On June 9, 2025, Deputy Attorney General Todd Blanche issued a memorandum providing new Department of Justice (DOJ) "Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)." The June 9 memorandum explicitly responds to President Trump's February 10, 2025 executive order (the February 10 E.O.) that, among other actions, "paused" FCPA enforcement for 180 days while the DOJ considered changes to FCPA investigations in line with the new administration's policies. 

The June 9 memorandum establishes guidelines that will govern all current and future DOJ FCPA investigations and enforcement actions, with the stated goals of "(1) limiting undue burdens on American companies that operate abroad and (2) targeting enforcement actions against conduct that directly undermines U.S. national interests." With these goals in mind, the memorandum directs DOJ prosecutors to:

• "focus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures"
• "proceed as expeditiously as possible in their investigations"
• "and consider collateral consequences, such as the potential disruption to lawful business and the impact on a company's employees, throughout an investigation, not only at the resolution phase"

The memorandum does not (and cannot) change the FCPA's basic statutory provisions and the relevant statute of limitations period for FCPA violations, which would run well past the lifetime of the current administration. The memorandum also specifically states that it must be read in the context of other authorities, such as the DOJ's own Justice Manual and other recently updated DOJ corporate enforcement policies.

The June 9 memorandum leaves several key questions unanswered regarding the future practical effects of the new guidelines. At least some of the language can be characterized as "old wine in new bottles" – since it merely reformulates long-held publicly announced DOJ enforcement priorities. However, some changes could represent significant breaks with longstanding DOJ enforcement priorities, including intentional decisions articulated in the June 9 memorandum not to prioritize certain types of cases that previous administrations of both political parties would likely have prosecuted in the past. This limiting language and an explicit orientation toward DOJ action in favor of U.S interests could create international repercussions that increase enforcement risks to U.S. companies from other countries' authorities. In addition, some of the positions announced in the memorandum could create new or increased costs for U.S. companies, as well as new challenges for companies' commitment to ethical behavior and the management of corporate compliance programs – particularly programs that are still maturing. 

As to other key takeaways, the June 9 memorandum:

• Confirms increased FCPA and related risks for companies operating in areas influenced by cartel and transnational crime organizations (TCO) operations, such as countries in Latin America.
• Signals a shift in the DOJ's traditionally assertive approach to corporate liability for the acts of employees or agents, if the DOJ's statements about not pursuing "collective knowledge theories" are consistently applied in future cases.
• Could cause the DOJ to decline to pursue cases without harm to "specific and identifiable U.S. entities or individuals" – including cases involving bribes by U.S. companies that do not affect other U.S. interests or harm only non-U.S. parties; though such an approach could increase scrutiny of U.S. companies by authorities in other countries and could be challenged as violations of U.S. treaty obligations.
• Represents a likely focus by the DOJ on investigating corruption by non-U.S. companies, especially those based in countries considered to be threats to U.S. national interests (e.g., China).
• Appears designed to assist U.S. companies operating in critical sectors of national security interest, though details are scarce and some of the announced policies may have unintended consequences for those companies.
• Directs enforcement focus away from potentially penalizing U.S. persons for engaging in "routine business practices in other nations," though does not define such practices in any detail and opens the door to increased pressure on corporate compliance programs as well as potential increased costs for U.S. companies from, for example, foreign officials expecting potentially lavish treatment in accordance with claimed local customs.
• Does not address Securities and Exchange Commission (SEC) FCPA policy or priorities (though the SEC could consider steps aimed at enhanced scrutiny of public company disclosures on certain related issues in light of changes in anti-bribery enforcement).
• Only indirectly notes the effects on companies (U.S. and non-U.S.) of potentially stepped-up anti-corruption enforcement by other countries – though confirms that the DOJ intends to continue multilateral cooperation and mutual legal assistance related to at least some multinational investigations.
• Does not provide interpretation for certain key concepts, such as, for example, how the DOJ will minimize "potential disruption to lawful business and the impact on a company's employees" of an investigation, leaving those issues for future case-by-case implementation.

