The initial months of the current US administration have prompted a significant transformation in American enforcement priorities. These contrast with the established priorities of European countries and have significant implications for global businesses. Divergence and new risks in the areas of anti-corruption enforcement, Cartels, tariffs, and international sanctions will have a significant impact on businesses operating across transatlantic markets.
Key takeaways
The FCPA “pause” doesn’t eliminate US enforcement risk
The DOJ’s enforcement priorities have shifted but the FCPA remains in force, SEC investigations into FCPA offences continue, certain states may increase enforcement against foreign bribery, DOJ investigations may resume and the limitation period extends beyond the end of the Trump Administration. Companies should maintain robust anti-bribery compliance programmes and continue to monitor and mitigate risks. Subsequent to our Webinar, on 12 May the DOJ announced its updated enforcement priorities. Anti-corruption features in that list, where it impacts US national interests or harms the competitiveness of US businesses. Look out for Miller & Chevalier’s update on this.
European ABC enforcement risks are increasing
With the DOJ stepping back, European enforcement is becoming more active. The UK, France, and Switzerland have been most active in prosecuting overseas bribery cases – often alongside the DOJ – and have together launched a new International Anti-Corruption Prosecutorial Taskforce. The Director of the UK SFO has publicly stated an intent to investigate matters with a UK nexus where the US is not in a position to act, and the SFO has suggested it will view companies self-reporting conduct with the a UK nexus in the US but not in the UK will be seen as uncooperative (suggesting a DPA may not be available).
Increasingly aggressive UK enforcement
A significant number of new anti-corruption investigations have been launched in the UK, and the SFO has a renewed emphasis on the importance of corporate self-reporting in new guidance (published April 2024). It has very significantly expanded its use of dawn raids, launched multiple new anti-corruption investigations and is forcefully advocating in favour of whistleblowing, including considering remunerating whistleblowers (though this is not yet possible, and – if it proceeds – will likely take some time to find its way onto the statute book). The SFO has been keen to emphasise that the risks of corporate offending coming to light have never been greater and that self-reporting has therefore never been more important, but the merits of self-reporting will remain a key issue for companies and their legal advisors to consider.
Failure to prevent fraud
The UK’s new ‘failure to prevent fraud’ offence comes into force on 1 September 2025. The SFO is strongly committed to enforcing this law. The new offence is extremely broad, and compliance departments need to consider its relevance to a broad range of risk scenarios. For instance, in internal investigations relating to anti-corruption concerns this new offence will increase the risk relating to the creation of any false or misleading books and records – which are often more easily established than the actual offer or payment of bribes. Companies used to the books and records provisions of the FCPA may be better prepared for this, but the new offence means similar exposures now apply to a much broader set of businesses.
A new wave of enforcement and controls assessments in France
France has been a very active enforcement jurisdiction since the introduction of Sapin II a decade ago. Since the introduction of CJIPs (the French equivalent of DPAs) in 2016, the PNF has negotiated 54 such agreements, resulting in approximately €4 billion in fines. The PNF’s enforcement focuses include enhanced international cooperation and a potential expansion into economic sanctions enforcement – the Anti-Corruption Agency has also launched a new wave of anti-corruption controls assessments in the healthcare sector. Any companies with subsidiaries in France should ensure that they have controls necessary to meet the demanding standards set.
Cartels and TCOs
The DOJ has reallocated resources to prioritise cartel and transnational criminal organisation threats, whilst deprioritising traditional FCPA corporate bribery investigations. There is extremely broad extra-territoriality and any ‘material support’, essentially any transaction, with a Cartel is a criminal offence. Companies with operations in impacted LATAM jurisdictions, particularly Mexico, should consider carrying out a risk assessment.
Sanctions / export control risks intensify amid geopolitical divergence
The US is pursuing a more unilateral and politically driven sanctions and export control agenda—particularly targeting China—while the UK and EU remain focused on Russia, resulting in potentially divergent regimes and increasing complexity for multinational companies navigating complex cross-border compliance obligations.
FCPA enforcement “pause”
Shift in enforcement priorities
Under the Trump administration, the Department of Justice (DOJ) has implemented a significant 180 day pause in the enforcement of the Foreign Corrupt Practices Act (FCPA).
This pause was intended to allow Attorney General (AG) Pam Bondi to review and revise FCPA enforcement guidelines to “prioritize American interests” and “American economic competitiveness with respect to other nations”. The DOJ, through Bondi's February memorandum, has shifted to prioritise FCPA cases that involve foreign bribery linked to cartels and transnational criminal organizations (TCOs).
The DOJ has, since our Webinar, on 12th May announced the enforcement priorities for the Criminal Division in a memo titled ‘Focus, Fairness, and Efficiency in the Fight Against White Collar Crime’: available here.
