FCPA reloaded: The DOJ “unpauses” enforcement – But is it a new level?

On June 10, 2025, the Head of the Criminal Division for the Department of Justice (DOJ), Matthew Galeotti, publicly reflected on the corporate enforcement priorities issued in mid-May 2025. He continued to encourage companies to self-disclose misconduct to obtain the benefits of the new Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP). Galeotti announced that the DOJ has already received reports of corrupt conduct in connection with cartels and narcotics trafficking under the Corporate Whistleblower Awards pilot program (CWA). He also emphasized the important role that companies play in achieving more efficient – and shorter – DOJ investigations.

Companies operating in critical industries or in sensitive geographies should take particular care in following enforcement policy announcements and adjust their risk assessments, mitigation measures, and legal strategies accordingly. Investing in risk-based compliance and internal controls enhancements, including whistleblower policies and other tools, and thoroughly and promptly investigating potential legal and policy violations continue to be sensible ways to protect company interests. Doing so will position companies to take advantage of the CEP benefits under the new FCPA guidelines and allow companies to ameliorate consequences, if there is a DOJ or other law enforcement inquiry.

Four key takeaways

1. The DOJ clearly signals that FCPA and FEPA enforcement remains active within the scope of the new FCPA guidelines and the Trump administration’s national security and foreign policy priorities.
2. The Criminal Division’s political leadership must approve all new FCPA investigations and charging decisions. Involving political appointees in this way – at the outset of an investigation – is a significant change from prior practice in FCPA enforcement and is likely to impact the types of investigations that are initiated.
3. The new FCPA guidelines provide opportunities for counsel to advocate on behalf of their clients while the DOJ deliberates on initiating an investigation or making charging decisions.
4. The DOJ can initiate investigations when factors outlined in the new FCPA guidelines do not support an FCPA charge. The developed facts can support charges under a related statute, such as money laundering, the Travel Act, and fraud statutes.

Revised FCPA guidelines

According to Blanche’s recent post on X, referencing the new guidelines, “[The DOJ] has overhauled FCPA enforcement to protect American businesses and sharpen our national security focus [to end] abusive overreach and clos[e] cases that never should’ve been opened.” The stated objectives of the FCPA guidelines are to limit undue burdens on American companies and to target enforcement against conduct that directly undermines U.S. national interests. The new memorandum is binding on all federal prosecutors, and states that, effective June 9, 2025, “prosecutors shall focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures; proceed as expeditiously as possible in their investigations; and consider collateral consequences, such as the potential disruption to lawful business and the impact on a company's employees, throughout an investigation, not only at the resolution phase.”

Galeotti separately summarized the revised FCPA guidelines as the “vindication of U.S. interests” through “common-sense principles.” He stated that “it is not about the nationality of the subject or where the company is headquartered[;]” instead, “conduct that genuinely impacts the [U.S] is subject to potential prosecution by U.S. law enforcement” and other conduct “should be left to our foreign counterparts or appropriate regulators.”

With the new FCPA guidelines and previous changes to the Corporate Enforcement Policy (CEP), the DOJ seeks to simplify the voluntary self-disclosure calculus by strongly suggesting a declination for companies that self-report. Nonetheless, companies should still carefully consider the decision to voluntarily disclose misconduct.

Under the new guidelines, the DOJ expressly retains discretion to investigate allegations that may not, initially, meet the factors set out in the guidelines. Once an investigation is underway, even if the facts developed do not support an FCPA charge under the new guidelines, prosecutors may bring charges where warranted using other statutes such as money laundering, the Travel Act, or fraud offenses. This has long been a strategy of the DOJ’s FCPA Unit, which in recent years has conducted investigations that did not, at the outset, clearly show an alleged FCPA violation or otherwise were concluded with criminal charges involving non-FCPA offenses.

The new guidelines, however, reinforce the requirement from earlier this year that the FCPA Unit and other federal prosecutors must receive prior approval from the Assistant Attorney General for the Criminal Division (or the official acting in that capacity given that this position is presently vacant) before an FCPA investigation may be initiated. This new layer of pre-review and approval is likely to have a significant impact on the types of investigations that are initiated and the involvement of both political appointees and career prosecutors from the outset. This has not always been the case. In the context of a self-report, this process may also give cooperating companies or other interested parties new avenues for advocacy within the DOJ, from the earliest stages of an investigation and thereafter.

