Beth Forsythe

The Department of Justice (“DOJ”) has announced a new, “first-ever” Corporate Enforcement and Voluntary Self-Disclosure Policy (the “Policy” or “CEP”) for prosecuting corporate criminal conduct. Last year, DOJ announced it was “turning a new page” on white collar and corporate enforcement efforts. Fast forward to the present, DOJ is now seeking to proactively incentivize responsible corporate behavior through the Policy, while simultaneously acknowledging the public’s interest in rooting out fraud and corruption and the government’s stated interest in “swift criminal justice.” The CEP incentivizes companies to disclose misconduct to DOJ by minimizing uncertainty for companies that do so. DOJ’s stated goals in implementing the Policy are: (1) drive early, voluntary self-disclosure of criminal conduct, (2) promote timely and effective enforcement of criminal laws, including holding culpable individuals accountable, (3) reduce harm, (4) facilitate prompt remedial action, including requiring companies to compensate victims and address corporate deficiencies, (5) help ensure consistency across the DOJ, and (6) transparently describe the DOJ’s policies and decision-making.  Here’s What Companies and Organizations Need to Know: 1. DOJ Will Decline to Prosecute When Certain Factors are Met. Under the CEP, companies that meet the Division’s core requirements will receive a public declination of prosecution. The core requirements are: (1) Voluntarily self-disclosing misconduct; (2) Fully cooperating with a DOJ investigation; (3) Timely and appropriately remediating the misconduct; and (4) The issue presents no aggravating circumstances. To qualify as a “voluntary self-disclosure,” a company must make a good faith effort to disclose such misconduct to the appropriate DOJ department within a reasonable time after becoming aware of the misconduct. At the time of disclosure, the reported conduct must also be previously unknown by DOJ, and the company must not currently be under a pre-existing obligation to report conduct to DOJ or under an “imminent threat of… government investigation.” The CEP emphasizes that companies should disclose at the “earliest possible time,” even before an internal investigation is completed. Even if companies present “aggravating circumstances” that weigh against a presumptive declination under the CEP, the CEP encourages self-disclosure and cooperation. The CEP vaguely describes potential “aggravating circumstances” as including factors that impact “the nature and seriousness of the offense, egregiousness or pervasiveness of the misconduct within the company, severity of harm caused by the misconduct, or corporate recidivism, specifically, a criminal adjudication or resolution either within the last five years or otherwise based on similar misconduct by the entity engaged in the current misconduct.” Even when such circumstances are present, however, the CEP states that prosecutors have discretion to recommend a CEP declination based on “weighing the severity of [aggravating] circumstances and the company’s voluntary self-disclosure, cooperation and remediation.”  The CEP clarifies that a company receiving a declination will still be required by pay all disgorgement, forfeiture, restitution, or victim compensation payments resulting from any misconduct.  2. DOJ Prosecutors Have a Large Amount of Discretion.  The Policy also takes into account “near miss” voluntary self-disclosures and aggravating factors that do not result in declinations. Specifically, the CEP provides that lenient resolutions may still be appropriate where a company “fully cooperated and timely and appropriately remediated” but (1) did not meet the requirements for a voluntary self-disclosure and/or (2) present aggravating factors that warrant a criminal resolution. In these “near miss” circumstances, the CEP suggests that DOJ will provide a Non-Prosecution Agreement (“NPA”) for a term length of fewer than three years that does not require and independent compliance monitor and provides a reduction of at least 50% but not more than 75% off the low end of the U.S. Sentencing Guidelines (“U.S.S.G.”) fine range. Even in the event a company does not meet the requirements for a declination and does not qualify as a “near-miss” voluntary self-disclosure, the Policy indicates that DOJ maintains discretion to determine the appropriate resolution including form, term length, and compliance obligations. The DOJ also retains discretion to determine monetary penalties for corporate enforcement matters, but the Policy indicates that prosecutors cannot recommend a reduction of more than 50% reduction of the fine under the U.S.S.G. 3. National Security  The CEP underscores the expectation that companies proactively identify potential violations and engage with enforcement authorities when issues arise. This need is amplified in the national security space, where enforcement authorities pursue cases involving sensitive technology or companies or individuals who are targets of U.S. economic sanctions. Export violations can occur through compliance lapses but sometimes may also have elements of intentional or reckless activity.  