On February 10 President Trump issued an Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, signaling a shift in U.S. enforcement priorities regarding foreign bribery. The directive places a temporary halt on investigations or enforcement actions related to the Foreign Corrupt Practices Act (FCPA) for a period of 180 days and orders a review of ongoing FCPA investigations.
Key Provisions of the Executive Order
The Executive Order mandates several important actions by U.S. Attorney General Pam Bondi, including:
- Ceasing new FCPA investigations and enforcement actions: For the next 180 days, the Attorney General is required to refrain from initiating any new investigations or actions related to the FCPA.
- Review of existing FCPA cases: The Attorney General must conduct a detailed review of all ongoing FCPA investigations and enforcement actions. This review will determine the appropriate course of action to ensure that FCPA enforcement stays within the administration’s priorities.
- Issuing updated guidelines or policies: The Attorney General is tasked with issuing revised guidelines or policies concerning FCPA enforcement during this review period.
- Approval for continued cases: Any FCPA investigations or enforcement actions that continue or are commenced after the new guidelines or policies are issued will require specific authorization from the Attorney General.
- Potential extension: The review period may be extended by an additional 180 days at the Attorney General’s discretion.
The Executive Order also follows a memorandum issued by Bondi on February 5, 2025, which stated that the DOJ would prioritize cases relating to transnational criminal organizations and cartels. This necessarily means a much narrower focus for FCPA enforcement, which had been prioritized more broadly under prior administrations. Specifically, the Total Elimination of Cartels and Transnational Criminal Organizations Memorandum states that the FCPA unit should prioritize investigations involving foreign bribery that facilitates the operations of cartels and transnational criminal organizations, shifting away from cases without such connections.
What Does This Mean for Companies?
For businesses, this Executive Order has several implications. Keeping in mind that these developments are still unfolding, here is how we expect the situation to impact corporate clients:
- A major shift in DOJ corporate enforcement: The pause in FCPA enforcement signals a significant decrease in the Department of Justice’s corporate enforcement activities, including FCPA investigations. While this might lead to a reduction in the number of FCPA cases in the near term, it is important to note that enforcement priorities remain in flux.
- Anti-Bribery compliance advice remains unchanged for now: Companies should continue to maintain robust anti-corruption policies and internal controls to mitigate the risk of non-compliance with anti-bribery laws.
- The FCPA is a criminal law that remains on the books: The FCPA remains the law of the land and violations are federal crimes. Enforcement priorities may shift, but businesses should not assume that the risks associated with FCPA violations have dissipated. The statute of limitations for the FCPA is five years, with the possibility of extension in cross-border cases through mutual legal assistance treaties, meaning future administrations could still pursue FCPA cases for actions taken during this period.
- The SEC’s and CFTC’s role in FCPA enforcement: While the DOJ may slow down its FCPA enforcement, the U.S. Securities and Exchange Commission (SEC) retains jurisdiction over FCPA cases for public companies. As an independent agency, the SEC has not yet indicated any plans to ease its approach to FCPA enforcement. Moreover, the SEC can pursue bribery cases without relying solely on the FCPA framework, further complicating the enforcement landscape for businesses. In addition, the U.S. Commodity Futures Trading Commission (CFTC) has in more recent years taken the view that it may bring enforcement actions in cases involving foreign corrupt practices under Commodity Exchange Act provisions.
- International anti-bribery laws still apply: Many other countries have their own anti-corruption laws, such as the UK Bribery Act. With the United States potentially scaling back its FCPA enforcement, there may be a rise in international enforcement actions to fill the gap. Furthermore, companies are increasingly adopting a global perspective on anti-corruption, extending their policies to cover not only the FCPA but also other anti-bribery measures, such as kickbacks and commercial bribery. As a result, businesses should remain vigilant in their anti-corruption efforts, as a broad range of laws could still impact their operations.
- Reputation and public perception matter: Bribery and corruption scandals can damage a company’s reputation, even if those incidents occur outside the scope of FCPA violations. Companies should be cautious about relaxing their anti-corruption compliance measures, as the public’s increasing sensitivity to corruption-related issues can lead to negative publicity, regardless of the jurisdiction or legal framework involved.
展望
The enforcement landscape for anti-corruption laws in the United States is evolving rapidly. Although the pause in FCPA enforcement may offer a temporary respite for companies, the full implications of these changes are yet to be seen. It is crucial for businesses to stay informed as the situation develops and to continue to maintain anticorruption compliance measures and internal controls that implement anticorruption best practices.
If your company is navigating these changes or has concerns about its compliance practices, consulting with someone experienced in anti-corruption law can provide valuable guidance. Stay tuned for further updates on this significant shift in U.S. enforcement policy.
For more information, reach out to our team.
