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Chodan’s 9% Plea Agreement

If one were to categorize “successful” FCPA enforcement actions or DOJ “wins” and “losses” in FCPA enforcement actions, how does one categorize a plea agreement in which the defendant agrees to plead guilty to 9% of the original charges?

In February 2009, Wojciech Chodan (along with Jeffrey Tesler) was charged with one count of conspiracy to violate the FCPA’s anti-bribery provisions and ten counts of substantive FCPA anti-bribery violations in connection with the massive Bonny Island, Nigeria bribery case. (See here).

Earlier this week, the DOJ announced (here) that Chodan agreed to plead guilty to the one conspiracy charge. What you will not see in the DOJ’s release is that, in exchange, the DOJ agreed to dismiss the other 10 charges (i.e. 91% of the original charges) assuming the court accepts the plea agreement. (See here for the plea agreement).

Who is Wojciech Chodan?

As reflected in the plea agreement and original indictment, Chodan is a United Kingdom citizen who “was a commercial vice president (a non-officer position) and then, beginning in 1999, a consultant for M.W. Kellogg Ltd., which was a United Kingdom subsidiary of The M.W. Kellogg Company and then Kellogg, Brown & Root, Inc. (collectively KBR).”

Chodan reported to KBR’s CEO, Albert Jackson Stanley, among others. (In August 2008, Stanley pleaded guilty (see here) to conspiracy to violate the FCPA and conspiracy to commit mail and wire fraud.).

According to the plea agreement, Chodan assisted KBR and its three partners in the so-called TSKJ joint venture obtain engineering, procurement, and construction (“EPC”) contracts (collectively valued at over $6 billion) to build liquefied natural gas facilities on Bonny Island.

According to the plea agreement, between 1994 and June 2004 “Chodan agreed with Stanley and others to pay bribes to Nigerian government officials in order for TSKJ, KBR, and others to obtain and retain the EPC contracts to build the Bonny Island Project.” The plea agreement states that “Chodan knew that it was unlawful under U.S. law to bribe foreign government officials.”

According to the plea agreement, Chodan “recommended and agreed to the hiring of Jeffrey Tesler and Tri-Star Investments Ltd. (“Tri-Star) by TSKJ, expecting that Tesler and Tri-Star would pay bribes to high-level Nigerian government officials to assist TSKJ, KBR, and others in winning the EPC contracts to build the Bonny Island Project.” Also, according to the plea agreement, Chodan “recommended and agreed to the hiring of a global trading company headquartered in Tokyo, Japan (“Consulting Company B”) by TSKJ, expecting that Consulting Company B would pay bribes to lower level Nigerian government officials to assist TSKJ, KBR, and others in winning the EPC contracts to build the Bonny Island Project.”

The factual basis for the guilty plea states that “Chodan and his co-conspirators committed acts in furtherance of the scheme […] in Houston, Texas, however, the factual basis for the guilty plea does not provide any further detail on this issue.

As noted in the DOJ release, Chodan “faces a maximum penalty of 60 months in prison on the conspiracy charge” and “as part of his plea agreement, Chodan agreed to forfeit $726,885.”

Andrew Lourie (here – who “served in various high-level positions with the U.S. Department of Justice, including as Principal Deputy Assistant Attorney General and Chief of Staff for the Criminal Division and as Chief of the Public Integrity Section”) represents Chodan.

For an overview of prior Bonny Island enforcement actions – see here.


Earlier this week the DOJ and SEC announced a wide ranging enforcement action against ABB Ltd. and its subsidiaries ABB Inc., and ABB Ltd. – Jordan.

Swiss-based ABB Ltd. (here) is a provider of power and automation technologies with American Depositary Shares publicly traded on the New York Stock Exchange.

This post summarizes the various aspects of the enforcement action in which ABB Ltd. and ABB Inc. agreed to pay a total of $58.3 million ($19 million in DOJ criminal penalties and $39.3 million in SEC disgorgement and civil penalties).


ABB Ltd. Deferred Prosecution Agreement

As noted in this DOJ release, ABB Ltd. agreed to enter into a deferred prosecution agreement (DPA). ABB’s press release (here) states that the DPA “includes provisions related to the involvement of a subsidiary in Jordan in the Oil for Food Program” and that “in lieu of an external compliance monitor, the DOJ and SEC have agreed to allow ABB to report on its continuing compliance efforts and the results of the review of its internal processes for a three-year period going forward.”

In other words, the DPA appears limited to the conduct of ABB Ltd. – Jordan (summarized below) and not the conduct of ABB Inc. (summarized below).