Some priority areas include: waste, fraud and abuse; trade and customs fraud; material support by corporations to foreign terrorist organizations (FTOs), including recently designated cartels; complex money laundering; and use of digital assets to victimize investors and consumers and further criminal activity.
In relation to the FCPA, the memo highlights as an enforcement priority: “Bribery and associated money laundering that impact U.S. national interests, undermine U.S. national security, harm the competitiveness of U.S. businesses, and enrich foreign corrupt officials.”
Impact on ongoing cases
The ‘pause’ has impacted both corporate and individual cases. For instance, charges have been dropped against two former Cognizant executives just before trial, citing Trump’s executive order as a basis for halting the prosecution. The DOJ has also ended investigations against PetroNor and Digicel, and the SEC has paused its investigation in Calavo Growers. Glencore’s monitorships has been terminated a year early in March 2025 and there is a sense that monitorships will be less prevalent going forward, but this has not translated to all monitorships ceasing. For instance, the TD Bank AML monitorship is moving forward.
Much, though not all, of the impact has been seen on DOJ cases. The ‘pause’ does not strictly apply to enforcement by the SEC, which can also bring enforcement action under the FCPA. Despite indicating that it will follow the DOJ’s shift in priorities, the SEC has so far continued its investigations and actions during the pause.
Risks remain
Despite the FCPA enforcement pause, related risks remain active:
the FCPA is still in effect with no new exemptions;
AG approved investigations could still proceed;
state laws may apply to overseas bribery and still require FCPA adherence;
companies face sustained pressure from whistleblowers, the media and shareholders to continue to uphold high standards in relation to bribery and corruption; and
there is a risk that the DOJ may end the pause and resume or redirect enforcement, particularly toward overseas corporates where corruption might be perceived to impact upon US or US companies’ interests. That focus area is borne out by the 12th May memo, which suggests enforcement will continue where the relevant criminality “impact[s] U.S. national interests, undermine U.S. national security, harm the competitiveness of U.S. businesses, and enrich foreign corrupt officials.”
Increase in European anti-corruption enforcement
Clear and growing commitment
European authorities are demonstrating an unambiguous and increasingly active focus on anti-corruption enforcement, both domestically and internationally, aiming to maintain pressure on corporate misconduct despite the US enforcement slowdown.
The UK (SFO), France (PNF), and Switzerland (OAG) are leading the way in terms of an uptick in European enforcement activity and collaboration in Europe. For instance, in March 2025, the SFO, PNF, and OAG launched the International Anti-Corruption Prosecutorial Taskforce, a coordinated cross-border initiative to share intelligence and jointly investigate multinational bribery schemes. A significant number of new investigations are being launched and there is a renewed use of dawn raids as a key tool of law enforcement.
Anti-corruption enforcement still remains uneven across Europe. But there is legislative momentum that is likely to begin to close those gaps. The upcoming EU Anti-Corruption Directive signals a move toward greater harmonisation and strengthening of anti-bribery laws across EU member states.
Express efforts to fill any vacuum
While the new International Anti-Corruption Prosecutorial Taskforce is not, according to its participants, a reaction to the FCPA pause the UK SFO has explicitly stated its intention to fill DOJ enforcement vacuum.
The SFO Director recently said, “if the Americans are not in a position to prosecute, and there’s a nexus to the UK and it’s a bribery case, then we will seek to bring it here.”
Looking ahead - UK / EU bribery enforcement
SFO encouraging voluntary self-reporting, in the context of more proactive and forceful ABC investigations
The SFO has renewed its focus on anti-corruption enforcement. It now has known public foreign bribery investigation and has launched its first ever corporate prosecution for failure to prevent bribery against United Insurance Brokers Limited (previous such s.7 charges having been resolved by way of guilty pleas). The SFO has also recently opened an investigation into alleged bribery connected with the building of European data centres (here), conducting raids in five locations and arresting three individuals. That follows from an increased practice of dawn raids at the SFO: more such raids were launched in the first six months of the current Director’s tenure than in the previous three years and that trend has continued.
In the context of this increasingly proactive enforcement activity, the SFO is placing renewed emphasis on corporate self-reporting of misconduct in recently published guidance, signalling that prompt disclosure and full cooperation, will, subject to exceptional circumstances, lead to a corporate under investigation being invited into deferred prosecution agreement negotiations. Our analysis of the new Corporate Guidance is set out here: To report or not to report – SFO publishes new guidance for corporates.
One element of that guidance which is interesting in the context of the FCPA ‘pause’ are new cautions against forum shopping. The SFO says in its new guidance that self-reporting of conduct with a UK nexus to a foreign agency such as DOJ (with no parallel disclosure to SFO) may be mean a company is viewed as uncooperative.
That would have the impact that a DPA may potentially be unavailable in the UK, and will complicate the response of UK and foreign companies with UK operations (such that they are potentially within the jurisdiction of the failure to prevent bribery offence) to US and other investigations.
