[Kartikey Mahajan is a Partner, Bhavya Chengappa a Principal Associate, and Rohan Sanjith a Paralegal, all at Khaitan & Co.]
The landscape of U.S. Foreign Corrupt Practices Act (FCPA) enforcement has fundamentally shifted in 2025, as the US Department of Justice (DOJ) implements sweeping policy changes that prioritize American economic interests while refocusing anti-corruption efforts on transnational criminal organizations. These developments signal a new era in FCPA enforcement that international businesses—particularly those in India—must navigate carefully. The authors comment on the DOJ’s strategic realignment and its potential effect on Indian businesses and their subsidiaries.
Strategic Realignment of Enforcement Priorities
The transformation began in February 2025 with a series of high-level policy directives that collectively reshaped the DOJ’s approach to FCPA enforcement. President Trump signed Executive Order 14209, issued on February 10, 2025, which initiated the 180-day long pause on new FCPA investigations while directing comprehensive review of existing cases. This pause was preceded by the Attorney General’s February 5, 2025 Memorandum targeting cartel-related corruption, which marked the beginning of a more selective enforcement strategy.
The culmination of this review process came in June 2025, when the Deputy Attorney General issued new “Guidelines for Investigations and Enforcement of the [FCPA]” (Guidelines) which ended the enforcement pause while establishing a framework that fundamentally alters how prosecutors evaluate potential FCPA cases. Under this new regime, all FCPA investigations require authorisation from the Assistant Attorney General for the Criminal Division or higher—a significant procedural change that centralizes decision-making and ensures alignment with administration priorities.
Major Changes
Comprehensive White-Collar Enforcement Strategy
The DOJ’s approach reflects a broader strategic shift outlined in the Criminal Division’s May 12, 2025, memorandum “Focus, Fairness and Efficiency in the Fight against White-Collar Crime”. The Division has moved from broad corporate crime enforcement to concentrated “high-impact areas” that will receive concentrated attention and resources. These priority areas include crimes affecting the public treasury, tariff evasion schemes, cartel and transnational criminal organization activities, and violations related to the Southern border.
Enhanced Corporate Enforcement and Voluntary Self-Disclosure Policy
The updated “Corporate Enforcement and Voluntary Self-Disclosure Policy” (CEP) creates a more structured incentive system for companies that voluntarily disclose misconduct. Companies meeting all four criteria – voluntary self-disclosure, full cooperation, timely remediation, and absence of aggravating circumstances —remain eligible for declination from prosecution, while those with good-faith self-reporting but some aggravating factors may receive non-prosecution agreements with terms under three years and 75% fine reductions.
Restricted Use of Compliance Monitors
The Guidelines significantly limit when independent compliance monitors will be imposed. As stated in the May 12, 2025 white-collar enforcement memorandum, monitors “must only be imposed when they are necessary” and must be “narrowly tailored to achieve the necessary goals while minimizing expense, burden, and interference with the business.”
Expanded Corporate Whistleblower Reward Programs
The Corporate Whistleblower Awards Pilot Program has been substantially expanded to include priority enforcement areas. The program now covers violations by corporations related to cartels and transnational criminal organizations, federal immigration law, material support of terrorism, sanctions offenses, trade and customs fraud, and procurement fraud.
Four Pillars of the New Enforcement Guidelines
The revised guidelines establish four primary enforcement priorities that will shape FCPA investigations moving forward:
Targeting Criminal Networks
The most significant shift involves prioritising cases connected to cartels and transnational criminal organisations (TCOs). As outlined in the Guidelines, prosecutors must now focus on misconduct that: “(1) is associated with the criminal operations of a Cartel or TCO; (2) utilizes money launderers or shell companies that engage in money laundering for Cartels or TCOs; (3) is linked to employees or state-owned entities or other foreign officials who have received bribes from Cartels or TCOs”. This represents a marked departure from traditional FCPA enforcement that often targeted routine business corruption.
Protecting American Commercial Interests
In a notable expansion of enforcement criteria, the Guidelines direct prosecutors to emphasize cases where 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”. This “America First” approach to FCPA enforcement explicitly acknowledges the law’s role in protecting U.S. commercial competitiveness globally.
National Security Considerations
Enhanced scrutiny will apply to corruption involving “key infrastructure or assets” vital to U.S. national security. As the guidelines emphasize, “American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.” This priority reflects the administration’s growing concern about foreign influences over American interests.
Serious Criminal Conduct
The Guidelines maintain focus on substantial corruption involving “substantial bribe payments, proven and sophisticated efforts to conceal bribe payments, fraudulent conduct in furtherance of the bribery scheme, and efforts to obstruct justice”, while explicitly directing that enforcement “shall not focus on alleged misconduct involving routine business practices or the type of corporate conduct that involves de minimis or low-dollar, generally accepted business courtesies.”
Procedural Reforms and Continuing Policies
Beyond shifting enforcement priorities, the new guidelines introduce important procedural changes. Prosecutors must now consider collateral consequences throughout investigations, focus on individual criminal misconduct rather than corporate structures, and evaluate whether foreign law enforcement authorities can effectively handle matters.
