Federal Appeals Court Upholds Enforcement Agencies' Broad Interpretation of Government "Instrumentality" Under FCPA

On May 16, the U.S. Court of Appeals for the Eleventh Circuit issued an opinion in United States v. Joel Esquenazi, et al, No. 11-15331 (11th Cir. May 16, 2014), affirming the government’s broad interpretation of what constitutes a government "instrumentality" under the Foreign Corrupt Practices Act (FCPA). For several years, the Department of Justice (DOJ) and the SEC have brought enforcement actions against employees of companies alleged to be engaged in corrupt practices involving state-owned enterprises, including state-owned hospitals and construction firms, on the basis that such entities were government "instrumentalities” under the FCPA. In cases such as United States v. Lindsey Manufacturing (C.D. Cal. 2011), defense lawyers have countered that such broad definitions cannot apply where a company acts as a commercial participant in a country’s economy. The DOJ’s and SEC’s broad interpretation, however, had never been tested in a court of appeals, until it found a receptive hearing by the Eleventh Circuit in Esquenazi, which can be viewed here.

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