Scenario Planning in the New FCPA Era

Earlier this year, the US paused FCPA enforcement for a policy review. That pause ended on June 9, when DOJ released new Guidelines to “safeguard fair opportunities for US companies” and “prioritize American interests.”

Source: FCPA Guidelines

Why this matters

If your business touches sensitive sectors, competes against state-backed rivals, or operates in higher-risk regions, this reset will affect how you plan deals and manage compliance.

For foreign multinationals, the challenge is sharper: competitors may try to weaponize enforcement, framing you as the reason they lost business. A lost tender, a whistleblower complaint, or even lobbying pressure could trigger scrutiny if it’s cast as “harm to US interests.”

That’s why scenario planning is essential: think through how your company might be targeted, rehearse your response, and keep evidence ready to defend your record.

The New DOJ Playbook

1) Key considerations

• Cartels/TCOs: Bribery tied to cartels or organized crime will be pursued aggressively.

• Harm to U.S. companies: If an American company can show it lost business due to bribery, DOJ wants to know.

• National security: Deals tied to defense, critical minerals, ports, or infrastructure are front and center.

• Serious misconduct, not “routine” practices: Cover-ups, fake books, obstruction are top risks. Small courtesies or low-value gestures are lower priority.

2) Stricter intake
Every new FCPA case now needs approval from the top of DOJ’s Criminal Division. Expect fewer, but sharper cases.

3) Individuals in the spotlight
More focus on charging executives, faster timelines, and attention to collateral damage for employees and businesses.

Scenario Planning for Multinationals

The risk: With DOJ prioritizing cases that show harm to US companies, rivals (or their insiders) may try to weaponize enforcement, framing your conduct as the reason they lost business.

Common scenarios:

• Lost tender → complaint: Competitor loses a bid and files (or seeds) an FCPA/SEC tip alleging bribery.

• Ex-employee whistleblower: Insider claims the company “won dirty,” citing harm to U.S. firms.

• Lobby/NGO pressure: Industry groups highlight “foreign corruption hurting U.S. business.”

• Supply-chain splash damage: A JV partner or intermediary stumbles; opponents use it to taint the prime contractor.

Plan ahead:

• Red-team your record: Quarterly, have Compliance act as a hostile competitor and map attack points.

• Bid-loss logs: Standardize files on lost bids: criteria, correspondence, fairness evidence.

• Whistleblower first stop = in-house: Make internal reporting safer and faster than going outside.

• Third-party drills: Map high-exposure partners; pre-write exit and comms plans.

• Narrative on standby: Keep a concise, evidence-backed compliance statement ready.

• Escalation playbook: Pre-assign roles for day 0–3 (fact hold, counsel, comms, board).

Takeaway: Under the new guidelines, how others frame your conduct can be as consequential as what actually happened. Scenario planning turns surprise into a drill and a drill into a defense.

Bottom line

Enforcement will be fewer in number but sharper in impact, aimed squarely at national security and U.S. competitiveness. For multinationals, this means the real risk isn’t only what you do but how others might portray what you’ve done. Prepare accordingly.

Call-to-action: 

How would you defend your record if a rival turned you into a case study?

Thanks for reading,
Alexey