On June 10, 2025, the head of the Criminal Division of the Department of Justice (DOJ), Matthew Galeotti, declared in a speech that the DOJ would resume enforcing the Foreign Corrupt Practices Act (FCPA). This announcement came after a four-month “pause” in FCPA enforcement, announced via executive order on February 10, 2025. Mr. Galeotti’s remarks were prompted by a memorandum issued by Deputy Attorney General Todd Blanche that outlined new guidelines for FCPA enforcement (Guidelines). As predicted in our client alert last month — and now confirmed by Mr. Galeotti and the Guidelines — FCPA enforcement will focus on “the vindication of U.S. interests,” particularly to ensure that U.S. entities receive “fair access to compete” for international business opportunities but also to ensure the “strategic business advantage” of U.S. companies in sectors affecting national security.
The FCPA Guidelines
The Guidelines direct DOJ prosecutors to consider four “non-exhaustive” factors before initiating any new FCPA investigations, which must now be authorized by the chief of the Criminal Division or a higher-ranking official. The four factors, in the order most relevant to the global business community, are
- Safeguarding fair opportunities for U.S. companies
The Guidelines reaffirm that “economic growth and the expansion of U.S. business opportunities abroad—including U.S. companies’ competitiveness—is critical to safeguarding U.S. national security and economic prosperity.” The Guidelines further explain that companies that bribe foreign officials “can put their law-abiding competitors, including U.S. companies—at a serious economic disadvantage.” The Guidelines direct prosecutors to “vindicate these interests” by pursuing investigations in which U.S. entities or individuals were deprived of “fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals.” When enforcing the Foreign Extortion Prevention Act (which makes it a crime for foreign officials to demand or accept bribes from entities or individuals covered by the FCPA), the Guidelines also direct prosecutors to consider whether the foreign official’s misconduct resulted in harm to U.S. entities or individuals.
- Advancing U.S. national security
The Guidelines also direct prosecutors to consider whether FCPA enforcement will advance U.S. national security interests. The Guidelines reaffirm that U.S. national security “depends, in substantial part, on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.” Accordingly, the Guidelines provide examples of sectors in which competitive access (or, indeed, advantage) for U.S. companies is paramount — namely “defense, intelligence, or critical infrastructure.” The Guidelines also classify the bribery of foreign officials to secure contracts in sectors such as these as an “urgent threat” to American national security and therefore a priority for FCPA enforcement.
- Serious misconduct
The Guidelines also direct prosecutors to prioritize FCPA enforcement of serious misconduct, such as substantial bribes, sophisticated cover-ups, related fraud and obstruction, rather than pursue “routine business practices” like “low-dollar, generally accepted business courtesies.” The Guidelines further direct prosecutors to consider whether foreign law enforcement “is willing and able to investigate and prosecute.” In his remarks, Mr. Galeotti made clear that the DOJ “won’t hesitate to work with [its] foreign counterparts or domestic regulators to provide assistance.”
- Cartels and transnational criminal organizations
The Guidelines also direct prosecutors to consider whether the alleged misconduct facilitates the criminal operations of a cartel or transnational criminal organization (TCO). FCPA enforcement against conduct that is “associated with” such criminal operations, uses money launderers or shell companies that also launder money for cartels or TCOs, or involves foreign entities or officials that have taken bribes from cartels or TCOs will also be prioritized.
Takeaways and considerations for U.S. and non-U.S. entities
The FCPA Guidelines contain few surprises in light of the DOJ’s white-collar enforcement priorities announced in May 2025. As we noted then, the DOJ will prioritize new and existing cases that disadvantage the competitiveness of U.S. businesses and U.S. national security interests abroad. While the Guidelines expressly disclaim any intent to focus FCPA enforcement on individuals or companies “on the basis of their nationality,” the Guidelines nevertheless point out in a footnote that “[t]he most blatant bribery schemes have historically been committed by foreign companies” and that “the most significant FCPA enforcement actions—measured both by the scope of the misconduct and the size of the monetary penalties imposed—have been overwhelmingly brought against foreign companies.” Non-U.S. companies should therefore continue to promote and pursue strong anti-corruption compliance programs and robust due diligence, particularly when operating in sectors implicating “key infrastructure or other assets.”
Non-U.S. entities should also bear in mind that neither Mr. Galeotti’s remarks nor the Guidelines define what industries or sectors constitute “key infrastructure or assets.” The Guidelines provide examples such as “defense, intelligence, or critical infrastructure” without defining what constitutes “critical infrastructure.” Other U.S. agencies, such as the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, define “critical infrastructure sectors” broadly to include 16 categories ranging from manufacturing, energy and financial services to agriculture, healthcare and transportation. In the absence of any limiting principle, non-U.S. entities should not assume that their particular sector or industry presents a lower risk or likelihood of FCPA enforcement and should consult with experienced counsel regarding any matters that present FCPA exposure.
U.S. entities should not assume, however, that the FCPA is no longer their concern. U.S. and non-U.S. companies that issue stock traded on U.S. exchanges should take heed that the DOJ expects domestic regulators to continue to enforce the FCPA even where there may not be a criminal interest under the Guidelines. The Securities and Exchange Commission has traditionally been very active in enforcing the anti-bribery provisions of the FCPA and the related books and records and internal control provisions. Issuers should be aware that those efforts will likely continue.
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