DOJ Hits Play: The End of the FCPA “Pause” and Return to Enforcement

Key Points

• New FCPA guidance issued following enforcement pause. The U.S. Department of Justice (DOJ) has released new guidelines (the “Guidelines”) for “investigations and enforcement” of the Foreign Corrupt Practices Act (FCPA), identifying four factors that prosecutors will consider when evaluating whether to pursue FCPA investigations and enforcement actions. The guidance follows a February Executive Order pausing all FCPA enforcement pending the issuance of new guidelines.
• Guidelines list factors that cast a wide net for potential FCPA investigations. The factors include—though are not limited to—whether the alleged misconduct: (i) deprived specific, identifiable U.S. entities of a fair opportunity to compete; (ii) involved critical infrastructure or strategic assets; (iii) reflected clear indicia of corrupt intent linked to particular individuals and serious wrongdoing or (iv) was connected to the criminal activities of a cartel or transnational criminal organization (TCO). The practical application of these non-exclusive factors may lead to DOJ investigating a wide spectrum of allegedly corrupt activity.
• FCPA remains a top DOJ priority. The new Guidelines dispel any suggestion that DOJ planned to abandon or significantly curb overall FCPA enforcement, confirming instead that it will continue pursuing a broad range of cases—albeit within a more narrowly defined scope. This follows a recent DOJ announcement identifying FCPA enforcement as one of DOJ’s top ten white-collar priorities.

Background

On June 9, 2025, the Deputy Attorney General issued a Memorandum detailing the administration’s new FCPA guidelines for all current and future investigations and enforcement actions. According to the Head of DOJ’s Criminal Division, the Guidelines “provide evaluation criteria and a non-exhaustive list of factors to balance when deciding whether to pursue an FCPA case.”

As covered in our prior client alert, the Guidelines come four months after U.S. Attorney General Pam Bondi’s February 5, 2025 directive (the “AG Directive”) to shift FCPA enforcement toward the “total elimination” of criminal cartels and TCOs and away from cases without such a nexus. Days later, President Trump’s February 10, 2025 Executive Order (the “Executive Order”) paused FCPA enforcement for 180 days, directed a review of existing FCPA investigations and enforcement actions, and called for updated guidelines and policies to “prioritize American interests, American economic competitiveness” and “the efficient use of Federal law enforcement resources.”

Enforcement Criteria and Guidelines

The Guidelines are intended to follow the Executive Order’s directive by (i) “limiting undue burdens on American companies that operate abroad” and (ii) “targeting enforcement actions against conduct that directly undermines U.S. national interests.” The Guidelines also direct FCPA prosecutors to focus on individual criminal misconduct, investigate as quickly as possible and consider “collateral consequences” of investigation, including “potential disruption to lawful business” and to corporate employees.

The Guidelines list four “non-exhaustive factors” that DOJ will consider in deciding whether to pursue FCPA investigations and enforcement actions:

1. A Cartel or TCO Connection. The Guidelines reemphasize DOJ’s “sustained effort” to eradicate cartels and TCOs, pursuant to the AG Directive and President Trump’s January 20, 2025 Executive Order designating cartels as Foreign Terrorist Organizations. To that end, a “primary consideration” guiding FCPA enforcement will be whether the alleged misconduct is (i) “associated” with the criminal operations of a cartel or TCO; (ii) involves money launderers or shell companies engaging in money laundering for cartels or TCOs or (iii) is linked to employees of state-owned entities or other foreign officials receiving bribes from cartels or TCOs.
2. Safeguarding Fair Opportunities for U.S. Companies. The Guidelines direct FCPA enforcement against misconduct that undermines U.S. markets and disadvantages law-abiding U.S. companies or individuals. Prosecutors will consider whether alleged misconduct deprived U.S. entities or individuals of “fair access to compete” or caused “economic injury”—without focusing on an individual or company “bas[ed] o[n] their nationality.”
3. Advancing U.S. National Security. Prosecutors are urged to focus on “urgent threats” to U.S. national security arising from bribery or corruption “involving key infrastructure or assets,” including in the defense, intelligence or “critical infrastructure” sectors.
4. Prioritizing Serious Individual Misconduct Over Routine Business Practices. The Guidelines announce a shift away from investigations of “corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies” (e.g., gifts and entertainment expenses). Instead, DOJ’s focus is directed toward misconduct “bear[ing] strong indicia of corrupt intent tied to particular individuals,” including “substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribe scheme, and efforts to obstruct justice.” Foreign law enforcement’s ability (or inability) to investigate and prosecute alleged misconduct should also be considered.

Takeaways

• Broader Guidelines than Expected. The Guidelines outline a broader set of criteria than many had anticipated, presenting a non-exhaustive list of factors—none of which is dispositive—that allow DOJ to initiate FCPA investigations into a wide range of conduct, including cases involving “serious misconduct” or “strong indicia of corrupt intent.” The breadth of these terms appears to provide DOJ with substantial discretion to initiate investigations across a broad spectrum of potential misconduct. Much will depend on how DOJ interprets and applies these factors in practice. Notably, the Guidelines acknowledge that prosecutors may not be able to determine at the outset whether a case will ultimately fall within the new framework. It is possible that a wide array of FCPA investigations will be initiated under the new framework, even as certain enforcement actions may not proceed if they are ultimately deemed inconsistent with the Guidelines.
• No Explicit Emphasis on Foreign Companies and Individuals. Despite widespread speculation, the Guidelines do not state that DOJ will focus more on foreign companies or scale back enforcement against U.S. companies. While the Guidelines observe that the “most blatant bribery schemes have historically been committed by foreign companies,” they also make clear that DOJ will not “focus[] on particular individuals or companies on the basis of their nationality.” For example, a U.S. company would appear to remain squarely within the scope of the Guidelines where its conduct harms another U.S. company, involves collaboration with cartels or threatens U.S. national security interests.
• More Oversight by High-Level DOJ Officials. Under the new Guidelines, the Assistant Attorney General for DOJ’s Criminal Division (“or a more senior Department official”) must authorize all new FCPA investigations. Previously, the decision to open an FCPA investigation rested solely with the FCPA Unit. Whether this added procedural layer will translate into fewer FCPA investigations and enforcement actions is unclear at this time.
• DOJ Continues to Provide Significant Resources to FCPA Enforcement. As reported, senior DOJ officials have stated that 25 prosecutors will be dedicated to FCPA enforcement—presumably those within the DOJ’s FCPA Unit—down from roughly 40 prosecutors assigned to the FCPA Unit just a year ago. While this represents a notable reduction, the current number of prosecutors remains above historical levels and reflects DOJ’s continued commitment to allocating substantial resources to FCPA enforcement.
• Old Cases Closed, New Cases to Open. Senior DOJ officials have also indicated that while roughly half of all current FCPA investigations have been closed in recent months, they plan to initiate new cases—many prompted by recent whistleblower reports—to replenish the investigative pipeline.
• Sustained Corporate Compliance Measures Remain Critical. Companies should reassess their risk profiles with an eye toward areas now prioritized under DOJ’s updated FCPA enforcement guidelines. This is especially important for companies operating in regions with cartel activity or in sectors tied to national security, such as defense, energy, artificial intelligence and critical infrastructure. In addition, as noted in our prior alert, given the uncertainty of the current administration’s approach to FCPA enforcement, and the possibility of a future administration taking a different approach, all companies should continue to maintain robust, well-designed and well-resourced anticorruption compliance programs to minimize FCPA risk.