In United States v. Esquenazi, 752 F.3d 912 (11th Cir. 2014) (No. 11-15331), the Eleventh Circuit became the first federal appellate court to hold that the Foreign Corrupt Practices Act (“FCPA”) covers bribes to employees of state-owned enterprises that provide commercial services as part of a public function. Although the FCPA is directed at corrupt payments to foreign government officials rather than bribery of private individuals, it expressly reaches officials of an “instrumentality” of a foreign government. The Eleventh Circuit held that an “instrumentality” is “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.” Relying heavily on the United States’ international treaty obligations under the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in interpreting the FCPA, the court held that there are two critical components to an “instrumentality”: government control and public function. Assessing control is a fact-bound inquiry. The court set forth a non-exhaustive set of factors to guide the analysis: (1) the foreign government’s formal designation of the entity; (2) whether the government has a majority ownership interest; (3) the government’s authority to appoint and remove the entity’s principals; (4) the extent to which the entity’s profits are returned to the public fisc; (5) whether the government supports an entity that is otherwise performing at a loss; and (6) the length of time these indicia have existed. The Eleventh Circuit also provided a list of factors weighing on whether a state-owned enterprise performs a public function: (1) whether the entity has a monopoly over its functions; (2) whether the government subsidizes the entity; (3) whether the entity performs services for the public at large; and (4) whether the public and the government generally perceive the entity to be performing a governmental function. It should be noted that these factors substantially overlap with – and are often identical to – factors cited in the DOJ and SEC’s joint Resource Guide to the U.S. Foreign Corrupt Practices Act.