What the Eleventh Circuit’s “Instrumentality” Decision Means for FCPA Practitioners

In the first appellate court decision on the issue, the U.S. Court of Appeals for the Eleventh Circuit has ruled that an “instrumentality of the government” is “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own,” providing a non-exhaustive list of factors to consider when determining functionality and control.  The landmark decision that largely confirms the government’s interpretation of the term “foreign official” (an interpretation criticized by some as being overbroad), follows the imposition of some of the longest FCPA sentences to date.  The defendants, Joel Esquenazi and Carlos Rodriguez, had argued that the DOJ had not proved that the entity at issue, Telecommunications D’Haiti, met the FCPA’s definition of an “instrumentality” of the Haitian government such that its employees were foreign officials.  This article examines the impact of the case, the Court’s reasoning, the specific factors to consider when determining whether an entity is an instrumentality, and the practical applications of the Court’s newly-announced two-pronged test to the defendants.  For a discussion of the oral argument of the appeal, see “A Hot Bench Hears Oral Arguments in Historic Challenge to the Definition of ‘Foreign Official’” (Oct. 23, 2013).

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