Compliance Lessons from Total S.A.’s $398 Million FCPA Settlement: Foreign Cooperation, Compliance Monitors, Broad Jurisdiction and the Effect of Reluctant Cooperation with the DOJ and SEC

The DOJ and the SEC recently announced significant FCPA settlements with Total S.A., a French oil and gas company.  Total faces charges that, starting in 1995, it used third parties to make illegal payments to a government official in Iran in order to obtain valuable oil and gas concessions.  The nearly $400 million civil and criminal settlement may not spell the end of Total’s troubles, however, as French authorities continue to investigate.  Total’s vulnerability in multiple jurisdictions highlights the increasing international cooperation among anti-corruption regimes and the possibility of carbon copy prosecutions.  The settlement agreement also demonstrates the importance of cooperation.  Experts say that Total’s fine, which does not include a reduction from the Sentencing Guidelines, as well as the long investigation that preceded the settlement, may stem from Total’s reluctant cooperation with authorities.  Total was also required to retain an external compliance monitor – a costly proposition many thought was becoming a rarity.   See “How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part One of Three),” The FCPA Report, Vol. 2, No. 4 (Feb. 20, 2013); Part Two of Three, Vol. 2, No. 5 (Mar. 6, 2013); Part Three of Three, Vol. 2, No. 6 (Mar. 20, 2013).  This article analyzes these and other key compliance takeaways from the Total settlement, with input from practitioners.  This article also details the bribery scheme and the terms of the settlement, including the compliance program enhancements required by the DOJ.

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