In the largest anticorruption enforcement action in history, aerospace provider Airbus Group SE (Airbus) – the second-largest aerospace provider in the world1 – agreed to pay nearly $4 billion to resolve foreign bribery and other charges by authorities in the U.S., the U.K. and France arising out of the company's scheme to use third-party business partners to bribe government officials and airline executives in violation of the Foreign Corrupt Practices Act (FCPA), the Arms Export Control Act and its implementing regulations, the International Traffic in Arms Regulations (ITAR).2
The terms of the deferred prosecution agreement (DPA) with the authorities underscore the value of a comprehensive compliance program by highlighting the inherent deficiencies in Airbus' anticorruption controls. Airbus will consequently pay fines and costs amounting to $582.4 million to the U.S. Department of Justice (DOJ), $1.09 billion to the U.K.'s Serious Fraud Office (SFO), and $2.3 billion to France's Parquet National Financier (PNF). The DPA was approved in all three countries on January 31, 2020 and will be in force until January 31, 2023.
The SFO opened investigations into Airbus in 2016 after the company self-reported incidents of bribery and asked regulators to review documents regarding its use of overseas agents. The following year, Airbus announced that the PNF opened a preliminary investigation regarding the same bribery and corruption allegations. In an unusual showing of cooperation, the SFO and the PNF agreed to work in tandem to investigate the potential fraud and corruption. Airbus subsequently disclosed to the DOJ that it discovered "inaccuracies" in filings it made pursuant to ITAR, a set of rules that impose requirements on defense contractors exporting defense-related articles and services.3 The DOJ officially opened its investigation into Airbus in December 2018.
During the course of the investigations, Airbus made clear its intent to work and cooperate with authorities.4 The company also braced itself for a protracted investigation, producing an incredible number of documents and making decisions affecting its personnel and culture – Airbus terminated more than 100 employees, replaced its CEO, and created a new Independent Compliance Review Panel to address issues underlying the investigation.5
The Deferred Prosecution Agreement in the U.S.
According to the DPA Airbus entered into with U.S. authorities,6 between 2008 and 2015, Airbus employees, executives, and agents engaged in a scheme to offer and pay bribes to foreign officials in several countries in order to obtain improper business advantages from private and state-controlled entities.7 Airbus concealed and facilitated the bribery by funneling illicit payments and other items of value to third-party business partners using bank accounts not affiliated with Airbus.8 For example, the DPA highlights a 2013-2015 bribery scheme in which Airbus made payments to Chinese executives at state-controlled airlines in the form of luxury travel to the U.S., including to Utah and Hawaii.9
The DPA provides that Airbus knew of its obligations under ITAR Parts 129 and 130 and alleges the company failed to report political contributions, fees, and commissions paid in association with the sale of ITAR-controlled defense articles or services.10 Specifically, the DPA features Airbus' use of unregistered third-party brokers in several countries, including Ghana, Indonesia, and Vietnam, to aid in the sale of those ITAR-controlled defense articles or services.11
Under the terms of the DPA, Airbus will pay the DOJ $527 million for violations of the FCPA ($294 million) and ITAR ($233 million), and an additional $55 million as part of a civil forfeiture agreement for the ITAR-related conduct.12 Airbus also agreed to pay a $10 million penalty to the U.S. Department of State's Directorate of Defense Trade Controls, $5 million of which the department is crediting.13 The DOJ plans to credit a portion of the amount Airbus will pay to the PNF under its agreement with French authorities.14
In addition to the monetary penalties, Airbus will be required to, among other things:
- Continue the implementation of its compliance and ethics programs, with a commitment to its corporate policy against violations of the anticorruption and export control laws.15
- Conduct periodic risk assessments.16
- Implement mechanisms designed to ensure its anticorruption compliance codes and policies are effectively communicated through periodic training programs.17
- Continue to cooperate with the DOJ for the duration of the DPA in any ongoing investigations and prosecutions related to Airbus' conduct.18
According to DOJ officials, this agreement reflects the "significant benefits" of the DOJ's self-disclosure policies for those companies and individuals that "self-report export violations, cooperate, and remediate as to those violations, even where there are aggravating circumstances."19
Compliance and Cooperation
Historically, the DOJ has highlighted its preference for companies to invest in strong compliance programs.20 The Airbus DPA clearly confirms the DOJ's willingness to provide cooperation credit in those circumstances. The DPA lauds several measures taken by Airbus to remediate, including terminating its employees and implementing a strong compliance program focused on training and education. And while Airbus did not receive voluntary disclosure credit for disclosing FCPA-related conduct, the DPA notes that it did receive full credit for its cooperation concerning that conduct, including its actions related to collecting evidence and performing forensic data analysis across multiple jurisdictions, identifying issues and facts of interest, and making factual presentations to U.S. authorities.21 With this DPA, the DOJ could be signaling its preferences in a more overt manner than ever before.
