2025年4月16日

DOJ Redirects Enforcement Efforts to Cartels

作者:

New memoranda issued by the Department of Justice—in addition to executive orders by President Donald Trump—signal a renewed focus on leveraging white-collar enforcement in a way that creates risk for Latin American businesses and those operating in the region.

The current 180-day pause of FCPA enforcement will likely be accompanied by future guidelines prioritizing, among other things, foreign bribery “that facilitates the criminal operations of Cartels and TCOs.”

The designation of cartels as foreign terrorist organizations increases the risk that any financial transaction with individuals or entities with a connection to cartels or TCOs—even if entirely extraterritorial—may result in material support of terrorism charges resulting in criminal fines and other penalties.

Latin American businesses and their subsidiaries must ensure, through internal compliance programs, that everyone—including employees, independent contractors, and third-party agents—are trained to comply with new developments in the FCPA and guidance from DOJ to prevent any interaction with cartels (now FTOs) or TCOs.

Background

On February 5, 2025, Attorney General (AG) Pam Bondi issued a memorandum to all Department of Justice (“DOJ” or the “Department”) employees emphasizing the Department’s goal of eliminating cartels—which the president has ordered to be designated as Foreign Terrorist Organizations (“FTOs”)—and Transnational Criminal Organizations (“TCOs”). Among several enforcement goals, the DOJ memorandum indicates a shift in enforcement of the Foreign Corrupt Practices Act (“FCPA”) to prioritize foreign bribery “that facilitates the criminal operations of Cartels and TCOs.” Days later, President Donald Trump issued an Executive Order (“EO”) pausing the enforcement of the FCPA for 180 days and promising “new guidance” on its enforcement with the goal to “promote[] American competitiveness and efficient use of federal law enforcement resources.” Below, we discuss legal risks for both US and foreign companies presented by the DOJ memorandum and the executive orders.

AG Bondi’s memorandum, titled “Total Elimination of Cartels and Transnational Criminal Organizations,” directed DOJ prosecutors to redirect investigative resources associated with traditional Department priority offenses—like the FCPA, money laundering and violations of the Bank Secrecy Act—to cases that have a connection with cartels or TCOs.

This DOJ priority is unsurprising given steps President Trump had taken through EOs to target drug cartels and TCOs. President Trump also issued a number of other EOs targeting cartels, including EO 14157, “Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists.” Of note, EO 14157 ordered the Secretary of the State to recommend additional cartels and organizations for designation as FTOs or Specially Designated Global Terrorists (“SDGTs”). On February 20, the State Department announced that Tren de Aragua, Mara Salvatrucha (MS-13), Cártel de Sinaloa, Cártel de Jalisco Nueva Generación, Cártel del Noreste (formerly Los Zetas), La Nueva Familia Michoacana, Cártel de Golfo (Gulf Cartel), and Cárteles Unidos had been designated FTOs and SDGTs. Many of these cartels operate in defined territories within specific Central American countries, but most operate throughout Latin America and have a presence in the United States.

In the DOJ memorandum targeting cartels and TCOs, AG Bondi also redirected the Department’s enforcement of FCPA to prioritize bribery investigations related to cartels. This moves the Department away from prosecuting traditional FCPA cases, which targeted companies for improperly gaining or retaining unfair business advantages in exchange for providing value to foreign government officials without any particular nexus to a criminal organization. The memorandum notes that the FCPA Unit should shift priority to investigations related to foreign bribery “that facilitates the criminal operations of Cartels and TCOs.”
Just days after AG Bondi signaled the Department’s reduction in FCPA enforcement, President Trump signed an EO pausing enforcement of the FCPA. The EO prescribes an initial 180-day review period during which time the Attorney General shall bar the initiation of any new FCPA investigations or enforcement actions, unless the Attorney General makes an individual exception. The Attorney General shall also review all existing FCPA investigations and enforcement actions. Meanwhile, the Attorney General shall issue updated guidelines and/or policies that “adequately promote the President’s Article II authority to conduct foreign affairs and prioritize American interests, American economic competitiveness with respect to other nations, and the efficient use of Federal law enforcement resources.”

The Bondi memorandum and EOs present new and significant legal risks to many businesses in Latin America. Together, they offer a blueprint of what we may expect enforcement of the FCPA to look like during the Trump Administration. With the understanding that cartels and their affiliated entities have a documented history of operating in the region—including by compromising government officials—private entities must be extra vigilant in complying and protecting themselves against potential enforcement actions by the Department.