As with previous DOJ actions under the current administration, companies should update their risk assessments in light of the June 9 memorandum with an eye to all relevant factors, including as to open questions and issues not directly addressed by the DOJ's public pronouncements. In light of these unanswered questions, compliance officers and other compliance gatekeepers should continue — if not increase — monitoring of compliance programs and anti-corruption controls to mitigate the risk of conduct that might not be prosecuted under the new guidance, but nevertheless could expose companies to other risks and erode a company's culture of compliance. Companies should therefore continue to consider appropriately communicating with employees and relevant third parties to bolster the importance of the company's ethical culture and compliance program and to deter risky actions informed by mistaken reading of DOJ statements or unreliable media coverage.

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The February 10 E.O. directed the DOJ to "issue updated guidelines or policies, as appropriate, to adequately promote the President's Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources." The priorities established by the June 9 memorandum directly flow from these stated goals. The memorandum also confirms that future FCPA prosecutions will be controlled by senior DOJ personnel in Washington, DC.  

Any new case "must be authorized by the Assistant Attorney General for the Criminal Division (or the official acting in that capacity) or a more senior Department official," as required by the February 10 E.O. This centralized DOJ approach is at least partially inconsistent with the guidance that Attorney General Pam Bondi laid out in her February 5, 2025, memorandum regarding the "Total Elimination of Cartels and Transnational Criminal Organizations (TCOs)" (Bondi memorandum). The Bondi memorandum directs U.S. Attorneys' Offices to "lead the charge" against cartels and TCOs and specifically notes that the "requirements in Justice Manual § 9-4 7.110 requiring authorization by the Criminal Division for an investigation or prosecution of a case under the Foreign Corrupt Practices Act and Foreign Extortion Prevention Act, as well as the requirement that such investigations and prosecutions be conducted by trial attorneys of the Fraud Section, are suspended for all matters relating to foreign bribery associated with Cartels and TCOs." Instead of seeking the authorization, the Bondi memorandum directed U.S. Attorney's Offices to provide the FCPA Unit with 24 hours' advance notice of the intention to seek charges.

Corporate Liability

The June 9 memorandum's instruction on "not attribut[ing] nonspecific malfeasance to corporate structures" could affect longstanding DOJ practice related to corporate responsibility for the actions of company employees and agents. In remarks at a conference on June 10, Matthew R. Galeotti, Head of the DOJ's Criminal Division, asserted that "The [June 9] memo also directs other common-sense principles, such as focusing on specific misconduct of individuals, rather than collective knowledge theories."

The DOJ has traditionally asserted (for example, in the current edition of the FCPA Guide – which is still available on the DOJ's website as of the date of publication) that "general principles of corporate liability apply to the FCPA [and] [t]hus, a company is liable when its directors, officers, employees, or agents, acting within the scope of their employment, commit FCPA violations intended, at least in part, to benefit the company." The DOJ's Justice Manual – which is also unchanged as well as of the date of publication – discusses how the DOJ applies these general principles in the corporate enforcement context, including the need to focus on culpable individuals since "a corporation can act only through individuals." The DOJ has for years implemented the Justice Manual's guidance on weighing various factors for charging a corporation through a Corporate Enforcement Policy (CEP), which the DOJ updated substantially in May 2025. 

The language in the June 9 memorandum and Galeotti's remarks raise some question about whether the DOJ is backing off its traditional stance on corporate responsibility or is instead merely furthering the more corporate-friendly policies established by the recent CEP revisions in the context of the exercise of the department's traditional prosecutorial discretion, and re-emphasizing the prioritization of individual prosecutions (an oft-stated focus of the DOJ). The more likely scenario is that the DOJ will use the revised CEP to guide its FCPA prosecutions rather than take a more dramatic stance away from its fundamental assertion of general legal principles of corporate responsibility, but companies should look for further indications of intent that could signal a greater sea change. 

DOJ Factors Informing Future FCPA Matters

The June 9 memorandum establishes several "non-exhaustive factors" based on the February 10 E.O. that will govern DOJ FCPA-related investigation and prosecution decisions in all cases going forward. 

Ties to "Total Elimination of Cartels and Transnational Criminal Organizations"

Pursuant to a different executive order issued on January 20 and the Bondi memorandum, a key priority for FCPA enforcement remains "investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs." The new June 9 memorandum also aims FCPA investigations toward "money launderers or shell companies that engage in money laundering for Cartels or TCOs."

