11th Circ. Leaves Room For Debate Over FCPA 'Instrumentality'

Law360, New York (May 20, 2014, 6:57 PM EDT) -- ​For the first time in the history of the Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1, et seq.), a federal appellate court has interpreted the scope of who is a "foreign official" under the statute. In a landmark ruling, the U.S. Court of Appeals for the Eleventh Circuit held in United States v. Joel Esquenazi and Carlos Rodriguez, No. 11-15331 (11th Cir. May 16, 2014), that for purposes of the FCPA's definition of "foreign official," the statute's reference to an "instrumentality" of a foreign government means "an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own." This definition limits the scope of "instrumentality" by establishing that government control or ownership on its own is not sufficient. ...

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