Potential consequences of a federal criminal investigation, even one where a company has voluntarily self-reported, can be severe and unpredictable. These may include collateral consequences including possible debarment involving other U.S. or foreign government agencies or private counterparties, disgorgement and/or forfeiture, restitution to potential victims, collateral litigation, and substantial investigation costs. Companies may have more control or influence over these consequences if they self-report than if an investigation or prosecution is initiated in some other fashion, but companies should fully consider these factors as they decide how to proceed.

EO factors

The FCPA guidelines direct prosecutors to consider a non-exhaustive list of factors before initiating FCPA investigations or enforcement actions. The FCPA guidelines describe four key factors:

• Connection with narcotics trafficking cartels, Transnational Criminal Organizations (TCOs), and Foreign Terrorist Organizations (FTOs): Following the flurry of related executive orders and DOJ policies, “one primary consideration” in deciding whether to pursue an FCPA investigation or enforcement action is connections of the alleged corrupt conduct with narcotics trafficking cartels, TCOs, and FTOs, or involvement of money launderers or shell companies that also work for such organizations in the corrupt conduct. The FCPA guidelines do not clearly articulate how strong or attenuated these connections may be.
• Competitiveness of U.S. companies: The DOJ will prioritize FCPA enforcement that “seeks to vindicate” the “growth and expansion of U.S. business opportunities abroad” by pursuing those that corruptly “skew markets and disadvantage” specific and identifiable U.S. entities in competing fairly and/or resulting in economic injury. This principal also applies when considering enforcement action against corrupt officials under FEPA, which now involves considerations of harm to specific U.S. entities.
• U.S. national security: FCPA enforcement will focus on “the most urgent threats to U.S. national security" resulting from the bribery involving key infrastructure or assets in “sectors like defense, intelligence, or critical infrastructure.” Aerospace and defense is the third most common industry for FCPA enforcement, according to Stanford University. We expect companies involved in critical minerals, deep-water ports, semiconductor manufacturing supply chains, digital and electrical grid infrastructure, critical transportation infrastructure, space security, and communications assets to face increased scrutiny.
• Complex schemes: Prosecutors should prioritize FCPA cases 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” instead of cases that involve “routine business practices” or “de minimis or low-dollar, generally accepted business courtesies” should not be prioritized.

General considerations

The new FCPA guidelines also describe other considerations that should underpin the prosecutors’ decision-making process, in addition to the factors set out in the Principles of Federal Prosecution, which are also referenced:

• Individuals must have engaged in criminal misconduct as opposed to nonspecific malfeasance attributable to corporate structures and collective knowledge theories, which likely means that the DOJ will consider cases with evidence clearly showing specific individuals’ corrupt intent.
• The likelihood that an appropriate foreign law enforcement authority is willing and able to investigate and prosecute the alleged corrupt conduct, such as European or South American authorities.
• Collateral consequences, such as business disruption and impact on employees.
• The overall nature and seriousness of the alleged misconduct.
• The deterrent effect of prosecution.
• The efficiency of investigations.

Galeotti's remarks

Galeotti exhorted companies to self-disclose misconduct, otherwise the DOJ will “move aggressively – yet fairly – to prosecute white-collar offenders whose crimes undermine U.S. interest,” as articulated in the May 2025 DOJ enforcement priorities. Galeotti suggested that in the last few weeks since the issuance of the new enforcement priorities, CWA has received reports of alleged FCPA violations pertaining to narcotics trafficking and other new priority areas, such as procurement and healthcare. In the same vein, the DOJ has “seen new voluntary self-disclosures – including for potential FCPA violations.”

Galeotti admonished protracted investigations and committed to promptly charging or declining cases. Outlining the type of conduct that current Criminal Division leadership will consider as warranting cooperation credit, he stated that the DOJ expects swift production of documents, quickly making witnesses available for interview, and effectively navigating “global legal regimes” (potentially referring to foreign data privacy, national security, and blocking statutes that may curtail the DOJ’s reach).

