On June 9th, DOJ Deputy Attorney General Todd Blanche issued this memo to the head of the DOJ Criminal Division titled “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act.”
At first blush, it may seem like there are many new topics in the Guidelines.
What is perhaps new is that these topics are actually written down in a DOJ policy document, but as highlighted in this post and future posts, many of the topics discussed in the Guidelines have been happening before our eyes for several years.
For instance, the Guidelines state:
“Economic growth and expansion of U.S. business opportunities abroad- including U.S. companies’ competitiveness – is critical to safeguarding U.S. national security and economic prosperity. In addition to distorting markets and undermining the rule of law, companies that bribe foreign officials to obtain business can put their law-abiding competitors, including U.S. companies, at a serious economic disadvantage.
By bribing foreign officials to obtain lucrative contracts and illicit profits- at times hundreds of millions of dollars-corrupt competitors skew markets and disadvantage law-abiding U.S. companies and others for many years.
The Department’s FCPA enforcement will seek to vindicate these interests, not by focusing on particular individuals or companies on the basis of their nationality, but by identifying and prioritizing the investigation and prosecution of conduct that most undermines these principles. Therefore, another important factor prosecutors shall consider is whether the alleged misconduct deprived specific and identifiable U.S. entities of fair access to compete and/or resulted in economic injury to specific and identifiable American companies or individuals.”
It is tempting to interpret the above language as an attempt to focus FCPA enforcement on foreign companies as well as an “America First” approach to FCPA enforcement.
However, such concepts have long been part of FCPA enforcement.
For instance, between 2021 and 2024, the DOJ brought 25 corporate FCPA enforcement actions and 15 of those (60%) were against foreign companies.
In other words, FCPA enforcement has long been dominated by enforcement actions against foreign companies. (See here for the prior post). Whether these enforcement actions were targeted and deliberate enforcement actions or “just happened” given the various origins of FCPA enforcement actions is perhaps an open question.
Moreover, in announcing some FCPA enforcement actions against foreign companies, enforcement agency officials specifically mentioned “America-First” concepts.
For instance, in a January 2024 enforcement action against SAP (a German company) involving bribery in South Africa and Indonesia, (see here for the prior post) the DOJ stated:
“SAP has accepted responsibility for corrupt practices that hurt honest businesses engaging in global commerce. We will continue to vigorously prosecute bribery cases to protect domestic companies that follow the law while participating in the international marketplace.” (Emphasis added).
Likewise, in a November 2024 enforcement action against Telefónica Venezolana (a Venezuela-based subsidiary of Telefónica S.A. a publicly traded global telecommunications operator based in Spain) involving bribery in Venezuela (see here for the prior post) IRS-Criminal Investigation (who assisted DOJ in the matter) stated:
“This case is an example of the IRS Criminal Investigation (IRS-CI)’s and our law enforcement partners’ relentless effort to fight corruption and protect United States interests. We are committed to pursuing investigations into corporate fraud in an effort to protect consumers from bearing the costs associated with criminal activity.” (Emphasis added).
DOJ press releases announcing FCPA enforcement actions are often just a page long with 1-3 sentence quotes from enforcement officials and the above examples specifically mentioned protection of “domestic companies” and “U.S. Interests”. However, several other DOJ press releases over the past several years also touched upon similar issues without actually mentioning those specific words.
More broadly, high-ranking DOJ officials in the Biden administration often talked about protecting U.S. interests as an important goal of criminal law enforcement.
For instance, in October 2021, Deputy Attorney General Lisa Monaco delivered this speech as part of the ABA’s National Institute on White Collar Crime and stated:
“[O]ur mission [is to] enforce the criminal laws that govern corporations, executives, officers and others, in order to protect jobs, guard savings and maintain our collective faith in the economic engine that fuels this country. We will hold those that break the law accountable and promote respect for the laws designed to protect investors, consumers and employees.” (Emphasis added).
In March 2022, Attorney General Merrick Garland delivered this speech to the ABA Institute on White Collar Crime and stated:
“[T]he prosecution of corporate crime is a Justice Department priority. […] Fraud, theft, corruption, bribery, environmental crime, market manipulation, and anticompetitive agreements threaten the free and fair markets upon which our economy is based. They decimate the assets of individuals, organizations, and governments alike. And they increase costs for every American.”
In February 2023, Deputy Assistant Attorney General Lisa Miller stated:
“The department cannot measure its success merely in terms of prosecutions, trials, and convictions. Success includes crime prevention. A more compliant, ethical corporate world is a safer world – one that advances America’s interests writ large.” (Emphasis added).
