A&O Shearman FCPA Digest | In the Matter of Total, S.A. (2013)

Source Documents

Foreign Official
Official for a subsidiary of the National Iranian Oil Company and an engineering company majority-owned by the Iranian government

Nature of Business
Total S.A. is a French corporation that explores and develops oil and gas resources worldwide. Its American Depositary Shares are registered with the SEC and are listed on the New York Stock Exchange.

Influence to be Obtained
In 1995, Total met with an Iranian government official who headed a subsidiary of the National Iranian Oil Company (“NIOC”) to secure a contract to develop oil fields in southern Iran. In the course of negotiations, Total entered into a purported consulting agreement with an intermediary designated by the Iranian official. As described by the SEC, the consulting agreement included no specific payment terms, but instead stated that the intermediary would provide “economic and marketing research and support” upon a “Consulting Service Request.” The SEC alleges that the agreement was a pretext for bribe payments to the Iranian official made in exchange for his influence over the development contracts.

In 1997, Total began negotiating with NIOC to acquire the rights to develop a gas field in the Persian Gulf. Total then entered into another agreement to assign the consulting agreement to a second intermediary, who was also designated by the Iranian official. Following the assignment, Total was awarded a 40% interest in the development of the gas field. Allegedly, Total made at least 12 payments to the second intermediary between 1997 and 2004.

Enforcement
On May 29, 2013, the SEC filed a cease-and-desist order against Total for violations of the anti-bribery, books-and-records, and internal controls provisions of the FCPA. As a result of the order, Total disgorged $153 million in profits netted from the bribery scheme.

In a parallel criminal proceeding, Total entered into a deferred prosecution agreement with the DOJ, under which it agreed to pay a $245.2 million penalty and engage an independent compliance monitor.