Future of FCPA Enforcement Uncertain (For Now) as New Administration Revamps the Law Enforcement Toolkit

The Attorney General Bondi Memo

United States Attorney General Pamela Bondi issued a set of 14 new policy memoranda on February 5, 2025, implementing what is potentially just the first wave of major policy changes under the Trump Administration’s Department of Justice (“DOJ”). One of the memoranda, titled “Total Elimination of Cartels and Transnational Criminal Organizations” (the “Bondi Memo”), has received particular attention, including Attorney General Bondi’s directive for DOJ’s FCPA Unit to prioritize cases involving bribery that facilitates the criminal operations of cartels and Transnational Criminal Organizations (“TCOs”), including those related to human smuggling and the trafficking of narcotics and firearms. The Bondi Memo further directed that FCPA enforcement shift away from cases that do not involve such connections.

The Bondi Memo also relaxed procedural requirements for DOJ to bring FCPA cases. The Memo suspended the usual requirement that prosecutors seek authorization from DOJ’s Criminal Division before investigating or prosecuting FCPA cases and lifted the requirement that such include prosecutors from within DOJ’s FCPA Unit if such cases involve bribery linked to cartels and TCOs. Now, U.S. Attorney’s Offices (“USAOs”) across the country only are required to provide the FCPA Unit with 24 hours’ notice before seeking charges in such cases.

President Trump’s Executive Order

Five days after the Bondi Memo, on February 10, 2025, President Donald Trump signed an Executive Order (the “Order”) pausing all FCPA investigations and enforcement actions for 180 days. The Order states that the application of the FCPA has been “stretched beyond proper bounds and abused,” harming U.S. interests by impeding foreign policy objectives, hindering economic competitiveness, and affecting national security. The Order emphasizes the importance of preserving the President’s authority over foreign affairs and advancing U.S. economic interests abroad.

In response to these concerns, the Order directs the Attorney General to reassess the FCPA enforcement guidelines and policies during the pause. During this period, no new FCPA investigations will be initiated and existing cases will be examined to ensure they align with U.S. foreign policy priorities and promote economic competitiveness. Following the review, the Attorney General will issue updated guidelines and may extend the review period as needed. The Order also allows for a reassessment of prior FCPA enforcement actions if deemed necessary.

Jettisoning Compliance is Not the Answer

Although the whirlwind of changes may cause some to assume there has been a significant sea change in corporate enforcement, it’s important to remember that the winds of enforcement priorities have shifted over the past administrations. While there is an enforcement pause in place now and a likely reprioritization when the pause lifts, it would be a mistake to conclude that the forthcoming corporate enforcement regime will eliminate anti-corruption enforcement risk for companies. The FCPA remains the law and the foundation for international treaties to which the U.S. is a signatory and non-U.S. corruption laws to which multinational companies are bound. Under these laws, global companies continue to face the threat of enforcement and are bound to maintain effective compliance programs.

Critical considerations for companies to understand in light of the currently uncertain FCPA enforcement landscape include:

