11th Circuit defines ‘instrumentality’ under the FCPA

The 11th Circuit held that an instrumentality is any entity that is “controlled by the government of a foreign country” and “that performs a function the controlling government treats as its own”

In a recent landmark decision, the 11th Circuit became the first federal appeals court to define the term “instrumentality” under the Foreign Corrupt Practices Act (FCPA). The court adopted a two-part test and provided a non-exhaustive list of factors applicable to both prongs of the test, “mindful of the needs of both corporations and the government for ex ante direction about what an instrumentality is.” The decision provides welcome guidance to U.S. companies doing business abroad.

FCPA overview

Contributing Author

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Greg Deis

Greg Deis is a former federal prosecutor whose practice focuses on complex commercial litigation, internal investigations and white-collar criminal defense, including FCPA matters. Greg is...

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Michael Frisch

Michael Frisch is a Chicago-based associate in the firm’s Litigation & Dispute Resolution Practice.

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