On June 9, Deputy Attorney General Todd Blanche issued a memorandum entitled Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (the Memo) addressed to the head of the Criminal Division of the U.S. Department of Justice (DOJ) laying out the evaluation criteria and a non-exhaustive list of factors the Criminal Division should use to decide whether to pursue a Foreign Corrupt Practices Act (FCPA) case. The FCPA is the primary law by which the U.S. government seeks to prosecute and penalize bribery of non-U.S. government officials.

In conjunction with the issuance of the Memo, the DOJ effectively re-started FCPA prosecution, which was paused pursuant to an Executive Order issued February 2025.

Four Non-Exhaustive Enforcement Factors

Following the theme from the February Executive Order, the Memo states enforcement should limit “undue burdens on American companies that operate abroad” while targeting conduct that “directly undermines U.S. national interests.” The Memo lists four non-exhaustive enforcement factors that prosecutors must consider when deciding whether to pursue an FCPA case:

Total Elimination of Cartels & Transactional Criminal Organizations (TCO)

• A “primary consideration” is whether the conduct is associated with cartel or TCO operations, utilizes money launderers or shell companies that associate with cartels or TCOs, or is linked to employees of state-owned entities or other foreign officials who have received bribes from cartels or TCOs.

Safeguarding Fair Opportunities for U.S. Companies

• Another consideration is whether the conduct deprived specific and identifiable U.S. entities of fair access to compete or resulted in economic injury to specific and identifiable American companies or individuals. Regarding the Foreign Extortion Prevention Act, which criminalizes the “demand side” of foreign bribery, prosecutors should consider whether specific and identifiable U.S. entities or individuals have been harmed by foreign officials’ demands for bribes. At the same time, the Memo emphasizes that prosecutors should not focus “on particular individuals or companies on the basis of their nationality.”

Advancing U.S. National Security

• There should be heightened attention to the most urgent threats to national security resulting from the bribery involving “key infrastructure or assets” or sensitive sectors like defense and intelligence.

Prioritizing Serious Misconduct

• Prosecutors should not focus on low-dollar amounts, routine business practices, or generally accepted business courtesies, but there should be a focus on conduct that bears strong corrupt intent such as substantial bribe payments, sophisticated efforts to conceal those payments, or other fraudulent conduct in furtherance of the scheme.

On June 10, in remarks at a conference on Global Anti-Corruption, Ethics & Compliance, Matthew Galeotti, the Head of the Criminal Division, clarified that these four factors are not exhaustive and that “no one factor is necessary or dipositive.” He also suggested that conduct that does not implicate U.S. interests should be “left to our foreign counterparts of appropriate regulators.”

DOJ Will Adopt Additional Procedural Considerations

The Memo alludes to several important procedural changes, including:

• The initiation of all new FCPA investigations and enforcement actions must be authorized by the Assistant Attorney General for the Criminal Division, or the official acting in that capacity, or a more senior DOJ official.
• Prosecutors should consider the likelihood that foreign law enforcement is willing and able to investigate and prosecute the same misconduct, insinuating the DOJ may not pursue a parallel investigation.
• Prosecutors should weigh the potential disruption to lawful business and the impact an investigation may have, not just the impact “at the resolution phase.”
• The DOJ still retains prosecutorial discretion to continue or terminate based on “the totality of the circumstances.”

Looking Ahead

Notwithstanding the DOJ’s more targeted approach to FCPA prosecution, at least for now, the stakes remain high – particularly where corruption intersects with national security or harms U.S. businesses. While the number of new cases may decrease, matters that are prosecuted may lead to significant penalties. In his remarks, DOJ Criminal Division Head Galeotti insisted that the DOJ will aggressively prosecute the law and emphasized the benefits to corporate wrongdoers that voluntarily disclose potential misconduct. He also highlighted the DOJ’s determination to decline to prosecute many parties that have self-disclosed and then cooperated in DOJ investigations.

It is too early to predict the volume and scope of FCPA enforcement over the coming months. Companies should nonetheless continue to protect against violations with risk-based, tailored compliance policies – even if training, and some of those policies themselves, are directed at the four factors DOJ has identified as enforcement priorities.

Please contact the authors if you have any questions about how these actions will affect your business.