In February, President Trump issued Executive Order 14209 “pausing” enforcement of the Foreign Corrupt Practices Act (FCPA) for 180 days until new enforcement guidelines and policies could be published. (See February 12, 2025 Calfee First Alert.) The Executive Order outlined the President’s shifting priorities in response to “overexpansive and unpredictable FCPA enforcement against American citizens and businesses” for “routine business practices in other nations” that “not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.” Id.
On June 9, 2025, the Department of Justice (DOJ), issued a memorandum ending the six-month enforcement pause and “establishing guidelines to ensure that FCPA investigations and prosecutions are carried out in accordance with President Trump’s directives[.]” As part of these new guidelines, prosecutors will focus on cases in which specific individuals are engaged in criminal conduct – i.e., prosecutors will no longer attribute nonspecific malfeasance to corporate structures – and consider collateral consequences such as potential disruption to lawful business. Id. Notably, the initiation of all new FCPA matters must now be authorized by the Assistant Attorney General for the Criminal Division or a more senior DOJ official. Id.
In evaluating whether to pursue new FCPA investigations and enforcement actions, the new guidance prioritizes the following non-exhaustive factors to be considered by the DOJ: (a) whether the alleged misconduct is associated with cartels and transnational criminal organizations; (b) whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to the same; (c) whether the alleged misconduct threatens American national security interests because it involves sectors like defense, intelligence, or critical infrastructure – and/or key infrastructure or assets; or (d) whether the alleged misconduct bears strong indicia of
corrupt intent tied to particular individuals – i.e., it does not reflect routine business practices or de minimis business courtesies. Id.
These recent guidelines confirm both the President’s and the DOJ’s shifting FCPA enforcement priorities and their focus on significant bribery and corruption schemes that threaten U.S. national security or involve cartels and transnational criminal organizations. However, it remains unclear exactly how the DOJ will implement these new guidelines over the coming months.
We will continue to provide updates on the implementation of these guidelines, as they become available. Please contact a member of Calfee's team with any questions.
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