Galeotti urged companies and counsel to “be conscientious” about their advocacy because “seeking premature relief” and “failing to be an honest broker” is counter-productive. At least for FCPA cases, companies and counsel should factor in their strategy that the FCPA guidelines provide opportunities for companies and counsel to advance their arguments at the initial stage of the investigation and before charging.

How should companies respond?

Companies should continue to mitigate corruption risks across their operations, not only areas specifically affected by the revised FCPA guidelines, because the implementation of the guidelines leaves questions unresolved. This includes a number of factors that are subjective, including the DOJ’s evaluation of a company’s overall cooperation effort, what may be considered as timely, and how a company responds to impediments such as foreign evidence collection or legal regimes that apply to data collection and review.

Some of the non-exhaustive factors, such as the focus on national security and U.S. competitiveness, mark a significant departure from the types of factors that prosecutors have historically been assessing before initiating corruption investigations. It is unclear how prosecutors will assess these factors or how they will prioritize between such cases and cases with more typical facts, such as complex schemes or egregious conduct. Though we expect that some enforcement actions exemplifying DOJ priorities will soon become public and investigations that don’t will tacitly be closed, this or a future administration is likely to initiate investigations that focus on more typical facts.

Another implementation question concerns consistency. On one hand, U.S. Attorney’s Offices can initiate FCPA investigations relating to foreign bribery associated with narcotics trafficking cartels and TCOs as of February 2025, broadening the pool of available prosecutors. On the other hand, the number of FCPA Unit prosecutors focusing on FCPA and FEPA enforcement have been reduced from 32 to 15, according to Reuters, limiting the availability of specialized experience. As mentioned above, Blanche’s imposition of a prior approval requirement at the Assistant Attorney General level – rather than at the DOJ Fraud Section level as used to be the case – for all new FCPA investigations across the DOJ may be an attempt to bring consistency to investigation and charging decisions while also ensuring that these investigations are consistent with the administration’s priorities.

Although the Securities and Exchange Commission (SEC) previously indicated that they are “obviously going to follow the lead of the DOJ,” the May 2025 Criminal Division priorities and the FCPA guidelines suggest that the DOJ is factoring regulatory action in its decision-making process. How the new priorities and guidelines will shape the relationship between the DOJ and SEC remains to be seen. It is conceivable that “following DOJ’s lead” morphs into the SEC pursuing civil FCPA actions for alleged misconduct that falls outside the scope of the DOJ’s priorities, thus leading to a continuation of typical FCPA enforcement actions for SEC-regulated entities and individuals.

Along the same lines, the future of cooperation with foreign authorities in corruption cases remains unclear, as illustrated by the DOJ missing the latest meeting of the working group on bribery of the Organization for Economic Cooperation and Development (OECD) in March 2025. The May 2025 Criminal Division priorities and the FCPA guidelines indicate that the DOJ will consider enforcement by foreign authorities in its decision-making. Foreign authorities in the U.K., France, Switzerland, Singapore, Hong Kong, and China have been strengthening their cooperation and have potent anti-bribery laws and regulations at their disposal. It is not clear if the DOJ will decline to prosecute FCPA cases because a foreign authority can potentially initiate an enforcement action or because the DOJ and foreign authority have coordinated in case development and investigation. Either way, global companies may still be exposed to enforcement risks under a variety of international laws.

Conclusion

In the context of recent administration pronouncements and other actions that suggested FCPA enforcement could come to a standstill, the new FCPA guidelines will be impactful. The guidelines set out new factors for FCPA prosecutors to follow before initiating FCPA investigations or making charging decisions, while reinforcing new procedural steps prosecutors must follow. But the guidelines also suggest that FCPA enforcement is continuing and will continue under this administration, while suggesting that new avenues for advocacy within the DOJ may be available for companies to initiate dialogue with decisionmakers when appropriate.

When a company learns of specific allegations that implicate a potential violation of the FCPA, consulting with U.S. counsel with experience navigating fast-paced investigations, self-disclosure, government negotiations, and even foreign policy can position a company well to develop a legal strategy that promotes company interests in light of the constantly evolving U.S. government priorities.

Authored by Jerrob Duffy, Peter Spivack, Matt Sullivan, Stephanie Yonekura, and Nikolaos Doukellis.