On March 28, 2024, Swiss-based international commodities trading company Trafigura Beheer BV pleaded guilty to conspiracy to violate the anti-bribery provisions of the Foreign Corrupt Practices Act (FCPA) in connection with bribes paid to Brazilian officials to obtain and retain business from Brazil’s state-owned and state-controlled oil company, Petróleo Brasileiro SA (“Petrobras”). Under the plea agreement, Trafigura agreed to pay a criminal fine of approximately $80.5 million and forfeit $46.5 million in proceeds derived from the conspiracy. The DOJ also agreed to credit Trafigura up to approximately $26.8 million of the criminal fine for amounts that the company pays to resolve a Brazilian investigation into related conduct. The agreement requires Trafigura to submit annual reports regarding Trafigura’s remediation and implementation of compliance measures, as well as quarterly meetings with the DOJ on remediation over a three-year period. The DOJ did not impose an independent compliance monitor inn light of Trafigura’s remediation.
According to the plea agreement, Trafigura paid Petrobras officials up to 20 cents per barrel of oil products bought from or sold to Petrobras from 2003 to 2014. Trafigura issued a statement noting that the misconduct occurred over 10 or more years ago and involved former employees and agents in Brazil. The statement also emphasized that the “conduct . . . was and is inconsistent with the company’s principles, contractual terms and Code of Conduct.”
According to the plea agreement, Trafigura received a somewhat reduced penalty for cooperating with DOJ investigators and implementing certain remedial measures. More specifically, Trafigura received credit for “(i) providing timely updates on facts learned during its internal investigation; . . . (ii) making factual presentations to the government; (iii) facilitating the interviews of employees and agents, including an employee located outside the United States, and arranging for counsel for employees where appropriate; (iv) producing relevant nonprivileged documents and data to the government, including documents located outside the United States in ways that navigated foreign data privacy laws, accompanied by translations of certain documents;” and (v) “provid[ing] all relevant facts known to it, including information about individuals involved in the conduct.” However, the plea agreement also stated that the Company “failed to preserve and produce certain documents and evidence in a timely manner.”
Trafigura also received credit for its remediation efforts, including the development and implementation of a variety of risk-based policies and procedures that address, among other things, anti-corruption, the use of intermediaries and consultants, and third party payments. Trafigura also stopped using third-party agents for business origination, made investments in employee training and compliance testing; and improved compliance monitoring and controls testing. However, the DOJ stated that Trafigura was “slow to exercise disciplinary and remedial measures for certain employees whose conduct violated company policy.”
The DOJ also said it took into consideration the “not recent” 2006 guilty plea entered by Trafigura AG “for entry of goods by means of false statements” and a 2010 conviction for “violating Netherlands export and environmental laws in connection with the discharge of petroleum waste in Cote d’Ivoire.” Thus, the fine levied is a “ten percent discount off the fifth percentile of the Sentencing Guidelines fine range.”
DOJ Press Release | Plea Agreement | Information | Trafigura Press Release