The Justice Department continues to produce FCPA resolutions in a record year for enforcement.  The latest, and perhaps the beginning of several end-of-year and end of the Trump Administration resolutions, is DOJ’s settlement with Vitol, Inc. (Vitol), an energy trading company. 

DOJ agreed to a three-year deferred prosecution agreement (DPA) in exchange for a criminal penalty of $135 million.  One-third of the payment, or $45 million, would be credited if Vitol pays $45 million to Brazil prosecutors for resolution of the case.

The Vitol FCPA settlement follows the arrest and indictment in September 2020 of Javier Aguilar, a Vitol oil trader, for his role in a five-year bribery and money laundering scheme carried out in Ecuador involving energy officials from Petroecuador, the government owned oil and gas company. 

Vitol also agreed to a civil settlement with the Commodities Futures Trading Commission (CFTC) for $28.7 million, $12.7 million of which was for disgorgement.  The Vitol case represented the first coordinated FCPA enforcement action between DOJ and the CFTC.

Vitol’s DOJ and Brazil settlements stem from Vitol bribery schemes in Brazil, Ecuador and Mexico.  Over a fifteen year period, Vitol paid millions of dollars in bribes to numerous public officials in Brazil, Ecuador and Mexico.

Between 2005 and 2014, Vitol paid approximately $8 million in bribes to at least four officials at Petrobras, Brazil’s state-owned oil company, in exchange for confidential pricing and competitor information.  Vitol executed the bribery scheme through a network of third parties, shell companies and intermediaries.

Vitol also acknowledged that from 2011 to 2014, it bribed at least five Petrobras officials for confidential information that Vitol used to secure fuel oil contracts with Petrobras.  A third-party consultant engaged in back-channel negotiations with a Petrobras official located in Houston.  At these meetings, Vitol’s representative and the Petrobras official agreed on bribe amounts to be paid to various Petrobras officials.

Vitol also agreed to participating in a second conspiracy to bribe officials in Ecuador and Mexico.  Between 2015 and 2020, Vitol paid more than $2 million in bribes to officials in Ecuador and Mexico.  To disguise various bribery payments, Vitol entered into sham consulting agreements and fake invoices for consulting services, and made payments to shell companies and offshore accounts. 

In addition to Javier Aguilar, DOJ recently unsealed plea and cooperation agreements with two individuals as part of this investigation, including Rodrigo Berkowitz, the Houston-based former Petrobras official who received and orchestrated bribes, and one of the intermediaries involved in the Brazil bribery scheme.

Under the FCPA Corporate Enforcement policy, DOJ applied the following considerations: Vitol did not earn credit for a voluntary disclosure; Vitol received full credit for cooperation, including for making available a former foreign-based employee; Vitol engaged in remedial measures, including personnel changes, implementation of enhanced policies, procedures and internal controls relating to anti-corruption, third-party agent risks and commercial relationships, gifts, meals and entertainment, internal investigations. Risk assessments, training and internal reporting.

DOJ did not impose a corporate compliance monitor, citing Vitol’s remediation and compliance commitments and agreement to provide annual compliance program status reports.

Based on all of these considerations, DOJ awarded Vitol a 25 percent reduction from the bottom of the U.S. Sentencing Guidelines range.