The CEP makes clear that companies will be best positioned to mitigate enforcement consequences if they voluntarily disclose violations to and cooperate with the DOJ.  The CEP’s approach is similar to the 2024 DOJ National Security Division Enforcement Policy for Business Organizations, which already emphasized timely voluntary disclosures, cooperation, and remediation in the context of U.S. export controls and sanctions violations. The continuity highlights the DOJ’s commitment to push companies to identify and report violations of U.S. law. Robust compliance programs and internal controls are therefore critical not only for preventing violations but also for detecting them at an early stage, and to obtain mitigating credit for reporting them. Companies operating in export-controlled or sanctions-sensitive sectors should continue to build and invest in compliance programs capable of identifying potential breaches and facilitating timely internal reporting and disclosure.   Take-Aways The new Policy is a marked shift in tone even from DOJ’s prior corporate compliance guidelines. Just two years ago, DOJ initiated a pilot disclosure program meant to incentive corporate disclosure. This goes much further, offering the potential of a “public” declination in the event of disclosure absent aggravating circumstances. In the “carrot versus stick” analogy, DOJ is strongly emphasizing “carrot”-based incentives for self-disclosure, cooperation, and remediation.  Given DOJ’s focus on self-disclosure, companies should consider proactively reviewing and assessing their internal compliance programs—particularly whistleblower ethics hotlines. The Policy encourages self-disclosure at the “earliest possible time,” which may potentially include disclosure before an issue has been fully investigated. The sooner a company can learn about an issue, the sooner it can alert DOJ to any potential wrongdoing. If a company must self-disclose an issue, it should also be prepared to fully cooperate with the DOJ during the investigative or prosecutorial phases of a DOJ matter. The DOJ has indicated that it will likewise cooperate with companies to remediate wrongful conduct. Indeed, the head of the Criminal Division at DOJ, Matthew R. Galeotti has noted, “[w]e want to hear from you… Now is the time to report, remediate, and strengthen compliance to ensure American prosperity.”

On June 9, 2025, Department of Justice (“DOJ”) Deputy Attorney General Todd Blanche issued the highly anticipated “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act (FCPA)” (the “Guidelines”), which focus on furthering U.S. interests abroad and mark an early end to the FCPA enforcement “pause” ordered by President Trump in February 2025. While representing a notable shift in the DOJ’s FCPA enforcement priorities, the Guidelines confirm that multinational companies—particularly those operating in regions at high-risk for cartels and Transnational Criminal Organizations (“TCOs”), in certain sectors deemed critical to U.S. national security interests, and non-U.S. companies that compete with U.S. businesses—should remain vigilant in ensuring their compliance programs are appropriately tailored to address renewed enforcement risks. Background On February 10, 2025, President Trump issued an Executive Order (the “Executive Order”) that “paused” FCPA enforcement by DOJ for 180 days while DOJ reviewed past and existing FCPA actions and issued revised guidance. The Executive Order asserted that enforcement of the FCPA had been “stretched beyond proper bounds and abused in a manner that harms the interests of the United States,” including by “actively harm[ing] American economic competitiveness and, therefore, national security.” The Executive Order further instructed Attorney General Pam Bondi to conduct a review of the DOJ’s historical and ongoing FCPA enforcement actions “to restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives.” Even before the Executive Order, however, Attorney General Bondi had signaled a shift in DOJ FCPA enforcement priorities in a February 5, 2025 memorandum, entitled “Total Elimination of Cartels and Transnational Criminal Organizations” (the “Bondi Memorandum”). That memorandum directed the DOJ’s Criminal Division to “prioritize investigations related to foreign bribery that facilitates the criminal operations of Cartels and TCOs.” Revised Goals and Priorities Under the Guidelines The Guidelines ended the 180-day FCPA enforcement “pause” and established certain principles, consistent with the Executive Order and Bondi Memorandum, that will govern all current and future DOJ FCPA investigations and enforcement actions. The stated goal of the Guidelines was “to ensure that FCPA investigations and prosecutions are carried out in accordance with President Trump’s directive by (1) limiting undue burdens on American companies that operate abroad and (2) targeting enforcement actions against conduct that directly undermines U.S. national interests.” The