The present US administration signed an Executive Order (“EO 14209”) in February, halting the enforcement of the Foreign Corrupt Practices Act (FCPA), pending new guidance to prosecutors. On June 10, 2025, the US Department of Justice (DOJ) issued new guidelines (“Guidelines”) on the enforcement of the FCPA, marking a significant shift in its approach to combating foreign bribery. These changes are a part of a broader strategy to recalibrate US anti-corruption efforts in line with national security interests and economic competitiveness.

The Guidelines direct prosecutors to:

• target individual wrongdoing rather than “attribute non-specific malfeasance to corporate structures.”
• accelerate investigation timelines, efficiently conduct and conclude investigations.
• consider the broader impact throughout the investigation, including “potential disruption to lawful businesses and the impact on a company’s employees.

Safeguarding fair opportunities for US companies

The Guidelines provide a non-exhaustive list of key factors that the DOJ will consider when deciding whether and how to pursue an FCPA case. A principal factor now considered is whether the case would serve US interests. The Guidelines note that bribing foreign officials to obtain business distorts markets and disadvantages law-abiding US companies. As a result, the DOJ will prioritise cases where alleged misconduct resulted in economic injury to identifiable US individuals or companies or deprived them of fair access to compete in foreign markets. This represents a change from prior FCPA enforcement policies.

Prioritising investigations of serious misconduct

The Blanche Memo emphasises that new FCPA investigations will not focus on routine business practices or generally accepted business courtesies. Instead, investigations will focus on individual culpability and cases involving substantial bribe payments and strong indicators of corrupt intent. The FCPA contains an exception for facilitation payments made to foreign officials to expedite non-discretionary services. Based on current trends, the DOJ may adopt a more expansive interpretation of this exception while applying a more restrictive perspective on when routine business gifts, entertainment, and hospitalities constitute corrupt payments.

Moreover, the guidelines indicates that the DOJ may be more receptive to arguments that US companies should not be prosecuted for actions by autonomous foreign subsidiaries or lower-level employees removed from management. It will be important to observe how this is applied going forward.

Additionally, the Guidelines state that the DOJ may defer to foreign investigations if a foreign government is willing and able to investigate the alleged misconduct and if US interests are not directly implicated.

Ongoing FCPA review

The Order requires the Department to review in detail all existing FCPA investigations or enforcement actions and take appropriate action within 180 days. Cases that have been reviewed have been evaluated based on the principles set forth in this memorandum. All current and future investigations and enforcement actions shall be governed by these guidelines and other applicable policies.

Sprawling corporate FCPA investigations can last years and disrupt normal business operations. The guidelines attempt to address these issues by instructing prosecutors to consider an investigation’s potential impact on lawful businesses and its employees. The Guidelines seem to dispel the suggestion that February’s executive order signalled an end to FCPA enforcement. Rather, it reinforces active FCPA enforcement with a different focus and may open new fronts against foreign companies using bribes to harm US competitors.

Implications and takeaways for Foreign and Indian Companies

Increased Scrutiny of Foreign Entities

While the DOJ’s enforcement focus has narrowed, foreign companies, including Indian firms, may face heightened scrutiny, especially if their operations intersect with US strategic interests or involve interactions with TCOs.

Potential for Reciprocal Enforcement

Changes in the US enforcement practices may prompt other countries to strengthen their anti-corruption measures. For instance, China has introduced new guidelines that include blacklisting companies involved in bribery and allowing for “carbon copy” prosecutions for misconduct addressed by foreign authorities.

Strategic Business Considerations

Given the evolving enforcement landscape, Indian companies may need to reassess their business strategies. This could involve evaluating partnerships, supply chains, and market entry strategies to ensure compliance with both the US and local anti-corruption laws.

Action by Foreign Regulators

The Guidelines seem to further outline that conduct not implicating US interests should be left to foreign counterparts or appropriate regulators. This represents a departure from past practice, which saw frequent cooperation with foreign partners to bring parallel actions.

The way forward: Recommendations for Indian Companies

• Review and Strengthen Compliance Programmes: Indian companies should conduct a thorough review of their existing compliance systems to identify gaps and areas for improvement. This includes ensuring that policies are up-to-date with global and local anti-corruption standards and tailored to the specific risks faced by the company. Companies should also integrate compliance training across all levels of their organisation to ensure employees are aware of regulations and their role in maintaining ethical standards.
• Stay Informed on Regulatory Changes: This includes monitoring global trends such as the implementation of “carbon copy” prosecutions or new blacklisting mechanisms, as seen in China. Companies should establish a robust system for tracking these changes, possibly through partnerships with legal or regulatory experts.

• Engage Legal Experts: Navigating global and domestic anti-corruption laws can be complex, with varying standards and enforcement practices across jurisdictions. Companies should proactively seek advice from legal professionals who specialise in anti-corruption compliance. Legal experts can assist in drafting policies, handling investigations, and ensuring adherence to both local and international regulations to mitigate potential legal risks.
• Promote a Culture of Integrity: Foster an organisational culture that prioritises ethical conduct and accountability. This involves setting a tone at the top, where leaders actively demonstrate integrity. Companies should encourage transparency through open communication channels and reward employees who exhibit ethical behaviour. Cultivating this environment can reduce instances of misconduct and bolster the company’s reputation internationally.

By proactively addressing these areas, Indian companies can better position themselves to navigate the changing landscape of FCPA enforcement and mitigate potential risks.

---