President Trump Issues Executive Order to Halt FCPA Enforcement

President Donald Trump signed an Executive Order (EO) on Feb. 10, 2025, "Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security." The order directs the U.S. attorney general (AG) to review and update guidelines and policies governing the Foreign Corrupt Practices Act (FCPA) and to cease initiating any new FCPA investigations and enforcement actions. The order has immediate effect, and the AG has 180 to 360 days to adopt a new enforcement policy to "restore proper bounds on FCPA enforcement and preserve Presidential foreign policy prerogatives."

Enacted in 1977, the FCPA prohibits U.S. companies and individuals, as well as certain foreign persons, from bribing officials of foreign governments to obtain or retain business. The FCPA applies to bribes that are paid, offered, planned or authorized by a company's management or their agents. Violations of the FCPA can lead to significant monetary penalties and prison time for individuals (officers, directors, stockholders and agents of companies) and steep monetary fines for businesses. Individuals are subject to a fine of up to $250,000 and imprisonment for up to five years for bribery violations, and a fine of up to $5 million and imprisonment for up to 20 years for accounting violations. Business entities are subject to a fine of up to $2 million for each violation of the anti-bribery provisions and up to $25 million for each violation of the accounting provisions. Under certain circumstances, the courts may impose significantly higher fines than those provided by the FCPA – up to twice the benefit that the defendant obtained by making the corrupt payment.

In 2024 alone, the U.S. Department of Justice (DOJ) collected billions of dollars in fines and penalties.

Prosecution Freeze and Major Policy Realignment

The EO directs the AG to:

• review current DOJ guidelines and policies governing FCPA investigations and enforcement actions
• cease any new FCPA actions unless the AG determines that an individual exception should be made
• evaluate and resolve existing FCPA investigations and enforcement matters in light of the president's foreign policy goals
• issue updated guidelines or policies that prioritize American interests, American economic competitiveness with respect to other nations and the efficient use of federal law enforcement resources

The EO further specifies that any future FCPA investigations or enforcement actions must be specifically authorized by the AG. Moreover, the EO goes a step further to open the possibility for future remedial measures to address past inappropriate FCPA investigations and enforcement actions. The nature and extent of the future remedial measures, as well as the nature and extent of the "individual exemption" to current enforcement actions, remains unclear.

Key Takeaways and Effects on Industry

Criminal vs. Civil Prosecution. The order focuses solely on the DOJ's actions, meaning that it does not affect the U.S. Securities and Exchange Commission's (SEC) civil enforcement of the FCPA's anti-bribery and accounting provisions against U.S. publicly traded companies. However, this may be subject to change in the future.

Timing Considerations. Companies should be aware that the statute of limitations for FCPA violations is generally up to five years and may be extended by the DOJ in certain cases. Thus, current or recent violations, including those during the Trump Administration, could be prosecuted by the next administration.

Enforcement Focus Shift. The content of the FCPA's revised guidance is currently unknown. However, several days before President Trump issued the EO, AG Pamela Bondi directed DOJ's FCPA Unit to prioritize cases of foreign bribery that facilitate cartel operations and transnational criminal operations (TCOs). Consequently, companies should increase due diligence in countries where cartels and TCOs operate. It is anticipated that the revised FCPA policy and guidance may allow for prosecutorial discretion, particularly in cases involving critical minerals, deepwater ports or key infrastructure or assets where DOJ might exercise leniency. Additionally, there may be more flexibility granted for investigations and enforcement cases involving non-U.S. companies. Currently, the FCPA applies to foreign issuers of securities, as well as foreign firms and individuals who caused bribes to occur within the U.S.

Other Domestic and Foreign Anti-Corruption/Anti-Bribery Laws. Businesses should still comply with the FCPA, as it is a lawful statute that only the U.S. Congress can change. Future administrations might enforce it, and its new guidance remains uncertain. Other anti-bribery laws such as the Foreign Extortion Prevention Act (FEPA) also apply. Conduct violating the FCPA might breach other U.S. laws related to anti-money laundering and wire fraud. Many foreign governments, especially leading economies, have strict anti-bribery and anti-corruption laws. For instance, under the United Kingdom's Bribery Act 2010, individuals can face unlimited fines and up to 10 years in prison, while companies can be fined unlimited amounts. The German Criminal Code allows for fines or imprisonment for bribery and permits confiscation of profits from such offenses. In France, large companies must implement compliance plans to combat corruption or face administrative sanctions. Singapore holds companies accountable for employees' wrongdoing regardless of internal prevention measures. Similar laws exist in Australia, Indonesia, Japan, Portugal, South Africa and Thailand. Thus, reducing U.S. restrictions on corruption and bribery will not exempt U.S. companies from liability internationally. Therefore, companies should maintain and monitor their compliance. 

The current EO marks an important change in FCPA policy and enforcement. As ongoing regulatory updates are closely tracked, Holland & Knight is committed to providing informed advice on the regulatory and national security implications of the new FCPA policy and can assist with agency enforcement actions. For any questions, please contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.