Guidelines further direct prosecutors to: “[F]ocus on cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures;” Conduct investigations “as expeditiously as possible;” and “[C]onsider collateral consequences, such as the potential disruption to lawful business and the impact on a company’s employees, throughout an investigation, not only at the resolution phase.” The Guidelines also set forth several “non-exhaustive factors,” based on the Executive Order, that prosecutors must consider when determining whether to bring or pursue an FCPA action, namely: Total Elimination of Cartels and Transnational Criminal Organizations: Consistent with the Executive Order and Bondi Memorandum, the Guidelines reflect the Trump Administration’s focus on eliminating cartels and TCOs. Accordingly, taking perhaps a broader view than initially reflected in the Bondi Memorandum, the Guidelines direct prosecutors 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. Safeguarding Fair Opportunities for U.S. Companies: The Guidelines prioritize the investigation and prosecution of conduct that undermines business opportunities for U.S. companies. Indeed, in parallel remarks at the American Conference Institute’s Global Anti-Corruption, Ethics & Compliance Conference, Matthew Galeotti, Head of the DOJ Criminal Division, asserted that the “through-line is that these Guidelines require the vindication of U.S. interests.” To this end, the Guidelines state that “[e]conomic growth and expansion of U.S. business opportunities abroad—including U.S. companies’ competitiveness—is critical to safeguarding U.S. national security and economic prosperity.” According to the Guidelines, corruption can put “law-abiding competitors, including U.S. companies, at a serious economic disadvantage,” and “corrupt competitors [can] skew markets and disadvantage law-abiding U.S. companies and others for many years.” The Guidelines thus instruct 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.”[1] Advancing U.S. National Security: The Guidelines direct 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,” such as critical minerals, deep-water ports, defense, intelligence, and “critical infrastructure.” Note, however, that the directive to prioritize prosecution of foreign bribery with U.S. national security implications is broad, and the parameters may shift over time. Prioritizing Investigations of Serious Misconduct: The Guidelines specify that the focus should be on “misconduct that bears strong indicia of corrupt intent tied to particular individuals.” Relevant factors in identifying “corrupt intent” include: (i) substantial bribe payments; (ii) sophisticated efforts to conceal bribe payments; (iii) fraudulent conduct in furtherance of the bribery scheme; and (iv) efforts to obstruct justice. By contrast, referencing the Executive Order’s admonishment that FCPA enforcement “should not penalize ‘American citizens and business’ for ‘routine business practices in other nations,’ and the FCPA statutory exception for facilitation payments, the Guidelines provide that FCPA enforcement “shall not 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.” Notably, while DOJ may de-prioritize certain actions involving “routine business practices” or “generally accepted business courtesies,” the Securities and Exchange Commission (“SEC”) may continue to pursue internal controls and accounting actions relating to such conduct going forward. Deference to Foreign Authorities: The Guidelines further provide that prosecutors should consider “the likelihood (or lack thereof) that an appropriate law enforcement authority is willing and able to investigate and prosecute the same alleged misconduct.” In his remarks, Galeotti elaborated that the DOJ’s FCPA enforcement priorities are “not about the nationality of the subject or where the company is headquartered. In plain terms, conduct that genuinely impacts the United States or the American people is subject to potential prosecution by U.S. law enforcement. Conduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.” Key Takeaways While the Executive Order and Bondi Memorandum initially may have raised questions about the future of DOJ FCPA enforcement under the Trump Administration, the Guidelines and Galeotti’s parallel remarks make clear that FCPA enforcement will continue, albeit with a more directed focus. In particular, the Guidelines signal a targeted, risk-based approach to DOJ FCPA enforcement, with an explicit focus on efficiency and limiting undue burden on U.S. companies that operate abroad while also safeguarding U.S. interests and prosecuting individual misconduct. In light of the Guidelines, multinational companies should consider the following: Increased Risk for Companies and Individuals Operating in Regions with Cartels/TCOs: Given the focus on cartels and TCOs, multinational companies and individuals operating in countries with high risk for cartel/TCO activity should anticipate greater FCPA scrutiny. As discussed below, multinational companies should reassess their risk profiles and remain vigilant to