The FCPA clearly prohibits bribes to employees of instrumentalities of foreign governments, but for many in the business world, it is by no means clear what an “instrumentality of a foreign government” is.  Is a state-owned or state-controlled hospital an instrumentality?  A telecommunications company with some government involvement?  A non-utility company in which the government has a minority but controlling interest?  By some estimates, two-thirds of recent FCPA enforcement actions have relied on the idea that an employee of a state-owned entity is a “foreign official.”  Lawyers, compliance professionals and businesspeople currently have a range of resources to turn to in understanding what constitutes an instrumentality, but none is conclusive or determinative – especially for international salespeople on the front lines of potential FCPA violations.  In a historic appeal, the Eleventh Circuit is poised to construe the meaning of “instrumentality” under the FCPA with a level of authority heretofore absent from anti-corruption jurisprudence.  The court heard oral arguments earlier this month and the Anti-Corruption Report spoke with the attorneys for defendants Joel Esquenazi and Carlos Rodriguez.  This article includes their insights on the positions of the parties and the importance of the case.  This article also discusses lower court decisions and other relevant authority on this crucial issue.