[Note – to my knowledge the DPA has yet to be publicly released. Here is a request for DOJ readers of this blog. Under the DOJ’s “old” website, the charging documents were released and linked along with the press release. With the revamped website, the charging documents are nowhere to be found requiring interested persons to go to Pacer or other sources. The charging documents ultimately end up on the DOJ’s FCPA specific website, but in many cases it takes weeks. DOJ may want to consider the old system which provided real-time access to these important charging documents]

ABB Ltd. – Jordan Criminal Information

The information charges ABB Ltd. – Jordan (“ABB-Jordan”) with one count of conspiracy to commit wire fraud and to violate the FCPA’s books and records provisions.

According to the information (here), ABB-Jordan was a wholly-owned subsidiary of ABB Ltd. ABB-Jordan, through its 95% owned subsidiary ABB Near East Trading Ltd. (“ABB Near East”) provided equipment and services to electrical utilities, including control measurement and protection systems, transducers, and metering equipment.

The information charges that ABB Near East “had three principle customers under the United Nations Oil-for-Food Program (“OFFP”) … the General Company for Electricity Energy Production, the Baghdad Mayoralty, and State Company Baghdad Electricity Distribution all of which were regional companies of the Iraqi Electricity Commission, an Iraqi government agency” (collectively the “Iraqi Electricity Companies”).

The information charges that “from in or about April 2000 through in or about April 2004, ABB Near East, received eleven purchase orders for electrical equipment and services worth over $5.9 million with the Iraqi Electricity Companies, pursuant to the OFFP.” According to the information, “to obtain these purchase orders, ABB Near East caused over $300,000 in kickbacks to be paid to the government of Iraq” and that “in order to generate the funds to pay the kickbacks to the Iraqi government and conceal those payments, ABB Near East would inflate the price of its contracts with the Iraqi government by approximately 10% before submitting the contracts to the U.N. for approval.”

According to the information, the kickback payments were falsely characterized on ABB-Jordan’s or ABB Near East’s books and records which were “incorporated into the books and records of ABB Ltd. for purposes of preparing ABB Ltd’s year-end financial statements.”

According to the DOJ release, “ABB Ltd. admitted that [ABB-Jordan] agreed to pay kickback payments to the former Iraqi government” in connection with OFFP contracts and “agreed to pay a criminal penalty of $1.9 million.”

ABB Inc. Criminal Information

According to the information (here) ABB Inc. is an “indirect subsidiary” of ABB Ltd. incorporated under Delaware law. The information charges that ABB Inc. “conducted business, in part, through a business unit called ABB Network Management (“ABB NM”) that had its principal place of business in Sugar Land, Texas and was acquired by ABB Inc. in or around January 1999.”

According to the information, “ABB NM’s primary business was to provide products and services to electrical utilities for network management in power generation, transmission, and distribution.” The information charges that “many of ABB NM’s clients were foreign state-owned utilities” and that “ABB NM conducted business in a number of its foreign markets through sales representatives.”

The information largely centers on the conduct of John Joseph O’Shea and Fernando Maya Basurto and business with Comision Federal de Electricidad (“CFE”) – a Mexican electrical company. According to the information, O’Shea was the “General Manager of ABB NM” who “oversaw its operations both before and after its acquisition by ABB Inc.” and was “responsible for approving payments to sales representatives.” According to the information, Basurto was a “citizen of Mexico” who “performed work for ABB NM on its contracts with CFE.”

O’Shea was criminally charged in November 2009 (see here). Basurto has pleaded guilty (see here). For more, see this prior post.

For additional FCPA enforcements involving CFE see this recent post.

The information details an elaborate scheme that is summarized in the DOJ release as the payment of bribes “from 1997 to 2004 that totaled approximately $1.9 million” to various officials at CFE and that “in exchange for the bribe payments … ABB NM received contracts worth more than $81 million in revenue.”

As noted in the DOJ release, “ABB Inc. pleaded guilty to a criminal information charging it with one count of violating the anti-bribery provisions of the FCPA and one count of conspiracy to violating these provisions of the FCPA.” According to the release, the court “imposed a sentence that included a criminal fine of $17.1 million.”

The information specifically states that “ABB Inc. terminated O’Shea in November 2004 and thereafter conducted a thorough internal investigation of the improper payments. It voluntarily disclosed the conduct to the DOJ and the SEC in April 2005.”


The SEC’s civil complaint against ABB Ltd. (see here) picks up both the Iraq and Mexico conduct mentioned above and charges ABB Ltd. with violating the FCPA’s anti-bribery, books and records, and internal control provisions.

The complaint alleges in summary fashion as follows:

“From 1999 to 2004, ABB, through a U.S. subsidiary and six foreign-based subsidiaries, offered and paid bribes to government officials in Mexico to obtain and retain business with government owned power companies, and paid kickbacks to Iraq to obtain contracts under the United Nations Oil for Food Program. In all, ABB’s subsidiaries made at least $2.7 million in illicit payments in these schemes to obtain contracts that generated more than $100 million in revenues for ABB.”