Importantly, the Criminal Division’s Corporate Enforcement and Voluntary Self-Disclosure Policy remains intact, continuing to offer significant benefits for companies that voluntarily disclose violations, fully cooperate, implement timely remediation, and demonstrate no aggravating circumstances. These companies remain eligible for declination from prosecution, while those with good-faith self-reporting but some aggravating factors may receive non-prosecution agreements with terms under three years and 75% fine reductions.
Implications for Indian Businesses
Indian companies face elevated FCPA enforcement risk as the administration explicitly prioritizes protecting American economic interests. The Deputy Attorney General guidelines emphasize cases where 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.” This creates particular exposure for Indian firms competing directly against U.S. companies for lucrative contracts, especially in government procurement and infrastructure projects.
Historical enforcement data reinforces this concern. The DOJ and SEC collectively resolved 15 FCPA corporate enforcement actions (against 11 distinct companies) resulting in approximately $1.7 billion in fines, penalties, disgorgement and prejudgment interest, of which approximately $1.1 billion was assessed by the DOJ and approximately $186 million by the SEC. While specific data on the nationality breakdown of companies prosecuted in 2024 is not publicly available, the new “America First” approach to FCPA enforcement suggests this trend toward prioritizing cases that harm US commercial interests may intensify.
Sector Specific Vulnerability
Indian companies operating in sectors deemed critical to U.S. national security face enhanced prosecutorial scrutiny under the new framework. The guidelines explicitly target corruption involving “critical minerals, deep-water ports, or other key infrastructure or assets” vital to American strategic interests. This creates a particular risk for Indian firms in— (1) defence and aerospace companies competing for contracts or joint ventures with U.S. entities; (2) telecommunication firms, especially those involved in 5G infrastructure or competing with American technology companies; (3) critical minerals and rare earth elements businesses, given supply chain security concerns; (4) infrastructure development companies bidding on ports, transportation, or energy projects where U.S. companies are competitors; and lastly, energy sector participants, particularly in renewable energy and battery technology where strategic competition is intense.
Regional Risk Amplification
Indian companies with operations in Latin America or other regions with significant cartel or transnational criminal organization presence face heightened risk under the new enforcement priorities. This is particularly relevant for Indian pharmaceutical companies operating in Mexico and South America, IT services firms with regional operations, and manufacturing companies with supply chains or joint ventures in areas with TCO presence. Even legitimate business activities may face enhanced investigation if they occur in territories where cartels operate or if they involve counterparties with potential TCO connections.
Competitive Disadvantage through Enforcement Asymmetry
The new guidelines create potential competitive disadvantages for Indian businesses through enforcement asymmetry. While the framework emphasizes protecting American companies from unfair competition caused by bribery, it may inadvertently create situations where Indian companies face more aggressive enforcement while competing against U.S. firms. The guideline directing prosecutors to consider whether misconduct “resulted in economic injury to specific and identifiable American companies” suggests that cases involving harm to U.S. competitors may receive prioritized attention.
Conclusion
The DOJ’s revised FCPA enforcement framework represents a fundamental shift in how anti-corruption priorities are evaluated and pursued. While the extent to which these changes will reshape enforcement patterns remains to be seen, Indian companies should proactively adapt their compliance strategies to align with the new enforcement realities.
With all this in mind, there are specific areas Indian companies should assess to mitigate risk and enhance their FCPA compliance programs in light of the new Guidelines.
Evaluate Geographic and Sectoral Risk Exposure: Indian companies should conduct comprehensive assessments of their operations in regions with significant cartel or TCO activity, particularly in Latin America, and prioritize compliance resources accordingly. Companies operating in sectors deemed critical to US national security—including defence, telecommunications, critical minerals, and infrastructure—should implement enhanced oversight procedures and regular risk assessments.
Enhance Third-Party Due Diligence: Given the emphasis on cartel connections and individual accountability, companies should strengthen vetting procedures for agents, consultants, and business partners, particularly in high-risk jurisdictions. This includes implementing enhanced know-your-customer procedures and ongoing monitoring of third-party relationships that could potentially involve TCO connections.
Strengthen Government Contract Oversight: Indian companies bidding on government contracts, especially in markets where they compete against US firms, should establish rigorous oversight procedures and maintain detailed documentation of all business development activities. Enhanced due diligence should focus on potential competitive harm to US entities.
Maintain Robust Business Courtesy Controls: Although the Guidelines indicate reduced focus on routine business practices, companies should not diminish controls around gifts, meals, and hospitality. Data analytics and pattern recognition tools remain essential for identifying trends that might reveal more serious violations.
Whether the Guidelines ultimately represent a sea change or incremental shift in FCPA enforcement, Indian companies should view these developments as requiring strategic recalibration rather than compliance relaxation. The new enforcement framework demands enhanced vigilance in priority areas while maintaining comprehensive anti-corruption safeguards across all operations. Companies that proactively align their compliance programs with these evolving priorities will be best positioned to navigate the changing regulatory landscape while supporting legitimate business objectives.
– Kartikey Mahajan, Bhavya Chengappa & Rohan Sanjith