DOJ’s New FCPA Guidelines Focus On Corrupt Intent and Transnational Crime

On June 10, 2025, United States Department of Justice (DOJ) Deputy Attorney General Todd Blanche issued revised and hotly anticipated Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA Guidelines).[1] The FCPA Guidelines arise from President Trump’s February 10, 2025, Executive Order[2] that paused enforcement of the FCPA and directed DOJ to issue updated guidelines and policies that ensure that FCPA investigations and enforcement make efficient use of federal law enforcement resources and prioritize American interests and economic competitiveness. 

The FCPA Guidelines articulate four factors that will focus DOJ’s FCPA enforcement efforts on (1) totally eliminating cartels and transnational criminal organizations (TCOs); (2) safeguarding fair opportunities for US companies; (3) advancing US national security; and (4) prioritizing investigations of serious misconduct. In practice, the FCPA Guidelines do not significantly alter DOJ’s efforts to detect and deter substantial bribe payments and fraudulent conduct in furtherance of corruption, but they likely will result in more limited FCPA investigations and enforcement actions that are more clearly focused on significant and criminal conduct that enables or supports TCOs or otherwise harms American interests, entities and persons.

FCPA Investigations Will Focus on Individuals’ Criminal Conduct and Corruption Impacting National Interests and Competitiveness

            The FCPA Guidelines articulate four factors that are intended to ensure that DOJ’s efforts under the FCPA limit “undue burdens on American companies that operate abroad” and target “conduct that directly undermines US national interests.” To do so, the FCPA Guidelines direct prosecutors to focus on cases where “individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures; proceed as expeditiously as possible in their investigations; and consider collateral consequences, such as the potential disruption” to a company’s operations and the impact on company employees. Similar to DOJ’s white collar enforcement priorities,[3] these directives suggest that DOJ is looking to run more efficient and focused FCPA investigations than in years past and not unnecessarily overburden companies. 

            As to the four factors, the first factor directs prosecutors to pursue FCPA cases where the alleged misconduct is associated with a cartel or TCO, utilizes structures that launder money on their behalf, or involve bribes paid by them to employees of state-owned entities or other foreign officials. This factor emphasizes the Trump Administration’s focus on dismantling cartels and TCOs and DOJ will likely look to pursue FCPA cases against companies that have transacted with them or otherwise supported their operations.

            The second factor directs that FCPA enforcement focus on conduct of companies or persons that has placed specific and identifiable law-abiding US companies at an economic disadvantage by distorting markets and undermining the rule of law. The FCPA Guidelines counsel that DOJ’s efforts should not focus on “particular individuals or companies on the basis of nationality,” and rather that the priority is misconduct that “deprive[s] specific and identifiable US entities of fair access to compete and/or results in their economic injury.” In a speech given on the same day that touches on the FCPA Guidelines, the Head of DOJ’s Criminal Division, Matthew Galeotti, clarified that the focus is on “conduct that genuinely impacts the United States or the American people . . . [and c]onduct that does not implicate US interests should be left to our foreign counterparts or appropriate regulators.”[4] It remains to be seen whether this will result in the DOJ focusing its efforts on foreign, US-listed firms that impact American interests, or whether, as Galeotti suggested, that DOJ will leave investigation and prosecution of foreign conduct to foreign prosecutors and regulators that can “ensure that those countries and their regulators can vindicate their interests and pursue their mandates.” 

            The third factor directs prosecutors to focus on “the most urgent threats to US national security resulting from the bribery of corrupt foreign officials involving infrastructure or assets.” This factor specifically calls out the national security ramifications of domestic firms operating in the “defense, intelligence, [. . .] critical infrastructure, critical minerals, deep-water ports, or other key infrastructure” markets and suggests that foreign companies’ efforts to secure improper advantages in these areas will be scrutinized.   

            The fourth factor, which departs most significantly from prior practice, recognizes that US citizens and businesses should not be penalized, or perhaps even investigated, for “routine business practices” even if the related payments are not permissible under the FCPA’s exceptions for facilitating and expediting payments (see 15 U.S.C. § 78dd-l(b)), or reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country (id.at § 78dd-1(c)). Specifically, prosecutors are directed not to focus on conduct “involving routine business practices or the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies.” Instead, enforcement will focus on conduct with “strong indicia of corrupt intent” such as “substantial bribe payments, . . . sophisticated efforts to conceal bribe payments,” “fraudulent conduct in furtherance of” bribery schemes, and “efforts to obstruct justice.” Prosecutors are also directed to consider the likelihood that foreign authorities are “willing and able” to investigate and prosecute the same alleged misconduct. 

Fewer and Shorter FCPA Investigations Focused on the Most Serious Alleged Misconduct Is Likely

            The revised FCPA Guidelines usher in a new era of FCPA enforcement that is likely to result in more targeted investigations focused on the most serious alleged misconduct, including conduct that enables or facilitates the criminal activity of cartels and TCOs. It is clear from the revisions to the FCPA Guidelines, as well as those to DOJ’s corporate enforcement policy, that the DOJ has taken to heart the criticism that criminal investigations of corporate crime take too long, impair otherwise unrelated lawful corporate operations, and, sometimes unfairly, are a form of punishment on their own. The FCPA Guidelines thus direct prosecutors to focus enforcement on criminal activity of individuals or significant schemes that impair US interests and not on deficiencies in corporate compliance policies, procedures or controls that may have enabled or failed to prevent or detect employee misconduct. 

Similarly, although misconduct can occur in any industry, the FCPA Guidelines suggest that DOJ will be keen to detect and deter misconduct in sectors that are essential to US national security, including the defense, intelligence, minerals, and infrastructure and ports industries, and particularly where US companies are harmed. It remains to be seen how this will work in practice; however, the issuance of the FCPA Guidelines suggests that FCPA enforcement will continue, albeit with a more nationalistic focus and judicious scope. 

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

[2] https://www.federalregister.gov/documents/2025/02/14/2025-02736/pausing-foreign-corrupt-practices-act-enforcement-to-further-american-economic-and-national-security

[3] See our previous BRiefing on this available at https://briefings.brownrudnick.com/post/102kbbu/doj-updates-white-collar-enforcement-priorities

[4] Galeotti, Matthew R. June 10, 2025, Remarks at American Conference Institute Conference available at https://www.justice.gov/opa/pr/head-justice-departments-criminal-division-matthew-r-galeotti-delivers-remarks-american