As those who follow the world of Foreign Corrupt Practices Act (FCPA) enforcement are no doubt well aware, earlier this week the U.S. Court of Appeals for the 11th Circuit decided U.S. v. Esquenazi. The decision affirmed the convictions of two individuals involved in a complicated scheme to bribe officials of Teleco, the Hatian state-owned telecommunications company. Though the appeal involved several issues, the most significant aspect of the case–and the reason it had been so closely followed by so many people–was the defendants’ claim that Teleco was not an “instrumentality” of the Hatian government, and therefore that the Teleco employees whom the defendants bribed were not “foreign officials” within the meaning of the FCPA. Though several district courts had considered (and rejected) claims of this sort before, Esquenazi was the first court of appeals decision to address such a claim. And, like all of the prior district court cases, the court rejected the defendant’s argument and found that Teleco was indeed an instrumentality of the Hatian government.
Though I’m not sure there’s all that much to say about this that hasn’t already been said, let me make four quick observations about the decision and its potential significance (or lack thereof):