Lawyers
On June 9, 2025, the U.S. Department of Justice (DOJ) released its (the “Guidelines”)[1] setting forth DOJ’s evaluation criteria for FCPA actions and bringing to an end the FCPA enforcement pause established by the Administration’s February 10, 2025 (the “FCPA Order”).[2] In a speech on June 10, DOJ Criminal Division Chief Matthew R. Galeotti framed the Guidelines as a set of “common-sense principles” under which “conduct that genuinely impacts the United States or the American people is subject to potential prosecution by U.S. law enforcement” while “[c]onduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.”[3] The overarching theme of the Guidelines is that FCPA investigations and enforcement actions must serve U.S. interests, as measured by four key criteria: (1) safeguarding fair opportunities for U.S. companies; (2) protecting U.S. national security interests; (3) addressing serious misconduct; and (4) prioritizing corruption with a link to cartels or transnational criminal organizations (“TCOs”).
The Guidelines are broadly in line with the Administration’s prior pronouncements on the FCPA, mapping out a more business-friendly approach to FCPA enforcement by calling on prosecutors to exercise caution before attributing individual misconduct to corporate entities. Specifically, the Guidelines state that “prosecutors shall focus on cases in which individuals have engaged in misconduct and not attribute nonspecific malfeasance to corporate structures.”[4] During his remarks, Mr. Galeotti explained this aspect of the Guidelines as directing focus on “specific misconduct of individuals, rather than collective knowledge theories.”[5] Additionally, the Guidelines explicitly direct prosecutors to consider the disruption to lawful business and the impact on a company’s business throughout an investigation—establishing the need to consider “collateral consequences” throughout an investigation and “not just at the resolution phase.”[6] They also counsel against penalizing routine business practices and de minimis payments and encourage more accelerated investigation timelines.[7]
Background
The Guidelines were issued 120 days into the 180-day FCPA enforcement pause established by the FCPA Order,[8] which also mandated a review of FCPA enforcement matters and the development of FCPA guidelines that “prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.”[9] The Guidelines are the culmination of this months-long process and will shape FCPA case evaluations going forward.
When evaluating whether to pursue FCPA investigations and enforcement actions, prosecutors must now consider the following factors, which the DOJ explains is a non-exhaustive list.[10]
- Protecting Competition for American Companies Operating Abroad
The Guidelines build on a common theme in U.S. Attorney General Pam Bondi’s (the “Bondi Memorandum”)[11] and the FCPA Order: protecting competition for American companies operating abroad. The Guidelines reference the penalties and scope of past FCPA enforcement actions and note that the “most blatant bribery schemes have historically been committed by foreign companies.” The Guidelines caution that prosecutors should not “focus[] on particular individuals or companies on the basis of their nationality, but by identifying and prioritizing . . . conduct that most undermines these principles,” including activity that distorts markets, undermines the rule of law and disadvantages those companies playing by the rules. The Guidelines advise prosecutors to consider:
- Whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals.
- Whether, for Foreign Extortion Prevention Act (“FEPA”) enforcement, specific and identifiable U.S. entities or individuals have been harmed by foreign officials’ demands for bribes.[12]
- Prioritizing Industries with a National Security Interest
The Guidelines explain that certain industries, including defense, intelligence and critical infrastructure, implicate national security interests that should be factored into the FCPA enforcement calculus. The DOJ instructs prosecutors to “focus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets,” suggesting that companies in certain sectors may be more exposed to FCPA scrutiny should they get caught in the crosshairs of a government investigation. [13]
- Prioritizing Investigations of Serious Misconduct
The Guidelines instruct prosecutors to avoid penalizing companies for conduct considered to be “routine business practices” or “the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies.” The Guidelines suggest that such leniency extends beyond the facilitation payments exception[14] and affirmative defenses for reasonable and bona fide payments.[15] While the Guidelines do not establish boundaries for “routine business practices” and “generally accepted courtesies,” the DOJ appears to suggest a higher tolerance for hospitality expenditures and other business-related expenditures absent aggravating circumstances, such as a link to cartels/TCOs or a national security interest.
The Guidelines state that prosecutors should instead focus their resources on matters involving more serious conduct:
- Whether the alleged misconduct “bears strong indicia of corrupt intent tied to particular individuals,” including matters involving “substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice.”[16]
But even serious conduct is not an automatic trigger for an FCPA enforcement action, as prosecutors must also consider whether their foreign counterparts have the capacity and will to handle the matter:
- Whether it is likely that an “appropriate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct.”[17]
- Continued Focus on Conduct Implicating Cartels and Transnational Criminal Organizations (TCOs)
Consistent with the Bondi Memorandum, the Guidelines instruct prosecutors to prioritize cases with a cartel/TCO nexus, noting that cartels have “infiltrat[ed] into foreign governments across the Western Hemisphere.” Prosecutors are advised to consider the following factors:
- Whether the alleged misconduct is associated with the criminal operations of cartels or TCOs.
- Whether the alleged misconduct utilizes money launderers or shell companies that engage in money laundering for cartels or TCOs.
