DOJ Unpauses FCPA Enforcement with New Limits

On February 10, 2025, the president signed an executive order that paused investigation and enforcement of the FCPA for a period of 180 days, required the DOJ to review any existing FCPA investigation or prosecution, and to issue new guidelines and policies as appropriate to adequately promote the president’s constitutional foreign policy authority and “prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.”

On June 9, 2025, 119 days after the pause went into effect, the DOJ announced new guidelines for investigating and enforcing potential violations of the FCPA. This alert summarizes the new DOJ memorandum and the factors that prosecutors must now consider before beginning an FCPA investigation or enforcement action.

The purpose of this new guidance is to, consistent with the February executive order, “limit undue burdens on American companies that operate abroad” and “target enforcement actions against conduct that directly undermines U.S. national interests.” The guidance mandates that prosecutors:

1. Prioritize criminal misconduct by individuals rather than by corporations
2. Conduct their investigations expeditiously and not overly burden those being investigated
3. Consider collateral consequences to investigations in the form of damage to business, disruption of operations, and impact on employees

The guidance directs prosecutors to consider a new list of non-exhaustive factors in evaluating whether to initiate an FCPA investigation or enforcement action. These non-exhaustive factors include:

1. Safeguarding Fair Opportunities for American Companies: The new FCPA guidance’s stated purpose is to preserve the fair, free market system by protecting the “economic growth and expansion of U.S. business opportunities abroad.” Because bribery undermines these free market interests by placing law-abiding companies at a disadvantage and skewing markets in favor of corrupt competitors, the new guidance directs prosecutors to “identify and prioritize the investigation and prosecution of conduct that most undermines these principles.” Under this principles-based approach, prosecutors are now to give important consideration as to whether the “alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies and individuals.”
2. Prioritizing Serious Misconduct: The new guidance also recognizes that business norms in other countries and regions may be different from the United States. These relative norms, the guidance notes, are consistent with the existing exceptions and affirmative defenses to the FCPA. New FCPA cases will thus focus not on “low dollar, generally accepted business courtesies,” but rather on alleged misconduct that involves the corrupt intent of specific individuals. This guidance refocuses FCPA enforcement away from overt and unsophisticated payments of small sums to local officials, especially when doing so is part of the common business practice of a nation or region, and towards complicated, covert schemes to pay large dollar amounts to local officials when doing so is contrary to both the law and custom of the region.
3. Advancing U.S. National Security: Noting that state actors and strategic competitors “often exploit rather than discourage corruption and state weakness to extract resources and exploit populations,” the new guidance states that FCPA enforcement will focus on sectors that support national security, for example intelligence and critical infrastructure.
4. Focusing on the “Total Elimination” of Cartels and Transnational Criminal Organizations: In a separate executive order signed on January 20, 2025, the president designated cartels and transnational criminal organizations (TCOs) as foreign terrorist organizations under the law. That order does not define either term, but it does provide two examples that are involved with drug trafficking. The new guidance on the FCPA directs prosecutors to consider whether an alleged FCPA violation is connected to the criminal operation of a TCO or cartel. This factor adds potential FCPA exposure to existing criminal and civil exposure that any company associating with a cartel or TCO may face.

The four considerations are, however, not a complete list of all the factors that DOJ will consider when deciding whether to initiate a new investigation. The new guidance notes that prosecutors must consider factors in every criminal case, including existing guidance in the Justice Manual, which requires prosecutors to consider the nature and seriousness of the offense and the deterrent effect that prosecuting the offense will have. Moreover, in light of the new guidance, DOJ may treat FCPA cases that are already in court differently from those that are still in the investigative stage. In other words, although the DOJ’s review of existing cases is ongoing for approximately the next two months, FCPA cases that were brought prior to this new guidance being issued will not automatically be terminated even though the case was not brought under the new guidance.

In addition, the new guidelines impose significant approval requirements. In particular, all new FCPA investigations and enforcement actions must be authorized by the assistant attorney general (or the official acting in that capacity) for the Criminal Division or a more senior DOJ official. Previously, the authority to open FCPA investigations had been within the purview of the DOJ’s Fraud Section and FCPA Unit.

The guidelines also direct prosecutors to consider the likelihood that foreign regulators are willing and able to prosecute the misconduct, such that DOJ will defer to foreign authorities absent a compelling U.S. interest.