FCPA Guidance Released

Since the February 2025 Executive Order pausing enforcement of the Foreign Corrupt Practices Act (FCPA), businesses, lawyers and the anti-corruption community awaited the outcome of the planned 180-day review. On June 9, we received some idea about what lies ahead, as Deputy Attorney General Todd Blanche released the memorandum Guidelines for Investigations and Enforcement of the Foreign Corrupt Practice Act. The following day, additional clarification (accessed June 16, 2025) was provided by Department of Justice Criminal Division Head Matthew Galeotti at the American Conference Institute conference on Global Anti-Corruption, Ethics & Compliance.

The June 9 memo leads with a reminder that the February EO aimed to ensure that FCPA is not:

• “stretched beyond proper bounds and abused in a manner that harms the interests of the United States”;

• used “against American citizens and businesses ... for routine business practices” overseas; nor

• enforced to the detriment of “American economic competitiveness and, therefore, national security.”

To most observers, that formulation seemed to reveal a rather outdated mode of thinking. Not only has the FCPA succeeded in shifting the global conversation about business ethics, it has, in fact, leveled the playing field for American firms and strengthened their competitiveness. Fortunately, based on the new guidance, that core understanding about the harms of corruption appears to remain firmly rooted. Despite the early fears of some observers, it appears that the FCPA has not been defanged. In particular, the memo states:

 “In addition to distorting markets and undermining the rule of law, companies that bribe foreign officials to obtain business can put their law-abiding competitors, including U.S. companies, at a serious economic disadvantage. By bribing foreign officials to obtain lucrative contracts and illicit profits – at times hundreds of millions of dollars – corrupt competitors skew markets and disadvantage law-abiding U.S. companies and others for many years.”

Galeotti stressed that “we will move aggressively – yet fairly – to prosecute white-collar offenders whose crimes undermine U.S. interests.” He told his audience that his team has “clarified the Corporate Enforcement and Voluntary Self-Disclosure Policy and expanded the Corporate Whistleblower Awards Pilot Program because these policies work.” He added, “This is the time for companies to self-report… come in early, cooperate, and remediate…. And for those who don’t, we will… bring cases against individuals and companies.” Finally, he told white-collar defense attorneys to “Be conscientious about what, when, and how you appeal the decisions of Trial Attorneys and AUSAs…. We do not begrudge defense counsel for zealously advocating for their clients…. But seeking premature relief, mischaracterizing prosecutorial conduct, or otherwise failing to be an honest broker actively undermines our system.”

The national security angle also could open the door to whole new types of enforcement actions. The guidance refers to Attorney General Bondi’s February memorandum on Total Elimination of Cartels and Transnational Criminal Organizations (TCOs), directing the FCPA Unit to prioritize going after “foreign bribery that facilitates the criminal operations of Cartels and TCOs.” According to the guidance, the categories of cases that could be the subject of focus are those involving “money launderers or shell companies that engage in money laundering for Cartels or TCOs” or involving “employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs.” It will be interesting to track what types of cases might arise from this guidance.

By the same token, not all of the developments are encouraging. For one, there is now a higher bar to launch cases. Investigations will be undertaken to advance American interests, more narrowly defined than in the past. The guidance states that the DOJ will “seek to vindicate” the interests of US firms by “identifying and prioritizing the investigation and prosecution of conduct that most undermines these principles.” For instance, the DOJ will consider (emphasis added) “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 or individuals.” As Galeotti explained, “Conduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.”

Additionally, the guidance tells prosecutors to: “focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures,” and consider “the potential disruption to lawful business and the impact on a company's employees.” Further, “all new FCPA investigations or enforcement actions must be authorized by the Assistant Attorney General for the Criminal Division… or a more senior Department official.” The guidance also notes that the same principle of harm to US entities or individuals will be applied to enforcement of the Foreign Extortion Prevention Act.

Additionally, some behaviors may now get a pass. The FCPA provides an exception for facilitation payments, which the guidance appears to underscore, noting that the DOJ will not look at “de minimis or low-dollar, generally accepted business courtesies” but rather at “alleged misconduct that bears strong indicia of corrupt intent tied to particular individuals, such as substantial bribe payments, [and] proven and sophisticated efforts to conceal bribe payments.” This interpretation from the law firm Norton Rose Fulbright suggests that the DOJ might take “a more limited view of when providing routine business gifts, entertainment and hospitalities crosses the line into corrupt payments.” Finally, there could be less cooperation with other countries’ investigations, as the memo explains that the DOJ will consider whether a “foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct.”

All in all, the June 9 guidance and Galeotti’s June 10 remarks offer a needed dose of clarity to the FCPA landscape. But the proof will be in the pudding. Galeotti told his audience that the “Department has reviewed FCPA matters, closing certain cases and proceeding with others by applying the criteria set forth in the Guidelines.” It will be important to track how these current cases proceed, and what new investigations are opened going forward.

Marc Schleifer

Governance, Democracy and Economic Development Expert