An analysis of Attorney General Bondi’s memorandum on the Foreign Corrupt Practices Act (FCPA)
In brief
A recent memorandum from Attorney General Pam Bondi signals a potential shift in the Department of Justice’s (DOJ) FCPA enforcement priorities. According to the memorandum, FCPA enforcement should prioritize foreign bribery linked to Cartels and Transnational Criminal Organizations (TCOs), potentially altering the landscape of white-collar corporate enforcement. While traditional FCPA cases will likely continue, the new directive grants local US Attorneys’ Offices greater latitude in conducting FCPA investigations touching on Cartels and TCOs. This change could lead to an increase in certain types of FCPA investigations and impact the resolution of ongoing cases. As the practical impact of this announcement is not yet known, and any impacts could be minimal or temporary, companies should stay vigilant in managing compliance risk and investigating allegations of wrongdoing appropriately to be in a position to adapt to evolving priorities and navigate the uncertain future of FCPA enforcement effectively. Read the full alert for detailed insights and initial observations on this potentially pivotal development.
In depth
A significant development under the Trump administration may alter the priorities, if not the course, of white-collar corporate enforcement. In a February 5, 2025, agencywide memorandum (“Memorandum“), newly confirmed United States Attorney General Pam Bondi directed the Department of Justice FCPA Unit to concentrate its investigative efforts on “foreign bribery that facilitates the criminal operations of Cartels and Transnational Criminal Organizations” and to shift focus away from investigations lacking such connections. In this note, we use the term “Priority FCPA Investigations” to describe these cases, which, according to the Memorandum, are now the DOJ’s primary focus.
The Memorandum comes on the heels of President Donald Trump’s Executive Order directing the federal government to revise existing national security and counter-narcotics strategies to ensure the “total elimination” of Cartels and TCOs from the United States. While it would be premature to advise companies to definitively react, or to predict the effects of the Memorandum’s mandate in practice, we offer our initial observations.
The Memorandum comes on the heels of President Donald Trump’s Executive Order directing the federal government to revise existing national security and counter-narcotics strategies to ensure the “total elimination” of Cartels and TCOs from the United States. While it would be premature to advise companies to definitively react, or to predict the effects of the Memorandum’s mandate in practice, we offer our initial observations.
- Prudence advises waiting to observe how DOJ prosecutors and staff implement the policy directive outlined in the Memorandum. From a policy perspective, the Memorandum reflects priorities and does not exclude the prospect of enforcing existing law. From a legal standpoint, DOJ does not need to use the FCPA to meet the Memorandum’s objectives because individuals and organizations are already prosecuted under federal laws that prohibit narcotics trafficking, human trafficking, and other operations carried out by Cartels and TCOs. Indeed, it would be more cumbersome to attempt to charge these cases as FCPA violations. From a practical standpoint, there is general uncertainty about how much any DOJ policy impacts the realities of white-collar enforcement by front line prosecutors, whose effectiveness is often evaluated by metrics (i.e., how many cases they successfully prosecute). Thus, whether and to what extent the Memorandum is actually followed in practice remains to be seen. Also, the mandate in the Memorandum will be in place for 90 days, after which the DOJ will make a decision about renewing or making permanent the mandate in the Memorandum.
- Although the Memorandum does not suspend or bring an end to DOJ’s enforcement of traditional FCPA cases, it could change which foreign bribery-related matters receive greater attention from DOJ and how they are generally enforced and investigated over the next four years.
- As a general rule, FCPA cases must be coordinated with the DOJ’s Fraud Section in Washington DC, and prosecutions of alleged violations of the FCPA’s antibribery provisions must be led by the Fraud Section’s trial attorneys. This rule has now changed for Priority FCPA Investigations (those involving cartels and TCOs): US Attorneys’ Offices (USAOs) are now free to conduct Priority FCPA Investigations and bring charges with merely 24 hour notice to the DOJ’s FCPA Unit. This could actually result in a localized increase in certain types of FCPA investigations.
- The Memorandum could be interpreted as a way to sew-in FCPA Unit lawyers to Priority FCPA Investigations, while at the same time granting local USAOs greater latitude to conduct traditional FCPA investigations along with Priority FCPA Investigations as well.
