The Eleventh Circuit noted that Teleco had been privatized from 2008 to 2009, but apparently, the Haitian government retained a majority of the stock. What if the private sector owned a majority of the stock, but the government retained the power to appoint some officers? What if some of the companys profits went to pay back investors?

On the second factor, what if the company had a Haitian competitor so that it was not the only entity performing the function, but Teleco had 80 percent of the market? What if the competitors market was limited to commercial enterprises that could pay for service on line?

What if the jury had decided, on these facts, Teleco was not an instrumentality? Is this the kind of question that should be left to a jury of lay people or should a judge decide it, for greater consistency?