This story was originally published by The Blog of Legal Times, an American Lawyer affiliate.
French oil and gas giant Total S.A. agreed Wednesday to pay more than $398 million to settle charges that the company illegally funneled $60 million in bribes to an Iranian official to win oil and gas development contracts.
The U.S. Justice Department and the Securities and Exchange Commission accused Total, which trades on the New York Stock Exchange, of violating the Foreign Corrupt Practices Act by entering into sham consulting agreements in a bid to cover up the payments.
"Total used illicit payments to win business in Iran, and reaped substantial financial benefits as a result," Andrew Calamari, director of the SEC’s New York Regional Office, said in a statement. "Total must now pay back all of its profits from the company’s corrupt conduct and additionally pay criminal penalties on top of that."
The company entered into a three-year deferred prosecution agreement with the Justice Department, agreeing to a $245.2 million criminal fine, and pledging cooperation with U.S. and foreign law enforcers. The company also agreed to an independent corporate compliance monitor and enhanced internal controls. DOJ lawyers charged Total with three FCPA violations in a criminal information filed in U.S. District Court for the Eastern District of Virginia. The SEC in an order required Total to disgorge $153 in illicit profits to settle its administrative complaint.
The payments are not entirely a surprise – the company in a prior SEC filing announced it had reserved $398 million to settle the charges. Robert Luskin, a white-collar defense partner at Patton Boggs, represented Total.
"These settlements, the outcome of which are customary in the United States, allow us to put an end to this investigation," said Total’s chief financial officer Patrick de la Chevardiere in a statement. "We look forward to continuing our work and in demonstrating our strong commitment to ensuring ethical and legal compliance with the laws around the world."
Total’s chairman and chief executive and two others also face potential criminal penalties in France. In addition, the company faces separate foreign corruption charges in France in connection with the U.N. Oil-for-Food Program in Iraq.
The case marks a milestone for U.S. and French prosecutors as "the first coordinated action. . .in a major foreign bribery case," Acting Assistant Attorney General Mythili Raman of the DOJ Criminal Division said in a statement Wednesday. "Our two countries are working more closely today than ever before to combat corporate corruption, and Total, which bought business through bribes, now faces the criminal consequences across two continents."
According to prosecutors, Total in 1995 sought a contract with the National Iranian Oil Company to develop the country’s Sirri A and E oil and gas fields. The company allegedly entered into a sham consulting agreement with an intermediary designated by an Iranian official, who agreed to use his influence to help secure approval of Total’s development agreement. Over the next two-and-a-half years, Total allegedly paid approximately $16 million in bribes under the purported consulting agreement.
In 1997, Total sought rights to Iran’s South Pars gas field, the world’s largest gas field. Again, Total "entered into another purported consulting agreement that called for Total to make large payments to the intermediary," according to DOJ, shelling out $44 million in supposed consulting fees.
In calculating the fine, DOJ in court papers gave Total a culpability score of 8-5 as the base, another 5 because the company had more than 5,000 employees and high-level executives "participated in, condoned, or were willfully ignorant of the offense." However, prosecutors deduced two points for cooperation, for a total score of 8. The base fine was $147 million, bumped up with multipliers to a range of $235 to $470 million. By that measure, Total, which paid $245.2 million, got off on the light end of the scale.
"Today’s deferred prosecution agreement, with both its punitive and forward-looking compliance provisions, dovetails with our goals of bringing violators to justice and preventing future misconduct," U.S. Attorney Neil MacBride in the Eastern District of Virginia said in a statement.