Search for:

In brief

On February 10, 2025, President Donald Trump signed an Executive Order (“Order“) directing a 6-month moratorium on the enforcement of the Foreign Corrupt Practices Act (FCPA), while the Attorney General revises Department of Justice (DOJ) policies and guidelines governing FCPA enforcement. The Order instructs that these changes be made in the interest of promoting US companies’ ability to compete in foreign markets. While the Order introduces uncertainty for the future of FCPA enforcement, companies are advised to stay the course on compliance and exercise caution when considering any shifts in compliance practices and resourcing in the near term.


In depth

On February 5, 2025, newly confirmed US Attorney General Pamela Bondi issued an agencywide memorandum (“Memorandum“) in which she directed the DOJ FCPA Unit to focus its investigations on “foreign bribery that facilitates the criminal operations of Cartels and Transnational Criminal Organizations (TCOs), and shift focus away from investigations that do not involve such a connection.”1 Five days later, on February 10 2025, President Donald Trump signed an Order instructing the Attorney General to pause the enforcement of the FCPA for a six month period while she reviews the DOJ’s policies and guidelines governing FCPA enforcement actions.During this pause, the Attorney General must:

  • Cease initiating any new FCPA investigations and enforcement actions, without her authorization;
  • Review all current FCPA investigation and enforcement actions and determine their status based on revised enforcement and foreign policy priorities; and
  • Issue updated guidelines and policies to promote the President’s discretion over foreign affairs, particularly in the interest of preserving the US’s competitiveness in foreign markets.

After this period expires, the Attorney General may extend the review period for an additional 6 months if deemed necessary. Once the guidelines and policies have been revised, FCPA investigations and enforcement actions initiated thereafter must be governed by these new guidelines.

These two announcements, which are in some ways inconsistent and conflicting, have created substantial uncertainty regarding the future of FCPA enforcement. The Administration has provided very limited additional guidance on the practical implications of these directives, how each of these mandates will be reconciled, or steps companies should take in their wake. It remains to be seen how the Attorney General revises DOJ guidelines governing FCPA enforcement and allocates prosecutorial resources. The future of the DOJ’s Corporate Enforcement Policy and Pilot Program on Voluntary Self-Disclosures for Individuals is unknown, casting further doubt on the value of voluntary disclosure (particularly during the 6-month investigation and enforcement moratorium). It is possible that some of the incentives afforded by disclosure policies may be eliminated or reduced, greatly altering the disclosure calculus for companies. Also uncertain is how, or if, the Memorandum and Order will impact the Security and Exchange Commission’s (SEC) enforcement of the FCPA’s accounting provisions.

Despite the uncertainty generated by the Memorandum’s mandate and the Order, prudence dictates that companies substantially stay the course on compliance for several reasons:

