QE Paris Newsletter February 2025

How Should Companies Subject to the FCPA Respond to Recent Development in the Fight Against Corruption in the United States?

Barely underway, the year 2025 is already signaling forthcoming changes in anti-corruption enforcement. On February 11, Transparency International released its Corruption Perceptions Index (CPI) for the year 2024[1 ]With a score of 67 out of 100,[2] France has dropped five places to rank 25th.[3] This drop marks the most significant decline France has experienced since the inception of this ranking in 1995.[4] By comparison, the United States ranked 28th with a score of 65 out of 100, falling four places from the previous year.[5] While Transparency International confirms the downward trend in the scores of both France and the United States, the change in administration in Washington signals a profound shift in anti-corruption enforcement practices.

On February 10, 2025, U.S. President Donald Trump signed an executive order announcing the suspension of the enforcement of the 1977 Foreign Corrupt Practices Act (FCPA)[6] to further the economic and national security of the United States.[7] As a cornerstone of the fight against the bribery of foreign public officials, the FCPA allows the United States to impose severe sanctions on any attempt or act of corruption committed to obtain or retain business by any natural or legal person with a connection to the United States. This jurisdictional nexus is broadly interpreted, as the simple fact that a transaction is conducted in U.S. dollars or that a company is listed on a U.S. market is sufficient to establish U.S. jurisdiction over such offenses. This expansive approach has positioned the United States as a global leader in anti-corruption enforcement, frequently imposing significant penalties on foreign companies, including French entities.

Following this announcement, corporate executives whose companies may be subject to the FCPA are now closely monitoring developments in the United States to assess the forthcoming changes and their potential implications.

I. Announcements of the Executive Order of February 10, 2025
The executive order begins with a key observation: the enforcement of the FCPA has been subject to abuses that have ultimately harmed the United States, whose national security partially depends on Washington and U.S. companies' ability to secure strategic commercial advantages. This assertion undoubtedly echoes a 2011 report by the New York City Bar Association, which highlighted how U.S. anti-corruption policies imposed additional costs on American businesses due to the proliferation of expensive compliance processes.[8]

In response, President Trump announced that, as of February 10, 2025, the enforcement of the FCPA will be suspended for a period of 180 days, renewable once. In practical terms, this means that during this period, no new investigations will be initiated, nor will any enforcement actions be undertaken under the FCPA, except in individual cases. In the meantime, U.S. Attorney General Pamela Bondi has been tasked with developing guidelines aimed at prioritizing American interests, enhancing the economic competitiveness of the United States in relation to other countries, and ensuring the efficient use of federal resources allocated to FCPA enforcement. These guidelines will be immediately applicable to ongoing cases, subject to the Attorney General’s authorization.

This announcement must be analyzed in conjunction with the memorandum titled “Total Elimination of Cartels and Transnational Criminal Organizations”, issued by the Attorney General on February 5, 2025.[9] Shortly after taking office, Pamela Bondi announced a shift in the Department of Justice’s (DOJ) policy. Moving forward, the Trump Administration will prioritize combating human trafficking, narcotics, and firearms smuggling, to the detriment of white-collar crime enforcement.

Until now, the prosecution of corruption-related offenses linked to various trafficking activities fell under the jurisdiction of the Fraud Section of the DOJ’s Criminal Division, which is responsible for enforcing the FCPA. However, as of February 5, 2025, any local U.S. Attorney may also pursue these investigations alongside the DOJ, potentially leading to an increase in criminal prosecutions in this area.[10]

II. What risks do companies subject to the FCPA face following these announcements?
First and foremost, it should be noted that the executive order introduces a degree of legal uncertainty. Indeed, it grants the U.S. Attorney General full discretion to declare exceptions to the suspension of the FCPA’s enforcement on a case-by-case basis. In other words, the DOJ retains the authority to initiate FCPA proceedings, even during the upcoming 180-day period. No specific criteria have been provided to clarify how such exceptions will be determined.

Furthermore, pending the issuance of the anticipated guidelines, individuals currently subject to ongoing criminal investigations will still be required to comply with U.S. legal proceedings. The rules governing negotiated justice mechanisms, including Deferred Prosecution Agreements (DPAs), also remain unclear.

It should also be emphasized that the executive order applies solely to the DOJ and does not extend to the Securities and Exchange Commission (SEC), which is responsible for enforcing the civil provisions of the FCPA as the regulator of U.S. financial markets. This means that the SEC will be able to continue to open new investigations and bring enforcement actions under the FCPA, including during the 180-day suspension period. Additionally, local U.S. Attorneys retain their own powers to prosecute offenses, and the executive order does not limit their jurisdiction.