The complaint describes numerous payments, including payments to “pay for the Mediteranean cruise vacation for two CFE officials and their wives” and “tuition for the son of a CFE official” at a “private military school in Wisconsin.”

As to the “Mexican bribery scheme”, the SEC alleges that “ABB, which failed to conduct any due diligence on the use or payments to [a Mexican agent] and other companies, improperly recorded the illicit payments on its books as payments for commission and services on the projects.”

As to the OFFP, the complaint alleges that “from approximately 2000 to 2004, ABB participated in the Oil for Food program through six of its subsidiaries” and that the “six subsidiaries developed various schemes to pay secret kickbacks to Iraq in order to obtain contracts. The kickbacks were characterized as after sales service fees but in reality they were nothing more than bribes paid to the Iraqi regime.” According to the SEC, “kickbacks of approximately $810,793 were paid in connection with the subsidiaries’ sales of goods on twenty-seven contracts with promises to pay additional kickbacks of $239,501 on three other contracts. The total revenues on the contracts were approximately $13,577,727 and profits were $3,801,367. ABB improperly disguised the [after sales service fees] on its books and records by mischaracterizing them as legitimate after sales services, consultation costs or commissions.”

Further the SEC alleged as follows:

“as evidenced by the extent and duration of the illicit payments to foreign officials, the large number of ABB subsidiaries involved in these bribery and kickback schemes, ABB’s knowledge from the prior Commission action of illicit payments by other ABB subsidiaries, the improper recording of millions of dollars of illicit payments in ABB’s books and records, ABB’s failure to detect these irregularities, and ABB’s failure to conduct sufficient due diligence on local agents and others, ABB failed to devise and maintain an effective system of internal controls to prevent or detect these anti-bribery and books and records violations.”

In an SEC release (see here) SEC officials stated: “as the sanctions in this case demonstrate, there are significant consequences for public companies that fail to implement strong compliance programs and prevent corrupt payments to government officials” and that “multi-national companies that make illicit payments through layers of subsidiaries will be held accountable.”

Without admitting or denying the SEC’s allegations, ABB Ltd. consented to the entry of a final judgment that permanently enjoins the company from future FCPA violations, orders the company to pay $17,141,474 in disgorgement, $5,662,788 in prejudgment interest, and a $16,510,000 penalty. According to the SEC release, “the order also requires the company to comply with certain undertakings regarding its FCPA compliance program.”

In a press release (here), ABB noted that it “initiated these matters in a voluntary disclosure to the DOJ and SEC beginning in 2005.” The company stated that it “cooperated fully with the DOJ and SEC and has put in place a global comprehensive compliance and integrity program the DOJ has said ‘may become a benchmark for the industry.'”

Laurence Urgenson (here) and others from Kirkland & Ellis LLP represent the ABB entities.

The 30% Commission, The Dream Seeker, The Ferrari Spyder, and Consulting Fees for Mom

According to its website (see here) Mexico’s Comision Federal de Electricidad (“CFE”) “is a decentralized government agency, duly incorporated and which controls its own assets.”

Does that make CFE’s Sub-Director of Generation and Director of Operations “foreign officials” under the FCPA?

According to the DOJ, apparently so, as it alleges in this recent indictment against Enrique Faustino Aguilar Noriega and Angela Maria Gomez Aguilar. See here for the DOJ release.

According to the indictment, “Comision Federal de Electricidad (‘CFE’) was an electric utility company owned by Mexico. During the time period relevant to this Indictment, CFE was responsibile for supplying electricity to all of Mexico othern than Mexico City. CFE contracted with Mexican and foreign companies for goods and services to help supply electricity services to its customers.”

“Company LM” according to the indictment, (a company identified as Lindsey Manufacturing in media reports – see here see here for more about Lindsey Manufacturing), is a “privately held company incorporated in California and headquartered in Azusa, California. According to the indictment, LM “manufactured emergency restoration systems and other equipment used by electrical utility companies” including “state-owned utilities, including CFE” “one of LM’s most significant customers.” According to the indictment, LM “conducted business in a number of foreign markets through sales representatives.”

According to the indictment, “Grupo Internacional De Asesores S.A. (‘Grupo’) was a company incorporated in Panama and headquartered in Mexico” with a “brokerage account in Houston, Texas at Global Financial Services, Inc.” The indictment alleges that “Grupo’s purported business was to provide sales representation services for companies like LM that had business with CFE” and that “Grupo was LM’s sales representative in Mexico and received a percentage of the revenue LM received from its contracts with CFE.” According to the indictment, Grupo was an “agent of a domestic concern” under the FCPA.

According to the indictment, Enrique Aguilar, a lawful permanent resident of the U.S. “was a Director of Grupo and was hired by LM to obtain contracts from CFE” and a “an agent of a domestic concern” under the FCPA.