  • The Administration’s actions seek to alter enforcement of the FCPA, not eliminate the law passed by Congress in 1977. Forthcoming guidelines and priorities could result in increased risk for certain companies, including non-US companies or companies operating in “non-friendly” countries. Trump’s Order rests on the President’s authority to conduct foreign affairs and protect national security, providing a broad landscape that makes the ultimate enforcement guidelines (and impact on companies in the medium and long term) difficult to predict. Any weakening of corporate compliance programs and the approach to corruption risk while awaiting this guidance on enforcement priorities should be muted.
  • Bribery is still illegal in every country, and numerous countries have increased enforcement of bribery in recent years. This trend can be seen in Germany, Brazil, South Africa and even China, among others. Enforcement of these non-US regimes against US companies will not be directly impacted by the US Administration’s actions and, in some instances, could even become more aggressive as part of countermeasures against US actions on tariffs and other geopolitical maneuvers.
  • Both the Memorandum and the Order are silent on the SEC’s civil enforcement of the accounting provisions of the FCPA. While the SEC may ultimately adopt a posture aligned with the DOJ, this remains unclear and the SEC remains unimpeded in its power to pursue civil FCPA investigations and enforcement. Reports suggest that newly-appointed SEC Commissioners are seeking to exercise more authority over FCPA-related investigations by requiring that SEC staff obtain the full Commission’s approval to obtain the authority to issue subpoenas.This change in formal order authority does not necessarily mean that SEC enforcement actions will decline, but rather that the Commission aims to exercise more oversight of investigations earlier in the investigative process to control the types of cases being pursued by the Staff.
  • Other key corporate stakeholders will likely still expect companies to thoroughly investigate allegations of bribery and fraud. External auditors are unlikely to turn a blind eye to such allegations and will still inquire about bribery-related reports to assess the potential impact on a company’s financial statements. The risk of shareholder litigation relating to unresolved or poorly handled bribery-related allegations remains. Conducting appropriately rigorous and thorough corruption and fraud-related internal investigations under privilege will continue to protect companies in future litigation or regulatory action.
  • US companies operating in foreign markets may still have an obligation under local law to investigate reports of bribery submitted through internal whistleblower channels. For example, under the European Union’s Whistleblower Directive, member states are required to investigate reports made through company channels.4
  • Compliance programs detect and prevent a variety of other significant legal and regulatory risks other than those related to the FCPA, including risks related to sanctions, data privacy, environmental regulations, and money laundering. Third-party due diligence programs reduce the risk of contracting with sanctioned or fraudulent parties and create additional oversight of third parties that present a heightened risk of violating applicable export controls. The controls implemented through a company’s compliance program prevent harm to the company by monitoring and intercepting instances of fraud and self-dealing. These same controls benefit broader corporate financial wellbeing. Enterprise risk assessments will continue to provide valuable information on a variety of corporate legal, financial, and reputational risks, allowing companies to implement remediation to mitigate those risks.
  • Regardless of near-term FCPA enforcement trends, the evidence suggests that ethics and compliance programs are good for business. A recent study indicates that consumers are willing to purchase products at a premium from companies that have robust compliance programs, signaling that compliance serves a function beyond just mitigating a company’s liability. 5 Commitments to compliance foster a culture of ethical behavior and promote a positive market reputation. Similarly, the evidence shows that bribery is bad for business, potentially resulting in ‘quick wins’ while fostering a long-term culture antithetical to law-abiding and policy-adhering behavior. While there may be fewer DOJ press releases regarding FCPA investigations and settlements, companies can still suffer reputational damage from media attention to bribery issues, particularly in today’s social media culture. Companies that make reactive changes to compliance programs and budgeting in the wake of the current FCPA enforcement uncertainty risk communicating to employees that unethical behavior that clearly harms corporate performance (such as self-dealing, conflicts of interest, or other forms of fraud) is now tolerated.
  • The Trump Administration describes the specific implementation actions as a temporary priority shift. The Memorandum’s mandate will be in place for 90 days, after which the DOJ will make a decision about whether to renew or solidify the mandate. The Order pauses DOJ enforcement of the FCPA for a period of 180 days pending guidance on priorities. Even if the Trump Administration extends its enforcement mandates throughout the entirety of its 4-year term, the next Administration may roll back the shift in enforcement priorities. As the statute of limitations under the FCPA is five years, conduct today could potentially still be investigated and prosecuted during the next Administration.

While the future of FCPA enforcement remains decidedly uncertain, companies are advised to consider the following:

  • As compliance programs and ethical cultures take years to build and embed in corporations, any shift in compliance practices or resourcing in the wake of such uncertainty should be made with caution.
  • Employees, as well as Directors and other stakeholders, will undoubtedly have questions regarding what potential changes in FCPA enforcement may mean for the business. Companies should consider communicating to employees their continued commitment to compliance through trainings and other appropriate messaging.
  • Allegations of bribery or corruption that come to the attention of the company should be appropriately investigated and remediated to ensure expectations of key stakeholders, such as auditors, are met.
  • Robust third party due diligence remains a critical process to allow companies to identify and manage numerous legal, financial, reputational and business risks.
  • Risk assessments that cover a variety of enterprise risks (including corruption risk) will continue to provide information allowing companies to remediate numerous legal, financial, and reputational risks.
  • Maintaining internal controls that help manage corruption, fraud, and self-dealing risk is advised.

Total Elimination of Cartels and Transnational Criminal Organizations

Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security – The White House

Exclusive: SEC’s Republican-led commission tightens oversight of probes, sources say | Reuters

https://commission.europa.eu/aid-development-cooperation-fundamental-rights/your-fundamental-rights-eu/protection-whistleblowers_en

https://magazine.ethisphere.com/how-corporate-compliance-builds-value/ (citing https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4380918)

Author

Maurice A. Bellan is the Managing Partner of the Washington, DC office and a member of the Global Dispute Resolution and North America Litigation and Government Enforcement Steering Committees. He is a former trial attorney at the US Department of Justice and is experienced in a broad range of fraud and anti-corruption matters. Maurice was recently named by Savoy magazine as one of the most influential African-American lawyers in the United States.

