Houston companies operate through agents, joint-venture partners and local intermediaries in places where the line between a payment and a bribe is drawn differently than it is here. The FCPA reaches all of it, and it reaches conduct that occurred entirely abroad.
What has moved recently is not the statute. It is the executive branch’s appetite for enforcing it — and that is a thinner protection than it sounds.
Where enforcement actually stands
This section describes policy, which changes. We state plainly what is settled and what is not.
Settled. The FCPA has not been amended. The anti-bribery provisions, the accounting provisions, the penalties and the jurisdictional framework are the law they have been since 1998. The Securities and Exchange Commission’s civil enforcement authority is unaffected by any executive action. Individual prosecutions have continued through 2025 and into 2026.
What happened. In February 2025 an executive order directed a 180-day pause on new FCPA investigations and enforcement actions, alongside a Justice Department directive reorienting the FCPA unit toward cartel- and transnational-organization-linked bribery. That pause expired in August 2025. Before it expired, in June 2025, the Department issued new enforcement guidelines that formally resumed enforcement while narrowing its stated focus to four priorities: bribery tied to cartels and transnational criminal organizations; bribery that harms the competitive position of American companies; bribery touching national security, including defense and critical infrastructure; and serious schemes involving substantial payments, as distinct from routine courtesies.
What is not settled. How those priorities are applied in practice — which investigations open, which close, how “competitive harm” and “national security” are read — is unresolved. These are guidelines, not law. They can be revised by this administration or discarded by the next.
Why that matters more than it appears. Anti-bribery charges carry a five-year limitations period, and the Department takes the position that the accounting provisions carry six. Both can be extended by up to three years while the government seeks evidence abroad — a routine step in these cases. Conduct that occurs under one administration’s enforcement posture is comfortably reachable under the next one’s. Treating current policy as a safe harbour is the mistake to avoid.
What the government has to prove
Three provisions cover, between them, almost anyone with a United States connection: issuers of registered securities and their people; domestic concerns — US citizens, residents and US-organized companies — and their people; and any other person, including foreign nationals and foreign companies, acting within United States territory.
The core conduct is the same in each. The government must prove the use of interstate commerce; a corrupt offer, payment, promise or authorization of anything of value; made to a foreign official, political party, party official or candidate, or to someone else knowing it will be passed on; to influence an official act, induce a breach of duty or secure an improper advantage; in order to obtain or retain business.
“Corruptly” requires an intent to wrongfully influence the recipient. The payment need not have worked.
Knowledge includes deliberate blindness. The statute treats awareness of a high probability as knowledge unless you actually believed otherwise. Ignoring an agent’s reputation, or a request for cash to a third party, is not a defense — it is the theory.
“Anything of value” is read broadly: cash, travel, entertainment, employment for a relative, charitable donations that benefit an official, contract terms that are not at arm’s length.
The business nexus is where the Fifth Circuit is the controlling authority. This circuit has held the “obtaining or retaining business” element is to be read broadly, and that payments made to reduce customs duties or tax liability can fall inside the statute so long as they were intended to assist in obtaining or retaining business. The payment does not have to be tied to a specific contract. Indirect assistance to operations is enough. That reading is the law in Texas and it is broader than defendants generally expect.
Foreign official, and the state-owned enterprise problem
The statute covers officers and employees of a foreign government or any department, agency or instrumentality of one — but it does not define “instrumentality.” That matters enormously in energy, where the counterparty is frequently a state oil company.
One federal court of appeals has supplied a test: an entity controlled by a foreign government that performs a function the government treats as its own. Control is assessed through formal designation, ownership, power to appoint and remove, where profits go and whether the state funds shortfalls. Governmental function is assessed through monopoly status, subsidy, service to the public and public perception.
No other circuit has adopted or rejected that test, and the Fifth Circuit has not addressed the question. An entity operating on ordinary commercial terms without preferential treatment is a weaker fit. This is genuinely open ground here, and it is worth litigating rather than conceding.
The exception and the defenses, and how little they deliver
Facilitating payments. There is an exception for payments to expedite routine governmental action — permits, visas, mail, utilities, cargo handling, inspection scheduling. It expressly excludes any decision about whether or on what terms to award or continue business. Courts have read it as covering non-discretionary, ministerial acts by low-level functionaries and little else. Size matters evidentially: a large payment suggests something other than a routine service. Notably, a court in the Southern District of Texas has held that in a civil enforcement action it is the government, not the defendant, that must plead and prove the exception does not apply.
Lawful under written local law. An affirmative defense, and it requires written law. Custom, tacit tolerance and oral assurance do not qualify. It very rarely succeeds.