ensure they have risk-based compliance programs and internal controls in place to detect and prevent FCPA and accounting violations. Increased Risk in Sectors Impacting U.S. National Security: Multinational companies operating in sectors with potential U.S. national security implications also can expect greater FCPA scrutiny. These sectors may include: defense, intelligence, critical minerals, sensitive technology, transportation and logistics, critical infrastructure, and financial services. Heightened Risks for Non-U.S. Companies and Individuals: The Guidelines suggest that non-U.S. companies and individuals may be a focus of anti-corruption enforcement efforts going forward, to the extent that their alleged conduct may be viewed as disadvantaging U.S. interests abroad. The Guidelines state that enforcement will not be focused on particular individuals or companies on the basis of their nationality, but note that “[t]he most blatant bribery schemes have historically been committed by foreign companies,” and, as Galeotti reiterated in his remarks, the Guidelines “require the vindication of U.S. interests.” Heightened Foreign Enforcement Risks: Galeotti also stressed in his remarks that “[c]onduct that does not implicate U.S. interests should be left to our foreign counterparts or appropriate regulators.” Galeotti also suggested that, in cases where DOJ defers, the DOJ Criminal Division would cooperate with its foreign counterparts to provide assistance and “and ensure that those countries and regulators can vindicate their interests and pursue their mandates.” The Guidelines and Galeotti’s remarks come amid renewed global efforts in anti-corruption enforcement. Indeed, the recent creation of an International Anti-Corruption Prosecutorial Task Force to address international bribery and corruption between the United Kingdom, France, and Switzerland previews increased cooperation in international enforcement efforts. In addition to risks to non-U.S. companies and individuals, such cooperation efforts could result in foreign enforcement actions against U.S. companies and individuals even in cases where the DOJ defers. The FCPA Law Remains Unchanged: Importantly, as we noted in our previous eUpdates on the Executive Order and Bondi Memorandum, the FCPA statute remains in effect. U.S. authorities can—and have—initiated anti-corruption investigations and enforcement actions years after the underlying conduct, given the five-year statute of limitations (or longer under certain circumstances). SEC Enforcement Policies Remain Unchanged to Date: The Guidelines do not alter any SEC enforcement policies. In a hearing of the Senate Appropriations Subcommittee on June 3, 2025, SEC Chair Paul Atkins stated that the agency has not been “directly affected” by the FCPA enforcement “pause” under the Executive Order. SEC officials previously had stated that the SEC would “follow the lead of the DOJ” in enforcing the FCPA. It remains to be seen whether and to what extent the SEC will adopt the Guidelines when considering FCPA enforcement going forward. Notably, U.S. and foreign companies that trade shares on U.S. exchanges remain subject to SEC jurisdiction, including with respect to the accounting provisions of the FCPA. Issuers must maintain accurate books and records and implement a system of internal controls sufficient to, among other things, provide reasonable assurances that transactions are executed, and assets are accessed and accounted for, in accordance with management’s authorization. Reassessment of Risk Profiles: Multinational companies should take this opportunity to assess the effectiveness of their compliance programs in light of their risk profiles and the DOJ’s updated enforcement priorities, particularly focused on cartels and TCOs and sectors that could implicate U.S. national security risks. This may include undertaking a risk assessment to understand the company’s corruption risk in regions that are at higher risk for enforcement under this new policy, including any potential risks relating to cartels and TCOs, among others; the risk profiles of any customers/merchants, agents, vendors, and other third parties acting on the company’s behalf; and whether the existing compliance program is reasonably designed to detect and prevent misconduct in light of those risks. Continuation of Risk-Based Anti-Corruption Compliance Programs: In light of the Guidelines and risks discussed above, multinational companies would be well-served to avoid any roll-back of their anti-corruption compliance programs, and to continue reinforcing their commitment to compliance through tone at the top, trainings, and messaging—which could include clarifying any misunderstandings as to the future of FCPA enforcement that may have arisen as a result of the FCPA “pause.” [1] Prosecutors also must direct enforcement efforts under the Foreign Extortion Prevention Act (“FEPA”), which criminalizes the “demand side” of foreign bribery, to alleged bribe demands by foreign officials that harmed “specific and identifiable U.S. entities or individuals.”