- What is less clear is how the directive that the FCPA Unit focus on Priority FCPA Investigations will impact the likelihood of independent detection of bribery conduct by the DOJ, DOJ’s response to (and handling of) voluntary disclosures, and the risk of DOJ enforcement for corruption outside of Priority FCPA Investigations. In addition, the past two decades of FCPA enforcement have centered around multinational corporate misconduct. The type of conduct we foresee underpinning a Priority FCPA Investigation, on the other hand, is less likely to have a clear nexus to conduct regularly engaged in by large multinational companies.
- In addition, it is unclear how the Memorandum will impact pending DOJ FCPA investigations. The average length of an FCPA investigation is reportedly 39 months[1]. Many of the ongoing cases were commenced years ago during the Biden administration. Any present, substantial decline in FCPA enforcement will likely not be visible until the end of the Trump administration, if not after.
- Moreover, as the statute of limitations for FCPA cases is five years, that may inspire prosecutors to proceed with cases knowing that the new policy may be superseded by a successor policy during the five years.
- It also remains to be seen how the policy reflected in the Memorandum impacts the Securities and Exchange Commission’s (SEC) FCPA enforcement practices (the SEC has FCPA jurisdiction over publicly traded issuers and their officers, directors, employees, and agents). Our intelligence indicates a willingness on the part of the SEC Enforcement Staff to promptly resolve open investigations.
- Although US Attorneys will likely pursue the letter of DOJ priorities, corruption will likely remain a focus of the US Attorneys’ Offices, where these cases can be brought under traditional mail/wire fraud and money laundering theories. Further, the Memorandum acknowledges that “[f]or leaders and managers of Cartels and TCOs, the most serious, readily provable offenses under the [DOJ’s] charging policy will typically include capital crimes, terrorism charges, racketeering charges, Continuing Criminal Enterprise offenses, violations of the Foreign Narcotics Kingpin Designation Act, violations of the International Emergency Economic Powers Act, and machine gun charges. USAOs will likely continue to look for ways to stay the course on white collar cases, while technically complying with the Memorandum. In addition, “garden variety” white collar cases are likely to continue apace due to political pressure to fight against perceived bad actors.
- Even the most ambitious administrations are often unable to achieve their many aspirations[2]. Similarly, global or national macroeconomic or market events could change priorities. Few would have predicted the corporate crime enforcement boom that began in earnest with the Corporate Fraud Task Force initiated in 2002 under President George W. Bush. This policy emphasis was precipitated by the demise of Enron and Arthur Andersen and a myriad of other corporate scandals that gave rise to the Sarbanes-Oxley Act, which many then credit with giving rise to the current FCPA enforcement wave.
- Pursuing rogue foreign actors in the name of national security does not seem to run contrary to the new Administration’s stated priorities. Noting this, we cast our memories back to the FCPA’s enactment in 1977 and the enforcement uptick in the mid-2000s, both of which can be cast in the narrative of advancing foreign policy objectives.
- More practically, companies will continue to need to investigate and remediate reported allegations of corruption. As noted above, the five-year statute of limitations for FCPA violations extends beyond the four year term of President Trump, and many investigations of foreign bribery started years after the alleged misconduct. If the next administration takes a different path on FCPA enforcement, ongoing or unresolved bribery-related conduct could be investigated and prosecuted. Furthermore, countries outside the US have increased their enforcement of anticorruption laws in recent years (e.g., Germany) and there is little reason to believe they would follow the Trump Administration’s priority shift. In addition, public company auditors will continue to have access to corporate hotline reports of their audit clients and will expect these matters to be investigated and remediated prior to issuing an audit attestation letter. Knock-on issues will exist in the executive officer certification and sub-certification process.
- By necessity, public companies should continue business as usual when it comes to whistleblower hotlines, as these reporting mechanisms are required under Sarbarnes-Oxley Act (SOX) and Dodd-Frank, and they remain good policy/practice from an internal compliance perspective. Regardless of the outcome of the new DOJ policies, there remains the reality that conduct closely related to corruption, such as fraud, kickbacks, money laundering, sanctions violations, among others, will continue to require careful monitoring, investigation, and remediation. Simply put, most crimes are apolitical in nature, and, in recognition of the human condition, will undoubtedly recur regardless of who occupies DOJ leadership.
[1] See Stanford Law School Foreign Corrupt Practices Act Clearinghouse, Statistics and Analytics, Key Statistics, https://fcpa.stanford.edu/statistics-keys.html (visited January 15, 2025).
