On June 10, 2025, the Department of Justice (“DOJ”) issued a memorandum establishing guidelines for enforcement of the Foreign Corrupt Practices Act (the “Guidelines” and “FCPA,” respectively).1 The DOJ issued the Guidelines in response to President Trump’s February 10 Executive Order2 temporarily suspending enforcement of the FCPA and directing the Attorney General to reevaluate existing investigations and enforcement actions and develop new guidance for FCPA enforcement consistent with the priorities set forth in the Executive Order. The Guidelines seek to implement those priorities by “limiting undue burdens on American companies that operate abroad” and “targeting enforcement actions against conduct that directly undermines US national interests.”3 While it remains to be seen how the DOJ will implement the Guidelines in practice, the Guidelines suggest that the DOJ will continue to enforce the FCPA, focusing on a narrower range of misconduct than prosecutors have previously targeted.
Key Takeaways from DOJ’s FCPA Enforcement Guidelines
Here are our key takeaways from the Guidelines:
- Continued Focus on Eliminating Cartels and Transnational Criminal Organizations (“TCOs”): The Guidelines prioritize FCPA matters with a connection to cartels and TCOs, implementing a prior executive order4 and DOJ policy5 aimed at dismantling criminal organizations that pose a threat to the national security, foreign policy, and economy of the United States. This connection need not relate to the foreign corruption itself—if participants in a corruption scheme used money launderers or shell companies who also launder money for cartels or TCOs or if the implicated foreign officials also received bribes from cartels or TCOs, that may be sufficient for the DOJ to authorize an FCPA investigation or enforcement action. In practice, this may mean that prosecutors will focus their efforts in Mexico and other parts of Latin America where cartels and TCOs are active. Given Latin America’s proximity to the United States and the use of the US financial system in connection with many foreign corruption schemes in Latin America, the region was already a primary focus of FCPA prosecutors.
- Cases Involving Key Infrastructure and Assets: The Guidelines prioritize FCPA enforcement related to defense and intelligence services and critical infrastructure, highlighting that corruption in these areas undermines US national security interests.
- Minimizing Business Disruptions for US Companies: As we predicted in a previous alert, FCPA enforcement will now be focused on conduct that harms US interests and affects the competitiveness of US businesses. By focusing on foreign corruption that harms US businesses, the Guidelines suggest that the DOJ may show less interest in prosecuting bribery schemes involving US companies. Where the DOJ does pursue such investigations, companies can expect the DOJ to seek to minimize business disruptions for US companies. The Guidelines instruct prosecutors to “proceed as expeditiously as possible” in their investigations.6 Prosecutors are similarly instructed to consider the collateral consequences of their investigations, such as the “potential disruption to lawful businesses and the impact on a company’s employees.”7
- Focus on Individual Accountability: Prosecutors are instructed to focus on cases in which individuals have engaged in criminal misconduct, rather than attributing “nonspecific malfeasance to corporate structures.”8 The Head of the DOJ’s Criminal Division clarified that the DOJ will focus on “common-sense principles” and prioritize the specific misconduct of individuals, rather than collective knowledge theories—an approach that is consistent with DOJ’s longstanding practice.9
- Pre-authorization by Senior DOJ Officials: Moving forward, all new FCPA investigations and enforcement actions must be authorized by the Assistant Attorney General for the Criminal Division or a more senior DOJ official. This is a departure from the Department’s previous policy of allowing the DOJ’s Fraud Section and the FCPA Unit to open and pursue investigations. This requirement appears calibrated so that DOJ leadership will ensure that FCPA enforcement is conducted consistently with the Guidelines and administration priorities.
- Focusing on Substantial Bribe Payments: The Guidelines indicate that the DOJ will not pursue relatively low-dollar “generally accepted business courtesies,”10 and will instead focus on matters involving substantial bribe payments, efforts to conceal bribes, fraudulent conduct, and obstruction of justice.
