FCPA Pause Ends with U.S. DOJ’s New “America First” Enforcement Strategy

On June 9, 2025, the U.S. Department of Justice (the “DOJ”) published the Criminal Division’s updated Guidelines for Investigations and Enforcement for the Foreign Corrupt Practices Act (FCPA) (“FCPA Enforcement Guidelines”), announcing an early end to the anticipated 180-day pause to FCPA enforcement ordered by the Trump Administration on February 10, 2025. (See Trump Directs DOJ to Pause FCPA Enforcement for Six Months). This pause brought into question the fate of the FCPA, leaving many wondering about the implications—that is, until the DOJ revealed its new White-Collar Enforcement Plan a few weeks ago, which listed bribery as a continued top priority area. 

With the new FCPA Enforcement Guidelines in place, Matthew R. Galeotti, Head of the DOJ’s Criminal Division, confirmed that the DOJ “will enforce the FCPA—firmly but fairly—by bringing enforcement actions against conduct that directly undermines U.S. national interests without losing sight of the burdens on American companies that operate globally.” Unsurprisingly, these Guidelines reflect many of the principles set forth in the White-Collar Enforcement Plan, including the emphasis on U.S. interests, as well as “focus, fairness, and efficiency.” It remains to be seen precisely what that will mean for FCPA enforcement in the near future. 

FCPA enforcement to focus on “vindication of U.S. interests”

The FCPA Enforcement Guidelines highlight the importance of “safeguarding fair opportunities for U.S. companies,” claiming that companies that bribe foreign officials put their law-abiding competitors, including U.S. companies, at a serious disadvantage. FCPA enforcement will seek to “vindicate these interests” by considering “whether the alleged misconduct deprived specific and verifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals.”

According to Galeotti, vindication of U.S. interests is not about nationality or place of jurisdiction, but rather “conduct that genuinely impacts the United States or the American people.” He added that conduct that does not implicate U.S. interests should be left for foreign counterparts or appropriate regulators, with whom the DOJ won’t hesitate to cooperate. 

This is unsurprising— the Trump Administration, with its “America First” agenda, has made clear that this administration’s policies will focus on the impact on Americans and American businesses. Indeed, the Executive Order pausing FCPA enforcement clearly directed the Attorney General to “prioritize American interests” and protect “American economic competitiveness.” The White-Collar Enforcement Plan, too, emphasizes that the DOJ “will prioritize investigating and prosecuting corporate crime in areas that will have the greatest impact in protecting American citizens and companies and promoting U.S. interests.”

Practically speaking, while U.S. companies must still comply with the FCPA, this suggests the DOJ may disproportionately target foreign companies in future FCPA enforcement actions. This marks a change in enforcement practice, though it does align with the DOJ’s stated focus on “serious misconduct.” Since 1977, FCPA enforcement actions have featured a sizeable minority (41%) of non-U.S. defendants, with the remaining share (59%) constituting domestic defendants; however, as stated in the FCPA Enforcement Guidelines, “the most blatant bribery schemes have historically been committed by foreign companies, as reflected by the fact that the most significant FCPA enforcement actions—measured both by the scope of misconduct and the size of the monetary penalties imposed—have been overwhelmingly brought against foreign companies.” Indeed, 9 out of 10 of the defendants involved in the top 10 FCPA investigations by monetary sanctions were non-U.S. companies. 

More narrow focus: new priority areas include Cartels / TCOs, defense, intelligence, and critical infrastructure

In line with the DOJ’s February 5, 2025 memorandum called Total Elimination of Cartels and Transnational Criminal Organizations, the DOJ will prioritize bribery that assists Cartels and Transnational Criminal Organizations (“TCOs”). Prosecutors will consider whether the alleged misconduct 1) associates with criminal Cartels and TCOs; 2) utilizes money launderers or shell companies for Cartels and TCOs; or 3) links to employees of state-owned entities or other foreign officials who have received bribes from Cartels and TCOs.

The DOJ will also focus on “corruption [that] occurs in sectors like defense, intelligence, or critical infrastructure.” The Trump Administration has stressed the importance of these key sectors, particularly with regard to its tariff strategy, indicating that reliance on foreign steel, aluminum, critical minerals, and semiconductors could “jeopardize U.S. defense capabilities."

