The FCPA Is A Good Law & I Went to Prison For It

Let's keep an eye out for 'mixed signals' when it comes to enforcement & compliance.

At face value, President Trump’s Executive Order in February 2025 to ‘pause’ enforcement of the FCPA (the US Foreign Corrupt Practices Act) was not necessarily bad news for enforcement or corporate compliance. It gave time for the new Attorney General to “review guidelines and policies governing investigations and enforcement actions under the FCPA.” Since its enactment in 1977, the FCPA has certainly had peaks and valleys in terms of enforcement and successful prosecutions (I know that first hand from the Africa Sting case). In some cases, convictions and evidentiary motions have ended up in the Courts to decide who or what might be an “instrumentality of a foreign state” as defined by the law, as well as challenges to US jurisdiction.

As with any law, especially one that pertains to countries outside the US, there will be enforcement challenges, and taking a “pause” to look at more efficient ways of investigating and prosecuting violators might better work to serve justice. However, the President’s order that shared how “overexpansive and unpredictable FCPA enforcement against American citizens and businesses … actively harms American economic competitiveness and, therefore, national security” could lead to some very dangerous, even if unintentional, mixed signals to multinationals and other global enforcement agencies.

Post-pause, with publication of the “Guidelines for Investigations and Enforcement of the FCPA” in June, 2025, here as well as “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime,” published in May, 2025, here, we now have some clarity as opposed to confusion with respect to the ending of the pause. But for true clarity, we should all keep an eye on enforcement- what’s being terminated early (Glencore), and what’s being pursued (Honduras bribery conspiracy for police uniforms). The DOJ has a newsfeed that I find very helpful to see if enforcement actions align with public policy pronoucements and sign-up is easy here. So far, I have seen actions matching quite closely with words in terms of enforcement prorities.

Prioritizing ‘Wrongdoer’ Enforcement is Nothing New

When Criminal Division AAG Matthew R. Galeotti shared in May, 2025 that “we will investigate these individual wrongdoers relentlessly to hold them accountable,” it brought me back to the “Individual Accountability for Corporate Wrongdoing” issued in September, 2015 by then Deputy Attorney General Sally Q. Yates. So here we are again in 2025, as if this was not already a priority.

But Why Personal Enforcement Matters to Those Who Face Risk

I pleaded guilty to violating the FCPA in 2009 and served fourteen and a half months in prison for my bribery conspiracies, I know firsthand the forces that multinational teams face in terms of operating in competitive environments where foreign bribery might seem the norm. In such regions, where corruption risk is high, commercial teams might think they are in the middle of competing corporate objectives between the pressure to succeed and the pressure to comply. Worse, as in my own case, they might be under the illusion that they have to sacrifice integrity to succeed.

One element that keeps those teams aligned with corporate compliance codes, policies, and procedures is the knowledge that they operate in an environment of rigorous global enforcement by the regulators. Big FCPA cases, including the IMDB scandal, Airbus, and Ericsson, to name a few, serve as sobering reminders to individuals and their employers that they will be held to account if they engage in bribery to win or retain business. From a commercial perspective, there is a danger that some of these mixed signals in terms of what is not enforced and what is enforced might be taken by some as a license to engage in unethical practices, and it might also cause some multinationals to also ‘pause’ their corporate compliance campaigns and initiatives as they calibrate resources to the regulatory environment. That’s not good news for antyone.

While the US does not stand alone in anti-bribery laws and enforcement, now being joined by Great Britain and France among other countries, it still remains a leader in the anti-bribery world, both from an enforcement and corporate compliance perspective, with the caveat that there are many non-US multinationals that have outstanding compliance programs. As of now, no other country has shared that they will relax their anti-bribery enforcement or compliance (for example, Europe seems to be headed towards more rigorous anti-bribery enforcement), but what we do here in the US still resonates globally and subject to misinterpretation by those who work in high-risk parts of the world, where they might think, as I once did, that they can relax their ethical conduct when pursuing business.

Winning business the right way, with ethical and sustainable business practices, is not easy in high-risk jurisdictions. It might take additional time and considerable legal and due-diligence resources to find out which counterparties and foreign agencies are more ethical and well-positioned as an ethical business partner or customer. But with patience and a strong belief in organizational values, multinationals and even small enterprises can win and retain business based on their company’s product or service proposition along with their competitive offering, as opposed to a bribe being the determining factor as to who or what company gets awarded a foreign contract.

That’s not easy- and it might also entail walking away from certain markets, but the satisfaction of winning business for all the right reasons, as opposed to bribery and corruption, is the best kind of victory and one that is sustainable.

While we wait for new declinations and prosecutions, I hope that corporations and their commercial teams will use this opportunity as a reminder that paying bribes to win business is never a good practice and to double down, instead of pausing, on that approach and mindset.