Golden Gate University Law Review


Pete J. Georgis


This Comment argues that the broad interpretation of the FCPA’s business nexus requirement, which criminalizes payments that both directly and indirectly “obtain or retain business,” encourages prosecutorial abuse and deviates from the intended purpose of the Act. The Justice Department’s expansive approach to FCPA enforcement has cost companies tremendously, even though the Act’s drafters intended for a more balanced approach. Part I of this Comment will discuss the history and background of the Foreign Corrupt Practices Act of 1977 and its amendments in 1988 and 1998. Part II will examine the application of the business nexus requirement in United States v. Kay and argue that its interpretation is inconsistent with the FCPA’s purpose. Part III will examine enforcement measures used by the DOJ and the SEC in a post-Kay world. Finally, Part IV will propose that judicial intervention in these enforcement measures is necessary to alleviate some of the challenges that currently exist, as well as to guide companies in distinguishing lawful from unlawful conduct.

Cite as 42 Golden Gate Univ. L. Rev. 243 (2012).