Clifford Chance

Eleventh Circuit Issues Much Anticipated Opinion Defining 'Foreign Official' Under the FCPA

20 May 2014

The Eleventh Circuit recently issued the first federal appellate opinion to determine what constitutes an "instrumentality" of a foreign government for purposes of the US Foreign Corrupt Practices Act, upholding the convictions of two men accused of bribing officials at Telecommunications D'Haiti, S.A.M., Haiti's then state-owned telephone company. Those 2011 convictions started a debate regarding the extent to which a government-owned or -controlled business must serve a governmental function to qualify as an "instrumentality of a foreign government" under the FCPA.  In Esquenazi, the Eleventh Circuit concluded that a business qualifies as a government instrumentality if it both: (1) is controlled by a foreign government, and (2) "performs a function that the controlling government treats as its own."

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