According to the indictment, Angela Aguilar, a citizen of Mexico, “served as an Officer and a Director of Grupo” and “managed Grupo’s finances” and was “the sole signatory on Grupo’s Global Financial brokerage account.”

According to the indcitment, Enrique Aguilar, together with President KL (an individual identified as the President of LM), Vice President SL (an individual identified as the Vice President and Chief Financial Officer of LM), LM and others conspired to make improper payments to “foreign officials” to assist Aguilar, Grupo, President KL, Vice President SL, LM, and others in obtaining and retaining business in violation of the FCPA.

The indictment alleges that Aquilar offered to become LM’s “sales representative in Mexico in exchange for a thirty percent commission on all of the goods and services” LM sold to CFE and that President KL and Vice President SL “would agree to pay” Aquilar “a thirty percent commission into Grupo’s brokerage account at Global Financial, even though it was significantly higher than the commission LM paid to its previous sales representative in Mexico” knowing that Aquilar “had a close personal relationship with Official 1 and would use all or a portion of the thirty percent commission to pay Official 1 and others bribes in exchange for CFE awarding LM contracts.”

Among other things, the indictment alleges that: (i) Grupo’s Global Financial brokerage account was used to “pay the credit card bills for Official 1’s American Express credit card ‘in full every month, until further notice'”; (ii) Aquilar “aided Official 1 in purchasing an 82 foot yacht named the Dream Seeker for $1,800,010 …;” (iii) Aquilar caused wire transfers to Official 2’s female and male relatives for “payment for professional services advice” and Official 2’s mother and brother for a “consulting fee;” and (iv) Aquilar caused the “issuance of a check to Ferrari of Beverly Hills from Grupo’s Financial brokerage account for approximately $297,500 to purchase a 2005 Ferrari Spyder for Official 1.”

Who are Official 1 and 2?

According to the indictment:

“Official 1 was a Mexican citizen who held a senior level position at CFE. Official 1 became the Sub-Director of Generation for CFE in 2002 and the Director of Operations in 2007. Official 1’s position at CFE made him a ‘foreign official’ as that term is defined in the FCPA …”

“Official 2 was a Mexican citizen who also held a senior level position at CFE. Official 2 was the Director of Operations at CFE until that position was taken over by Official 1 in 2007. Official 2’s position at CFE made him a ‘foreign official’ as that term is defined in the FCPA …”

[For more on Official 1 and CFE – see David Luhnow, “U.S. Probe Leads to Mexico Chief,” Wall Street Journal (August 24, 2010)]

According to the indictment, Angela Aguilar assisted or otherwise caused many of the above referenced payments to be made.

Based on the above core conduct, Enrique Aquilar was charged in a seven-count indictment with conspiracy to violate the FCPA, FCPA violations, money laundering conspiracy and money laundering. Angela Aquilar was charged with money laundering conspiracy and money laundering.

As noted in the DOJ’s release “an indictment is merely an accusation, and defendants are presumed innocent until and unless proven guilty beyond a reasonable doubt.”

Michael Zweiback (here), a former DOJ prosecutor currently with Seyfarth Shaw LLP, represents both Enrique and Angela Aquilar. He stated: “we intend to vigorously defend the charges and expect the Aguiliar’s to be found not guilty.”

With Lindsey Manufacturing and certain of its top executives implicated in the alleged conduct, it is likely that the above core allegations will be repeated in future enforcement actions.


The Aquilar indictments continue a DOJ trend of holding agents, sales representatives etc. accountable for allegedly participating in bribery schemes. (See this prior post for other such enforcement actions).


Does CFE ring a bell?

It should because this alleged “state-owned utility company” is at the center of the enforcement actions against John Jospeh O’Shea (see here and here) and Fernando Maya Basurto (see here).

World Bribery & Corruption Compliance Forum – Comments By U.K. Officials

Day one of the World Bribery & Corruption Compliance Forum in London featured addresses by Dominic Grieve (the U.K. Attorney General) and Robert Amaee (Head of Anti-Corruption U.K. Serious Fraud Office). This post provides a summary overview of their comments.

Tomorrow’s post will provide a summary overview of comments made by Charles Duross (Deputy Chief – Fraud Section, DOJ) and Thierry Olivier Desmet (Assistant Regional Director, FCPA Unit, SEC).

Before turning to Grieve and Amaee’s remarks, the U.K. Ministry of Justice yesterday (see here) officially launched the consultation process to “gather the views of interested parties” on the Bribery Act that “will help shape guidance about procedures which commercial organisations can put in place to prevent bribery.” In connection with the launch, the Ministry of Justice released this 35 page document which contains statements of various officials, draft guidance, and draft illustrative scenarios. Interested persons are encouraged to make their views known (see here).