Perhaps of most interest to companies, the DOJ will also focus on "link[s] to employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs." As we have discussed in other recent alerts (here, here, and here), there are many ways that companies can potentially interact with such state-owned companies or officials in areas with significant cartel operations and influence that could sweep otherwise regular business into "total elimination" investigations by the DOJ. While other language in the June 9 memorandum could mitigate such risks, it remains to be seen how the potentially competing priorities concerning cartel/TCO activity as set out in various DOJ policies will play out "on the ground."   

"Safeguarding Fair Opportunities for U.S. Companies"

The June 9 memorandum states that U.S. business abroad is "critical to safeguarding U.S. national security and economic prosperity." According to the DOJ, corruption can subject U.S. companies to a "serious economic disadvantage" and "corrupt competitors [can] skew markets and disadvantage law-abiding U.S. companies and others for many years." As a result, the DOJ will prioritize investigation of conduct that harms "[e]conomic growth and expansion of U.S. business opportunities abroad." Further, the memorandum states that "another important factor prosecutors shall consider is whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals" (emphasis added). In addition to the FCPA, the June 9 memorandum instructs DOJ personnel to direct enforcement efforts under the Foreign Extortion Prevent Act (FEPA) toward foreign officials who have harmed "specific and identifiable U.S. entities or individuals" through their demands for bribes.

Depending on how the issue is assessed on a case-by-case basis, the focus on "specific and identifiable" harm to U.S. entities could reduce the number of cases investigated – for example when a U.S. company pays bribes in a situation that does not disadvantage other U.S. interests – or harms only non-U.S. competitors. If applied rigorously, this consideration would represent a potentially significant change in DOJ enforcement posture applied by past administrations, including the first Trump administration. Additionally, as discussed in more detail below, such a posture could well be seen as an abrogation of U.S. treaty obligations under international anti-corruption conventions, such as the Organisation for Economic Cooperation and Development (OECD) Anti-Bribery Convention. 

The language focusing on helping "law-abiding U.S. companies" suggests that the DOJ will use the FCPA primarily to target non-U.S. companies and individuals who compete with or hinder U.S. business. Our assumption is bolstered by footnote 4 of the memorandum, which asserts that "[t]he most blatant bribery schemes have historically been committed by foreign companies."

The June 9 memorandum does attempt to counter this interpretation by noting that prosecutions will not focus on defendants "on the basis of their nationality" but based on "economic injury to specific and identifiable American companies or individuals." In his speech, Galeotti expanded on this language, noting:  

The through-line is that these Guidelines require the vindication of U.S. interests. People have speculated about the meaning of that phrase, but the DAG's memo makes it clear. It is not about the nationality of the subject or where the company is headquartered. In plain terms, conduct that genuinely impacts the United States or the American people is subject to potential prosecution by U.S. law enforcement. Conduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.

Despite these assurances, it is clear that non-U.S. companies and individuals will continue to feature prominently in FCPA enforcement actions.

"Advancing U.S. National Security"

The June 9 memorandum references the February 10 E.O. statement that "American national security depends... on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets." The June 9 memorandum also cites findings from the president's 2017 National Security Strategy, which found that corruption aids terrorists, criminals, and competitors (a theme echoed in an enforcement priority of the Biden administration, as well). Therefore, the DOJ will "focus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets." Beyond critical minerals and deep-water ports, it remains to be seen how the DOJ will define "key infrastructure or assets," though other language makes clear that some efforts may focus on the defense and intelligence sectors. 

"Prioritizing Investigations of Serious Misconduct"

The June 9 memorandum notes that the February 10 E.O. "instructed that FCPA enforcement should not penalize 'American citizens and business' for 'routine business practices in other nations.'" In response to this, the memorandum first notes the continued existence of the statutory exception for facilitation payments as well as the two statutory affirmative defenses – though the DOJ has consistently been cognizant of these provisions through various previous administrations.  

More notably, the memorandum directs that: 

FCPA investigations and enforcement actions shall not focus on alleged misconduct involving routine business practices or the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies. Rather, the focus of FCPA enforcement will be on alleged misconduct that bears strong indicia of corrupt intent tied to particular individuals, such as substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice (emphasis added).

What the language in the June 9 memorandum does not address is what standards in practice the DOJ intends to apply in not investigating "routine business practices in other nations." Will U.S. and Western European standards for practices such as corporate entertainment continue to inform DOJ decisions? Or will the new approach be to decline to prosecute substantially more lavish expenditures allowed for officials in some countries that the DOJ has targeted in the past – for example, expensive tickets to major sporting events like the World Cup or expensive gifts such as watches? This announced guidance could result in increased pressure on U.S. companies to fund such extravagant expenses – which could in turn create unintended economic costs and potential compliance risks in the long-term for the U.S. companies meant to be the beneficiaries of the new policy.  

