White Collar Roundup - June 2014

"Instrumentality" Under the FCPA Defined by Appeals Court

The U.S. Court of Appeals for the Eleventh Circuit became the first U.S. appellate court to define "instrumentality" under the Foreign Corrupt Practices Act (FCPA). The case involved bribes paid to Telecommunications D'Haiti (Haiti Teleco), a company largely owned by the Haitian government. The Eleventh Circuit defined "instrumentality" as "an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own." The court noted that the meaning of "control" and of "a function the government treats as its own" are "fact-bound questions," but set forth an illustrative list of factors that should be considered in making this determination, including whether the entity provides services to the country's citizens and inhabitants; whether its key officers and directors are government officials or are appointed by government officials; the extent of the