In this article, James G. Tillen, Saskia Zandieh,* and Jian Bin (Ben) Gao* discuss the oral argument in the first appellate-court level challenge to the U.S. government's definition of the term "instrumentality," which helps to establish who is a "foreign official" -- the prohibited bribe recipient -- under the Foreign Corrupt Practices Act (FCPA). Joel Esquenazi and Carlos Rodriguez, two ex-executives of Terra Telecommunications Corporation, brought the challenge following their FCPA conviction for bribing officials of Telecommunications D'Haiti. Tillen, Zandieh and Gao comment that arguments made at the hearing suggest that the Court is considering imposing additional requirements for establishing an entity's instrumentality status, such as a showing that the entity performs a "government function"; but given the numerous ways foreign entities are organized and relate to their governments, it is unlikely that the Court will be able to, with a single opinion, significantly clarify the scope of "instrumentality" for practitioners applying the law in practice.

*Former Miller & Chevalier attorney