- Deference to Foreign Law Enforcement: The Guidelines direct prosecutors to consider the likelihood that an appropriate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct. The DOJ appears poised to defer to foreign authorities where misconduct does not implicate the US interests highlighted in the Guidelines and the misconduct can be effectively prosecuted by foreign authorities.11
The New Focus of FCPA Enforcement
The Guidelines emphasize four non-exhaustive factors prosecutors and authorizing officials must consider in deciding whether to pursue FCPA investigations and enforcement actions. Moving forward, FCPA prosecutions will focus on:
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Bribery Schemes Involving Cartels and TCOs
The Guidelines state that a “primary factor” in considering whether to pursue an FCPA investigation is whether the conduct has some connection to the criminal operations of a cartel or TCO. As noted, this nexus does not have to be direct. It may be sufficient if those involved in the corruption scheme used shell companies or money launderers also used by organized criminal groups, or if a foreign official who accepted a bribe from a company also took payments from cartels or TCOs. This approach may mean that FCPA enforcement will continue to focus on Latin America, and in particular Mexico and other regions where cartels and TCOs are active.
Significantly, the Guidelines note that they do not apply to other efforts to dismantle cartels and TCOs, many of which have now been designated as foreign terrorist organizations, including through prosecutions for material support of terrorism and sanctions offenses. The Guidelines thus appear to suggest that the DOJ will pursue such investigations and enforcement actions without regard to the limitations on FCPA enforcement discussed in the memorandum.
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Safeguarding Fair Opportunities for US Companies
FCPA enforcement will focus on misconduct that deprived “specific and identifiable” US companies and individuals of fair access to compete and/or resulted in economic injury.12 This approach also extends to the Foreign Extortion Prevention Act, which criminalizes the demand side of foreign bribery, and the Guidelines instruct prosecutors to consider whether specific and identifiable US entities or individuals have been harmed by the foreign officials’ demand for corrupt payments.13 While the Guidelines emphasize that prosecutors are to focus on the nationality of the victim and not on the nationality of the potentially culpable parties, this focus on harm to US companies and individuals suggests that the DOJ may be less interested in pursuing cases against US companies, unless the case involves a priority area of enforcement—such as a nexus to cartels and TCOs or bribery involving sensitive sectors and critical infrastructure.
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Advancing US National Security
Prosecutors will prioritize cases involving misconduct involving defense and intelligence agencies and critical infrastructure (i.e., critical minerals, deep-water ports, and other key infrastructure projects).
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Prioritizing Investigations of Serious Misconduct
Prosecutors will prioritize cases involving serious “misconduct 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."14 FCPA investigations and enforcement will no longer penalize “alleged misconduct involving routine business practices or the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies."15 The Guidelines remind prosecutors that the FCPA contains exceptions for facilitating and expediting payments, as well as affirmative defenses for reasonable and bona fide expenditures and payments that are lawful under the written laws of the foreign country.16
Conclusion
Both the Guidelines and the remarks made by the Head of the Criminal Division emphasize these are non-exhaustive factors. “No one factor is necessary or dispositive”17 and prosecutors must follow other applicable policies and relevant factors, such as the Principles of Federal Prosecution, which require considering the nature and seriousness of the offense and the deterrent effect of prosecution, among other factors.18
As we previously discussed, the recent guidance and policy changes issued by the DOJ are clearly more business-friendly—particularly toward US companies—than we have seen in the past, and the DOJ is paying special attention to issues that align with overall administration priorities. These Guidelines continue that trend and provide a framework for more targeted FCPA enforcement focused on conduct that undermines US national interests.
The White Collar and Investigations Group contributed to the development of this publication.
1 Dep't of Justice, Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (June 10, 2025) available here.
2 Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025), available here.
3 See supra note 1.
4 Exec. Order Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists (Jan. 20, 2025) available here.
5 Dep't of Justice, Total Elimination of Cartels and Transnational Criminal Organizations (Feb. 5, 2025) available here.
6 See supra note 1.
7 Id.
8 Id.
9 Matthew R. Galeotti, Head of the Criminal Division, Head of Justice Department’s Criminal Division Matthew R. Galeotti Delivers Remarks at American Conference Institute Conference (June 10, 2025) available here.
10 See supra note 1.
11 Id.
12 Id.
13 Id.; See 18 U.S.C.§ 1352.
14 See supra note 1.
15 Id.
16 Id.; see, e.g. 15 U.S.C. § 78dd-1(b-c).
17 See supra note 9.
18 See supra note 1; Justice Manual§§ 9-27.001
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