III. What approach should be adopted in this new legal landscape?
At this stage, both foreign and U.S. companies must remain vigilant.

Far from legalizing foreign bribery, the executive order merely announces a temporary suspension of FCPA enforcement. However, the statute of limitations for FCPA violations is five years (or six years for securities fraud),[11] which can be extended by an additional three years in cases requiring evidence collection overseas.[12] Moreover, in the context of Deferred Prosecution Agreement negotiations, U.S. authorities frequently require companies to waive statute of limitations defenses. Thus, U.S. prosecutors will retain the ability to prosecute conducts that occurred during this moratorium, even long after. This statute of limitations extends beyond President Trump’s four-year term, meaning that even if the FCPA suspension were to become permanent, a future Administration could revert to a more aggressive enforcement policy, given that the FCPA remains in full legal force.

At this point, the content of the forthcoming enforcement guidelines remains unknown. However, the presidential announcements, which explicitly reference the goal of restoring U.S. companies’ competitiveness, suggest a specific risk for European and Chinese businesses in particular. It cannot be ruled out that foreign companies may continue to be subjected to selective FCPA enforcement in the future. Moreover, there is an increased risk of prosecution for any integrity-related violations linked to human trafficking, organized crime, or terrorism.

Regardless, the DOJ is far from being the only active enforcement authority in anti-corruption matters. Other prosecuting authorities, including the French National Financial Prosecutor’s Office (PNF) and the UK Serious Fraud Office (SFO), continue to enforce their respective anti-corruption laws. Recent annual statistics published by the PNF indicate that nearly half of its activity is dedicated to prosecuting corruption-related offenses, with approximately 350 ongoing investigations[13].

The likelihood of the U.S. rollback on anti-corruption enforcement triggering a broader global shift appears limited, although it is possible that judicial cooperation with the United States in corruption cases may be affected. On the contrary, in response to the United States' withdrawal from its traditional role as the "world’s policeman," other jurisdictions may intensify their enforcement efforts to fill the gap left by a potential decline in DOJ activity. This risk applies equally to U.S. companies operating in France, even if the alleged corruption offenses have no direct connection to French territory.

For a long time, U.S. authorities justified the aggressive enforcement of the FCPA against foreign companies by the lack of willingness of local authorities to take action against corruption. The current shift in U.S. policy could be leveraged by foreign governments in an increasingly competitive global economic environment.

***

For more information, please contact:

Eric Russo
Partner
ericrusso@quinnemanuel.com

Sophie de Sevin
Associate
sophiedesevin@quinnemanuel.com

Quinn Emanuel Urquhart & Sullivan LLP
6, rue Lamennais
75008 Paris

+33 (1) 73 44 60 00
www.quinnemanuel.com

[1] Transparency International, Indice de perception de la Corruption 2024 (Feb. 11, 2025).
[2] Transparency International, Note technique de méthodologie (2020). The scores range from 0 (highly corrupt) to 100 (highly transparent). A high score indicates a low perception of corruption, while a low score suggests a high perception of corruption. For comparison, in 2023, France's score was 71.
[3] Transparency International, Corruption perceptions INDEX, FR, (2024).
[4] Transparency International France, La France dégringole dans l’Indice de Perception de la Corruption 2024 (Feb. 11, 2025).
[5] Transparency International, Corruption perceptions INDEX, USA, (2024).
[6] U.S. Department of Justice, Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq (Nov. 10, 1998). The FCPA was amended by the Omnibus Trade and Competitiveness Act of 1988, which introduced the concept of knowledge to identify violations under the FCPA, as well as the notions of willful blindness and deliberate ignorance. The amendment also clarified that certain donations could be considered lawful if they were reasonable, made in good faith, and in compliance with the laws of the countries involved. The 1998 amendment aimed to ratify and incorporate the OECD Convention on Combating Bribery into U.S. law. It notably expanded the scope of the FCPA beyond U.S. borders, thus establishing its extraterritoriality.
[7] The White House, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, Executive order (Feb. 10, 2025).
[8] The New York City Bar Association (“NYCBA”), The FCPA and its impact on International Business Transactions (Dec. 2011).
[9] Office of the Attorney General, Total Elimination of Cartels and Transnational Criminal Organizations, Memorandum (Feb. 5, 2025).
[10] Id. p.4.
[11] 28 U.S.C. § 2462 and 18 U.S.C. § 3301.
[12] 18 U.S.C. § 3292.
[13] Parquet National Financier, Synthèse 2024, p. 4 (Jan. 24, 2025). Out of a total of 765 ongoing cases at the PNF, 46.61% of the cases involve breaches of integrity.