USA Trends and Developments Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken
civil and criminal FCPA cases across the country. The “pause” in enforcement not only requires those prosecutors to refrain from bringing any new investigations; it may also require them to cease advancing their current cases. In one widely followed case – initiated during President Trump’s first term and set for trial this spring – federal prosecutors sought a 180-day delay on the day before trial was to begin, claiming that they needed to review the case in light of the Executive Order. At least two other FCPA cases set for trial this spring have faced similar delays, with prosecutors obtaining stays as a result of the Order. While those cases remain pending, and the full extent of the Executive Order’s impact on FCPA enforcement remains uncertain, the coming year will almost certainly see a sub - stantial reduction in cases, investigations, and enforcement activity relating to foreign bribery. The coming months will clarify the extent to which the “pause” will impact long-term FCPA enforcement trends. There are some indica - tions that certain applications of the FCPA will be prioritised under the forthcoming revised guidelines. For example, a recent memo from the Attorney General – issued shortly before the Executive Order’s “pause” – calls on FCPA pros - ecutors to prioritise cases with connections to cartels and transnational criminal organisations. Enforcement in those contexts would be con - sistent with other Trump administration policies targeting those entities. Additionally, the Execu - tive Order’s focus on American interests and its critique of prior enforcement actions as unfairly targeting American companies may suggest a heightened focus on enforcement directed towards non-US entities in the future. The extent to which the revised guidelines encourage or authorise such enforcement, however, remains to be seen.
In addition to the impact on new and exist - ing cases, the Executive Order also takes the extraordinary step of directing the Attorney Gen - eral to review prior FCPA actions. The Attorney General must take – or, if Presidential action is necessary, recommend “remedial action” for prior FCPA cases deemed “inappropriate” . The precise nature of the contemplated reme - dial action remains uncertain. By implying that certain remedial actions are within the Attorney General’s existing authority, the Order might contemplate the DOJ moving to revise exist - ing deferred prosecution agreements or alter - ing existing non-prosecution agreements. For remedial action that would require Presidential action, the Order might contemplate pardons to defendants convicted of FCPA violations or commutation of defendants’ sentences. The Order does not specifically apply to the SEC, nor has the SEC issued any public guid - ance regarding the Order’s directives. But given the SEC’s joint role in enforcing the FCPA and its participation in establishing FCPA enforcement guidelines to date, it may adjust its enforcement practices in light of the revised policy objectives the Order identifies. Withdrawing from Certain Domestic Anti- Corruption Prosecutions In addition to emphasising prosecution of for - eign bribery, the new administration has also sought dismissal of certain cases involving allegations of domestic corruption. In a widely reported development, for example, the Trump administration moved to dismiss the indict - ment of New York City Mayor Eric Adams. The indictment was filed during the Biden adminis - tration and accused Mr Adams of committing wire fraud, bribery, and campaign finance vio - lations, among other offences. The decision to dismiss the indictment, made by the top politi -
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