Introduction
On June 9, 2025, the United States Department of Justice (“DOJ”) issued its highly anticipated Guidelines for Investigation and Enforcement of the Foreign Corrupt Practices Act (“FCPA”) (“Guidelines”). The Guidelines set forth a new FCPA enforcement policy based on President Trump’s February 10, 2025, Executive Order “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.” (“Executive Order”). This article examines changes in FCPA enforcement. Part I provides a brief overview of the FCPA and its enforcement up until this year. Part II provides a summary of the new Executive Order as well as DOJ’s June 9, 2025 Guidelines. Part III provides suggestions as to courses of action businesses and corporations can or should take in response to the new environment.
I. FCPA Overview
The FCPA was enacted in 1977 to prevent bribery of foreign officials to obtain or retain foreign business by persons subject to US law. The origins of the FCPA can be traced to the Watergate scandal and Congressional investigations in the early 1970s. They revealed widespread corruption and unethical practices in American business and politics in which several American companies had made illegal payments to foreign officials abroad. The FCPA was enacted to reduce corruption and reinforce public and investor confidence in markets throughout the world. Congress’ aim was to prohibit US companies from paying bribes to foreign government officials for commercial purposes. From its inception, the DOJ’s strong criminal investigation and the Securities Exchange Commission’s diligent civil enforcement of the FCPA has helped give more companies an equal chance to engage in international transactions.
Under the FCPA, both the Securities and Exchange Commission (”SEC”) and the DOJ have authority to investigate and prosecute violations. The SEC has authority to conduct civil investigation and file civil prosecution of companies listed on any United States stock exchange. The DOJ, on the other hand, has the authority to conduct primarily criminal investigations of US private and public companies, as well as individuals subject to the jurisdiction of the United States. “Jurisdiction” is broadly interpreted. The DOJ generally does not engage in civil investigation of FCPA violations unless the company is privately held and is not subject to SEC jurisdiction. Matters involving the SEC are not discussed in this article.
Both the SEC and DOJ have their own programs to encourage whistleblowers to report FCPA violations. Although the SEC and the DOJ whistleblower programs differ, both programs reward whistleblowers by paying them between 10% and 30% of the amount the SEC or the DOJ recovers in terms of economic fines or return of illicit benefits received.
II. President Trump’s February 10, 2025, Executive Order “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security” and the Department of Justice’s “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act”
On February 10, 2025, President Trump’s Guidelines and his Executive Order represented a dramatic shift in FCPA enforcement. The new Executive Order declared that the FCPA: “has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States.” The Executive Order states that FCPA enforcement over the years “impedes the United States’ foreign policy objectives and therefore requires the President to exercise his Article II authority over foreign affairs to limit the scope of FCPA investigations”.
The Executive Order establishes that its goal is to “advance American economic and national security by eliminating excessive barriers to American commerce abroad.” The Executive Order paused the initiation of any new FCPA investigations or enforcement actions and required the DOJ to review all existing investigations and enforcement actions, and to issue updated guidelines.
On June 9, 2025, the United States Department of Justice (“DOJ”) issued the Guidelines. Under the new Guidelines, the DOJ’s FCPA enforcement will focus on four main areas: (1) Total Elimination of Cartels and Transactional Criminal Organizations; (2) Safeguarding Fair Opportunities for US Companies; (3) Advancing US National Security Interests; and (4) Prioritizing Investigations of Serious Misconduct as opposed to “Routine Business Practices.”
(1) Total Elimination of Cartels and Transactional Criminal Organizations (TCOs)
Unlike the past, the Guidelines do not seek to investigate nor prosecute all types of FCPA violations but only those violations that foster the criminal enterprises of cartels or TCOs. Under the Guidelines, FCPA investigation and prosecution will concentrate on eliminating cartels, transactional crime organizations, cybercrime syndicates in the area of money laundering, setting up shell companies associated with cartels and TCOs.
