The DOJ said in a court filing Monday that the U.S. share of Odebrecht's "global" criminal penalty for its December FCPA resolution will be $93 million and not $260 million. That reduction means the combined Odebrecht/Braskem FCPA settlement isn't big enough to make the top ten list.
In its original announcement on December 21, the DOJ said Odebrecht would pay at least $260 million for criminal penalties, and Braskem (an Odebrecht subsidiary) would pay the DOJ and SEC $159.8 million for criminal and civil penalties. That amounted to an overall settlement of $419.8 million, big enough for fifth on the top ten list.
Odebrecht originally agreed to pay global criminal penalties of at least $2.6 billion, with 10 percent of that amount or $260 million going to the United States. But Odebrecht's ability to pay the criminal penalties has been impaired. Since agreeing to the global settlement in December, Odebrecht has lost big contracts for construction projects with the governments of Peru, Colombia, and Panama.
In Monday's Sentencing Memorandum (pdf), the DOJ cited its analysis of Odebrecht's "ability to pay" as a reason for the steep reduction in the U.S. criminal penalty from $260 million down to $93 million.
With Odebrecht/Braskem falling out of the top ten list, Snamprogetti Netherlands B.V. / ENI S.p.A come back on. In a 2010 FCPA resolution, the Dutch subsidiary and Italian parent paid a combined $365 million.
Here, then, are the current top ten FCPA enforcement actions of all time:
1. Siemens (Germany): $800 million in 2008.
2. Alstom (France): $772 million in 2014.
3. KBR / Halliburton (USA): $579 million in 2009.
4. Teva Pharmaceutical (Israel): $519 million in 2016.
5. Och-Ziff (USA): $412 million in 2016.
6. BAE (UK): $400 million in 2010.
7. Total SA (France) $398 million in 2013.
8. VimpelCom (Holland) $397.6 million in 2016.
9. Alcoa (U.S.) $384 million in 2014.
10. Snamprogetti Netherlands B.V. / ENI S.p.A (Dutch subsidiary and Italian parent) $365 million in 2010.
Richard L. Cassin is the publisher and editor of the FCPA Blog.