Introduction of new "failure to prevent fraud" offence
The UK is implementing a new corporate offence for failing to prevent fraud, expanding the scope of liability for companies that fail to proactively detect or deter fraudulent activity by employees or agents. This offence comes into force on 1 September, but will apply to conduct continuing through that date – so companies need to take steps to ensure reasonable fraud prevention procedures are in place now. Our client note on the new offence is available here.
The SFO has expressed real appetite to use the new offence and it is no accident that its new Corporate Guidance and the focus on self reporting has been released in advance of the offence coming into force. The Director of the SFO recently stated that DPAs “could come back with a vengeance once a new offence that puts the onus on businesses to prevent fraud comes into force”. On 6 November 2024, Director of SFO stated that “time is running short for corporations to get their house in order or face criminal investigation”.
Beyond its obvious relevance to future anti-fraud enforcement, the new offence is significant in the context of anti-corruption investigations – whether those conducted by law enforcement or internally.
Given the inclusion of false accounting with the scope of the failure to prevent fraud offence, a company may be held criminally liable if an employee “cooks the books” to conceal a secret slush fund – regardless of whether or not that was intended to be, or can be proven to have been, used to pay bribes. In that way it has a similar impact to the FCPA’s books and records provisions, which DOJ / SEC can pursue even where they are unable to prove the offense of bribery if they can demonstrate accounting irregularities.
However, unlike the FCPA, the failure to prevent fraud offence applies to any “large organisation” anywhere in the world so long as the underlying “false accounting” involved conduct in the UK or any gain in the UK, or loss in the UK. Many companies that would never have considered themselves likely to be caught by the FCPA’s books and records provisions will now have to consider those long established risks.
A new wave of enforcement and controls assessments in France
France has strict anti-bribery laws in place since the introduction of Sapin II a decade ago. Sapin II criminalise public and private bribery, and has broad extra-territoriality. Since that time, it has become a very active enforcement jurisdiction. There have been 3200 proceedings opened by the PNF, 532 convictions and €12.2 billion in fines, confiscations, damages, and tax adjustments. Since the introduction of CJIPs (the French equivalent of DPAs) in 2016, the PNF has negotiated 54 such agreements, resulting in approximately €4 billion in fines.
Sapin II requires in-scope companies to have an ABC compliance programme and allows the French anti-corruption agency (the “AFA”) to conduct “Controls” assessments. AFA can impose administrative sanctions on companies and their executives for failure to implement effective compliance programs. Where it discovers corruption, the AFA must notify the Public Prosecutor.
The PNF’s enforcement focuses include enhanced international cooperation and a potential expansion into economic sanctions enforcement . The AFA has also launched a new wave of anti-corruption controls assessments in the healthcare sector. Any companies with subsidiaries in France should ensure that they have controls necessary to meet the demanding standards set.
Looking ahead – US enforcement
Shift in focus - Cartels and impacts on businesses in LATAM
The DOJ has shifted its enforcement priorities to focus on dismantling cartels and TCOs, as well as addressing the activities of Foreign Terrorist Organisations (FTOs). An Executive Order issued on 20 January 2025 designated certain international cartels and organisations as FTOs and Specially Designated Global Terrorists (SDGTs). It outlined the US policy to eliminate these organisations' presence and their ability to threaten US national security through their overseas operations.
This included a step taken in the AG’s February memorandum, Pam Bondi suspended certain internal approval requirements for cartel and TCO cases and reallocated resources from other initiatives, such as disbanding the KleptoCapture Task Force. This has now been reinforced by the 12th May memo referred to above.
On 20 February 2025, the US Secretary of State designated eight cartels and TCOs as FTOs and SDGTs. These cartels are present in Mexico, Guatemala, Honduras, Venezuela, Columbia and Peru. Mexico is the largest area of concern. Some media reports have suggested that Mexican cartels are the fifth largest employers in the country. Cartels frequently operate through complex networks of front companies and intermediaries, making it difficult to identify direct or indirect ties—especially in regions where cartel activity is widespread and intertwined with legitimate business operations.
These designations made it illegal for US persons to provide “material support” to these organisations and subjects them to potential sanctions and enforcement actions. Material support is defined exceptionally broadly such that any entity that may transact in any way with representatives of a Cartel should consider conducting a risk assessment.
Miller & Chevalier’s excellent primer on where the designated Cartels operate is available here: Where FTO-Designated Cartels Operate | Miller & Chevalier
To speak with us about any of these issues:
- Camilla de Silva (Simmons & Simmons)
- Etienne Kowalski (Simmons & Simmons)
- Tom Bowen (Simmons & Simmons)
- Ann Sultan (Miller & Chevalier)
- James G.Tillen (Miller & Chevalier)
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