Although most reporting on the DOJ's latest Foreign Corrupt Practices Act (FCPA) guidelines has emphasized the anticipated reduction in overall anti-corruption enforcement, an equally important, but less noted, aspect has emerged: the DOJ’s new laser-like focus on protecting US businesses harmed by competitors – particularly foreign ones - unfairly using bribery to secure business advantages.
- For US-based companies, this amounts to a formal invitation to level the competitive playing field by becoming whistleblowers, proactively investigating alleged competitor misconduct and making a report to the DOJ.
- For non-US companies with a US jurisdictional nexus, on the other hand, the DOJ guidelines signal a materially enhanced risk of becoming an enforcement target.
New FCPA Guidelines Signal a Sharp Shift in Priorities
Traditionally, FCPA compliance messaging to companies has focused on internal bribery risks stemming from sources such as employee misconduct and third-party liability. The DOJ (along with the SEC) has long promoted vigilant compliance and self-reporting to avoid or reduce punishment. But the DOJ's June 9, 2025 Guidelines ("the Guidelines"), issued in response to the February 10 executive order pausing broader FCPA enforcement, in addition to other important policy guidance, contain a less-reported-on, but important, directive: the FCPA’s enforcers now encourage US companies to investigate actively and, if evidence is uncovered, report corrupt practices by competitors, and in particular non-US ones.1
By spotlighting unfair business advantages gained through bribery and treating US companies largely as victims and rather than as potential defendants, the DOJ has altered its long-standing approach to FCPA enforcement. US companies can take the opportunity to play a more proactive role in enforcement by using whistleblower channels as a competition-leveling tool.
With this shift from defense to offense, US companies are less likely to be investigation targets and more likely to receive protection against foreign competitor misconduct.
More specifically, in a subheading of the Guidelines titled "Safeguarding Fair Opportunities for US Companies," the DOJ particularly highlights what it considers the unfair business advantage that foreign companies gain by subverting the rule of law "to obtain unfair lucrative contracts and illicit profits." The Guidelines go on to observe that the "most blatant bribery schemes have historically been committed by foreign companies"; this commentary signals a likely trend towards increased enforcement against foreign companies engaged in corrupt conduct that puts their US competitors at a disadvantage.
Although the Guidelines do not specifically define a "US company" or "foreign company," the broad message is that "corrupt [foreign] competitors skew markets and disadvantage law-abiding US companies and others." The DOJ promises to, on a go-forward basis, focus its law enforcement resources on "vindicat[ing] these interests."
As in the past, the FCPA's enforcers will apply the new guidelines on a case-by-case basis. What is unmistakable, however, is that the DOJ is adopting a more protectionist stance on foreign corruption cases that have a US jurisdictional connection.
Investigating Competitor Corruption: Key Considerations
The DOJ's more protectionist approach to FCPA enforcement offers US-based companies powerful new incentives to monitor proactively and report foreign competitors' misconduct. If a US company learns that a foreign competitor has either paid or offered to pay a bribe, or is the target of a foreign official bribery demand, it should consider whether, and how, to in a timely manner gather actionable, admissible evidence for potential presentation to US law enforcement authorities.
Those non-US companies that become the subject of such an investigation, on the other hand, have valid reasons to be concerned about the significant fines, criminal penalties and negative publicity that accompany DOJ-led investigations.
Whether investigating allegations of market-distorting bribery by foreign competitors or defending against such claims, companies must keep some key considerations in mind.
Investigations Will Look Different
Gathering evidence against a foreign competitor presents unique challenges. Unlike internal investigations, investigating teams will not have ready or direct access to data or personnel. Effective investigative strategies may, therefore, include:
- Discretely engaging local whistleblower witnesses
- Identifying promising sources of evidence (e.g., witnesses or banks or email service providers used by competitors or corrupt foreign officials) even if the evidence itself is not available to the US company
- Navigating foreign data privacy and secrecy laws as they relate to obtaining information from competitor employees and other whistleblowers with insider information
- Preserving anonymity and protecting sources
- Strategically sharing investigative findings with US or foreign enforcement agencies and regulators early on
Balancing the Investigative Costs Against Potential Upsides
Launching an external investigation costs time and money. But successful whistleblowing can:
- Remove corrupt competitors from the market (or at least re-level the playing field)
- Restore lost opportunities
- Align with long-term strategic goals
Anonymity Is Not Absolute
Although the DOJ values confidentiality, anonymity for reporting companies cannot always be guaranteed. Counsel must balance disclosure risks with strategic goals and prepare clients for the possibility of their identities becoming known.
Key Takeaways for Legal and Compliance Teams
- Be proactive: Review competitive losses in or related to high-risk regions, strategic business sectors, and critical infrastructure to determine if corruption could be playing a role
- Be open and receptive: Receive and quickly evaluate allegations of competitor misconduct
- Build new and practical investigations capabilities: Develop tools and partnerships to assess and report allegations of competitor misconduct and understand public-facing whistleblower hotlines and guidance
- Continue to prioritize compliance: Non-US companies with a US jurisdictional nexus should be aware of the risk of whistleblowing by US competitors and the DOJ's directive to prioritize such reports. Continue to actively support practical compliance and to engage in critical self-assessment
- Educate leadership: Help executives understand the tangible opportunities and risks these new guidelines present
For additional analysis on the June 9, 2025 DOJ guidance, see T. Markus Funk and Chief U.S. District Judge Virginia M. Kendall, The New FCPA Guidelines Invite US-Company Whistleblowing Against Corrupt Foreign Competitors, ABA Criminal Justice Section Newsletter (August 2025).
1 This recent invitation to report misconduct is distinct from the August 1, 2024, DOJ Corporate Whistleblower Awards Pilot Program, discussed here, which aimed to use financial rewards to incentivize individual – not company – whistleblowers to report corporate misconduct to the Department.
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