Effect on Open DOJ Investigations and Cases

Responding to the February 10 E.O. directive that the Attorney General review all open FCPA investigations and recently resolved cases to ensure they conform to the current administration's priorities, the June 9 memorandum states that "[c]ases that have been reviewed have been evaluated based on the principles set forth in this memorandum." Galeotti seemingly confirmed that the review of existing enforcement actions and investigations has been completed and FCPA investigations will resume, noting:  

Under the DAG's leadership, the Department has reviewed FCPA matters, closing certain cases and proceeding with others by applying the criteria set forth in the Guidelines. With these Guidelines now in place, and consistent with the Executive Order, the Criminal Division will enforce the FCPA — firmly but fairly — by bringing enforcement actions against conduct that directly undermines U.S. national interests without losing sight of the burdens on American companies that operate globally.

As we have discussed elsewhere, the DOJ has dropped some individual prosecutions and ended several corporate non-trial resolutions early. However, the DOJ has opted to continue several ongoing prosecutions, including advancing trials. The June 9 memorandum notes that the DOJ's review of such cases concerned "myriad factors that must be considered" – including the principles in the DOJ's Justice Manual and the DOJ's "interests in pursuing cases that have already entered the judicial process- such as filed indictments and corporate resolutions-versus those that have not." Ultimately – consistent with longstanding DOJ practice – the DOJ will "retain[] prosecutorial discretion to continue or terminate... [enforcement] actions based on the totality of the circumstances."

Other Considerations and Potential Impacts for Companies

The June 9 memorandum should be read in the context of the DOJ Criminal Division's updated priorities and revised Corporate Enforcement Guidelines – a point that Galeotti's speech makes clear by noting the DOJ's various other criminal enforcement priorities, all of which "steal from taxpayers, inhibit American prosperity, and impact national security." There are several other factors not covered by the June 9 memorandum that companies should consider when assessing the new guidelines' effect on anti-corruption risks.

SEC Impact

As we noted related to other DOJ policy changes, the June 9 memorandum does not directly affect SEC policy on FCPA enforcement. SEC officials have stated in the past that they intend for now to follow the DOJ's lead on the FCPA, and it is clear from recent SEC public statements that other regulatory areas and agendas, such as regulation of "crypto" assets and changes to environmental, social, and governance (ESG) disclosures, will be the key SEC priorities under Chairman Paul Atkins.  

That said, it will be interesting to see whether the SEC will now weigh in with its views on the U.S. interests noted in the June 9 memorandum and February 10 E.O. – specifically as to how the agency will view foreign bribery's harm to U.S. economic interests/markets/investors. Some possibilities include increased risk factor and Sarbanes-Oxley Act (SOX) controls disclosure review by the agency as to public company statements (which likely would not be particularly onerous), or increased scrutiny by SEC staff of disclosures' management discussion and analysis (MD&A) statements that considers whether a company has properly disclosed risks to a bribe-dependent revenue stream.

Impacts of Corruption Investigations by Other Countries on Company Risk Profiles

The June 9 memorandum states that "[t]o prioritize cases that warrant investigation by U.S. authorities, FCPA prosecutors should also consider the likelihood (or lack thereof) that an appropriate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct." In his June 10 speech, Galeotti confirms that "[c]onduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators." As noted above, the reduced scope of implicated U.S. interests discussed in the June 9 memorandum and the February 10 E.O. likely means that non-U.S. authorities will not be able to rely on the assertive DOJ pursuit of at least some types of cases that have been investigated in the past. This approach is consistent with the Trump administration's general policy view that the U.S. should not serve as a global policeman, and other states should take primary responsibility for their own behavior. 