(2) Safeguarding Fair Opportunities for US Companies
The Guidelines prioritize cases where alleged misconduct has “deprived specific and identifiable US entities from fair access to compete and/or has resulted in economic injury to specific and identifiable American companies or individuals.” That is the Trump Administration will prioritize FCPA investigation and enforcement in order to provide US entities with fair access to compete in international markets.
Very importantly, though the Guidelines specifically state that FCPA enforcement will not “focus on particular individuals or companies on the basis of nationality,” the Guidelines’ priority to prevent harm to US businesses will create an environment whereby the DOJ can aggressively pursue FCPA violations by non-US companies whose conduct could interfere with US companies’ obtaining business abroad. Foreign companies that are subject to the jurisdiction of the United States should maintain their internal compliance and internal controls so that they are not subject to DOJ criminal investigation, because their conduct is seen to deprive a US company’s “fair access to compete” and/or “result in economic injury” to a specific US company.
(3) Advancing US National Security Interests
The Guidelines promote the idea that “American national security depends in substantial part on the US and its companies gaining strategic business advantages in areas such as critical minerals, deep-water ports, or other key infrastructure assets.” The Guidelines state that “when corruption occurs in sectors like defense, intelligence, or critical infrastructure, American national security interests may be at risk. The Guidelines, therefore, can be seen to focus on the most urgent threats to US national security resulting from bribery of corrupt foreign officials by companies competing with American companies.
Traditionally, FCPA violations have been found to be prevalent in “high risk” industries such as construction, transportation, oil and gas, telecommunications, pharmaceutical and medical devices, and gaming industry. Under the Trump Administration’s “Advancing US National Security Interests” approach, bribery in areas such as construction, transportation, oil and gas, and telecommunications may receive greater attention.
(4) Prioritizing Investigations of Serious Misconduct as opposed to “Routine Business Practices.”
The Guidelines direct DOJ senior officials to focus on “Serious Misconduct” as opposed to what is labeled “Routine Business Practices.” Serious misconduct is seen to include payments of substantial bribes, sophisticated concealment, fraudulent conduct to further a bribery scheme, and efforts to obstruct justice. The Guidelines expressly direct prosecutors not to prosecute nor investigate cases involving “routine business practices of the type of corporate conduct that involve de minimis or low-dollar, generally accepted business courtesies.” It is anticipated that the DOJ will bring fewer FCPA actions involving traditional payments given to foreign government officials in the form of: (a) gifts and entertainment, (b) travel expenses, (c) consulting agreements, (d) charitable contributions, ( e) small kickbacks: (f) employment offers to relatives or associates of foreign officials; and (f) small facilitation payments since these small benefits may not meet the standard of “serious misconduct.”
The Guidelines prioritize the prosecution of an individual wrongdoer and will not attribute nonspecific malfeasance to a corporate structure. The DOJ, therefore, will focus on “specific misconduct of individuals, rather than “collective knowledge theories” of corporations and corporate officers. Prosecutors are instructed to consider collateral consequences, such as the potential disruption of lawful business and the impact on a company’s employees, throughout an investigation. It is important to note that Trump’s FCPA Executive Order and the DOJ Guidelines primarily address the DOJ criminal investigation and enforcement of FCPA violations only. They do not address the SEC’s civil enforcement of the FCPA as it relates to companies that are traded on US stock exchanges. Rules involving the SEC are separate.
(5) DOJ’s Termination of Current FCPA Investigations
At the time of writing this article, the DOJ has closed the following FCPA investigations:
DOJ closed its FCPA investigation of Stryker – April 2025
DOJ closed its Toyota bribery probe in Thailand – June 2025
DOJ dismissed charges against ABB Ltd, a Swiss Tech Company – June 2025
DOJ closed FCPA probes into a GE healthcare spinoff in China – July 2025
III. Suggestions to Corporations Doing Business Abroad in Response to Trump’s New Executive Orders and New DOJ Guidelines
Based on these developments, we can reasonably conclude that FCPA investigations and prosecution under the Trump Administration will be substantially curtailed.