• The Statute of Limitations Could Extend Nine Years or More: The FCPA has a five-year statute of limitations for most offenses and six-year statute of limitations for criminal violations of the FCPA’s accounting (books-and-records and internal controls) provisions. Further, under 18 U.S.C. § 3292, DOJ can toll the statute of limitations for up to three years while pursuing foreign evidence of FCPA violations through the Mutual Legal Assistance Treaty (“MLAT”) process. Thus, the maximum period for which a public company could be liable for criminal FCPA violations is nine years, far longer than any presidential administration. Moreover, most FCPA cases include allegations of money laundering, which can carry a 10-year limitations period for cases involving foreign nationals. This means that any FCPA violations committed during the next four years may be subject to enforcement actions that could occur under future administrations. DOJ’s enforcement priorities appropriately shift, but the reputational stain of an FCPA enforcement resolution, even if not pursued until years from now, will persist and may impact public procurement bidding, JV partnerships, and financing.
• America First and the FCPA as a Tool of Foreign Policy: It is likely that future FCPA enforcement after the pause will focus on strategic use of the statute to pursue America First priorities. While it remains to be seen what this will entail, the pause gives the Administration the opportunity to reshape the FCPA as a foreign policy tool that leverages anti-corruption enforcement to advance American interests. Future enforcement may focus on certain regions (such as Latin America or China) and industries linked to U.S. national security interests or cartel and TCO activity. This is particularly true in places where, in the Administration’s view, local law enforcement is not sufficiently addressing these problems. While the Executive Order suggests that future enforcement may prioritize cases involving foreign companies in these sectors and regions, heavy enforcement against foreign defendants is not novel. From 2017 through 2024, over 54% of entities charged in FCPA enforcement actions were foreign, according to data from Stanford Law School’s FCPA Clearinghouse. Even more significantly, nine of the 10 largest FCPA settlements were resolved against foreign companies. In the short term, foreign companies that are listed on U.S. exchanges should remain vigilant if they want to avoid being targeted or enforcement in the near-term.
• Foreign Laws and Enforcement Still Pose a Risk: While the DOJ is reassessing its enforcement priorities, foreign governments may use the opportunity to assert themselves in the global anti-corruption enforcement landscape. Most countries have anti-corruption laws which overlap with, or extend beyond, the FCPA. Historically, DOJ has worked alongside foreign governments in pursuing international corruption – but U.S. authorities have also been the primary beneficiaries of any settlements. While U.S. enforcement is on pause, foreign governments may take advantage of the chance to lead these efforts by enforcing their own laws more aggressively. And, to the extent that the FCPA is used as a foreign policy tool in a manner that certain countries believe is unfair against their businesses, there could be an uptick in enforcement activity against American companies by those countries’ law enforcement. Given that U.S.-led anti-corruption compliance practices and expectations are the gold standard worldwide, devoting attention and resources to compliance programs remains important for U.S. companies, even if their U.S.-specific enforcement risk is reduced.
• Expanded Enforcement and Potential Judicial Development of the FCPA: The procedural changes announced in the Bondi Memo, providing those changes carry forward after the pause lifts, may lead to more localized and widespread FCPA enforcement, at least in cases that involve cartels and TCOs. By relaxing the requirements for U.S. Attorney’s Offices to seek FCPA charges, the Attorney General’s policy could make the enforcement landscape more complex to navigate in the future, given the potential for differences in priorities and local practices across the different USAOs. Even if companies are not targeted by robust FCPA enforcement by USAOs, the potential proliferation in use of the FCPA in cases with a higher likelihood of trial than corporate enforcement matters could lead to substantial judicial development of the rarely litigated statute, prompting the need for updates and modifications to compliance programs as courts interpret the FCPA.
• Collateral Civil Litigation Risks: Setting aside the question of governmental enforcement of the FCPA, companies still face civil litigation risks if they violate anti-bribery and anti-corruption provisions in contracts. Almost all companies have signed agreements connected with M&A activity, joint ventures, note issuances, or other regular business activity that contain provisions requiring compliance with anti-corruption laws. Failure to adhere to these provisions could result in commercial litigation even without the threat of criminal enforcement. Similarly, companies risk shareholder litigation for violations with potential (or even arguable) impact on their stock prices, even if there is not an active enforcement threat. These collateral risks will remain, regardless of the government’s FCPA enforcement focus after the pause.

It will take time to know exactly what the FCPA enforcement landscape will look like under the current Administration. As companies evaluate their compliance programs during or after DOJ’s policy review, it would be wise to account for enforcement risk by foreign law enforcement, as well as long-term U.S. enforcement risk that will outlast any presidential administration and collateral civil litigation risks. Further, now may be an opportune time for companies to audit their compliance programs, identify problems, then thoroughly investigate, remediate, and potentially self-report any violations. Securing a declination or lighter penalty now, while DOJ prioritizes enforcement elsewhere, could serve as a shield to future enforcement under future administrations. Taking a forward-leaning approach in the new enforcement environment is a complex decision that companies should make on an individualized basis with the assistance of counsel competent in anti-corruption enforcement and compliance.