- Whether the alleged misconduct is linked to employees of state-owned entities or other foreign officials who have received bribes from cartels or TCOs.[18]
Case Initiation and Coordination
The Bondi Memorandum imposed a 90-day suspension of the Justice Manual requirements that FCPA/FEPA cases be authorized by the Criminal Division and conducted by Fraud Section trial attorneys, a policy change that lapsed nearly a month ago and is not addressed in the Guidelines. While the Guidelines do require that future FCPA matters be authorized by the Assistant Attorney General for the Criminal Division or a more senior DOJ official, such cases will once again be coordinated centrally by the Fraud Section’s FCPA Unit.[19]
Resource Considerations
Media reports suggest that the DOJ FCPA Unit has shrunk to half of its size since the start of the year, dropping from 32 prosecutors in January to roughly 15 prosecutors by June.[20] While some prosecutors have left the DOJ to pursue other opportunities, others have transferred to other components, including accepting details in the Fraud Section’s Healthcare Fraud Unit and may ultimately boomerang back to the FCPA Unit.[21] At the same time, the DOJ has reportedly “closed nearly half of its foreign-bribery investigations to align with new guidelines” and plans to authorize new investigations, including matters arising from tips submitted during the period of the FCPA enforcement pause.[22] Thus, while the FCPA Unit appears to be at its leanest in over a decade,[23] it is unburdened by legacy investigations that may have distracted prosecutors from higher-priority matters.
Conclusion
The Guidelines do confirm the DOJ’s commitment to enforcing the FCPA, consistent with the Administration’s policy views and priorities, and provide guidance on how prosecutors are to evaluate such actions going forward. Here are some key takeaways for companies and their advisors:
No Compliance Rollbacks: Companies are advised to avoid any rollbacks of their FCPA compliance programs, and should continue to reinforce their commitment to compliance through trainings and messaging. Companies should keep in mind where choosing not to self-report that certain FCPA statutes of limitations exceed a single Presidential term, and even if an issue that arises internally may fall outside the new priorities, a different Administration may adopt a different approach to enforcement.
Greater Scrutiny for Companies Operating in Cartel/TCO Hotspots: We anticipate greater FCPA scrutiny for multinational companies operating in Mexico and other Latin American countries with reputations for cartel/TCO activity, and such companies would be well advised to allocate more resources to monitoring compliance in those regions.
Greater Scrutiny When National Security Interests Are at Play: We also anticipate increased FCPA scrutiny for multinational companies operating in sectors with national security implications, including defense, intelligence and critical infrastructure but also mining/extraction (especially companies involved in rare earth metals) and sensitive technologies (e.g., artificial intelligence and semiconductor chips). The risks appear to be more acute for non-U.S. companies with U.S. touchpoints that are perceived as using bribery to undermine the competitiveness of American companies in international markets.
Potential Adjustment to Voluntary Self-Disclosure Calculus: The Guidelines suggest that the DOJ will be less inclined to prosecute companies for conduct considered to be “routine business practices” or “generally accepted business courtesies,” and caution prosecutors against attributing “nonspecific malfeasance [by individuals] to corporate structures.” While the DOJ continues to encourage self-reporting, as explored in this most recent client memo, the latest guidance may cause some companies to reevaluate their position on voluntary disclosures.
Potential Increase in Whistleblower Complaints Targeting Industry Peers: U.S. companies that believe that they are handicapped overseas by competitors willing to engage in bribery/corruption may have a sympathetic ear at the DOJ’s Bond Building, where the FCPA Unit is based. We anticipate more companies coming forward to the DOJ with whistleblower claims in an effort to address concerns about unfair competition abroad.
Raising Collateral Consequences of Investigations: Given the Guidelines’ express directive that prosecutors consider disruptions to lawful business throughout an investigation and not just at the resolution phase, U.S. companies under DOJ investigation should document how those investigations are impacting their operations and share those findings with DOJ.
Related Enforcement Actions: It is not yet clear whether the SEC will adopt these Guidelines or how the SEC will otherwise fit into the new FCPA enforcement framework. It is also unclear the extent to which DOJ will focus on criminal internal accounting controls and books and records violations going forward.
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[1] U.S. Department of Justice, Memorandum, Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA) at 1–2 (June 9, 2025), available (the “Guidelines” or “FCPA Memorandum”).
[2] The White House, Executive Order 14209, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security (Feb. 10, 2025), available (the “FCPA Order”).
[3] U.S. Department of Justice, Press Release, Head of Justice Department’s Criminal Division Matthew R. Galeotti Delivers Remarks at American Conference Institute Conference (June 10, 2025), available (the “Galeotti Speech”).
[4] FCPA Memorandum at 1–2.
[5] See Galeotti Speech.
[6] FCPA Memorandum at 1.
[7] Id. at 3–4.
[8] FCPA Order; FCPA Memorandum at 1–2.
[9] FCPA Order § 2.
[10] The Guidelines mirror remarks made by Mr. Galeotti at the American Conference Institute Conference on Global Anti-Corruption, Ethics & Compliance, which similarly emphasize that the Guidelines are not to be interpreted as exhaustive. Mr. Galeotti noted that “no one factor is necessary or dispositive.” See Galeotti Speech.
[11] U.S. Department of Justice, Memorandum, Total Elimination of Cartels and Transnational Criminal Organization (Feb. 5, 2025) (the “Bondi Memorandum”), available .
[12] FCPA Memorandum at 2–3.
[13] Id. at 3.
[14] See, e.g., 15 U.S.C. § 78dd-l(b).
[15] See, e.g., 15 U.S.C. § 78dd-1(c).
[16] FCPA Memorandum at 3–4.
[17] Id.
[18] Id. at 2.
[19] Bondi Memorandum at 2, 4.
[20] Andrew Goudsward et al., US Team Investigating Foreign Bribery Dwindles, Sources Say, Reuters (June 9, 2025), available .
[21] Id.
[22] Id.
[23] See U.S. DOJ, “Fraud Section Year in Review 2015” p. 4 (2015), available at (reporting a staff of 25, including 19 trial attorneys, 5 supervisory prosecutors, and the unit chief).
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