Author

Peter K.M. Chan is a member of Baker McKenzie’s North American Financial Regulation and Enforcement Practice, which provides our clients with a full range of regulatory advice and enforcement counseling. Peter brings two decades of experience at the US Securities and Exchange Commission (SEC) to his litigation and counseling work. His tenure at the SEC, as well as a stint as Special Assistant US Attorney in the Northern District of Illinois, have given Peter experience with civil and criminal matters. At the SEC, Peter served as assistant regional director in the Chicago regional office, where he led investigations and litigations of high-profile enforcement cases. In the course of his SEC career, he handled corporate issuer disclosure and reporting violations, financial fraud, auditor independence violations, insider trading, broker-dealer misconduct and failure to supervise cases, hedge fund and investment company fraud, and Dodd-Frank and Sarbanes-Oxley violations. As the head of the Municipal Securities and Public Pensions Unit at the SEC's Chicago office, he oversaw cases involving municipalities and public pensions throughout the Midwest, including disclosure failures by states, cities, and underwriters in municipal bond offerings; pay-to-play and public corruption; and securities fraud victimizing municipalities and public pensions. Peter also served in national leadership roles within the SEC's Enforcement Division. Peter acted as national leader of the Municipalities Continuing Disclosure Cooperation (MCDC) Initiative. He also served as co-chair of the Priorities and Resources Subcommittee of the Division of Enforcement Advisory Committee and was one of the original architects of the SEC Financial Reporting and Audit Task Force. Peter's experience in criminal securities fraud cases includes serving as Special Assistant US Attorney in the Northern District of Illinois in a criminal investigation into market abuse by a Chicago broker-dealer, resulting in guilty pleas by several senior executives at the firm. In 2014, Peter received the SEC's prestigious Paul R. Carey Award for his [e]xceptional personal commitment and effectiveness as a member of the Division of Enforcement.

Author

Reagan Demas has significant experience working on behalf of companies and investors in emerging markets and high risk jurisdictions. He has managed major legal compliance investigations for a variety of Fortune 500 companies and negotiated settlements before the US Department of Justice, US Securities and Exchange Commission, and other federal and state regulatory entities, obtaining declinations in a number of matters. He has also conducted risk assessments and due diligence in a variety of legal compliance matters for companies across industries and has worked on the ground evaluating partnerships, investments and other business opportunities worldwide. Reagan has written and spoken extensively on emerging compliance trends, ESG legal risk and best practices, bribery/corruption and doing business in Africa. In 2019, Reagan was selected as a BTI Client Service All Star by corporate counsel in recognition of being a leader in superior client service. He is the founder and chief editor of Baker McKenzie's Global Supply Chain Compliance Blog and serves on the steering committee of the North American Litigation and Government Enforcement Practice Group.

Reagan serves as a member of the Global Steering Committee of the Firm's Industrials, Manufacturing and Transportation (IMT) Industry Group.

Author

William (Widge) Devaney is the Chair of Baker's North American Litigation and Government Enforcement Group. A former federal prosecutor, Widge represents corporations and individuals in internal and government facing investigations and enforcement actions, often cross-border. An experienced trial lawyer, he also routinely represents clients in complex civil litigation and provides compliance advisory advice, particularly in the anti-corruption sphere. Widge is ranked in Chambers for both White Collar Crime and the FCPA, as well as New York Super Lawyers. He is the author of multiple publications involving such topics as the FCPA, cross-border investigations and corporate compliance programs. He appears often in the print media commenting on current criminal matters.

Author

Aleesha Fowler is a Partner in the Washington, DC office. She represents domestic and international corporate clients on a range of litigation and compliance matters, including, but not limited to, criminal and civil investigations brought by the U.S. Department of Justice and the U.S. Securities and Exchange Commission. Aleesha also regularly advises clients on white collar criminal matters, and has significant experience in handling investigations that raise issues under the Foreign Corrupt Practices Act and the U.S. False Claims Act.
Aleesha’s pro bono practice is focused on providing legal advice and representation to underrepresented populations seeking legal remedies for civil rights violations.

