On Feb. 10, 2025, President Trump signed an executive order regarding FCPA enforcement.1 The executive order:
- pauses enforcement of current FCPA actions and ceases initiation of new actions (absent exceptions made by the Attorney General) for at least 180 days;
- directs the Attorney General to review past and existing FCPA actions; and
- directs the Attorney General to issue new guidance on future FCPA enforcement actions.
While we await the Attorney General’s new FCPA enforcement guidance, this GT Alert provides considerations regarding anti-corruption enforcement and compliance.
- The FCPA is still the law. Despite the executive order, the FCPA is still the law of the land. The FCPA was enacted 48 years ago by Congress and nothing in the executive order changes the law. Companies should continue to implement and maintain effective compliance programs.
- Enforcement under the Trump administration is uncertain. New administrations and Attorneys General commonly prioritize and de-prioritize enforcing certain laws or types of laws. It is unclear at this time the extent to which the executive order or new guidance will suspend or scale back investigations and enforcement. De-prioritizing or “pausing” FCPA enforcement generally affects companies and individuals who are seeking resolution or are actively under an FCPA investigation by the Department of Justice (DOJ).
- Statutes of limitations mean current illegal conduct may be enforced under future administrations. As long as the FCPA remains U.S. law, enforcement will mostly likely continue, particularly under future administrations and Attorneys General that believe in enforcing this law. Even if the Trump administration abandons FCPA enforcement, the statute of limitations for FCPA violations is minimally five years. Therefore, any individuals or companies violating the FCPA today may face enforcement actions in future administrations—e., all corporate and individual conduct during the next four years continues to be “on the record” for potential future FCPA enforcement actions. Also, a relaxation or abandonment of enforcement under the Trump administration may embolden regulators and prosecutors under future administrations to examine and scrutinize conduct during these four years more closely.
- SEC still has enforcement authority. The SEC still has FCPA enforcement authority and has not indicated it will abandon or reduce its own FCPA enforcement. Over the last 20 years, the SEC has been as aggressive as the DOJ in investigating and enforcing the FCPA.
- Foreign jurisdictions may continue to prosecute bribery and corruption. Many foreign countries have robust anti-corruption laws. Over the last decade, some have increased their own anti-corruption enforcement, added resources to their investigations and prosecutions of bribery, and increasingly cooperated in multi-jurisdictional enforcement.
- Corporate governance and regulatory requirements still exist. The executive order does not abridge existing corporate governance rules and regulations that require U.S. companies, especially regulated entities, to self-report certain conduct under some circumstances. U.S. companies still need effective compliance programs designed to prevent and detect certain events and follow applicable corporate reporting requirements when issues occur or are uncovered.
- Bribery is generally not an isolated offense. Bribery activities often coincide with other improper and illegal activities still being enforced, such as money laundering, wire fraud, export controls and sanctions, embezzlement, and trafficking. Compliance programs remain valuable for preventing, detecting, and remediating instances of unwanted, improper conduct in a business’s foreign operations and activities.
- Bribery and corruption harm companies. Bribery is bad for business and bad for company culture. Bribery allegations may lead to reputational damage, and for public companies, to shareholder lawsuits. In today’s business environment, ethical operations are important to the marketplace, investors and shareholders, and many customers and business partners. Good governance and sound accounting practices militate in favor of clean business practices, good record-keeping, and responsible spending and use of resources. Relaxing company standards and practices regarding anti-bribery and anti-corruption compliance may undermine a company’s corporate values and the effectiveness of broader integrity policies and compliance expectations.
Despite the current uncertainty regarding FCPA enforcement, companies should continue to take FCPA compliance seriously and maintain and implement effective, risk-based compliance programs that encourage ethical conduct and demonstrate a commitment to comply with the law.
1 Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, Feb. 10, 2025.