FCPA Risk

FCPA Pause is Temporary: The FCPA executive order only pauses its enforcement. Future FCPA enforcement “will be governed by new guidance” with the goal to “promote[] American competitiveness and efficient use of federal law enforcement resources.”
FCPA Enforcement Targeting Cartels and TCOs: Future FCPA enforcement will likely focus on international enforcement related to cartels and TCOs. The Department has signaled that it will prioritize investigations into corporations that provide material support or resources to FTOs or bribe foreign government officials to facilitate the criminal operations of cartels and TCOs under the FCPA.

There is recent precedent for these types of enforcement actions. In October of 2022, Lafarge, a French company, and its Syrian subsidiary were fined $778 million for conspiring to provide material support and resources in Northern Syria from 2013 to 2014 to the Islamic State of Iraq and al-Sham (ISIS) and the al-Nusrah Front (ANF), both designated FTOs. Lafarge admitted to a scheme to pay ISIS and ANF in exchange for permission to operate a cement plant in Syria from 2013 to 2014.

FCPA Enforcement Likely to Reflect US Interests: FCPA enforcement will be focused on corporate actors that the Administration believes harm the national security interests of the United States and will be leveraged in a way to promote President Trump’s foreign diplomacy.
Other Departments Have Tools to Enforce the FCPA: The United States can impose sanctions in situations that compliment the FCPA’s aims through the Office of Foreign Assets Control (OFAC) of the Department of the Treasury, including through the Global Magnitsky Sanctions Regulations Under EO 13818. The United States can block all property and interests in property in the United States for certain individuals designated by the EO, the Secretary of State, or the AG who are found to be responsible or complicit in serious human rights abuses. This also covers government officials directly or indirectly engaged in “corruption, including the misappropriation of state assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery.” OFAC can prohibit individuals from entering the United States, freeze US assets, and prohibit companies owned by sanctioned individuals from conducting business in the United States.
Latin American Businesses Have Been Subject to Increased Scrutiny: Although there will likely be added resources focused on enforcing the FCPA in Latin America, the Department has a history of enforcement in the region. In 2023, the Department charged nine individuals with FCPA violations, all but one of them relating to conduct in Latin America.
The Statute of Limitations will Outlast the Current Administration: The memorandum and executive orders should not be interpreted as to relieve any obligation under the law. Moreover, the SEC—which oversees civil FCPA enforcement—has not provided guidance on the issue, and appears to be enforcing the FCPA according to its standard practices.
International Anti-Bribery Laws are Still in Force: Companies should also be mindful that Latin American countries have their own anti-corruption laws and can prosecute their own businesses engaging in corruption.

New Designation of Terrorist Organizations

New FTOs: The addition of Mexican, Central and South American drug cartels to FTO status introduces increased legal risks for companies conducting business with Latin America.

It is a criminal offense under 18 U.S.C. § 2339B for companies and individuals to knowingly provide material support to FTOs. Material support is defined broadly to include any property (tangible or intangible) or services, including currency, financial services, lodging, personnel, and transportation. Any transaction with an FTO could be viewed as providing “material support” to a terrorist organization. Material support liability may, in some circumstances, extend to extortion or ransom payments.

Extraterritorial Reach: Any transaction—either directly or indirectly—with cartel-linked individuals or entities may subject a corporation to an enforcement action, even when the conduct happens extraterritorially.

For example, in 2007, Chiquita Brands International Inc. (“Chiquita”) paid a $25 million criminal fine to DOJ due to payments it made to the right-wing terrorist organization United Self-Defense Forces of Colombia (AUC). The payments began before, and continued after, the AUC was designated a FTO. As a “cost of doing business” and to avoid harm to their personnel and property, Chiquita made over 100 payments to AUC through its subsidiary in areas of Colombia where they had banana-producing operations.

Guidance

Risk Assessment: Companies operating in Latin America should perform a risk assessment to identify high risk areas in which they may come into contact with officials, entities or individuals who may have ties to cartels or TCOs.

During the risk assessment, if a company or financial institution detects an interest with ties to a designated FTO, SDGT, or TCO, it should immediately block such interest and report the property. These assets may be subject to civil forfeiture.
Businesses should establish compliance mechanisms and measures to ensure that they do not do business with, or unwittingly provide material support to, any FTO, SDGT, or TCO.

Monitoring Programs: Companies should create internal monitoring programs. Monitoring programs should include random inspections and targeting suspicious transactions. The monitoring programs should be consistently followed and documented.
Communication & Training: Businesses should continually train their employees on detecting suspicious transactions. Communication in writing to employees, officers, board members, and third parties reinforcing the company’s key values and that the compliance program continues in force is also advisable.
Discipline: When necessary, companies should discipline those who fail to follow the monitoring programs.
Due Diligence: During the course of business, companies should conduct due diligence when transacting with third parties. This includes conducting background checks on certain transactions.