Parsing “Government Instrumentality” Under the FCPA

On May 16th, the Eleventh Circuit discussed what constituted a “government instrumentality” for purposes of the Foreign Corrupt Practices Act (the “FCPA”). It concluded that an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own is a government “instrumentality” under the FCPA. To determine what constitutes control and a function the government treats as its own the Court suggested the following non-exhaustive list of factors: the foreign government’s designation of the entity, its ownership, its hiring authority, its financing, and the length of the relationship. Applying those factors to the case at hand, which involved the provision of telecommunication services related to Haiti, the Court found that defendants’ interactions with the Haitian telecoms firm and its executives violated the FCPA. It reached that conclusion even after the current Haitian government submitted statements suggesting that the Haitian company was not owned by the Haitian government. U.S. v. Esquenazi.