That said, while the June 9 memorandum is silent on the issue, Galeotti asserted in his speech that "in those cases [on which the DOJ defers], the Criminal Division won't hesitate to work with our foreign counterparts or domestic regulators to provide assistance and ensure that those countries and regulators can vindicate their interests and pursue their mandates." There have been indications that some multilateral cooperation efforts have been on hold in response to the February 10 E.O. pause and cuts to and reorganization of relevant DOJ units, and thus it is unclear whether levels of cooperation might return to the norm of past administrations and to levels consistent with U.S. treaty obligations. In addition, dramatic cuts to the United States Agency for International Development (USAID) and other funding sources of anti-corruption capacity building efforts can be expected to slow progress. Either way, as we have noted, other countries are taking steps to increase their own enforcement levels and cooperation in light of the changes in DOJ posture. 

Even if companies end up facing decreased risks of FCPA-related investigations, they may encounter increased risks from other countries' enforcement efforts, including potentially targeted efforts against U.S. companies seen to be unduly advantaged by a perceived DOJ tilt toward ignoring those companies' corrupt activities. Even if other countries' enforcement efforts do not specifically target U.S. companies, differences in other countries' relevant laws, investigation practices, concepts of due process for corporate entities and individuals, and potential penalties and collateral consequences could create enhanced risks in certain areas. Companies may have to increase their focus on, for example, managing "office raids" (common in Europe but not in the U.S.), responding to different data privacy and national security regimes, or navigating different conceptions of the scope of attorney-client privileges.  

Another question – perhaps less relevant directly to companies but that may inform other countries' reactions to U.S. policy changes – is how the changes in DOJ enforcement priorities will be seen in light of U.S. obligations under various multilateral anti-corruption treaties, such as the OECD Anti-Bribery Convention. The June 9 memorandum language on, for example, the DOJ pursuing only cases that only "result[] in economic injury to specific and identifiable American companies or individuals" or on supporting U.S. companies in economic sectors critical to national security could be alleged by other treaty signatories to be a breach of U.S. treaty commitments, such as Article 5 of the OECD Convention, which requires that parties' enforcement decisions "shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved." Any breach of treaty provisions technically would be a violation of both international and U.S. law. 

Other Unanswered Questions

Besides issues noted above, there are other unanswered questions regarding how the June 9 memorandum's policy prescriptions will be implemented. For example, it is unclear how the DOJ will differently manage its investigations to reduce "potential disruption to lawful business" and on company employees. The June 9 memorandum does not address any changes to the tools traditionally used by the DOJ for FCPA and other corporate investigations, such as document productions, employee and third-party interviews, etc. These traditional elements remain at the core of the recently revised CEP and will be evaluated as part of the DOJ's assessment as to whether a company is appropriately cooperating – a key requirement for a company to receive a declination in FCPA and other criminal cases. Companies will need to keep informed of such developments.

Impact of Reduced DOJ Capacity in FCPA Unit and Other Relevant Components

Finally, the DOJ's new FCPA policies must be read with an eye toward the department's actual capacity to implement them effectively. On the same day the June 9 memorandum was issued, a report in Reuters cited sources that stated the DOJ's FCPA Unit was down to about 15 prosecutors – half of the number reported in January 2025. (The Wall Street Journal, by contrast, has cited officials who state that there will be 25 prosecutors involved in FCPA cases going forward). Per the Reuters story and other reports in specialty media, some prosecutors have left the DOJ and others have been reassigned to other components pursuing key administration interests, including procurement fraud, tariff evasion, and immigration issues. 

It may be that this reduction in force, more than any of the policy changes announced in the June 9 memorandum, will drive a decrease in even the renewed FCPA enforcement environment . Indeed, the reduction in force at the FCPA Unit and related components could present challenges to the DOJ's pursuit of the goals advanced by the June 9 memorandum and other DOJ guidance, such as the Bondi memorandum and implementation of the revised CEP. Time will tell as to whether DOJ resources are again directed toward the FCPA and related cases to achieve the administration's goals.

Conclusion

While various important unanswered questions remain, the June 9 memorandum represents a significant statement of DOJ's new goals and priorities in FCPA enforcement. Miller & Chevalier has the knowledge and experience and stands ready to assist clients in navigating all types of FCPA and related matters, from enforcement actions, to updated risk assessments, to improvements to compliance programs and controls.

For more information, please contact:

Alejandra Montenegro Almonte, aalmonte@milchev.com, 202-626-5864

John E. Davis, jdavis@milchev.com, 202-626-5913

Joshua Drew, jdrew@milchev.com, 202-626-5811

Ann Sultan, asultan@milchev.com, 202-626-1474

James G. Tillen, jtillen@milchev.com, 202-626-6068

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