The United States government has decided to repurpose FCPA enforcement to address its pressing concerns, which include national security, global competitiveness, and the development of key national infrastructure. The days of busy-body FCPA enforcement are over, and the overbearing enforcement to promote woke ideologies has been put to rest by President Donald Trump. This marks a new dawn and will lead to a seismic shift in the understanding and interpretation of FCPA provisions. Indeed, on June 9, 2025, a new dawn was ushered in as Deputy Attorney General Todd Blanche issued a memorandum setting out guidelines for FCPA investigations and Enforcement. On a go-forward basis, the prosecutor shall, in determining whether to pursue FCPA investigation and enforcement actions, consider the following.
- The need to eliminate cartels and transnational criminal organisations.
The U.S. believes that the activities and operations of cartels and transnational organisations threaten the stability of the international order in the Western Hemisphere and present an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. The focus of the FCPA Unit is to prioritise investigations related to foreign bribery that facilitate the criminal operations of Cartels and TCOs and shift focus away from cases that do not involve such connections. The following elements must be present in deciding to pursue enforcement actions in this instance;
- The alleged misconduct is associated with the criminal operation of a Cartel or TCO
- Utilises money launderers or shell companies that engage in money laundering for Cartels of TCOs
- It is linked to employees of state-owned entities or other foreign officials who have received bribes from Cartes or TCOs.
The concern here is the permissiveness of this objective as some acts of bribery that are not connected to Cartels and TCOs may go without investigation, which means that some level of bribery and corruption can still be tolerated or permitted. The question is, what happens to corporate culture and ethical business practices? What kind of business environment will these guidelines create? Will this advance the long-time interest of the U.S. to look away from acts of corruption that do not emanate from Cartels and TCOs? No doubt, embracing the future with this policy will corrupt the culture of business practices.
- The need to advance U.S. national Security
National Security threats are existential threats that, if not dealt with promptly, may lead to social disintegration. In this case, U.S. National Security has been anchored on its ability to gain strategic business advantages in critical minerals, deep-water ports, or other key infrastructure assets. In this regard, FCPA enforcement will focus on sectors such as defence, intelligence, or critical infrastructure that may harm the U.S. The scope of what constitutes national security concerns and interests is broad and subject to diverse interpretations by U.S. authorities. This means that the U.S. can enforce the FCPA arbitrarily in certain circumstances based on its perception of a corrupt act.
Prioritising investigations of serious misconduct.
The intention, as stated in the Order, is that American citizens and businesses should not be penalised for routine business practices in other nations. This is a glorification of bribery and corruption in various countries, as well as a more lenient attitude towards actions of U.S. persons or corporations that, hitherto, have been viewed as corrupt under the FCPA. This implies that routine corrupt practices are no longer condemnable but rather tolerable by the U.S. The focus of the U.S. is now on big-ticket corrupt cases involving substantial bribe payments, proven fraudulent conduct in furtherance of the bribery schemes, and sophisticated efforts to obstruct justice. This is a risk-based enforcement of crimes by the U.S. It entails the U.S. government spending money on high-profile, corrupt cases, not just any act of corrupt practices.
Additionally, FCPA prosecutors are now required to consider the likelihood or ability of foreign law enforcement authorities to participate in the investigation and prosecution of the same alleged misconduct. Seceding investigation and enforcement of foreign authorities may be counterproductive. A corrupt government or institution cannot punish corruption. This is particularly true when the government or top government officials are involved in a corrupt scheme. A corrupt government can initiate an investigation into a corruption case involving its corrupt allies to alleviate the U.S.’s need to investigate and prosecute the same allies.
Safeguarding fair opportunities for U.S Companies.
This is to foster economic growth and expansion of U.S. businesses abroad. A drive to promote the competitiveness of U.S. companies in foreign countries and reduce the chances of being taken advantage of by competitors. This could also encourage corruption abroad when it serves the U.S. interest. The FCPA will not open an investigation into a corrupt act where the alleged misconduct or acts of corruption do not deprive any specific and identifiable U.S. entities of an opportunity or deny them fair access to compete. The FCPA will be invoked where U.S. entities or persons’ economic interests are harmed because of the misconduct. The U.S. will pursue corrupt competitors who have skewed the market to the disadvantage of U.S. companies that operate within the confines of the law.
The new enforcement guidelines have room for improvement. Compliance professionals must keep a high level of vigilance and ensure that compliance is not slaughtered on the altar of profit exigencies.