DOJ investigations and prosecutions will focus mainly on the four areas established under the DOJ’s new FCPA guideline to repeat: (1) Total Elimination of Cartels and Transactional Criminal Organizations; (2) Safeguarding Fair Opportunities for US Companies; (3) Advancing US National Security Interests; and (4) Prioritizing Investigations of Serious Misconduct as opposed to “Routine Business Practices.” Unless bribery and violations of the FCPA touch on one of these four main areas, the DOJ will not open a criminal investigation nor prosecute companies that violated the FCPA.
First, even though the DOJ will probably not open criminal investigations or prosecutions of corporations for FCPA violations unless the violation touches one of the above four areas, corporations doing business overseas should remain vigilant in their FCPA monitoring, training, internal audit, and diligence investigations. The FCPA remains good law, with a 5-year statute of limitations for FCPA violations, and 6-year statute of limitations period for record keeping under the FCPA. Corporations conducting businesses abroad do not know how the next administration will treat and prosecute FCPA violations. Corporations conducting business overseas should not be in a position where their relaxed monitoring of conduct will result in prosecution both civilly and criminally by the next administration.
Second, non-US corporations should maintain their vigilance in FCPA monitoring, training, internal audits, and investigations into potential FCPA violations. Given the fact that Factor #2 and Factor #3 of the DOJ Guidelines are “the safeguarding of fair opportunities for US companies” and “advancing the US national security interest,” it is possible that US companies will report their foreign competitors to the DOJ for suspected FCPA violations in order to gain a competitive advantage. As commentators on FCPA enforcement correctly point out, “ [of] the 10 largest FCPA sanctions in history, only one of them was against an American company,”…. “there could still be a substantial level of enforcement of the FCPA even if the DOJ were to heavily deprioritize enforcement against American entities and individuals.” [1] Foreign companies that are in competition with US corporations, therefore, should be mindful that they can be made a target by their US competitors.
Third, in the next three plus years, the DOJ will not open investigations nor prosecute companies unless the violation involves one of the four areas established in the new DOJ FCPA Guidelines. Corporations in violation of the FCPA can use current changes in FCPA enforcement to argue that they should not be criminally prosecuted.
Finally, in the next several years the DOJ will reduce its investigation and prosecution of companies under the FCPA. This would be a good time for corporations to take advantage of the self-reporting statutory provisions under the FCPA to rectify past or current corporate FCPA violations and to enter non-prosecution agreements with DOJ to avoid fines, penalties, and criminal prosecutions, especially as the US approaches the 2028 election year.
IV. Conclusion
The Trump Administration has introduced new guidelines to enforce the Foreign Corrupt Practices Act, focusing on four key areas: eliminating cartels and transactional crime organizations, ensuring fair business opportunities for US companies abroad, advancing national security interests, and prioritizing serious misconduct over routine practices. As a result, new FCPA investigations are expected to decline drastically. Already, there have been many well-known FCPA investigations and prosecutions of US and foreign companies that have been either dismissed or closed by the DOJ. Companies are encouraged to take advantage of this reduced enforcement period to address internal compliance issues, clean up questionable practices, and enter into non-prosecution agreements involving potential wrongdoing to safeguard themselves against potential future prosecutions under the FCPA by the next administration and as we approach 2028. Furthermore, foreign multinationals should remain vigilant in their FCPA monitoring, compliance, and reporting to prevent US competitors from reporting them for FCPA violations in order to gain a competitive advantage under a policy that favors US companies over foreign companies.
[1] Stellmach, U. J., & Heaphy, T. (2025 February 14). White House Issues Executive Order “Pausing” FCPA Enforcement-But Beware. Willkie Farr & Gallagher LLP.
By Nguyen Hong Thai
