FCPA Un-Paused: DOJ Announces New Guidelines for FCPA Enforcement

On June 9, 2025, in a memorandum entitled Guidelines for Investigations and Enforcement of the FCPA(the “Guidelines”), the Department of Justice (DOJ) signaled that Foreign Corrupt Practices Act (FCPA) investigations and prosecutions will resume, and provided a detailed road map for future FCPA enforcement. The Guidelines refocus FCPA enforcement by directing prosecutors to investigate misconduct that causes identifiable harm to US interests, to prioritize cases involving individual wrongdoing, and to avoid burdensome investigations into companies without evidence of systemic issues to prevent disruption of lawful business. The Guidelines also impose new, heightened procedural requirements to initiate an FCPA investigation or enforcement action by removing discretion from the FCPA Unit of the DOJ Fraud Section and vesting it in the front office of the Criminal Division. 

On June 10, Matthew Galeotti, the Head of the DOJ’s Criminal Division, provided further details about the Guidelines at a conference. He explained that the Guidelines provide “evaluation criteria” and a list of non-exclusive factors to “balance when deciding whether to pursue an FCPA case.” He further stated that, “[w]ith these Guidelines now in place . . . the Criminal Division will enforce the FCPA—firmly but fairly—by bringing enforcement actions against conduct that directly undermines US national interests without losing sight of the burdens on American companies that operate globally.” 

Background

On February 10, President Donald Trump issued an Executive Order (“EO”) pausing FCPA enforcement for 180 days. In an April Legal Update, we discussed the impact of this EO, which came days after Attorney General Pam Bondi issued a memorandum instructing prosecutors to prioritize drug cartels and transnational criminal organizations in FCPA enforcement.  

During the FCPA enforcement pause and associated review of existing FCPA prosecutions, the DOJ took differing positions in arguably analogous factual scenarios. For example, on April 2, the DOJ filed a motion to dismiss the FCPA case against two former executives in United States v. Coburn et al., which the court granted. Conversely, on April 9, in an FCPA case against two executives of a UK-based voting machine company and a Philippines election official, United States v. Bautista, et al., after the DOJ conducted a “detailed review,” it decided to take the case to trial. Similarly, on April 11, the DOJ confirmed that it would proceed to trial in two separate cases against company executives accused of bribery connected to state contracts in Egypt (United States v. Hobson) and Honduras (United States v. Zaglin) respectively.

As a result of the FCPA enforcement pause and related concerns about a continued pullback, we observed that international, state and local governments may fill the void and increase their enforcement of their own bribery laws.

The Guidelines’ New Approach to FCPA Enforcement

The Guidelines reflect the Administration’s view that FCPA investigations and prosecutions should (1) limit “undue burdens on American companies that operate abroad,” and (2) target “enforcement actions against conduct that directly undermines US national interests.” 

The Guidelines put forth the following two overarching directives to prosecutors:

• Focus on cases in which individuals have engaged in criminal misconduct, rather than ones in which corporate entities are held responsible under “collective knowledge theories,” and
• Proceed as expeditiously as possible in investigations and consider collateral consequences—such as the potential disruption to lawful business and the impact on a company’s employees—throughout an investigation, not only at the resolution phase.

Factors to Consider for FCPA Enforcement

The Guidelines direct prosecutors to consider certain non-exhaustive factors in determining whether to bring an FCPA investigation or prosecution. These factors include:

• Harm to US Entities: The Guidelines direct prosecutors to prioritize cases in which the alleged misconduct deprived “specific and identifiable” US companies or individuals of a fair chance to compete. Thus, corruption that disadvantages US businesses is a key trigger under the new guidance. Indeed, the Guidelines have a footnote that indicates that “the most blatant bribery schemes have historically been committed by foreign companies.” The Guidelines also reference the Foreign Extortion Prevention Act (FEPA), which was passed in December 2023, and criminalizes the demand side of bribery, as a potential tool to use to prosecute corrupt foreign officials. 
• Individual Misconduct: DOJ will focus on “alleged 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,” as distinguished from “routine business practices” and “generally accepted business courtesies.” Further, the Guidelines direct prosecutors to “focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures.” 
• Consideration of Collateral Consequences: Prosecutors must weigh potential harm to companies, employees, and shareholders throughout the investigative process, not just at the resolution stage.
• Deference to Foreign Authorities: Prosecutors must assess whether foreign jurisdictions are willing, able, and better suited to prosecute the alleged misconduct at issue. In these instances, DOJ may choose not to pursue a parallel investigation.
• National Security and Criminal Organizations: DOJ will continue to prioritize FCPA cases tied to drug cartels, transnational criminal organizations, and critical industries like defense, infrastructure, and minerals, reflecting a focus on instances where foreign bribery threatens US national security.

In his remarks, Mr. Galeotti emphasized that the Guidelines are not exhaustive and that “no one factor is necessary or dispositive.” He said that the “through-line is that these Guidelines require the vindication of US interests,” which, he explained, “is not about the nationality of the subject or where the company is headquartered,” but about whether the conduct “genuinely impacts the United States or the American people.”

FCPA Enforcement Centralized

Another important change in the Guidelines is that the DOJ will no longer initiate FCPA investigations or enforcement actions without explicit authorization from the Assistant Attorney General for the Criminal Division (or the official acting in that capacity), or a more senior Department official. This will likely limit the sheer number of cases that the Department will bring and require US Attorneys’ offices across the country to coordinate with the upper echelons of the DOJ. The aim is to ensure that the FCPA is not “stretched beyond proper bounds and abused in a manner that harms the interests of the United States,” or used “against American citizens and businesses . . . for routine business practices in other nations.”

Foreign Referrals

The Guidelines direct prosecutors to consider the likelihood that foreign enforcement agencies are “willing and able” to investigate the alleged misconduct. Where such misconduct has an appropriate nexus to another jurisdiction with established enforcement agencies, then it is more likely than under previous administrations that the DOJ will decline to prosecute, and will instead refer the case to foreign officials for investigation and prosecution. In his remarks, Mr. Galeotti pledged to assist foreign counterparts with “vindicat[ing] their interests and pursu[ing] their mandates.”

Key Takeaways

After four months of uncertainty about the future of FCPA enforcement, the FCPA will be enforced, as Mr. Galeotti put it, “firmly and fairly” with a focus on vindicating US interests. We also expect:

• A focus on foreign companies, and the use of FEPA to prosecute foreign officials;
• Fewer corporate resolutions in which no individual(s) are charged, given the focus on prosecuting cases based on the individual intent of specific actors rather than relying on collective knowledge or intent;
• Prioritization of investigations where there is a link to a drug cartel or transnational criminal organization;
• Less enforcement of gifts, travel, and entertainment cases, where the amounts are not significant; and
• Investigations and prosecutions where there is harm to US companies, US investors or US consumers.

In light of the Guidelines, companies, and in particular companies that have a global footprint or are headquartered outside the United States, must remain vigilant and proactive in their compliance efforts to navigate the evolving enforcement landscape and continue to use best practices with respect to interactions with foreign officials, including interactions that occur through third-party agents.