LITIGATION TRENDS 2025 | 133 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C penalties against issuers, while prioritizing individual accountability. There will likely also be a recalibration of other remedies typically sought by the SEC against parties, based on the reading of the Seaboard factors—self-policing, self-reporting, remediation, and cooperation with the Enforcement staff—and the prior voting records of the two Commissioners who will be part of the majority in the Atkins Commission. Along similar lines, the CFTC recently issued an advisory on how its Division of Enforcement will evaluate a company’s or individual’s self-reporting, cooperation, and remediation when recommending actions to the Commission. The advisory, which “creates meaningful incentives for firms to come forward and get cases resolved faster with reasonable penalties,” marks the first time the CFTC will use a matrix to determine the appropriate mitigation credit to apply. In addition, Acting Chairman Pham announced “a reorganization of the Division of Enforcement’s task forces to combat fraud and help victims while ending the practice of regulation by enforcement.” Executive Order to Pause FCPA Enforcement On February 10, 2025, President Trump issued an Executive Order entitled, “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security” (the “Order”). The Order emphasizes that, over the years since the inception of the Foreign Corrupt Practices Act in 1977, the statute has been increasingly “stretched beyond proper bounds and abused in a manner that harms the interests of the United States.” President Trump further noted that his policy going forward will be to “advance American economic and national security by eliminating excessive barriers to American commerce abroad.” The Order effectively pauses the investigation and enforcement of all FCPA matters for a period of 180 days. Simultaneously, the Attorney General will (i) undertake a review of all current actions and determine whether the matters fall in line with the Administration’s foreign policy and the proper bounds of the FCPA, and (ii) issue updated guidance and policies consistent with the Administration’s goals. Naturally, the Order carries with it the potential to trim or terminate current FCPA investigations, as well as (likely) significantly narrowing the scope and reach of future FCPA matters. While the “pause” effectively means that current investigations and new matters may not currently proceed, companies and their executives should proceed with caution and should continue to self-enforce the corporate anti-bribery and anti-corruption programs that the companies have in place. Of course, the FCPA remains a valid U.S. law, and regardless of what guidance and policies surround the FCPA going forward, there are other anti-corruption and bribery statutes that may apply to multinational corporations—e.g., the U.K. Bribery Act and the Canadian Corruption of Foreign Officials Act. The anxiety is likely exacerbated by the fact that the Order does not extend the pause to civil enforcement of FCPA violations by the SEC, which historically has investigated and prosecuted FCPA violations in parallel with the DOJ as well as on a standalone basis. While the reasoning laid out in the Order would appear to apply to civil enforcement as well, the Order, directed solely towards the DOJ, is silent as to the SEC, an independent federal agency that does not fall within the Attorney General’s remit. While a company’s voluntary self-disclosure was, and likely still is, the gold standard, there are many instances where companies are either unaware of the misconduct or strategically choose not to self-report it. The DOJ has encouraged corporate whistleblowers to fill that void. White Collar Defense C 132 | Weil, Gotshal & Manges LLP
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