On February 5, 2025, on her first day in office, U.S. Attorney General Pam Bondi issued fourteen memos outlining new policies for the U.S. Department of Justice (“DOJ”) in a broad range of enforcement arenas. Among these Day 1 memos, AG Bondi announced what could amount to a significant redirection of the Department’s FCPA enforcement priorities.
Through the FCPA-related memo, entitled “Total Elimination of Cartels and Transnational Criminal Organizations” (the “Cartels and TCOs Memo”), AG Bondi has both shifted the focus of FCPA prosecutions away from traditional corporate subjects and expanded the scope of prosecutors who can initiate certain categories of FCPA cases.
Summary of Key FCPA Enforcement Policy Changes
First, the Cartels and TCOs Memo provides that the “Criminal Division’s Foreign Corrupt Practices Act Unit shall prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs, and shift focus away from investigations and cases that do not involve such a connection.” (Emphasis added.) In other words, the FCPA Unit has been directed to “shift focus away” from the corporate cases that have defined much of its recent work, absent a connection to cartels and TCOs.
Second, the Cartels and TCOs Memo suspends—in part—the two centralizing functions of Justice Manual § 9-47.110, which require that (1) the FCPA Unit, housed within the Fraud Section at Main Justice, authorizes any FCPA or Foreign Extortion Prevention Act (“FEPA”) prosecutions and (2) that any such investigations and prosecutions be conducted by default by the Fraud Section, rather than U.S. Attorney’s Offices. While such prosecutions may now be initiated by individual U.S. Attorney’s Offices, this bureaucratic suspension applies only to “all matters relating to foreign bribery associated with Cartels and TCOs.” In addition, U.S. Attorney’s Offices must provide 24 hours’ notice to the Fraud Section before seeking charges.
The combined effect of these policy changes is that individual U.S. Attorney’s Offices may now pursue FCPA and FEPA cases where the bribery in such cases is “associated with” cartels and TCOs, while the FCPA Unit at Main Justice will maintain its default authority to bring all other FCPA and FEPA cases, though under a lower priority than cases with a cartel or TCO connection. It remains to be seen how DOJ will address ongoing FCPA investigations and whether FCPA prosecutors will be redirected to other enforcement priorities.
Additional changes for national security and sanctions compliance
Beyond the FCPA, the Cartels and TCOs Memo also revamped policies that impact enforcement of trade controls and national security measures.
First, the memo removes internal National Security Division (“NSD”) approval and oversight requirements related to charges and search warrants in terrorism and International Emergency Economic Powers Act (“IEEPA”) matters. While this similarly removes some centralizing functions and may effectively expand the range of prosecutors’ offices who can bring such cases, the Cartels and TCOs Memo continues to “encourage[]” coordination with Main Justice’s NSD, and continues to require its approval for plea agreements, sentencing, and the handling of classified information.
Second, the Cartels and TCOs Memo disbands the Kleptocracy task force (AKA “Task Force KleptoCapture” and the “Kleptocracy Asset Recovery Initiative”) of the Money Laundering and Asset Recovery Section, which the Department had recently touted as responsible for multiple nationwide prosecutions to enforce sanctions against Russian entities.
What Remains Unchanged
While these changes are no doubt significant, it is equally important to note what the memo does not change.
- First, DOJ remains able to enforce the FCPA against U.S. businesses or foreign businesses—indeed, the Department might find that that FCPA investigations against foreign companies could be a tool in support of other policy aims, such as where anticorruption prosecutions target foreign companies the Trump Administration deems to engage in “unfair” trade conduct or are based in countries that actively oppose the current administration’s foreign policy and border agenda. In short, while we may see a shift in priorities and resources, and a potential shift in the volume of corporate cases, it is too soon to proclaim that corporate FCPA investigations and prosecutions are going away at DOJ.
- Second, the U.S. remains a party to the OECD Convention on Combating Bribery, such that it retains an obligation under international law to prosecute the supply-side of corruption.
- Third, the memo does not change any SEC policies, so issuers subject to the SEC’s jurisdiction must remain vigilant to comply with the FCPA, including its books-and-records reporting requirements, even if DOJ shifts the statute’s criminal-investigations focus.
- Fourth, companies must remain aware of compliance with foreign anticorruption regimes, as foreign authorities will continue to be active, and agencies such as the U.K.’s Serious Fraud Office may even see an opportunity to fill any gap left by lessened U.S. enforcement. Moreover, the U.S. has treaty obligations with certain countries that in some cases oblige the DOJ to respond to requests for evidence of international corruption by U.S. companies and individuals.
- Finally, and critically, the memo does not change the contours of liability under the FCPA. Therefore, corporate actors must not take this policy as license to relax compliance efforts, lest enforcement ramp up again under the next administration, with potentially severe consequences for any companies that may have abandoned reasonable anti-bribery and anti-corruption compliance or engaged in any allegedly improper conduct under the statute during a perceived lull in DOJ enforcement.
