United States: Uncertain Future for DOJ FCPA Enforcement Priorities
The recent memorandum issued by Attorney General Pam Bondi suggests a change in the Department of Justice’s (DOJ) approach to enforcing the Foreign Corrupt Practices Act (FCPA). This shift emphasizes focusing on foreign bribery related to Cartels and Transnational Criminal Organizations (TCOs), potentially reshaping the landscape of corporate white-collar enforcement. While traditional FCPA cases will continue, the new directive allows local US Attorneys’ Offices more freedom in conducting FCPA investigations linked to Cartels and TCOs. This adjustment could lead to an uptick in specific FCPA investigations and influence the resolution of ongoing cases. The practical implications of this announcement are still uncertain, and any effects may be temporary or minor, prompting companies to monitor compliance risks and investigate any misconduct allegations adequately to adjust to evolving priorities and manage the uncertain future of FCPA enforcement efficiently. For detailed insights and initial observations on this possible transformative development, readers are encouraged to read the full alert.
Under the Trump administration, a significant change may shift the focus of white-collar corporate enforcement. In her memorandum dated February 5, 2025, Attorney General Pam Bondi instructed the Department of Justice FCPA Unit to prioritize investigations into foreign bribery that aids Cartels and Transnational Criminal Organizations while diverting attention from cases unrelated to these connections. These cases are now referred to as “Priority FCPA Investigations,” in line with the Memorandum’s emphasis on these FBI-related matters as the DOJ’s primary concern.
The Memorandum follows President Trump’s Executive Order urging federal strategies to remove Cartels and TCOs from the United States. It is recommended to cautiously observe how DOJ prosecutors implement the directive outlined in the Memorandum. From a policy perspective, it underscores priorities without precluding existing law enforcement. Legally, the FCPA may not be necessary to achieve the Memorandum’s objectives as federal laws already prohibit acts carried out by Cartels and TCOs. Practically, the impact of DOJ’s policy on white-collar enforcement remains uncertain, as front line prosecutors are often evaluated based on metrics like successful case prosecutions. It is yet to be seen whether the Memorandum’s directive will be consistently followed in practice, as it is only valid for 90 days, after which the DOJ will decide on renewing or making permanent the mandate.
While the Memorandum does not eliminate FCPA prosecutions, it may alter the focus of foreign bribery cases investigated by the DOJ over the next years. Traditionally, FCPA cases must involve coordination with the DOJ’s Fraud Section in Washington DC, with the unit’s trial attorneys leading anti-bribery prosecutions. However, for Priority FCPA Investigations, local US Attorneys’ Offices now have more autonomy to conduct these investigations and bring charges with minimal notice to the FCPA Unit, potentially leading to more localized FCPA inquiries.
The Memorandum may integrate FCPA Unit lawyers into Priority FCPA Investigations while also allowing USAOs greater flexibility to conduct both traditional FCPA and Priority FCPA cases. However, how this directive influences independent bribery detection, voluntary disclosures, and enforcement risk outside Priority FCPA Investigations remains unclear. Furthermore, the impact on ongoing FCPA investigations, typically spanning nearly 39 months, is uncertain, as many of these cases began under previous administrations. The statute of limitations for FCPA cases being five years might motivate prosecutors to pursue cases despite potential policy changes during that period or even after.
The influence of the Memorandum on the SEC’s FCPA enforcement practices also waits to be seen. With the SEC overseeing FCPA issues involving publicly traded entities, officers, directors, employees, and agents, it is essential to monitor their response closely. While US Attorneys are expected to adhere to DOJ priorities, combating corruption will likely remain a core focus moving forward.
