Whistleblowing Against Corrupt Competitors

Article from the American Bar Association, Criminal Justice Section:*

INTRODUCTION:

“As widely reported, the U.S. Department of Justice’s updated FCPA guidelines, released June 9, mark a high-profile strategic shift in enforcement priorities. Most of the law firm commentary has focused on internal compliance and investigation.  The overall take-away is that the FCPA enforcement under the Administration may not be as dead as initially thought.

As detailed in a recent Law360 analysis, however, a less-discussed, yet arguably equally significant, implication of the new guidelines their invitation to U.S. companies to report corrupt practices by foreign competitors.  As those of us who have been on both sides of the whistleblowing divide know, a well-crafted, evidence-based summary of potential competitor misconduct can have a significant impact.  Most directly, it can birth DOJ and foreign enforcer investigations.

If this assessment is accurate, US-headquartered companies, aware of the powerful incentives the DOJ has just offered up, may now find themselves in an unusual situation of affirmatively asserting, rather than simply receiving and then defending against, whistleblower claims.”

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T. Markus Funk and Virginia M Kendall, Whistleblowers Against Corrupt Competitors. American Bar Association, Criminal Justice Section, August18 2025.