In sum, the memorandum further emphasizes the administration’s efforts to eradicate the influence cartels and TCOs may have in foreign businesses and foreign governments.
In a prior Alert, we analyzed President Donald Trump’s executive order from February 10, 2025, which signaled imminent changes to enforcement of the Foreign Corrupt Practices Act (FCPA). Almost 120 days later, on June 9, 2025, the Office of the Deputy Attorney General issued a memorandum establishing the Trump administration’s FCPA enforcement guidelines, which expressly focuses FCPA enforcement against cartels and transnational criminal organizations (TCOs) and matters of interest to national security. Consistent with our prior Alert’s analysis, the Justice Department’s memorandum now emphasizes the administration’s interest in maintaining “U.S. companies’ competitiveness” in foreign business opportunities.
Focus of Future FCPA Enforcement
The memorandum distinguished four areas of focus for FCPA enforcement actions: (i) “Total Elimination of Cartels and Transnational Criminal Organizations”; (ii) “Safeguarding Fair Opportunities for U.S. Companies”; (iii) “Advancing U.S. National Security”; and (iv) “Prioritizing Investigations of Serious Misconduct.” In addition to those specific areas of focus, the memorandum highlights that federal prosecutors will focus on cases involving “criminal misconduct” and not “nonspecific malfeasance to corporate structures.” Moreover, the memorandum requires federal prosecutors to “consider collateral consequences” of FCPA enforcement, including “potential disruption to lawful business.”
Total Elimination of Cartels and TCOs
Since the beginning of the second Trump administration, it has been committed to holding cartels and TCOs accountable. In furtherance of that goal, the memorandum orders the Justice Department’s Fraud Section to concentrate its FCPA investigations on foreign bribery, which the FCPA was intended for, but specifically focusing on foreign bribery that involves cartels or TCOs. Moving forward, before advancing FCPA investigations, federal prosecutors are to consider whether the alleged misconduct: (i) is associated with the criminal operations of a cartel or TCO; (ii) utilizes money launderers or shell companies that engage in money laundering for cartels or TCOs; or (iii) is linked to employees of state-owned entities or other foreign officials who have received bribes from cartels or TCOs.
In sum, the memorandum further emphasizes the administration’s efforts to eradicate the influence cartels and TCOs may have in foreign businesses and foreign governments.
Safeguarding Fair Opportunities for U.S. Companies
In furtherance of the primary goal to enhance U.S. national security, which will be primarily done through eliminating cartels and TCOs, the administration seeks to improve national security by rectifying a perceived competitive imbalance in international trade. To accomplish this goal, the Justice Department seems to ease FCPA enforcement of U.S. businesses involved in international trade. Specifically, the Justice Department now requires prosecutors to consider “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.) This key object of the memorandum is largely consistent with traditional FCPA enforcement, except that in future investigations the focus will be on specific harm caused to U.S. entities in instances of foreign bribery.
Advancing U.S. National Security
Consistent with the Trump administration’s position on the FCPA and the specific enforcement priorities discussed above, the memorandum instructs FCPA enforcement to “[f]ocus on the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets.” The “key infrastructure or assets” that the memorandum identifies include, but are not limited to, critical minerals, deepwater ports and other natural resources.
Prioritizing Investigations of Serious Misconduct
The memorandum identifies “serious misconduct” as misconduct that does not involve routine business practices involving “de minimis” or “low-dollar” amounts, but does not provide an approximation for those referenced values. This directive indicates the administration intends to hold U.S. businesses to the same standards that foreign businesses would be held to in their respective foreign jurisdictions. For instance, if an American business were engaging in conduct or business practices that were illegal in the United States, but legal in a foreign jurisdiction, the administration would discourage FCPA enforcement against that American business because it is compliant with that foreign jurisdiction’s laws. The memorandum thus provides that federal prosecutors are to consider whether the applicable foreign law enforcement authority is “willing and able” to prosecute the same alleged misconduct. The memorandum further instructs FCPA enforcement to focus on misconduct that “bears strong indicia of corrupt intent tied to particular individuals.”
Regardless of the criminal FCPA enforcement priorities discussed above, neither the executive order nor the memorandum address FCPA investigations in the civil or regulatory context. For instance, the memorandum does not even purport to limit or alter the Securities and Exchange Commission’s enforcement of the FCPA, which can result in substantial civil monetary penalties and other consequences for U.S. businesses. Thus—and especially until the commission clarifies its position on FCPA enforcement—U.S. companies should continue to maintain compliance with the FCPA.
For More Information
If you have any questions about this Alert, please contact Michael J. Rinaldi, Richard Chakejian, any of the attorneys in our White-Collar Criminal Defense, Corporate Investigations and Regulatory Compliance Group or the attorney in the firm with whim you are regularly in contact.
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