[2] For example, the Biden Administration’s KleptoCapture Initiative, disbanded by the Bondi Memorandum, has been criticized for not yielding significant results, but instead achieving forfeitures of assets and violations of sanctions/export controls against individuals not likely to appear in a US federal court. See https://www.rferl.org/a/u-s-attorney-general-pam-bondi-kleptocapture-russian-oligarchs/33306710.html.
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Peter Chan
Peter brings two decades of experience at the US Securities and Exchange Commission (SEC) to his litigation and counseling work. His tenure at the SEC, as well as a stint as Special Assistant US Attorney in the Northern District of Illinois, have given Peter experience with civil and criminal matters. At the SEC, Peter served as assistant regional director in the Chicago regional office, where he led investigations and litigations of high-profile enforcement cases. In the course of his SEC career, he handled corporate issuer disclosure and reporting violations, financial fraud, auditor independence violations, insider trading, broker-dealer misconduct and failure to supervise cases, hedge fund and investment company fraud, and Dodd-Frank and Sarbanes-Oxley violations. As the head of the Municipal Securities and Public Pensions Unit at the SEC's Chicago office, he oversaw cases involving municipalities and public pensions throughout the Midwest, including disclosure failures by states, cities, and underwriters in municipal bond offerings; pay-to-play and public corruption; and securities fraud victimizing municipalities and public pensions.
Peter also served in national leadership roles within the SEC's Enforcement Division. Peter acted as national leader of the Municipalities Continuing Disclosure Cooperation (MCDC) Initiative. He also served as co-chair of the Priorities and Resources Subcommittee of the Division of Enforcement Advisory Committee and was one of the original architects of the SEC Financial Reporting and Audit Task Force.
Peter's experience in criminal securities fraud cases includes serving as Special Assistant US Attorney in the Northern District of Illinois in a criminal investigation into market abuse by a Chicago broker-dealer, resulting in guilty pleas by several senior executives at the firm.
Peter represents public companies, financial services firms, and other organizations in litigation, investigations, and regulatory actions by federal agencies. Former head of the SEC Chicago office's Municipal Securities and Public Pensions Unit, Peter also advises clients on compliance and regulatory matters impacting the municipal securities markets and investments by public pensions and other institutions. He is also a leading expert in advising companies and outside auditors in connection with SEC and other regulatory inquiries regarding financial restatements and disclosures.
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Reagan Demas
Reagan Demas is a recognized leader in investigations and compliance, and has significant experience working on behalf of companies operating in emerging markets and high risk jurisdictions. He has managed major legal compliance investigations for a variety of Fortune 500 companies, including work reported in the New York Times, BBC, CNN, Bloomberg, Financial Times, The Guardian, and Reuters, among other global publications. Reagan has negotiated settlements before the US Department of Justice, US Securities and Exchange Commission, and other federal and state regulatory entities, obtaining declinations in a number of matters. He is a trusted advisor to global corporations on investigations and assessments covering a variety of legal compliance and crisis matters, including bribery/corruption, sanctions and export controls, fraud, money laundering, forced labor and human rights. Reagan has written and spoken extensively on emerging compliance trends in environmental, social and governance (ESG) legal risk, corruption and sanctions, and advises on best practices in compliance program development.
He is the founder and chief editor of Baker McKenzie's Global Supply Chain Compliance Blog and serves on the steering committee of the North American Litigation and Government Enforcement Practice Group. Reagan also serves as a member of the Global Steering Committee of the Firm's Industrials, Manufacturing and Transportation (IMT) Industry Group.
Reagan is trusted by the largest companies in the world to effectively and practically identify and address legal compliance risk around the world. He focuses his practice on global supply chain compliance, anti-corruption and Foreign Corrupt Practices Act, fraud, sanctions and trade controls, business ethics, human rights and corporate compliance. He conducts investigations, risk assessments, training and due diligence on behalf of clients in Africa and other emerging markets, and is a leading thinker in the area of business ethics and human rights-related legal obligations and emerging regulatory regimes. Reagan has written and spoken extensively on emerging compliance trends, ethics, corruption and doing business in Africa.
