On June 9, 2025, U.S. Deputy Attorney General Todd Blanche issued a memo, “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA).” The memo lists four “non-exhaustive” factors U.S. Department of Justice (DOJ) prosecutors are instructed to consider to “evaluate whether to pursue FCPA investigations and enforcement actions.” Amid the “pause” in DOJ FCPA enforcement and just weeks after the DOJ’s Criminal Division – which has long led FCPA enforcement efforts – issued new guidance on corporate criminal enforcement, this much-anticipated memo signals that FCPA enforcement will remain a staple of DOJ activity, albeit in a refocused way.
The New Guidance: Four Key Factors
Leveling the playing field for U.S. businesses has been an animating principle of FCPA enforcement since the creation of the statute, but the Blanche Memo’s explicit emphasis on “limiting undue burdens on American companies that operate abroad” and “targeting enforcement actions against conduct that directly undermines U.S. national interests” indicates that the DOJ will focus heavily on those considerations in the coming years, including by prioritizing investigations and prosecutions where “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.” To ensure DOJ prosecutors align their FCPA enforcement efforts with those priorities, the Blanche Memo lists four criteria for prosecutors to evaluate in their investigations and prosecutions.
- Eliminating cartels and TCOs. As discussed in a prior Alston & Bird advisory, the DOJ has, since the earliest days of this Administration, targeted cartels and transnational criminal organizations (TCOs). The Blanche Memo incorporates and echoes those efforts by directing DOJ prosecutors to focus on investigations and enforcement actions involving (1) criminal operations of a cartel or TCO; (2) money laundering or shell companies working with cartels or TCOs; and (3) employees who have received bribes from cartels or TCOs.
- Protecting U.S. companies. The new guidance also directs prosecutors to “vindicate” the interests of U.S. companies through FCPA enforcement and enforcement of the Foreign Extortion Prevention Act (discussed in a prior Alston & Bird advisory), with a focus on “whether specific and identifiable U.S. entities or individuals have been harmed by foreign officials’ demands for bribes.” This repeated emphasis on protecting U.S. interests echoes themes in the President’s Executive Order and demonstrates that the DOJ intends to wield the FCPA in service of and to protect American interests. It also casts further doubt on the relevance of multilateral considerations and efforts on the DOJ’s FCPA enforcement activities, including those of the Organisation for Economic Co-operation and Development. Though it remains to be seen how the DOJ will identify and assess harm to U.S. businesses in the FCPA enforcement context, and whether the DOJ will be more receptive to the idea of U.S. businesses as victims of FCPA violations, one effect may be an increase in FCPA reporting by companies against one another for competitive advantage.
- Advancing national security. The Blanche Memo requires DOJ prosecutors to focus on “the most urgent threats to U.S. national security resulting from the bribery of corrupt foreign officials involving key infrastructure or assets,” again echoing ideas from the President’s Executive Order and its focus on critical minerals and deep-water ports. It also explicitly references industry sectors likely to be most relevant to this consideration, such as “defense, intelligence, [and] critical infrastructure.”
- Prioritizing “serious misconduct.” The Blanche Memo affirmatively directs DOJ prosecutors not to focus on “alleged misconduct involving routine business practices or the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies,” and also to “consider the likelihood (or lack thereof) that an appropriate foreign law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct.”
The memo also raises two notable additional points:
- Focus on individual accountability. Echoing a now-familiar DOJ theme, the memo directs prosecutors to “focus on cases in which individuals have engaged in criminal misconduct,” as opposed to “nonspecific malfeasance” attributed to “corporate structures.”
- AAG authorization requirement. The Blanche Memo also directs that the assistant attorney general of the DOJ’s Criminal Division authorize “[t]he initiation of all new FCPA investigations or enforcement actions.” While this requirement is not technically a significant process change (Criminal Division prosecutors long have been required to obtain Criminal Division “front office” approval for federal grand jury operations, including in the FCPA enforcement context), it has the potential to serve as a brake on FCPA enforcement, depending on the degree of scrutiny any assistant attorney general applies to requests to open new matters.
Key Takeaways
DOJ FCPA enforcement is here to stay
The "review" ordered by the President appears to be largely, if not entirely, complete, and even if the "pause" ordered by the President technically remains in effect, DOJ FCPA enforcement unquestionably is continuing, and companies should anticipate further, and perhaps even increased, DOJ FCPA investigative and enforcement activity. Moreover, although recent public reporting has indicated that the headcount of the DOJ’s FCPA unit has dropped as a result of agency departures and individual reassignments, the FCPA unit reportedly remains staffed with prosecutors, supervisors, and paralegals at a level that exceeds the resources of the economic crimes units of many U.S. Attorneys’ Offices and should be sufficient to produce enforcement results in line with what has occurred over the past several years.
Heightened risk for certain industries and jurisdictions
While no company should assume it is immune from DOJ FCPA enforcement scrutiny, the Blanche Memo explicitly calls out certain industries and sectors – including defense and critical infrastructure – as being likely to face enforcement scrutiny given their relevance to U.S. national security, and companies in and around the national security space (as framed in the Blanche Memo and the President’s Executive Order) should consider targeted training, proactive compliance reviews, and active testing of compliance and internal controls. Likewise, the Blanche Memo’s focus on cartels and TCOs creates outsized FCPA enforcement risk for companies operating in jurisdictions with known and significant cartel or TCO activity (e.g., Latin America).
A more permissive DOJ?
Explicitly disavowing DOJ interest in “routine business practices” and “de minimis or low-dollar, generally accepted business courtesies,” the Blanche Memo forces a decision on companies operating in multiple jurisdictions: whether to impose uniform (or near-uniform) compliance and controls across their enterprise or to create a series of highly bespoke programs and controls to allow for conduct that might be considered “routine” or “generally accepted” business practices in individual jurisdictions. The expense and risks inherent in creating significantly more permissive approaches in some jurisdictions than in others may be prohibitive for many companies, but this pronounced DOJ disinterest in certain types of conduct nevertheless is certain to influence companies’ decision-making when allocating resources for compliance and investigations.
Don’t forget international agencies
Alongside the DOJ’s recommitment to FCPA enforcement are pronouncements and actions by overseas enforcement agencies suggesting that even if the DOJ’s revised approach to FCPA enforcement results in any industry or jurisdictional enforcement gaps, those agencies will not be deterred from filling them. One example is the announcement of the International Anti-Corruption Prosecutorial Taskforce. The potential for increasing fragmentation in international anticorruption enforcement creates additional challenges for companies likely accustomed to the DOJ’s largely hegemonic role.
Going Forward
While the clear import of the Blanche Memo is that DOJ FCPA enforcement will continue and could even expand (advancing the four goals articulated in the memo), much remains to be seen about how it will be implemented and how other domestic and international agencies will pursue their independent anticorruption enforcement mandates. If nothing else, the dynamic nature of the anticorruption enforcement environment makes investment in and review of compliance programs and internal controls essential to ensure maximum corporate agility and optionality as the enforcement environment shakes out over the coming months.
If you have any questions, or would like additional information, please contact one of the attorneys on our White Collar, Government & Internal Investigations team.
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