Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates

Deputy Attorney General Issues FCPA Guidelines Resuming Limited Enforcement

Skadden Publication / White Collar Defense and Investigations

Anita B. Bandy Maria Cruz Melendez Alessio D. Evangelista Andrew M. Good Ryan D. Junck Bradley A. Klein Bora P. Rawcliffe Mayra C. Suárez Jennifer L. Ruiz

Key Points

  • The U.S. Department of Justice (DOJ) will resume investigations and enforcement actions under the Foreign Corrupt Practices Act (FCPA), prioritizing, in part, FCPA actions involving cartels and transnational criminal organizations (TCOs), national security risks, serious misconduct evidencing corrupt intent, and harm to U.S. entities.
  • DOJ FCPA enforcement may see increased focus on non-U.S. companies whose alleged corrupt conduct harms American competitiveness in international markets.

On February 10, 2025, President Trump signed an executive order instructing U.S. Attorney General Pam Bondi to pause all actions under the FCPA for 180 days until the DOJ issued revised FCPA enforcement guidance. (For background on the order, see our February 11, 2025, article “Trump Orders Attorney General To Temporarily Pause FCPA Enforcement.”) Pursuant to the executive order, on June 9, 2025, U.S. Deputy Attorney General Todd Blanche issued a memorandum (DAG Memorandum) setting out priorities and guidance for resumed enforcement of the FCPA. The DAG Memorandum seeks to eliminate undue burdens on American companies operating internationally and focus enforcement on conduct that undermines U.S. national interests. Additionally, the DAG Memorandum signals that FCPA enforcement will prioritize misconduct by individuals rather than “attribute nonspecific malfeasance to corporate structures.” According to senior DOJ officials, the DOJ has closed nearly half of its FCPA investigations to align with the new priorities. The authorization of the assistant attorney general for the DOJ’s Criminal Division or a more senior DOJ official is required for all new FCPA investigations or enforcement actions.

Relevant Factors Going Forward

The DAG Memorandum instructs prosecutors to evaluate whether to pursue FCPA investigations and enforcement actions based on the factors below, which align with the executive order priorities.

  1. Eliminating Cartels and Transnational Criminal Organizations: Just as highlighted by Attorney General Bondi’s February 5, 2025, memorandum, prosecutors are instructed to consider whether the alleged misconduct (i) is associated with the criminal operations of cartels or TCOs, (ii) involves money laundering on behalf of cartels or TCOs, or (iii) is linked to foreign government officials who have received bribes from cartels or TCOs.
  2. Safeguarding Fair Opportunities for U.S. Companies: The DOJ must also determine whether the alleged misconduct (i) deprived U.S. companies from access to international markets or (ii) resulted in economic injury to American companies or individuals. While the DAG Memorandum notes that the DOJ will not focus on the nationality of individuals or companies involved in the alleged misconduct, a footnote in the memorandum highlights that “[t]he most blatant bribery schemes have historically been committed by foreign companies” and that the DOJ will prioritize conduct that harms the competitiveness of American companies. Additionally, in deciding whether to bring an action, prosecutors should consider the likelihood of enforcement by non-U.S. regulators for the same misconduct and allow those authorities to proceed. In his remarks regarding the DAG Memorandum, head of the Criminal Division Matthew Galeotti stressed that conduct that does not implicate U.S. interests should be left to non-U.S. regulators but that the DOJ will continue cooperating with foreign counterparts to vindicate their interests.
  3. Advancing U.S. National Security: In deciding whether to proceed with an action, prosecutors must weigh whether the alleged misconduct is harmful to U.S. national security interests, such as impacting key infrastructure or economic sectors like national defense and intelligence.
  4. Prioritizing Investigations of Serious Misconduct: The DOJ will also consider whether the alleged corrupt scheme involves serious 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.” The guidance instructs prosecutors to avoid focusing on misconduct “involving routine business practices,” a term that is not defined, or the type of corporate conduct that involves “de minimis or low-dollar, generally accepted business courtesies.”

The DAG Memorandum notes that prosecutors may consider other factors in deciding whether to pursue an FCPA action and may base their decisions on the totality of the circumstances. The Memorandum also emphasizes that the DOJ must proceed expeditiously and consider collateral consequences throughout the pendency of FCPA investigations.

Senior DOJ officials have continued to emphasize the continued importance of self-reporting. Galeotti emphasized that companies that self-report “will receive a declination, not just a ‘presumption,’” whereas the DOJ “will move swiftly and aggressively to bring cases against individuals and companies” that fail to do so.

Final Thoughts

Companies should be prepared for continued DOJ FCPA enforcement and remain vigilant. The DOJ has signaled that it plans to authorize additional investigations based on whistleblower tips made during the enforcement pause, which may ramp up enforcement in the near term. Additionally, non-U.S. companies and those operating in industries touching U.S. national security interests, such as energy and defense, may face increased DOJ scrutiny under the new guidelines. It remains unclear how these developments impact FCPA enforcement by the Securities and Exchange Commission. Companies should be proactive and evaluate global anticorruption enforcement risks as the enforcement landscape continues to evolve domestically and internationally.

See the Executive Briefing publication

This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws.

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