On June 9, 2025, the United States Department of Justice (“DOJ”) issued a memorandum establishing the guidelines to be observed for investigations and enforcement under the Foreign Corrupt Practices Act (“FCPA”), pursuant to Executive Order 14209, dated February 10, 2025, which suspended the application of the FCPA for 180 days.

In summary, the memorandum provides enforcement guidelines that are in line with the current government policies, which are designed to limit the excessive barriers to U.S. companies that have operations in other countries and to focus the FCPA enforcement activities on cases that directly undermine the national interests of the United States.

In this context, the memorandum lists the four key pillars that will guide the DOJ’s activities under the FCPA, namely: (i) Total Elimination of Cartels and Transnational Criminal Organizations; (ii) Safeguarding Fair Opportunities for U.S. Companies; (iii) Advancing U.S. National Security; and (iv) Prioritizing Investigations of Serious Misconduct.

Regarding the effort to eliminate cartels and transnational criminal organizations, the memorandum emphasizes that this pillar is crucial to prevent certain groups from bringing instability to national sovereignty and, consequently, jeopardizing the economic growth of the United States. Thus, the DOJ focuses its efforts on dismantling financing mechanisms that support cartels and other transnational criminal organizations.

This comes as a matter of particular interest for companies doing business in Latin America due to the prevalence of criminal organizations in the region, including in Brazil.

The focus on safeguarding fair opportunities for U.S. companies is based on the need to ensure a favorable scenario for economic growth in the United States. Therefore, the guidelines contained in this section of the memorandum are based on ensuring that the DOJ will focus the FCPA enforcement on non-U.S. companies that, by failing to comply with the FCPA, end up obtaining an economic advantage at the expense of U.S. companies. The memorandum states that prosecutors should evaluate whether the conduct under investigation ultimately prevented U.S. companies from competing fairly with their foreign competitors.

US companies, or companies that conduct business in the United States, should thus benefit from this new focus of the DOJ, especially if they face competition from companies that engage in conduct contrary to the FCPA.

The focus on advancing U.S. national security is based on the premise that the United States and its companies depend on strategic commercial advantages in order to achieve this goal, thus focusing the DOJ’s efforts on the most urgent threats stemming from bribes paid to foreign officials in the area of infrastructure and other key assets.

With respect to the pillar of prioritizing investigations of serious misconduct, the memorandum clearly mentions the exception provided for in the FCPA regarding the possibility of facilitation payments being made, demonstrating that routine business practices should not be the focus of the enforcement. In this sense, the memorandum points out that conduct subject to the enforcement of the FCPA must be linked to strong evidence of substantial bribery payments and sophisticated efforts to conceal them.

This part of the memorandum is likely to generate a review of gifts, entertainment and hospitality practices among US companies.  Any such review should consider, in addition to the FCPA enforcement guidelines, the specific laws of the countries where the business practices occur, as such laws may be more restrictive that the FCPA. 

The memorandum expressly points out that the guidelines are not exhaustive, emphasizing the need for the DOJ to consider other existing documents that are widely used to guide its activities, such as the Principles of Federal Prosecution, and ensuring that prosecutors have the discretion to continue or terminate actions previously initiated under the FCPA.

Furthermore, the memorandum stressed the provisions of Executive Order 14209, which established that investigations or enforcement under the FCPA should be suspended for 180 days, demonstrating that the investigations and enforcement under analysis are observing the new guidelines set out in the memorandum. For more information, please contact us.