The U.S. Supreme Court will not be reviewing the Fifth Circuit’s decision in Kay v. U.S. (cert denied shows up page 8 of the Orders List from October 6, 2008.)
Kay argued that the FCPA didn’t apply to bribes to reduce taxes, or that if it applied, the “obtaining or retaining” language in the law (the business nexus element) is so ambiguous that enforcement in their case would be unfair.
Compliance programs need to be aimed not just at bribes intended to directly help obtain business from foreign governments but also to any overseas public bribery that might create a commercial advantage. Complaince needs to find any payments to reduce taxes, speed up refunds, jump customs lines, obtain favorable inspections, manipulate business registrations, reduce utility costs, or enhance property usage.
