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Analysis & trends
New DoJ guidelines on the FCPA heighten the risk of prosecution for foreign companies whose activities may harm U.S. interests
In his Executive Order of February 10, 2025[1], President Trump ordered a 180-day suspension of the Foreign Corrupt Practices Act (FCPA), an extraterritorial law that penalizes international corruption. He justified the decision by claiming the law’s “excessive and unpredictable” enforcement harmed the economic competitiveness of the United States.
New FCPA enforcement guidelines published by the U.S. Department of Justice (DoJ) on June 9, 2025[2], formally mark the end of this suspension and outline the conditions under which the FCPA will again be enforced (2.). They follow in the footsteps of the DoJ’s memorandum “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime” issued on May 12, 2025[3], which sets out the new U.S. agenda on economic crime (1.).
The U.S. enforcement strategy is now explicitly aligned with the protection of American economic and strategic interests, consistent with the Trump administration’s “America First” doctrine. In this context, foreign companies should anticipate an increased risk of prosecution by U.S. authorities, especially if their business activities are deemed detrimental to U.S. interests (3.).
1. A criminal policy recentered on U.S. strategic interests
On May 12, 2025, Matthew Galeotti, Chief of the DoJ’s Criminal Division, issued a memorandum entitled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime,” outlining the DoJ’s new priorities under the “White Collar Enforcement Plan.”
This new enforcement policy is built around three main objectives:
- Accelerating investigations and reallocating resources toward cases with strategic or symbolic value. The DoJ identifies ten key prosecution areas, including corruption, economic and cybercrime, customs fraud, and threats to national security (“Focus” and “Efficiency“);
- Encouraging self-reporting and voluntary cooperation from companies, offering up to 75% penalty reduction for those that voluntarily disclose wrongdoing and fully cooperate with the authorities (“Fairness“);
- Enhancing the attractiveness of whistleblower programs by simplifying reporting processes, allowing anonymous disclosures, and increasing financial rewards for whistleblowers.
2. The new FCPA enforcement guidelines
On June 9, 2025, the DoJ issued “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act,” which officially lifted the temporary suspension ordered by the February 10, 2025 Executive Order. These new guidelines define a more targeted FCPA enforcement strategy, aligned with the protection of U.S. strategic interests.
Federal prosecutors will now be required to:
- Curb “abuses” in the enforcement of the FCPA, particularly against U.S. companies operating abroad;
- Focus enforcement efforts on high-stakes cases, especially those that pose significant threats to national security or U.S. economic competitiveness;
- Reduce regulatory burdens on U.S. companies abroad by dismissing low-severity cases, whether ongoing or newly initiated.
From now on, FCPA cases should primarily target conduct that are deemed to seriously undermine U.S. interests, particularly:
- Activities involving transnational criminal organizations (TCOs), including money laundering through shell companies or the bribery of foreign officials linked to such groups;
- Conduct causing economic harm to U.S. companies, such as competitive distortions leading to lost contracts or direct financial damage to an American entity;
- Threats to S. national security, especially in strategic sectors (critical infrastructure, resources, defense, intelligence, energy);
- Sufficiently severe conduct, involving substantial amounts and clear fraudulent intent. Locally tolerated practices (e.g., facilitation payments permitted under local law) will no longer be among the DoJ’s priorities.
The DoJ also reaffirmed its commitment to prioritizing the prosecution of individuals over corporations.
Additionally:
- The DoJ will consider the capacity and willingness of foreign authorities to prosecute the alleged conduct, which may result in the U.S. declining to pursue cases where American interests are not directly implicated. However, as the non bis in idem principle does not apply in international corruption matters, there remains a significant risk of parallel proceedings in multiple jurisdictions, particularly amid rising geopolitical tensions;
- All new FCPA investigations or prosecutions must be approved by the Assistant Attorney General of the Criminal Division, indicating a desire for greater political oversight in enforcement decisions;
- All ongoing cases must be reviewed in light of the new guidelines.
3. A heightened risk of prosecution for foreign companies
These changes to the U.S. enforcement framework may lead to a more selective but also intensified enforcement of the FCPA against foreign companies.
Indeed, by refocusing its criminal policy around the defense of American economic interests, the DoJ is likely to increase the use of the FCPA against foreign firms, particularly those in direct competition with U.S. companies, operating in strategic sectors (defense, intelligence, energy), or located in high-risk jurisdictions (e.g., where TCOs are active or where regimes are hostile to U.S. interests).
There is also a growing concern that U.S. extraterritorial laws may be used as tools of economic warfare or intelligence gathering. Through discovery procedures, U.S. authorities can obtain access to sensitive information on the strategy, contracts, and operations of foreign companies.
In response, European enforcement bodies may seek to reinforce their own frameworks. On March 20, 2025, France’s National Financial Prosecutor’s Office (PNF), the UK’s Serious Fraud Office (SFO), and Switzerland’s Federal Office of Justice signed a declaration establishing an International Anti-Corruption Prosecutors Task Force. This platform aims to strengthen operational cooperation, share information in specific cases, and develop a coordinated international anti-corruption strategy.
Conclusion
Faced with this new more targeted enforcement of the FCPA and a criminal policy openly designed to promote U.S. interests, foreign companies operating in the U.S. must exercise heightened vigilance in anti-corruption compliance, bolster their compliance programs, handle internal alerts with exceptional diligence, and anticipate the risk of transnational litigation.
