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