Remarks of Attorney General Grieve

Attorney Grieve began by noting the “pernicious” effects of bribery and that tackling bribery requires an effective law – something he firmly believes the U.K. Bribery Act (with implementation slated for April 2011- see here for a prior post) will do. Attorney Grieve noted that the Bribery Act takes the U.K.’s antiquated bribery laws and modernizes these laws into a modern statute.

However, Attorney Grieve noted that one would be wrong to assume that the U.K. was ignoring bribery issues prior to passage of the Bribery Act. Indeed, he stated that even under the U.K.’s existing law strong enforcement has taken place and that it was “pleasing” that the U.K.’s recent enforcement actions were recognized in Transparency International’s recent report (see here for a prior post on the subject).

Attorney Grieve provided a brief overview of the Bribery Act’s offenses (see here for the Act itself), including, most notably the Section 7 offense for “failure to prevent bribery.”

Attorney Grieve noted that while “it has been suggested that Section 7 creates a strict liability offense” he emphatically stated that “it does not.” He drew upon his prior experience as a health and safety prosecutor and stated that the practice of having an occurrence of an event “and then reversing the burden of proof” is a “perfectly acceptable tool within [the U.K.] legal system.” Regarding adequate procedures which indeed are a defense under Section 7, Attorney Grieve noted that “any company small or large” that puts into place a system of adequate procedures “has nothing to fear” when an employee or agent “goes off the rails” and makes a bribe payment.

Speaking of the Bribery Act more generally, Attorney Grieves said that “it is not a bad thing” that the Bribery Act views bribery broadly because in practice bribery can “take many forms” and the Bribery Act “needs to take account of that.”

Attorney Grieve spent a few minutes talking about corporate hospitality. He said that the starting point is that corporate hospitality is “not illegal” and that the Bribery Act is “not intended to clamp down” on acceptable corporate hospitality. He did caution however that lavish hospitality “can be used as a bribe” and that the Bribery Act “must be capable of penalizing such conduct.”

Attorney Grieve referenced a recent article in the Financial Times “Mining and Oil Groups Dig In For Bribery Act.” The article notes concern by the mining industry over an example of a company arranging to fly a local Chilean mayor to a remote region of the country to view the company’s production facilities and that during the trip, food and lodging would also be provided by the company. Attorney Grieve said he “found it difficult” how any “sensible person” could think that this was bribery. He contrasted this example with a company paying for a foreign public official to stay at the Ritz in Paris with “go-go girls” also provided.

In concluding his remarks on this issue, Attorney Grieve said that “common sense” needs to be taken into account when providing corporate hospitality.

Returning to the issue of adequate procedures, Attorney Grieve said that a company should have nothing to fear if it is “walking the walk, and talking the talk” when a rogue employee makes an improper payment. On the other hand, Attorney Grieve stated that that “those who don’t heed the warnings and don’t take the necessary steps have something to fear.”

Remarks of Robert Amaee

Amaee began by stating that the SFO “welcomes the opportunity [delay of the Bribery Act] provides for business to digest and implement remedial actions” to put them in compliance with the new Bribery Act.

Amaee spoke of the “main problem” confronting SFO prosecutors under existing U.K. law and that is the “concept of a controlling mind” – in other words, to indict a case today, the SFO needs to show that “at least one controlling mind (a person at the board level or close to such a position) knew of and participated in the conduct at issue. Given the nature of the modern multinational corporation – where decision making is often made on a regional basis, Amaee said that this standard is difficult to meet.

Amaee noted that “Section 7 sweeps away that whole requirement” and establishes the new corporate offense of failing to prevent bribery. Under Section 7, Amaee explained that a corporate can be criminally liable if its employees or agents made improper payments – something he described as a shift in U.K. law and a new and “novel offense for U.K. law.”

Amaee also commented how the Bribery Act will “significantly extend” the SFO’s jurisdictional reach in prosecuting bribery offenses. He noted that if a company is registered anywhere in the world, but conducts some business in the U.K., that company can be prosecuted for failing to prevent bribery wherever in the world that bribe was paid.

Even with the new offense, Amaee stressed that the Bribery Act does provide some “comfort in the form of a defense” and that is the defense of adequate procedures.

Amaee also touched upon certain risk areas that he is often asked about.

The first is intermediaries. He noted that the SFO clearly recognizes that intermediaries serve a useful purpose by opening up doors in foreign markets, but that “in the past, some companies have chosen not to ask too many questions” of the intermediary or that companies have in the past “ignored clear warning signs” as to the intermediary. He noted that under the Bribery Act – neither of these past practices “will do” and that corporates should think about re-vetting their entire intermediary base. Amaee stated – “a board should always ask – where are we doing business and how, and that if the board doesn’t like the answers it receives, it should be prepared to take the business elsewhere.”

