Newly appointed US Attorney General Pam Bondi issued a directive shifting the focus of Foreign Corrupt Practices Act investigations and cases away from those that do not involve criminal operations of cartels and transnational criminal organizations and expanded the scope of offices responsible for prosecuting the violations.
In a departure from traditional Foreign Corrupt Practices Act (FCPA) enforcement priorities, newly sworn-in Attorney General Pam Bondi issued a directive on her first day in office both narrowing the focus of prosecutors who investigate violations and broadening the number of offices within the US Department of Justice (DOJ) authorized to do so.
The new directive, one of 14 issued by Bondi in the hours following her assumption of office, directs prosecutors to prioritize the investigation of foreign bribery offenses that facilitate the criminal operations of drug cartels and transnational criminal organizations (TCOs) and, significantly for the corporate community, “shift focus away from cases that do not involve such a connection.”
The directive also decentralizes the longstanding exclusive jurisdiction exercised over criminal FCPA cases by the Criminal Division in favor of allowing US Attorney offices to pursue such cases—as long as they are related to cartels and TCOs—with only 24 hours’ notice to the Criminal Division.
The FCPA, enacted in 1977, was landmark legislation aimed at addressing the widespread issue of bribery in international business. Passed in the aftermath of the Watergate scandal, the FCPA was designed to restore public confidence in corporate integrity by outlawing payments to foreign officials to gain or retain business. Over the years, the FCPA has become a cornerstone of anti-corruption efforts, with enforcement actions resulting in monetary penalties levied at companies, at times surpassing one billion dollars, and shaping compliance practices across many industries.
The FCPA has two main provisions—anti-bribery and accounting, the latter of which comprises internal controls and books and records. The anti-bribery section of the FCPA prohibits companies and individuals from offering or paying bribes to foreign officials with the intent to obtain or retain business. This provision applies globally and includes actions taken through third-party intermediaries like consultants or joint venture partners.
The accounting provisions require publicly traded companies to maintain accurate records and implement adequate internal controls to prevent and detect corruption. This ensures that a publicly traded company’s transactions are recorded properly, making it difficult to conceal illicit payments. Both the DOJ and the SEC handle FCPA enforcement. The DOJ is responsible for criminal enforcement while the SEC oversees civil cases involving publicly traded companies.
Within the DOJ, FCPA charging has been historically overseen exclusively by the Fraud Section of Criminal Division, with prosecutions being handled jointly by Fraud and the US Attorney’s Office where the charges are filed. The Fraud Section has a specialized FCPA unit with more than 30 dedicated prosecutors based in Washington, DC that focus exclusively on combatting corporate corruption under the FCPA. In 2024 alone, the DOJ and SEC filed 26 FCPA-related enforcement actions and obtained over $1.28 billion in total fines and penalties.
Shortly after her swearing in, Attorney General (AG) Bondi issued a directive that materially reshapes the DOJ’s approach to FCPA cases and shifts away from the DOJ’s traditional FCPA enforcement priorities. The directive instructs the FCPA Unit to prioritize investigations into foreign bribery schemes that facilitate the operations of cartels and transnational criminal organizations. It also suspends certain FCPA-related provisions in Section 9-47.110 of the Justice Manual, making it easier to prosecute these types of cases.
Specifically, AG Bondi’s directive suspends the requirement that FCPA cases be prosecuted by trial attorneys in the Fraud Section. It also suspends the provision requiring authorization by the Criminal Division for investigations and prosecutions of FCPA cases. Under the directive, the suspension of these requirements only applies to FCPA matters relating to foreign bribery associated with cartels and transnational criminal organizations.
Historically, FCPA enforcement has focused on corporate corruption in otherwise legitimate industries unrelated to organized crime, targeting companies that use corrupt means to secure competitive business advantages, such as government contracts or regulatory approvals abroad. By redirecting attention to bribery schemes linked to organized crime and drug cartels, the DOJ aims to position the FCPA as a tool for combatting global criminal networks instead of corporate corruption, be it against domestic or foreign companies.
As of the close of 2024, at least 31 companies appear to be the subject of ongoing FCPA-related investigations by US authorities. Companies currently under investigation for traditional FCPA violations may experience expediated case resolutions, or possible de-prioritization, depending on how the DOJ allocates its resources in aligning with this new directive. In the directive, AG Bondi instructs US Attorney offices to give the FCPA Unit only 24 hours’ advance notice of the office’s intention to seek FCPA-related charges, as well as any memoranda relating to the charges.
Corporations—whether publicly traded in the United States or not—may see AG Bondi’s policy shift as the harbinger of a DOJ that is less aggressive in investigating and prosecuting foreign bribery after more than a decade of leading the global charge against overseas corruption and serving as a model for several European nations’ escalated enforcement. However, companies should be cautious when it comes to ensuring that their compliance programs are robust and treat foreign corruption allegations seriously for three reasons.
First, the new policy may in fact increase FCPA enforcement. For the first time, other components within the DOJ will have the ability to initiate FCPA investigations and prosecutions without the involvement of Main Justice. US Attorney offices will be incentivized to view foreign bribery as a growth area, which will inevitably lead to enforcement.
Second, there are many existing FCPA cases—charged and uncharged—in the pipeline. There is no reason to believe that this modification of the FCPA focus, which was folded into a broader DOJ policy declaration surrounding cartels and TCOs, will meaningfully undermine that enforcement. The DOJ should continue to prosecute these cases and these investigations will likely continue.
Third, and perhaps most significantly, is that the statutes of limitation for many FCPA and money laundering offenses will likely outlive the current administration. Given legal provisions surrounding the tolling of limitations periods (up to three years when use of Mutual Legal Assistance Treaties are at play), the Bondi DOJ’s de-prioritization of FCPA matters in no way guarantees companies a free pass. The next administration may rigorously pursue prospective FCPA cases with and may judge companies’ compliance and cooperation programs by stringent standards.
Companies have made extraordinary strides in addressing corruption-related compliance issues in recent years. While the DOJ’s policy shift suggests an increased focus on cartels and TCOs, this will not be to the exclusion of other types of foreign corruption. Companies are advised to maintain caution surrounding anti-bribery programs as DOJ’s policies in this space continue to develop.
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