Client Alerts  - White Collar Defense and Government Investigations Jun 23, 2025

New Justice Department Memoranda Shed Light on Administration’s Updated FCPA Enforcement Plans

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Written By: Myles K. Bartley

Focus Remains on Nontraditional Targets and De-Emphasizes Low-Level Bribery

This spring, the U.S. Department of Justice (DOJ) issued two new memoranda providing some of the guidance required by the White House’s February 10, 2025, Executive Order 14209, “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.”1 In May, the DOJ’s criminal division head issued a memo titled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime,” and in June, the deputy attorney general issued a memo titled “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA).”2 The memos signal that cartels, transnational criminal organizations (TCOs), harm to U.S. economic interests, and national security threats will be the primary DOJ FCPA targets, while acknowledging that low-level or run-of-the-mine foreign bribery will no longer be pursued. These memos, along with the U.S. Securities and Exchange Commission (SEC) officials signaling that it will follow the lead of the DOJ in FCPA enforcement,3 provide a roadmap of the new FCPA course this administration will chart.

Executive Order 14209 mandated that, within 180 days, the Attorney General, inter alia, “[i]ssue [FCPA] guidance that promotes U.S. economic competitiveness.” Toward that end, in a memo by Matthew R. Galeotti, head of the DOJ’s Criminal Division, the DOJ prioritized ten types of white-collar crimes, listing FCPA matters as the ninth most important, only ahead of digital assets crimes, and below more prominent issues emphasized by the administration, including waste, fraud and abuse, trade and customs fraud, and purported crimes involving Chinese interests (e.g., Variable Interest Entities and “Chinese Money Laundering Organizations”).4 Galeotti took aim at two long-standing FCPA complaints: the time it takes to investigate and charge a FCPA violation, and the use of independent monitors to implement a compliance program. Galeotti directed that cases be investigated and charging decisions be made expeditiously. And giving voice to critiques that monitors’ interventions have been heavy-handed, burdensome, and interfered with the business, Galeotti’s memo introduced a new monitor selection memorandum, clarifying factors to assess before a monitor is deemed appropriate, and, if appointed, that the monitor’s remit is narrowly tailored.

Deputy Attorney General Todd Blanche provided additional guidance in his June 9, 2025 memo.5 Underscoring that FCPA prosecutions will be infrequent, Blanche’s memo required that “all new FCPA investigations or enforcement actions must be authorized by the Assistant Attorney General for the Criminal Division . . . or a more senior Department official.”6 The memo then lists three primary considerations:

  • Cartels and TCOs (and related entities or individuals linked with such entities);
  • Companies or individuals whose actions “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”; and
  • Threats to national security.7

Blanche also reinforced that the U.S. will no longer concern itself with “misconduct involving routine business practices or the type of corporate conduct that involves de minimus or low-dollar, generally accepted business courtesies.”8

The SEC’s (unsurprising) acknowledgment that it would follow the lead of the DOJ, and its messaging that “you can expect to see . . . a greater understanding of the burden that a lot of the rules impose on registrants or public companies and have a more sympathetic ear to those concerns,” reinforces the government-wide FCPA de-emphasis.9 But the SEC has not clarified how it will change its current enforcement approach.

The DOJ’s additional FCPA guidance and the SEC’s indication that it will fall in-line with the DOJ’s FCPA approach creates a new landscape for corporate counsel. With more senior-level approval now required to initiate an investigation or enforcement, fewer actions should be expected. Reinforcing this point, news reports assert that the DOJ’s fraud section has shrunk from 32 to 15 attorneys since the start of the year.10 And Blanche has explained that the administration has “closed nearly half of its foreign-bribery investigations to align with new guidelines . . ..”11 Traditional FCPA targets (e.g., natural resource extraction industries12 and medical equipment manufacturers) have now been replaced by entities potentially involved in cartel and TCO activities (e.g., banks, financial institutions, and transportation companies). Low-level bribery is unlikely to be pursued.

But uncertainty remains, warranting continued caution by corporate counsel. The FCPA’s limitations period will still extend beyond the president’s term of office, and any new administration may re-emphasize what the current administration has de-emphasized. And while enforcement priorities have shifted, the law regarding foreign bribery, books and records requirements, and internal control obligations remains unchanged.

International anti-corruption efforts remain robust. Indeed, in March, France, Switzerland and the United Kingdom launched the International Anti-Corruption Prosecutorial Taskforce to “tackle international bribery and corruption.”13 Corporate counsel ignore these efforts at their peril.

The DOJ’s new guidance provides necessary clarity to the administration’s FCPA enforcement plans. The guidance also serves notice that different industries and market participants need to re-examine their FCPA compliance and assess their FCPA risks. And while the SEC has suggested that it will align its actions with the DOJ’s, counsel should continue to monitor SEC pronouncements to determine if it will update its approach to FCPA enforcement. Finally, unaddressed by the new guidance are any changes to the DOJ’s view on a host of complex FCPA issues, including FCPA jurisdiction, successor liability, and the hallmarks of a proper compliance programs.

Additional Assistance

For more information, please contact Myles K. Bartley at (212) 508-0423 or mbartley@phillipslytle.com; any member of the Phillips Lytle White Collar Defense and Government Investigations Team; or the Phillips Lytle attorney with whom you have a relationship.