The second area of risk is joint venture. Amaee acknowledged that in certain sectors joint ventures are routine. However, he cautioned that companies should be mindful of not partnering up with a company that is not “willing to be open and transparent or not willing to demonstrate that its code of conduct does not match your own.”

Like Attorney Grieve, Amaee also spoke of corporate hospitality. He noted that during passage of the Bribery Act, assurance was provided that the U.K. government will not seek to penalize legitimate corporate hospitality. He stated however that “lavish corporate hospitality can be used to secure an advantage and that the Bribery Act must be wide enough to cover it.”

Amaee next spoke of the SFO’s approach to combating bribery. He spoke of two strands – active engagement to assist companies improve its corporate culture and to maintain high standards and vigorous enforcement when dealing with corporates who believe in using corruption and thus put others at a disadvantage.

Amaee stated that the “criminal courts are the right place for the right defendants,” but he also noted that criminal prosecution is not the “only means of effective enforcement.”

He stated that the SFO has discretion to consider non-criminal resolutions such as civil sanctions and listed the following factors as relevant to the issue of resolution: sufficiency of the evidence, public interest considerations, concurrent jurisdiction issues, and potential debarement issues.

Amaee also spent a few minutes talking about the SFO’s approach to individuals and he noted that the Bribery Act contains several sections under which individuals may be prosecuted – both rogue employees who bypass a company’s adequate procedures and high-ranking corporate executives who consent or condone the improper conduct. Amaee stated that with the Bribery Act, the “stakes are higher than ever before for senior officers within a company” and that under the Bribery Act “it is no longer possible” for senior executives “to bury their head in the sand and look the other way.”

During a panel discussion about self disclosure, Amaee was asked when a corporate should consider making the voluntary disclosure decision. In summary fashion, he said that the SFO’s preference is “as soon as possible” because this allows the SFO a much better chance for it to tell the company what the SFO is thinking and that if the company self-reports early in the investigative process the company can actually end up saving money because the SFO may suggest a more limited scope of investigation than the company perhaps was considering.

More on Snamprogetti, ENI

Yesterday’s post (see here) provided a high-level overview of the joint DOJ / SEC FCPA enforcement action.

Today’s post provides a summary of the DOJ criminal information (here), deferred prosecution agreement (here), and SEC civil complaint (here).

For starters, the conduct at issue focuses on Snamprogetti Netherlands BV (“Snamprogetti”), a Dutch company headquartered in Amsterdam. Snamprogetti was a wholly-owned subsidiary of Snamprogetti, S.p.A., an Italian company, which in turn was a wholly-owned subsidiary of ENI, S.p.A., an Italian company headquartered in Rome that has been an issuer since 1995 and currently has common stock and American Depository Shares listed on the New York Stock Exchange. In February 2006, ENI sold Snamprogetti to Saipem, S.p.A., an Italian company. As indicated in this Saipem press release, even though Snamprogetti is a current subsidiary of Saipem, “in connection with the sale of Snamprogetti to Saipem, Eni agreed to indemnify Saipem for losses resulting” from the Bonny Island bribery investigation and accordingly neither the DOJ or SEC penalty “will impact Saipem’s consolidated income statement and balance sheet.” According to the SEC, “ENI owns 43% of, and exercises control over” Saipem.

With that out of the way, back to Snamprogetti.


Not surprisingly, the Snamprogetti information largely mirrors the criminal informations previously filed last week against Technip (see here) and in February 2009 against the Kellogg Brown & Root (see here) – entities also part of the joint venture engaged in the Bonny Island bribery scheme.

The Snamprogetti information charges conspiracy to violate the FCPA and aiding and abetting violations of the FCPA’s antibribery provisions and alleges that Snamprogetti was part of a joint venture (“JV”) in Nigeria to design, build and expand LNG facilities on Bonny Island. According to the information, JV profits, revenues, and expenses were equally shared among the four JV partners. The JV’s Steering Committee consisted of high-level executives from each of the four companies and the Steering Committee made major decisions on behalf of the JV, including whether to hire agents to assist the JV in winning contracts, who to hire as agents, and how much to pay the agents.

The information charges that the JV operated through three Portuguese special purpose corporations, including a corporation (#3), 25% owned by Snamprogetti, specifically used to enter into consulting agreements with JV agents.

The criminal conduct charged centers on two agents hired by the JV.

The first agent, Jeffrey Tesler was a citizen of the United Kingdom who used a Gibraltar-based company as a vehicle to enter into agent contracts and receive payments from the JV. The information charges that the JV paid the company over $130 million to bribe high-ranking Nigerian government officials. According to the information, Tesler was an agent of the JV and each of the JV companies.

