There have been a number of developments in the anti-bribery/anti-corruption sector following the start of President Trump’s second term. First, on February 5^th, Attorney General Pamela Bondi issued a memo titled, “Total Elimination of Cartels and Transnational Criminal Organizations” in which she instructed the Foreign Corrupt Practices Act (FCPA) Unit at DOJ to focus on “investigations related to foreign bribery that facilitate the criminal operations of Cartels” and Transnational Criminal Organizations (TCOs). She also suspended the requirement that the Fraud Section lead investigations involving the FCPA and Foreign Extortion Prevention Act if the investigation is into “foreign bribery associated with Cartels and TCOs.” 

That memo was followed by President Trump signing Executive Order 14209 titled, “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.” In that order, President Trump noted that FCPA enforcement has been “stretched beyond proper bounds and abused in a manner that harms” the U.S. He further explained that FCPA enforcement compromises the U.S.’s foreign policy goals, “the President’s Article II authority over foreign affairs,” national security, and the ability of the U.S. “and its companies gaining strategic business advantages.” President Trump ordered Attorney General Bondi to revise DOJ guidelines and policies related to the FCPA, require new FCPA investigations and enforcement actions to have Attorney General Bondi’s approval, review pending FCPA investigations and enforcement actions to ensure their compliance with the order, and identify whether any remedial actions are necessary. This order was accompanied by a fact sheet that echoed the points described above. 

In response to the federal government’s shift with FCPA enforcement, states have indicated they may step up their bribery enforcement actions. For example, California’s Attorney General Rob Bonta issued a legal advisory “reminding businesses operating in California that it is illegal to make payments to foreign-government officials to obtain or retain business.” Attorney General Bonta explained that FCPA violations can be the basis for actions under California’s Unfair Competition Law. Similarly, the District Attorney for Manhattan shared that his office was exploring methods for taking on various enforcement priorities that the DOJ has indicated it will not be pursuing as heavily as it once did, including domestic bribery and corruption.

Internationally, the UK, France, and Switzerland announced the launch of the International Anti-Corruption Prosecutorial Taskforce. The taskforce includes (1) the UK’s Serious Fraud Office, (2) France’s National Financial Prosecutor’s Office, and (3) the Office of the Attorney General of Switzerland. Among other things, the taskforce announced its commitment to tackling “the significant threat of bribery and corruption and the severe harm that it causes.” The taskforce also noted that it would “invite other like-minded agencies” to join the taskforce’s efforts. To accomplish its goal, the taskforce identified four action items: (1) regularly exchanging “insight and strategy,” (2) “devising proposals for co-operation on cases,” (3) sharing best practices “to make full use of” the taskforce’s “combined expertise,” and (4) “seizing opportunities for operational collaboration.”

Last week, Jean-Francois Bohnert, the head of France’s agency tasked with bringing enforcement actions against, among other things, corruption, mentioned that other countries have contacted the taskforce to discuss their interest in potentially cooperating with the taskforce. Those countries included Germany, Italy, the Netherlands, Spain, and multiple unnamed countries in Latin America.

These developments have led some to question the trajectory of the FCPA enforcement landscape for the duration of the Trump administration. That said, speculation that FCPA enforcement would be relatively non-existent appears to be overstated at this point given that although the federal government has refrained from proceeding with some pending FCPA trials, they have proceeded with others. As for state enforcement actions in this area, it remains to be seen just how robust those actions can be given restrictions such as jurisdictional limitations and limited state resources (which are already stretched in numerous areas currently).

Given these considerations, the International Anti-Corruption Prosecutorial Taskforce is poised to have a significant impact on the anti-bribery/anti-corruption enforcement landscape. If additional countries join (which it appears that at least some number of countries may join or otherwise assist the taskforce), then the taskforce’s impact in this sector will be heightened. It would not be surprising to see the taskforce take on a role similar to the role the federal government held in prior years with respect to anti-bribery/anti-corruption investigations that encompass multiple countries. Companies should thus ensure they continue to maintain robust compliance programs, and properly functioning compliance programs are even more essential for those companies operating overseas.