at a disadvantage if the minor types of allegations at issue are criminalized, that prosecutors are not adequately considering safe harbors and affirmative defenses that legitimize the conduct, and that the allegations do not involve the types of cartel conduct that the FCPA is now intended to protect.
• Centralizing investigation decisions with the AAG of the Criminal Division is a big deal. This will likely lead to fewer investigations, particularly after the administration has increased the threshold of potentially criminal conduct.
• We agree with Mr. Galeotti’s comments that much of what is contained in the memo is common sense guidance that would have felt at home in past DOJ investigations. The tone of this memo differs considerably from past administrations, but much of the content is similar.
• There has been speculation that with DOJ ceding the field on FCPA enforcement, other agencies might take up more vigorous enforcement. The SEC is the most likely candidate. With DOJ clarifying that it intends to continue bringing FCPA cases that match its priorities, that momentum may ebb.

This is certainly not the final word in FCPA enforcement. We will see how vigorously the leadership of DOJ pursues FCPA investigations, and to what extent the focus on self-disclosure and whistleblowers affects the volume of FCPA allegations for in-house lawyers to address. But the updated FCPA guidance and Mr. Galeotti’s remarks make clear that the FCPA unit still has a pulse. Time will tell whether it is a faint one.

[1] https://www.presidency.ucsb.edu/documents/executive-order-14209-pausing-foreign-corrupt-practices-act-enforcement-further-american

[2] https://www.justice.gov/dag/media/1403031/dl

[3] https://www.justice.gov/opa/pr/head-justice-departments-criminal-division-matthew-r-galeotti-delivers-remarks-american