The second agent was a global trading company headquartered in Tokyo (the “Japanese Agent”), which was hired by the JV to help it obtain business in Nigeria, including by paying bribes to Nigerian officials. The information charges that the JV paid the consulting company over $50 million to bribe Nigerian government officials. According to the information, the Japanese Agent was an agent of the JV and each of the JV companies.

According to the information, between 1995 and 2004, the JV was awarded four contracts (collectively valued at over $6 billion) to build the Bonny Island Project and alleges that Snamprogetti, Technhip, Kellogg Brown & Root, Tesler, the Japanese Agent, and others, were engaged in a conspiracy to obtain and retain the contracts “through the promise and payment of tens of millions in bribes to officials of the Executive Branch of Nigeria, officials of Nigeria National Petroleum Corporation (NNPC), officials of Nigeria LNG Limited (NLNG) and others.”

[According to the information, NNPC was a Nigerian government-owned company and an entity and instrumentality of the Government of Nigeria whose officers and employees were “foreign officials” under the FCPA. According to the information, NLNG was also an entity and instrumentality of the Government of Nigeria whose officers and employees were “foreign officials” under the FCPA, notwithstanding the fact that NLNG was 51% owned by multinational oil companies. Why? Presumably because, as the information alleges, “through the NLNG board members appointed by NNPC, among other means, the Nigerian government exercised control over NLNG, including but not limited to the abilty to block the award” of the relevant contracts.]

Among other means of the conspiracy, the information alleges that:

“officers, employees, and agents of Snamprogetti and their co-conspirators caused wire transfers totaling approximately $132 million to be sent from [#3’s] bank account in Amsterdam, The Netherlands, to bank accounts in New York, New York, to be further credited to bank accounts in Switzerland and Monaco controlled by Tesler for Tesler to use to bribe Nigerian government officials.”

“officers and employees of Snamprogetti and their co-conspirators caused wire transfers totaling over $50 million to be sent from [#3’s] bank account in Amsterdam, The Netherlands to [Japanese Agent’s] bank account in Japan for [the Japanese Agent to use to bribe Nigerian government officials.”

Based on the same core conduct, the information also charges Snamprogetti with aiding and abetting violations of the FCPA’s antibribery provisions and alleges that “Snamprogetti aided and abetted Kellogg, Brown and Root in causing […] corrupt U.S. dollar payments to be wire transferred from [#3’s] bank account in Amsterdam, The Netherlands, via correspondent bank accounts in New York, New York, to bank accounts of [Tesler’s Gibraltar based company] in Switzerland for use in part to bribe Nigerian government officials.”


The DPA has a term of two years. Parties to the DPA include Snamprogetti, Saipem and ENI.

Pursuant to the DPA, Snamprogetti admitted, accepted, and acknowledged that it is responsible for the acts of its employees, subsidiaries, and agents as detailed in the above criminal information.

According to the DPA, the DOJ agreed to enter into the agreement with the parties based on the following factors: “(a) Snamprogetti, Saipem, and ENI cooperated with the DOJ’s investigation of Snamprogetti and others; (b)Snamprogetti, Saipem, and ENI undertook remedial measures, including the implementation of an enhanced compliance program; and (c) Snamprogetti, Saipem, and ENI agreed to continue to cooperate with the DOJ in any ongoing investigation of the conduct of Snamprogetti and its present and former employees, agents, consultants, contractors, subcontractors, subsidiaries, and others relating to violations of the FCPA.”

According to the DPA, the fine range under the advisory U.S. Sentencing Guidelines for Snamprogetti’s conduct is $300 million – $600 million. Snamprogetti agreed to pay a criminal penalty of $240 million or approximately 20% below the bottom of the fine range. Thus another example of the DOJ allowing a corporation to settle significant bribery allegations for an amount below even the bottom range of fines available under the advisory Sentencing Guidelines.

The DPA, unlike the recent Technip DPA, does require the engagement of a corporate compliance monitor.

Representing Snamprogetti, Saipem, and ENI in the FCPA enforcement action was Karen Patton Seymour (here) and Nicolas Bourtin (here) of Sullivan & Cromwell LLP.

In the DOJ release (here) Principal Deputy Assistant Attorney General Mythili Raman stated: “the resolutions in this investigation demonstrate the U.S. government’s commitment to identifying and holding accountable all companies and individuals who scheme to bribe foreign government officials to win business;” “Snamprogetti and its joint-venture partners conspired to pursue lucrative contracts through a massive bribery scheme – a scheme that has led to more than $1.28 billion in criminal and civil penalties to date. The monetary penalties and enforcement actions that have resulted from this investigation should send a clear message to companies and their employees that using foreign bribery as a means of winning contracts abroad will be punished.” Kevin L. Perkins, assistant director of the FBI’s Criminal Investigative Division added: this “resolution is yet another example of the FBI’s willingness to aggressively investigate individuals and businesses that engage in corrupt conduct around the globe;” “those who elect to expand or protect their business interests through the payment of illegal bribes to foreign public officials should know that they are not beyond the reach of the FBI. Together, with our law enforcement partners around the world, we will identify these bad actors and work with the Justice Department to prosecute them under the Foreign Corrupt Practices Act and other appropriate federal statutes.”