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Elizabeth Roper
Elizabeth (Liz) Roper is a partner in Baker McKenzie's North America Litigation and Global Dispute Resolution Practice, specializing in investigations, data security, and white collar defense. Liz advises clients on cybersecurity compliance, incident response, government investigations, internal investigations, and criminal defense matters. With over 15 years of experience in the Manhattan District Attorney's Office, including over four years as Bureau Chief of the Cybercrime and Identity Theft Bureau (CITB), Liz pairs deep investigative experience with expertise in new technologies and electronic evidence, including digital forensics, mobile device data, network forensics, and blockchain analysis.
Liz has obtained the International Association of Privacy Professionals (IAPP) Certified Information Privacy Professional/United States (CIPP/US) certification.
Liz has directed investigations into network intrusions, hacking, ransomware attacks, intellectual property theft, cyber-enabled financial frauds, payment card fraud, money laundering, "dark web" trafficking, and the theft and illicit use of cryptocurrencies. She has also handled matters involving corruption and official misconduct. Liz leverages her experience to assist clients facing investigations from government agencies, both in the U.S. and abroad, and advises clients on their most sensitive internal investigations. Liz has strong relationships with law enforcement and regulatory agencies, making her a trusted advisor when clients face government inquiries.
Liz is an accomplished trial attorney with extensive experience conducting hearings and trials. In addition to her trial work, Liz has a strong background in appellate litigation, having argued before New York State's Appellate Division and Court of Appeals. Notably, Liz secured a trial conviction and two unanimous appellate decisions in a trade secrets case involving an employee's theft of highly confidential source code for a high-frequency trading platform.
Liz offers specialized advice to clients in white-collar criminal defense matters and has represented clients in cases with U.S. Attorney's Offices for the Eastern District of New York, the Southern District of New York, and the District of New Jersey, among others. Clients depend on Liz for her strategic thinking, extensive experience, and calm demeanor in these critically important moments.
Liz provides clients with strategic counsel to manage cyber risks and respond effectively to incidents, including investigations stemming from cybersecurity events. She offers comprehensive breach response support and advises on cybersecurity regulations across various jurisdictions, helping multinational companies expand into new markets. Liz has successfully assisted clients in responding to significant cybersecurity incidents, such as ransomware attacks, and has extensive experience overseeing data review and advising on communication strategies. She holds a CIPP/US certification from the IAPP.
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Jerome Tomas
Jerome Tomas is co-chair of the North America Government Enforcement practice group. He has been recognized by Chambers for White Collar Crime & Government Investigations. He represents multinational companies faced with government investigations and conducts internal investigations to assess and remediate legal and compliance concerns in domestic and global operations. Jerome leads teams of lawyers to address government law enforcement perspectives and where necessary, meet and refute government legal theories of corporate and individual liability head-on, while also being pragmatic and business-oriented for management and boards to compete internationally.
Jerome has extensive experience representing clients in government litigation and enforcement investigations before the SEC, DOJ, various United States Attorneys Offices and the Commodities Futures Trading Commission . On multiple occasions, he has obtained complete declinations of enforcement action from federal and state agencies. Jerome has handled investigations and prosecutions relating to the FCPA, securities fraud and manipulation, SEC reporting-related misconduct, financial statement disclosures, auditor independence, insider trading, commodities manipulation, money laundering, the Food Drug and Cosmetic Act, including the Responsible Corporate Officer Doctrine, the US wire and mail fraud statutes and OFAC-related matters, among others.
With his experience as a former member of the SEC Division of Enforcement’s Cyberforce, the agency’s internet and cyber fraud unit, Jerome regularly advises companies involved in data security breaches and incident response, including navigating through initial reports of potential compromise, to investigating, coordinating, and reporting to federal and state authorities, consumer notification and ultimately remediating.
Jerome also regularly advises multinational companies on risk mitigation and compliance in the context of international mergers and acquisitions, other business combinations, and general corporate transactions. He has advised on anticorruption and trade compliance in transport, telecommunications, mining, oil and resource extraction, chemical, defense, pharmaceutical, health care, agriculture, technology, hotel, travel, hospitality, consumer products and manufacturing industries. He also advises on compliance with US and international anti-money laundering laws and the US Bank Secrecy Act.
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Cyrus R. Vance Jr.