Conclusion and Takeaways
Companies should therefore work with outside counsel to maintain a culture of compliance through the establishment of a robust ethics and compliance program focused on adequate training and controls. Drafting an anticorruption policy is insufficient if it is not enforced, especially if that company's personnel are not properly trained to spot red flags.
BakerHostetler attorneys have a strong history of assisting companies with creating and enhancing compliance programs that focus on best practices, including:
- Obtaining a commitment from senior personnel and establishing a clearly articulated anticorruption policy.
- Avoiding a "paper" compliance program limited to the distribution but not implementation of anticorruption policies.
- Creating a code of conduct and compliance procedures.
- Ensuring proper oversight of a compliance program and providing that program with sufficient resources necessary for it to succeed.
- Assessing risk of FCPA violations and directing resources to manage those risks.
- Providing training and continuing advice to ensure policies and procedures have been effectively communicated.
- Establishing incentives and disciplinary measures to drive compliant behavior.
- Conducting due diligence on and monitoring third-party partners, including an evaluation of any payment arrangements.
- Allowing for confidential reporting by company employees.
- Engaging in periodic testing and review to uncover compliance weaknesses and determine what, if any, enhancements need to be made.
With a robust system in place, companies can hope to have a much lower risk of potential violations. In those instances where a violation does occur, a strong ethics and compliance program can give a company – with the advice of experienced counsel – the chance to cooperate with authorities and receive the maximum credit possible.
1 Airbus Poised to Overtake Boeing as Biggest Plane Maker, Barron's (July 9, 2019), available at https://www.barrons.com/articles/airbus-poised-to-overtake-boeing-as-biggest-plane-maker-51562702637.2 U.S. Dept. of Justice, Office of Public Affairs, Airbus Agrees to Pay over $3.9 Billion in Global Penalties to Resolve Foreign Bribery and ITAR Case (Jan. 31), available at https://www.justice.gov/opa/pr/airbus-agrees-pay-over-39-billion-global-penalties-resolve-foreign-bribery-and-itar-case (DOJ press release).
3 22 C.F.R. §§ 120-130.
4 Airbus to cooperate with France's Parquet National Financier in preliminary investigation, Airbus, available at https://www.airbus.com/newsroom/press-releases/en/2017/03/Airbus-cooperate-France-Parquet-National-Financier.html.
5 Airbus establishes new Independent Compliance Review Panel, Airbus (May 22, 2017), available at https://www.airbus.com/newsroom/press-releases/en/2017/05/Airbus-establishes-new-Independent-Compliance-Review-Panel.html.
6 United States of America v. Airbus SE, Case No. 20-cr-00021 (TFH), Docket No. 8, DPA (filed Jan. 31), available at https://www.justice.gov/opa/press-release/file/1241466/download.
7 DPA, Attachment A, ¶ 17.
8 Id. at ¶ 24.
9 Id. at ¶¶ 31-39.
10 Id. at ¶ 94(a); see also 22 C.F.R. § 130.
11 Id. at ¶ 95, 132-163.
12 See DOJ press release.
15 DPA, Attachment C, ¶ 1.
16 Id. at ¶ 5.
17 Id. at ¶ 8.
18 See DOJ press release.
20 For example, in 2019, the DOJ released an updated section on evaluation of corporate compliance programs, which is meant to assist prosecutors in making decisions regarding a corporation's compliance program for purposes of determining the form of any resolution or prosecution. The guidance refers to various "hallmarks" of a well-designed compliance program, including a company's capacity to improve and evolve, and it asks prosecutors to consider these efforts in evaluating the company's ability to evaluate its misconduct and remediate those issues.
21 See note 6 supra.
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