New DOJ FCPA Enforcement Guidance Highlights Tackling Cartels, Serious Misconduct
DOJ's Office of the Deputy Attorney General released new guidance for Foreign Corrupt Practices Act enforcement after President Donald Trump earlier this year paused FCPA enforcement to come up with new enforcement guidelines (see 2502120051). The memo laid out criteria for future FCPA cases and said prosecutors should prioritize the following four factors: the "total elimination of cartels and transnational criminal organizations," "safeguarding fair opportunities for U.S. companies," advancing U.S. national security and investigations of "serious misconduct."
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The memo, signed by Deputy AG Todd Blanche, said prosecutors should center FCPA enforcement efforts on "cases in which individuals have engaged in criminal misconduct and not attribute nonspecific malfeasance to corporate structures" and "proceed as expeditiously as possible in their investigations." In addition, prosecutors should consider "collateral consequences," including the disruption to lawful business and impact on employees, throughout an investigation, the guidance said.
All future FCPA investigations or enforcement actions now must be specifically authorized by the "Assistant Attorney General for the Criminal Division (or the official acting in that capacity) or a more senior Department official."
Regarding the use of FCPA to address cartels and transnational criminal organizations, the memo said a "primary consideration" in deciding whether to pursue enforcement action is whether the misconduct "(1) is associated with the criminal operations of a Cartel or TCO; (2) utilizes money launderers or shell companies that engage in money laundering for Cartels or TCOs; or (3) is linked to employees of state-owned entities or other foreign officials who have received bribes from Cartels or TCOs."
On safeguarding fair opportunities for U.S. companies, DOJ said FCPA enforcement will look to "vindicate" U.S. interests, "not by focusing on particular individuals or companies on the basis of their nationality, but by identifying and prioritizing the investigation and prosecution of conduct that most undermines these principles." Thus, the agency said it will consider whether the 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."