Cyrus Vance Jr. has earned a well-deserved international reputation as a trial attorney with a proven track record in high-stake litigation and global investigations. As the Co-Chair of Baker McKenzie's North America Government Enforcement Practice, Cyrus is well-known for his expertise in white collar criminal investigations, complex civil and criminal litigation, sanctions enforcement, compliance and cybersecurity. With over three decades of experience in both public and private sector, Cyrus provides invaluable guidance to clients navigating cross-border investigations, enforcement matters, and cybersecurity incidents.
Prior to joining the Firm, Cyrus served three consecutive four-year terms as Manhattan District Attorney, overseeing a team of over 600 prosecutors. He handled landmark criminal prosecutions, including the successful litigation before the U.S. Supreme Court in Trump v. Vance and the conviction of Harvey Weinstein on two felony sex crimes. He also managed more than 100,000 cases annually, including complex white collar and business crimes both domestically and internationally. Cyrus regularly collaborated with regulatory and crime-fighting partners such as the City of London Police, Paris Prosecutors' Office, Singapore Attorney General, Europol and Interpol, and is known for his ability to build and manage teams collaboratively across borders and agencies.
As Global Chair of the Cybersecurity Practice at Baker McKenzie, Cyrus is at the forefront of cybersecurity law. He co-founded New York City's Cyber Critical Infrastructure Task Force, establishing one of the first public-private partnerships dedicated to mitigating cyber risks on critical infrastructure. Cyrus also founded the Global Cyber Alliance (GCA), a global non-profit consortium providing expert guidance on cyber risks and prevention to members worldwide.
Cyrus is a Fellow of the American College of Trial Lawyers and a sought-after speaker and author. He has testified numerous times before the US Senate and House Intelligence and Judiciary Committees, among others, as well as state and city agencies, on issues ranging from global terrorism, white collar crime, cybercrime, sex trafficking, corporate transparency and gun violence, demonstrating the breadth of his credibility and expertise in the legal field. Throughout his career, Cyrus has been a vocal advocate on justice issues, amplifying his dedication to promoting fairness and the rule of law.
By leveraging his extensive experience and successful track record, Cyrus effectively guides clients through high-profile cases and complex legal matters. His strategic approach, coupled with his deep understanding of global investigations and cybersecurity, makes him a trusted advisor in today's evolving legal landscape.
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Brian Whisler
Brian Whisler is a senior leader in the Litigation and Government Enforcement Practice, and has previously served as Chair of the DC Litigation and Government Enforcement Practice Group. He is a member of the Global Compliance and Investigations, Dispute Resolution and Health Care and Life Sciences Practice Groups.
Prior to joining Baker McKenzie, Brian served for fifteen years as a federal prosecutor with the US Department of Justice. During that time, he was the Criminal Chief Assistant US Attorney in the Eastern District of Virginia, Richmond, overseeing and prosecuting cases ranging from white collar crime, violent crime, public corruption, and terrorism. His trial practice focused predominantly on white collar cases, including health care fraud, securities fraud, public corruption, money laundering and tax fraud. He previously served as an Assistant US Attorney for the Western District of North Carolina for ten years, where he focused on white collar prosecutions and received the Attorney General’s Award for his prosecutions in a money laundering investigation resulting in convictions of more than 25 defendants after three jury trials and multiple guilty pleas. He also served as Chief of Appeals and Health Care Fraud Coordinator for the same jurisdiction.
Brian has also served as adjunct professor at the University of Richmond, TC Williams School of Law and an instructor at the National Advocacy Center for the US Justice Department in Columbia, South Carolina.
Brian has extensive federal trial and appellate experience, having tried over 30 cases to verdict and argued more than 40 cases at the federal appellate level. He is experienced in handling a broad range of civil and criminal matters, including cases implicating the Foreign Corrupt Practices Act, False Claims Act, Anti-Money Laundering laws, Health Care Fraud, Securities Fraud, and Procurement Fraud.
Brian has led multijurisdictional internal investigations and provided regulatory advice to multinational and domestic clients across many sectors, including oil and gas services, pharmaceuticals, financial services, manufacturing, and telecommunications. Additionally, he has developed compliance programs for Fortune 50 corporate clients, advised Boards and Audit Committees, guided companies and individuals in government investigations in multiple global jurisdictions and defended clients in criminal and civil litigation. He also represents companies and individual clients in investigations before multilateral institutions, including the World Bank, Asian Development Bank, the Inter-American Development Bank, as well as the US Agency for International Development, the United Nations, and the Global Fund.
