Doubling Down on Anti-Corruption in the Face of Regulatory Uncertainty
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February 20, 2025
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Recent action by President Trump on the Foreign Corrupt Practices Act of 1977 (FCPA) creates a timely platform for General Counsels (GC), Chief Compliance Officers (CCO) and CEOs to discuss the importance of their company’s compliance program and their corporate values. On February 10, 2025, President Trump signed the Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, which, among other requirements, directs the Department of Justice (DOJ) to pause new investigations and enforcement actions under the FCPA for at least 180 days. The Executive Order also requires the Attorney General to review and issue updated enforcement guidelines for the statute.
The Order comes less than a week after newly appointed Attorney General Pamela Bondi issued 14 department directives on February 5. These directives signal the DOJ’s priorities, which include requiring companies to assess their business operations and reevaluate their existing compliance programs to ensure they properly mitigate risks. The directives also announce new enforcement policies, including those related to current areas of DOJ focus: foreign corruption, money laundering, asset forfeiture and certain national security offenses. The memos direct the U.S. federal prosecutors to shift their attention to the “total elimination” of cartels and transnational criminal organizations (TCOs).
While the President’s February 10th Executive Order has given rise to much speculation on the implications of this action, organizations should see this and related actions as opportunities to reaffirm and uphold their core values, emphasizing that, regardless of the jurisdiction in which they operate, they maintain a commitment to integrity and a zero-tolerance policy for bribery and corruption. Doing so makes not only makes practical sense, as we anticipate further regulatory and compliance developments as a result of the Executive Order and DOJ directives, but also sends a meaningful message to employees and third-party partners and stakeholders.
As corporate executives set priorities and review existing compliance programs, they need to consider the Executive Order in the context of U.S. criminal and civil enforcement of corruption. First and foremost, the Executive Order does not repeal the U.S. FCPA law. Bribery of foreign public officials, whether by U.S. companies and individuals or foreign entities and individuals operating in the U.S. is still a criminal offense. It is, as it says in the title of the order, a “pause” in certain enforcement activities – and not all activities.
When looking at compliance in the mid- to long term, companies should be mindful that the statute of limitations under the FCPA’s anti-bribery provisions is five years (six years for a criminal violation under the accounting provision), which can be extended up to three years when the DOJ is pursuing evidence from a foreign authority. Any violation of the FCPA today, or in the next four years, could be under the investigation of a future administration.
Furthermore, the DOJ is not the only agency charged with oversight of anti-corruption regulations. The U.S. SEC still retains civil authority to enforce the FCPA anti-bribery accounting provisions against companies with publicly traded securities in the United States. In addition, bribery can result in civil litigation by private parties. Bribery and corruption can also implicate other laws and statutes such as antitrust and competition laws, the wire fraud statute, anti-money laundering laws and the Travel Act.
Events like this ultimately shine a light on company values: companies with appropriately designed and executed compliance programs have not developed them simply because it’s the law. That is the minimum standard. High performing compliance programs promote an organization’s corporate values and mission, which establish clear expectations for their leaders, employees and business partners on how the organization conducts business, ensuring transparency and zero tolerance for inappropriate activities, including bribery and corruption.
Moreover, comprehensive compliance programs bring both tangible and intangible benefits to the organization. These programs provide a structured framework to uphold corporate ethics and prevent and address violations of those ethics with clear guidelines and enforcements, fostering a culture of integrity that employees increasingly value. Now, more than ever, employees closely scrutinize corporate values when they decide to join an organization or remain with it. Companies should remain focused on ensuring they are taking a proactive and comprehensive approach in addressing enterprise and compliance risks, launching prompt investigations of identified issues and setting remediation that allows for continued growth within the geographies in which they operate.
What should GCs, CCOs and CEOs do next?
While the Executive Order and related Attorney General’s directives should not drive significant changes in an already well designed and executed compliance program, there are some areas of enhancement or actions that may need to be considered:
- Assess your compliance program, including deployment of resources as the current enforcement environment evolves.
- Communicate with your boards, executives, employees and third parties and remind them of the key components of your compliance program and the resources the company makes available to them.
- Review your third-party risk management practices, including screening and ongoing monitoring processes to ensure they are addressing areas of focus in the Executive Order such as cartel and TCO risks.
- Revisit company risk assessments and risk management activities for operations in geographies with higher rates of cartel and TCO activities or within industries highlighted in the Executive Order, including those related to critical minerals, deep-water ports or other key infrastructure or assets. This list could be expanded to include agriculture, manufacturing, mining, logistics, oil and gas and supply chains if products are sourced from or flow through geographies with heightened cartel and TCO activity.
- Reassess the company’s whistleblower program and continually encourage reporting through the avenues provided with prompt attention to matters raised.
- Closely monitor the DOJ’s implementation of the Executive Order including revised FCPA enforcement guidelines and conduct a thorough and timely assessment of your program, including deployment of resources, against the updated guidelines.
Finally, it’s important to relax and regain perspective: the jobs of compliance officers may become more challenging in this environment, but this executive action is not an overhaul of the FCPA. Take this as an opportunity to review the company’s risk profile, assess the current program and communicate internally and with key external stakeholders their role in a well designed and implemented compliance program.
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