New emphasis on corrupt intent tied to individuals 

The FCPA Enforcement Guidelines provide that “prosecutors shall focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures.” Galeotti expanded on this “common-sense principle,” noting that the DOJ will focus on “specific misconduct of individuals, rather than collective knowledge theories.” Under the collective knowledge doctrine, prosecutors do not need to show that one individual had knowledge of a criminal act, but instead they can piece together knowledge or intent from the collective knowledge of several individuals at the company, significantly lowering their burden. 

The DOJ will prioritize investigations of “serious misconduct”

According to the FCPA Enforcement Guidelines, “the focus of FCPA enforcement will be 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.” Conversely, FCPA enforcement should not penalize “routine business practices” or “the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies.” Again, it remains to be seen what this will mean in practice, as the vast majority of prior FCPA enforcement actions have involved corrupt payments in the hundreds of thousands or millions of dollars, and could not be described as de minimis or low dollar courtesies.

The DOJ strongly encourages voluntary self-disclosure of FCPA violations

Last month, in tandem with publishing its White-Collar Enforcement Plan, the DOJ’s Criminal Division published updates to its Corporate Enforcement and Voluntary Self-Disclosure Policy and Whistleblower Awards Pilot Program, with the goal of creating more certainty for companies which voluntarily self-report, cooperate, and remediate. (See U.S. DOJ provides long-awaited clarity on enforcement priorities with key policy updates, with significant emphasis on self-disclosure). 

During his June 10, 2025 speech, Galeotti noted that the DOJ is thus far “happy with the results” of these policies, which have prompted new voluntary disclosures, including for potential FCPA violations, and prompted “robust tips” from whistleblowers in each of the newly added categories. He ended his speech by stressing that “[t]his is the time to self-report,” noting that the Criminal Division’s “policies give clear benefits to those who do.” He added that for “those who don’t, we will move swiftly and aggressively to bring cases against individuals and companies” and use “all of” the DOJ’s tools and “seek strong sentences.”

The pause is over: it’s time to prepare for renewed enforcement 

For the past few months, many have wondered about the future of FCPA enforcement. Like the enforcement pause, that period of uncertainty is now behind us—the DOJ has said that it intends to enforce the FCPA, albeit with a modified approach. The DOJ has also indicated that over the coming weeks, we can expect to see “significant announcements in key priority areas, including corporate resolutions across the white-collar landscape.”

In this context, we think it is especially important for multinational companies to reassess their FCPA risk exposure and compliance programs to reflect the new guidance. In particular:

• Re-assess FCPA risk profile: Multinationals—especially those operating in sectors advancing U.S. national security—should assess whether their conduct could be viewed as undermining U.S. interests in any way and assess the risk of U.S. companies complaining to the DOJ about any such conduct. Companies with business ties to Mexico and Latin America are also increasingly at risk of scrutiny considering the new administration’s focus on Cartels and TCOs.
• Refine compliance programs: Compliance programs should be refined to reflect the new FCPA guidance and strengthen anti-corruption controls. Compliance efforts should shift away from reviewing gifts, travel, and hospitality, focusing more on high-value contracts, relationships with higher-risk third parties, and operations in higher-risk jurisdictions. 
• Incorporate robust whistleblower policies: As whistleblowers often go to the authorities after internal complaints remain unanswered, it is imperative to have clear procedures in place to ensure complaints are reviewed by a compliance professional in a timely manner. During internal investigations, there should be a focus on identifying all culpable individuals. 

If potential FCPA violations are identified, self-disclosure may be warranted and should be carefully considered with the assistance of experienced outside counsel. Even with the DOJ’s updated policies in place, the merits of self-disclosure will vary on a case-by-case basis. 

Final thoughts

For all companies, while the new guidance suggests a narrower enforcement focus, it is important to remember that the FCPA remains fully in effect with a minimum five-year statute of limitations, and the DOJ can and will enforce against corrupt acts that may not neatly fit into the stated priorities. As the FCPA Enforcement Guidelines acknowledge, “myriad factors must be considered when determining whether to investigate or prosecute,” and the priorities provided “are not exhaustive.” 

Companies should also be aware that the U.S. Securities and Exchange Commission may or may not follow these guidelines when enforcing the FCPA, that there is always the risk of state enforcement (e.g., Attorney General Bonta Alerts Businesses: It Remains Illegal to Bribe Foreign-Government Officials | State of California - Department of Justice - Office of the Attorney General), and that even auditors can also be a form of “soft” enforcement if they refuse to sign off on corporate financial statements after determining that bribes are not accounted for transparently.