On May 29, 2013, Total S.A. (“Total”), the French oil and gas conglomerate, entered into a three-year deferred prosecution agreement (DPA) with the DOJ and a settlement agreement with the SEC to resolve past violations of the FCPA’s anti-bribery, books and records and internal controls provisions. As part of the agreements, Total will pay $245.2 million in fines to the DOJ and disgorge $153 million in profits to the SEC. Total also agreed to the appointment of an independent compliance monitor for the three year term of the DPA. The combined $398 million penalty makes this the fourth largest case in the history of FCPA enforcement.

Conduct

According to the DPA and SEC’s administrative cease and desist order, from 1995 until 2004, Total and others paid approximately $60 million to intermediaries in order to unlawfully induce an Iranian government official, the head of the National Iranian Oil Company (NIOC) and later the head of another NIOC subsidiary, to grant Total access to Iran oil and gas fields. As a result of the bribes, Total reportedly secured the rights to develop the Sirri A and E oil and gas fields and parts of the South Pars, the world’s largest gas field, in order to earn $150 million in profits.

Per the DPA, Total paid the bribes to the Iranian official through a consulting and services agreement entered into by Total with an intermediary designated by the Iranian official. According to the SEC, Total also violated the books and records and internal controls provisions of the FCPA, by mischaracterizing the bribes as legitimate consulting fees or business development expenses.

Notes

  • The SEC had jurisdiction to enforce the books and records and internal control provisions of the FCPA against Total because Total trades American Depositary Receipts (ADRs) on the New York Stock Exchange (NYSE).
  • The U.S. jurisdictional nexus for the enforcement of the FCPA’s anti-bribery violations included a 1995 wire transfer of $500,000 from a New York based bank account.
  • Stemming from the same conduct, French prosecutors have recommended Total, Total’s Chairman and CEO, and two additional individuals be referred to the Criminal Court for violations of French law, including France’s foreign bribery law.
  • According to the DOJ, the Total enforcement action is “the first coordinated action by French and U.S. law enforcement [agencies] in a major foreign bribery case.”

The DOJ’s and SEC’s press releases are here and here, respectively.