In a blockbuster case, the Justice Department announced a global settlement with Airbus SE, a manufacturer of civilian and military aircraft, under which Airbus agreed to pay over $4 billion (yes, with a “B”) to resolve charges with the United States, France, and the United Kingdom for its role in a bribery scheme, and to resolve Airbus’ violation of the International Trade in Arms Regulations (“ITAR”). 

Airbus entered into a deferred prosecution agreement (“DPA”) and the filing of a criminal information charging Airbus with a conspiracy to violate the anti-bribery provision of the FCPA and conspiracy to violate ITAR. (HERE).

Under the settlement, Airbus agreed to pay the United States approximately $582 million for FCPA and ITAR violations, consisting of approximately of $294 million for FCPA violations and $232 million, and transfer of a 50 million Euro bond for forfeiture.  The Justice Department credited a portion of Airbus’ payment to the Parquet National Financier (“PNF”) in France, which totaled approximately $2.29 billion, as part of a separate settlement for bribery violations. 

Airbus also entered into a DPQ with the U.K.’s Serious Fraud Office (“SFO”) for bribes paid in Malaysia, Sri Lanka, Taiwan, Indonesia and China, and agreed to pay approximately $1.09 billion.

The PNF and the SFO jointly investigated Airbus’ global bribery scheme.

Starting in 2008 and continuing to 2015, Airbus engaged in a scheme to pay bribes to decision makers and influencers, including foreign officials to obtain business contracts for purchase of civilian and military airplanes, as well as helicopters.  The Justice Department’s factual proffer focuses on Airbus’ corrupt schemes in China.

Airbus is based in France.  Interestingly, the Justice Department was able to assert jurisdiction over Airbus for FCPA violations was based on email communications that occurred inside the United States (apparently when present in the United States) and luxury travel arrangements with foreign officials in the United States.

Airbus’ ITAR violations occurred during the period between December 2011 and December 2016.  Airbus filed numerous applications for export of defense articles and defense service to foreign armed forces.  As part of this application process, Airbus failed to provide information concerning political contributions, fees or commissions paid to third-party brokers in the sale of defense articles and defense services.

Applying DOJ’s Corporate Enforcement Policy factors, for its FCPA violations: (1) Airbus did not receive credit for voluntary disclosure because the SFO initiated the case in response to a U.K. whistleblower who provided information to the SFO about the bribery scheme; (2) Airbus received credit for full cooperation with prosecutions and law enforcement; (3) Airbus received credit for its remediation effort, including separation and disciplinary measures taken against individuals involved in the misconduct; termination of third-parties engaged in misconduct; applying new enhanced due diligence procedures; providing additional compliance training; and making enhancements to internal controls and its compliance program.

Based on Airbus settlement with PNF and its agreement to oversight by PNF authorities, and Airbus’ agreement to submit regular compliance reports, DOJ decided not to appoint an independent monitor.

DOJ also noted that the PNF and SFO have stronger jurisdictional authority over Airbus in comparison to the United States.

For the ITAR violations, Airbus received credit for voluntarily disclosing the conduct; was awarded full credit for its cooperation; the company implemented a number of remedial measures to its compliance program.

In light of all of these factors, DOJ awarded Airbus a 25 percent discount from the bottom of the sentencing fine range.