BEYOND THE DOJ: ALTERNATIVE AVENUES FOR FCPA ENFORCEMENT
In the wake of recent shifts in federal enforcement priorities for the Foreign Corrupt Practices Act (FCPA), many compliance and legal professionals are wondering where to focus their attention. Whether one greets President Trump’s executive order pausing FCPA enforcement and US attorney general (AG) Pam Bondi’s stated priorities with relief or dismay, one thing remains clear: it would be premature to assume the risk of anti-corruption enforcement has disappeared. While the FCPA remains fully in force, if not currently fully enforced, this article explores the alternative enforcement mechanisms that remain active and why robust anti-corruption compliance programmes remain essential despite federal policy shifts.
State AGs: emerging enforcement leaders
Perhaps the most interesting alternative enforcement pathway emerging is that potential state AGs will leverage state consumer protection and unfair competition laws to target foreign corruption. Rob Bonta, California AG, has made the opening move, issuing an advisory that explicitly states California’s intention to pursue FCPA violations under the state’s Unfair Competition Law (UCL). The California Supreme Court established in Korea Supply Co. v. Lockheed Martin Corp. that federal statutes like the FCPA can serve as the legal standard for “unlawful” conduct under the UCL. Under California’s approach, companies can face civil penalties, restitution, injunctive relief and potential disgorgement of profits.
There is some speculation that New York and Massachusetts may follow California’s lead. New York can leverage its Executive Law section 63(12) and General Business Law section 349, which prohibit deceptive and fraudulent business practices. Massachusetts can potentially apply its Consumer Protection Act (chapter 93A) to foreign bribery schemes affecting the state.
Jul-Sep 2025 Issue
Sounding Board Compliance LLC