What can you take-away from Total S.A.’s recent FCPA settlement?

There are vital take-aways from the 10 year FCPA investigation into Total S.A. (Total), and the National Iranian Oil Company (NIOC).  The recent settlement requires Total to pay more than $398 million to the U.S. government and implement an “enhanced” compliance program with an on-site compliance monitor for three years.

Between 1995 and 2004, Total funneled approximately $60 million in bribe payments to an Iranian official.  In exchange, the official used his influence to help Total obtain oil rights contracts.  The DOJ charged Total with criminal violations of the anti-bribery, books and records, and internal controls provisions of the FCPA.  The Security and Exchange Commission (SEC) also issued a Cease and Desist Order addressing the civil charges associated with the bribes.  Meanwhile, French authorities continue to investigate the matter and have brought charges against Total in French Criminal Court for violation of the French foreign bribery statute, suggesting that the U.S. settlement may not quite signal the end of Total’s troubles.

Fortunately, this unfortunate example offers a number of takeaways for any company that wants to minimize the risk associated with doing international business.

  1. The U.S. settlement and parallel French investigation highlight global cooperation in anti-corruption enforcement, not to mention the potential for carbon copy prosecutions.  For this reason,  a company should not attempt to implement a compliance program that caters to only one country’s anti-bribery laws.  Instead, it should ensure its program satisfies international standards, providing a degree of protection against anti-corruption prosecution globally.
  2. Non U.S. companies should be aware of the U.S. government’s reach. Total has American Depository Receipts (ADRs) registered with the SEC and is publically traded on a U.S. exchange.  Additionally, a $500,000 bank wire from New York to Switzerland used to facilitate Total’s bribery scheme bolstered the government’s claim to jurisdiction.
  3. Companies can face FCPA prosecution relating to very old actions.  In the case of Total, the government began its investigation into conduct dating back to 1995.
  4. Companies must remember that cooperation is key to encouraging leniency on the part of the government and ultimately mitigating the fine imposed.  Total’s high fine suggests that it was not very cooperative during the investigation.