New Department of Justice Guidelines: The FCPA Has Survived...But Not Without a Dent

Litigation attorneys Wifredo Ferrer and Marcelo Ovejero co-authored an article for The Journal of Federal Agency Action on the U.S. Department of Justice's (DOJ) new approach to Foreign Corrupt Practices Act (FCPA) prosecution. The DOJ issued a memo in June 2025 outlining four factors to use when deciding whether to pursue an FCPA case: 1) prioritizing cases where bribery facilitates the operations of cartels and transnational criminal organizations, 2) considering whether the alleged misconduct has caused economic harm to American companies and individuals, 3) assessing whether the bribery scheme threatens U.S. national security interests or key assets and infrastructure, and 4) focusing on instances of clear and serious misconduct with evidencable corrupt intent, such as substantial bribes or sophisticated concealment efforts. Taken together, the authors explain, these criteria suggest a narrower approach to FCPA enforcement that prioritizes national security, economic competitiveness and prosecutorial discretion over broader anti-corruption goals. The article provides brief summaries of the four factors and shares the attorneys' take on the DOJ's retooled strategy.

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