Trump Directs DOJ to Pause FCPA Enforcement for Six Months

On February 10, 2025, President Trump issued an executive order (the “Order”) that pauses enforcement by the U.S. Department of Justice (the “DOJ”) of the U.S. Foreign Corrupt Practices Act (the “FCPA”) for 180 days (the “review period”), to allow the Attorney General to review guidelines and policies governing investigations and enforcement actions under the FCPA (the “updated guidelines”).

The FCPA’s anti-bribery provisions prohibit “covered persons” - including U.S. domestic companies, companies with securities registered with the U.S. Securities and Exchange Commission (the “SEC”), and persons acting within the United States - from giving, offering, or promising anything of value to foreign government officials, political party officials and candidates for political office to obtain or retain business or to gain a business advantage. It also provides a separate basis for liability if prohibited payments are not accounted for properly in an SEC-registered company’s books and records.

According to the Order, the President believes “overexpansive and unpredictable FCPA enforcement against American citizens and businesses - by our own Government - for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.” The Order states that current FCPA enforcement “impedes the United States’ foreign policy objectives and thus implicates the President’s Article II authority over foreign affairs.”

Earlier, U.S. Attorney General Pam Bondi had issued a directive prioritizing FCPA enforcement related to foreign bribery that facilitates the criminal operations of cartels and transnational criminal organizations - such as the bribery of foreign officials to facilitate human smuggling and the trafficking of narcotics and firearms - and shifting focus away from investigations and cases that do not involve such a connection.

Pursuant to the Order, during the review period, the Attorney General must:

• not initiate any new FCPA investigations or enforcement actions, unless she determines that an individual exception should be made;
• review in detail all existing FCPA investigations or enforcement actions and take appropriate action with respect to such matters to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives; and
• issue updated guidelines to adequately promote the President’s Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.

The Order gives the Attorney General the authority to extend the review period for an additional 180 days as she determines appropriate.

FCPA investigations and enforcement actions initiated or continued after the Attorney General issues the updated guidelines must be governed by the updated guidelines and specifically authorized by the Attorney General. Further, the Order authorizes the Attorney General to determine whether additional actions - including remedial measures with respect to inappropriate past FCPA investigations and enforcement actions - are warranted and take any such appropriate actions or, if Presidential action is required, recommend such actions to the President.

Here are some important considerations for companies in determining next steps:

• The Order does not repeal the FCPA. The FCPA is an act of Congress and Congress would have to act to repeal it. The President has only halted enforcement by the DOJ for 180 days, and he has not (yet) said anything about suspending the SEC’s civil enforcement of the FCPA. We expect that at the end of the 180 days, the DOJ will continue to enforce the FCPA with respect to the criminal operations of cartels and transnational criminal organizations as outlined in Attorney General’s directive.
• The Order and related Fact Sheet focus on restoring “American competitiveness...” The Fact Sheet notes that “American national security depends on America and its companies gaining strategic commercial advantages around the world...” These steps are part of the new administration’s objective of putting America first. Accordingly, we expect U.S. companies to face reduced risk in this area; it remains to be seen whether non-U.S. companies will face an increased risk.
• Unless Congress repeals the FCPA, the next Presidential administration may take a different approach and reverse course in this area. While there are some complexities in determining the statute of limitations, criminal and civil violations of the FCPA’s anti-bribery and books and records provisions have statutes of limitations periods that extend beyond the next four years.
• The SEC retains civil enforcement authority under the FCPA. Accordingly, while the DOJ’s approach may be on pause—at least to date, companies (both U.S. and non-U.S.) should remain alert to the risk of an SEC investigation for potential FCPA violations.
• The FCPA is not the only anti-bribery law that companies need to consider. Bribery of or by U.S. officials is unlawful under a variety of federal and state laws, most notably 18 U.S.C. § 201 and the Hobbs Act. Commercial bribery is also unlawful under the laws of many U.S. states and can become a federal crime under the Travel Act. Further, a number of other jurisdictions have anti-bribery laws that are similar to, or in the case of the United Kingdom, even broader than the FCPA.
• Companies that engage in bribery may also face lawsuits from private parties, including shareholders claiming securities law violations for material misrepresentations or omissions, or counterparties to an agreement alleging breaches of representations and warranties.

We will continue to monitor developments in this area and welcome any queries you may have.