Author

Maria Piontkovska is a partner with Baker McKenzie's Litigation & Government Enforcement group, co-editor of the Firm's Global Supply Chain Compliance Blog and a member of the Firm’s Technology, Media & Telecoms Global Industry Group. She has significant experience working on behalf of companies operating in emerging markets and high-risk jurisdictions. Maria has managed a number of internal and government-facing legal compliance investigations for a variety of Fortune 500 companies and advised on related settlement negotiations with the US Department of Justice, US Securities and Exchange Commission, and other federal and state regulatory entities.
Maria has been recognized as a "Rising Star" by Southern California Super Lawyers (2022-23). Maria has written and spoken extensively on emerging compliance trends in environmental, social and governance (ESG) legal risk, corruption and sanctions, and advises on best practices in compliance program development.

Author

Elizabeth (Liz) Roper is a partner in Baker McKenzie's North America Litigation and Global Dispute Resolution Practice, specializing in investigations, data security, and white collar defense. Liz advises clients on cybersecurity compliance, incident response, government investigations, internal investigations, and criminal defense matters. With over 15 years of experience in the Manhattan District Attorney's Office, including over four years as Bureau Chief of the Cybercrime and Identity Theft Bureau (CITB), Liz pairs deep investigative experience with expertise in new technologies and electronic evidence, including digital forensics, mobile device data, network forensics, and blockchain analysis.
Liz has obtained the International Association of Privacy Professionals (IAPP) Certified Information Privacy Professional/United States (CIPP/US) certification.

Author

Jerome Tomas is Chair of the Firm's SEC and Financial Institutions Enforcement Group and co-chair of the North America Government Enforcement practice group. He has been recognized by Chambers for White Collar Crime & Government Investigations. He represents multinational companies faced with government investigations and conducts internal investigations to assess and remediate legal and compliance concerns in domestic and global operations. With his experience as a former member of the SEC Division of Enforcement’s Cyberforce, the agency’s internet and cyber fraud unit, Jerome regularly advises companies involved in data security breaches and incident response. Jerome now leads teams of lawyers to address government law enforcement perspectives and where necessary, meet and refute government legal theories of corporate and individual liability head-on, while also being pragmatic and business-oriented for management and boards to compete internationally.

Author

Peter Tomczak serves as Baker McKenzie's Co-Chair, Global Investigations, Compliance and Ethics. He is a member of the Steering Committee of the Firm's Global Dispute Resolution practice, and also serves on the Firm's Global Professional Responsibility and Practice Committee and Cross-Alliance Pricing Committee. Peter previously served as Chair of the Firm's North America Litigation and Government Enforcement Practice Group, and on the Steering Committee of the Firm's Global Industrials, Manufacturing and Transportation Industry Practice Group. Peter joined Baker McKenzie in 2003 after having served as a law clerk for the Delaware Court of Chancery.

Author

Cyrus Vance Jr. has earned a well-deserved international reputation as a trial attorney with a proven track record in high-stake litigation and global investigations. As the Co-Chair of Baker McKenzie's North America Litigation and Government Enforcement Practice, Cyrus is well-known for his expertise in white collar criminal investigations, complex civil and criminal litigation, sanctions enforcement, compliance and cybersecurity. With over three decades of experience in both public and private sector, Cyrus provides invaluable guidance to clients navigating cross-border investigations, enforcement matters, and cybersecurity incidents.
Prior to joining the Firm, Cyrus served three consecutive four-year terms as Manhattan District Attorney, overseeing a team of over 600 prosecutors. He handled landmark criminal prosecutions, including the successful litigation before the U.S. Supreme Court in Trump v. Vance and the conviction of Harvey Weinstein on two felony sex crimes. He also managed more than 100,000 cases annually, including complex white collar and business crimes both domestically and internationally. Cyrus regularly collaborated with regulatory and crime-fighting partners such as the City of London Police, Paris Prosecutors' Office, Singapore Attorney General, Europol and Interpol, and is known for his ability to build and manage teams collaboratively across borders and agencies.

Author

Maria Grenader is an associate in the Litigation and Government Enforcement Practice Group and a member of the Compliance and Investigations Group in our Washington, DC office. Maria advises clients on managing anti-corruption compliance risks stemming from operating businesses in global markets. She handles internal investigations and related interactions with law enforcement authorities and international financial institutions.