SEC Complaint

The SEC complaint “arises from multiple violations of the Foreign Corrupt Practices Act” by ENI and its former indirect subsidiary Snamprogetti. According to the complaint: “between at least 1995 and 2004, senior executives at Snamprogetti, among others, devised and implemented a scheme to bribe Nigerian government officials to assist in obtaining multiple contracts worth over $6 billion to build liquefied natural gas production facilities on Bonny Island, Nigeria” that a four-company JV, of which Snamprogetti was a member, won the contracts to build.

Specifically, the SEC complaint alleges that “to conceal the illicit payments, Snamprogetti and others, through the JV, entered into sham ‘consulting’ or ‘services’ agreements” with Tesler and the Japanese Agent “who would then funnel their purportedly legitimate fees to Nigerian government officials.”

According to the SEC, “as a result of the scheme, numerous books and records of Snamprogetti and ENI contained false information relating to, among other things” Tesler and the Japanese Agent “and the payments made to them.” Specifically, the SEC alleged that “Snamprogetti’s business records […] contained the contracts with [Tesler] and the Japanese Agent, which falsely described the purpose of the contracts in order to make it appear that the agents would perform legitimate services.” According to the SEC, “these documents were part of Snamprogetti’s business records and supported Snampogetti’s financial statements, which were consolidated into ENI’s financial statements.”

The SEC alleges that “Snamprogetti did not conduct due diligence” on Tesler or the Japanese Agent and “ENI failed to ensure that Snamprogetti complied with ENI’s policies regarding the use of agents.” Specifically, the SEC alleged that “ENI’s policies and procedures governed Snamprogetti’s use of agents” but that “ENI failed to ensure that Snamprogetti conducted due diligence on agents hired through JV’s in which Snamprogetti participated.” “As a result,” the complaint alleged, “ENI’s internal controls failed to detect, deter or prevent the decades-long bribery scheme.”

Based on the above allegations, the SEC charged Snamprogetti, as “an agent of a U.S. issuer” with violating the FCPA’s antibribery provisions and knowingly falsifying books and records that supported the financial statements of ENI and knowingly circumventing ENI’s internal accounting controls. The SEC charged ENI with violating the FCPA’s books and records and internal control provisions. According to the SEC, “ENI exercised control and supervision of […] Snamprogetti during the relevant time and on certain of its business decisions, such as Snamprogetti’s entry into the JV.”

Without admitting or denying the SEC’s allegations, Snamprogetti and ENI consented to court orders permanently enjoining the companies from future violations of the FCPA and court orders requiring the companies, jointly and severally, to pay $125 million in disgorgement.

In a press release (see here) with the grabbing line “SEC charges Italian Company and Dutch Subsidiary in Scheme Bribing Nigerian Officials With Carloads of Cash,” Robert Khuzami, Director of the SEC’s Division of Enforcement stated: “this elaborate bribery scheme featured sham intermediaries, Swiss bank accounts, and carloads of cash as everyone involved made a concerted effort to cover their tracks” … “but the billion-plus dollars in sanctions paid by these companies show that ultimately there is no hiding or profiting from bribery.”

[As to the carload of cash, the SEC complaint alleges that the joint venture in which Snamprogetti participated in, paid Tesler (the UK agent) $40 million under a sham consulting agreement, and that Tesler then used a subcontractor to transfer $5 million to a Nigerian government official for the benefit of a Nigerian political party. According to the SEC complaint, “on several occassions, the Subcontractor personally delivered hand-delivered $1 million in U.S. currency in a brief case to the Nigerian official in a hotel room in Abuja, Nigeria.” The complaint alleges that the “Subcontractor delivered the remainder of the $5 million to the Nigerian official in local Nigerian currency,” but that because the currency “was too bulky to deliver by hand, the Subcontractor loaded the cash into vehicles, which were delivered to the Nigerian official.”

In a press release (see here) ENI stated, among other things, as follows:

“As the U.S. authorities’ court filings indicate, the criminal activity with which Snamprogetti Netherlands B.V. was charged ceased by June 15, 2004. Eni, Saipem, and Snamprogetti cooperated with the U.S. authorities’ investigations. In the agreements, the SEC and DOJ did not require the implementation of any independent compliance monitor. Since the conduct at issue, Eni, Saipem, and Snamprogetti Netherlands B.V. have made substantial enhancements to their anti-corruption compliance programs, which monitor Eni and its subsidiaries’ compliance systems. Eni and its subsidiaries are committed to continuous improvements to their internal compliance program and policies.”

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