Reasonable and bona fide expenditure. Travel, lodging and hospitality directly related to demonstrating products or performing a contract. It covers factory tours and training. It does not cover lavish entertainment with a business pretext.
Both defenses are the defendant’s to raise and prove.
Books and records — the charge brought when bribery cannot be proved
Issuers must keep books that accurately and fairly reflect transactions in reasonable detail, and must maintain internal accounting controls sufficient to give reasonable assurance that transactions are authorized and recorded properly.
These provisions apply only to issuers — not to domestic concerns or to persons acting in US territory who are not issuers. That is a significant limit and it is often the answer for a privately held company.
Civil liability requires no intent at all, and there is no materiality threshold. Criminal liability requires knowingly circumventing or failing to implement controls, or knowingly falsifying a record.
They are charged when the bribery cannot be proved beyond a reasonable doubt, or when the bribery limitations period has run. The burden is simply lower, and the Department reads the limitations period as a year longer.
Reach, and the open question about foreign nationals
Issuers and domestic concerns are covered wherever in the world the conduct occurs. Everyone else is covered while acting within United States territory — and the territorial hook can be as slight as an email or a call into the country.
A foreign national who acts as the agent of a US company is covered directly, regardless of where they are. The Fifth Circuit has held that “agent” is not unconstitutionally vague.
The open question. One circuit has held that a foreign national who falls outside the statute’s enumerated categories, and who does not act in United States territory, cannot be reached through conspiracy or aiding-and-abetting liability. Another district court has predicted its circuit would go the other way. The Fifth Circuit has neither adopted nor rejected that limitation — it expressly declined to decide the question when it was presented. This circuit did hold decades ago that foreign officials who receive bribes cannot be charged under the general conspiracy statute for FCPA violations, which rests on similar reasoning but addresses a different group. For a foreign national charged in Texas, this is live and unresolved.
There is also now a separate statute reaching the demand side — foreign officials who solicit or accept bribes from US companies and individuals. It took effect in 2024. No reported prosecutions have been identified, and its practical scope is not yet established.
What we do
We defend companies and individuals in FCPA investigations and prosecutions, and in the parallel SEC proceedings that accompany them — including matters arising from agent and intermediary arrangements, joint ventures, and conduct inherited through an acquisition.
The work includes internal investigations, responding to grand jury subpoenas and SEC document requests, advising on whether and when to self-disclose, negotiating resolutions, defending accounting-provision charges where the bribery theory fails, and trial and appellate work.
On self-disclosure. The Department’s policy offers a declination to a company that voluntarily discloses, fully cooperates and remediates promptly, absent aggravating circumstances — with the requirement that it surrender everything it gained. Where a resolution is unavoidable, a company that cooperated and remediated but did not qualify as a voluntary discloser is positioned for a materially better outcome, including without an independent monitor. Recent policy has signaled fewer monitorships than in prior years. Whether to disclose is a decision with no default answer, and it should be made with counsel who will also defend the individuals.
Questions we are asked
Is the FCPA still being enforced?
Yes. The statute was never suspended, the SEC’s authority was never affected, and prosecutions of individuals continued throughout. What changed is the Department’s stated priorities. Anyone treating the current posture as permanent is taking a five-to-nine-year bet on the next administration.
We paid a state oil company’s employee. Is that an official?
It depends on whether the company is an instrumentality of the state, which turns on control and function. There is a test from one circuit, and the Fifth Circuit has not addressed it. In an energy case out of Houston this is a genuinely contestable element rather than a formality.
It was a small payment to get a permit released.
That may fall within the facilitating-payments exception, which covers routine, non-discretionary acts. It does not cover anything touching the award or continuation of business, and the larger the payment the harder the argument.
It was legal where we were operating.
That is a defense only if it was lawful under the written law of that country. Local custom and official tolerance do not qualify, and the defense almost never succeeds.
We are not listed in the United States. Do the accounting provisions apply to us?
No. The books-and-records and internal-controls provisions reach issuers only. The anti-bribery provisions reach much further.
Should we self-disclose?
It is the most consequential decision in the matter and it cannot be answered generically. Disclosure buys a real prospect of declination for the company, at the cost of handing the government a completed investigation and exposing individuals. Those interests are not the same, and a company and its executives need separate advice.
I am not a US citizen and I was never in the United States.
Then the question is whether you were an agent of a covered company, and whether conspiracy liability can reach you at all — an issue the Fifth Circuit has expressly left open.
Results depend on the facts of each matter. Prior results do not guarantee or predict a similar outcome in any future matter.