A Sea Change in US Corruption Enforcement?

On 10 February 2025, President Trump paused enforcement action under the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 et seq.) (the “FCPA”) and directed the Attorney General of the United States to review enforcement policy.

The principal reason given was that (according to the words of the relevant executive order), the FCPA had been “systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States … [and] 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.”

On 9 June 2025, the Department of Justice (the “DOJ”) issued a memorandum setting out its new policy on enforcement in response to the President’s order. That memorandum requires prosecutors to obtain authority from a senior official before commencing any investigation and to consider a list of four specific “non-exhaustive factors”, namely:-

(a) the President’s priority to eliminate cartels and trans-national criminal organisations, which will continue to be a high priority for law enforcement;

(b) whether bribery demanded by foreign officials has affected specific US business interests;

(c) advancing US national security, particularly in cases involving bribery affecting defence, intelligence and critical infrastructure projects; and

(d) prioritising allegations of serious misconduct over low-value matters which reflect “generally accepted business courtesies” in accordance with local business customs.

Overall, the current focus is therefore on offences committed by those acting for criminal organisations, such as laundering the profits of the illegal drugs trade, or on offences which affect US critical infrastructure. Other matters will not be a priority for the DOJ.

In particular, the DOJ now proposes focus on the nationality of the victim and not on the nationality of the potentially culpable parties and there is a clear focus on harm to US companies and individuals. This suggests that the DOJ may be less interested in pursuing cases against US companies, unless the case involves a priority area of enforcement.

It appears some ongoing investigations have already been stopped. New investigations will have to be approved by senior officials rather than individual prosecutors using their discretion.

Most commentators agree that this reflects a more business-friendly culture in the US Department of Justice to prosecutions, at least as far as US companies are concerned. Some commentators have suggested that US companies might benefit from disclosing information about their competitors paying bribes and foreign officials demanding them, even if that company has historically violated the FCPA’s provisions.

Non-US companies doing business in the US, especially those involved with any US critical infrastructure projects, should therefore assume a greater risk of enforcement action than previously.

Simon Winter, Partner

Postscript

Since this article was written and first published, there have been no further official announcements by the DOJ on policy, but various news sources have reported on a deferred prosecution agreement made under the new policy.

That agreement concerns a Guatemalan company which the DOJ alleged to have bribed local government officials in order to procure business advantages. It appears the DOJ became involved because the alleged bribery took place in Florida. Commentators have referred to this as an example of increasing DOJ scrutiny of Latin America, which seems plausible in light of wellknown foreign policy developments, but also as evidence of an “America First” agenda, which seems far less plausible.

As matters stand, there is nowhere near enough evidence yet to offer any meaningful comment on the impact of the new policy and those potentially affected must continue to watch out for developments.