ABB avoids DOJ monitor, to pay $327M over South African bribes

The settlement, announced late Friday by the U.S. Department of Justice, saw ABB admit to a scheme from 2014-17 to pay bribes to a South African energy official. The scheme involved ABB making payments to subcontractors connected to the high-ranking official at the energy company Eskom Holdings. In return, ABB received “improper advantages” in its efforts to obtain work with Eskom, including access to confidential and internal Eskom documents.

ABB and Eskom then conducted “sham negotiations” that resulted in inflated contracts being awarded to ABB.

The DOJ found ABB disguised the bribe payments to the subcontractors as legitimate business expenses, despite the subcontractors’ “poor qualifications and lack of experience.”

ABB entered into a three-year deferred prosecution agreement (DPA) with the DOJ in U.S. District Court for the Eastern District of Virginia to settle charges the company violated the Foreign Corrupt Practices Act’s (FCPA) anti-bribery and books-and-records provisions, among others. Two ABB subsidiaries, ABB Management Services (Switzerland) and ABB South Africa, pleaded guilty to one count of conspiracy to violate the anti-bribery provisions of the FCPA.

In lieu of assigning a compliance monitorship, the DPA will require ABB to meet with DOJ officials on a quarterly basis and “to submit yearly reports regarding the status of its remediation efforts, the results of its testing of its compliance program, and its proposals to ensure that its compliance program is reasonably designed, implemented, and enforced, so that it is effective in deterring and detecting violations of the FCPA and other applicable anti-corruption laws,” the DOJ said.

As part of a coordinated settlement, ABB also signed a cease-and-desist order with the U.S. Securities and Exchange Commission (SEC). According to the DOJ, up to one half of the $315 million criminal penalty it assessed will be credited against money the company pays to settle charges in South Africa. Other credits will be given for amounts the company has paid or expects to pay to settle charges laid by the SEC, as well as by authorities in Switzerland and Germany.

The SEC fined ABB $75 million. The company said in a statement it has accounted for $327 million in total penalties related to the matter and that it hopes to reach a final resolution with German authorities soon.

The case marked the DOJ’s first coordinated resolution with prosecutorial authorities in South Africa.

The DOJ noted ABB’s extensive history of violations of the FCPA, with two prior criminal resolutions in 2004 and 2010, as well as a guilty plea by an ABB entity for bid-rigging in 2001.

On the other hand, the DOJ praised ABB for its “extraordinary cooperation” in its latest investigation, extensive remediation, and compliance measures, which the agency said merited a 25 percent reduction in the overall fine.

ABB showed “demonstrated intent to disclose the misconduct promptly to the department” and conducted a root-cause analysis of the issues, the DOJ said. The company made significant investments in compliance personnel, testing, and monitoring through the organization to enhance its compliance program and internal controls.

“This resolution demonstrates the Criminal Division’s thoughtful approach to appropriately balancing ABB’s extensive remediation, timely and full cooperation, and demonstrated intent to bring the misconduct to the department’s attention promptly upon discovering it while also accounting for ABB’s historical misconduct,” said Assistant Attorney General Kenneth Polite Jr. of the DOJ’s Criminal Division in a press release.

ABB response: “ABB has cooperated fully with all authorities and spent considerable time and effort—including launching a new code of conduct, educating employees, and implementing an enhanced control system—to prevent something similar from happening again,” said ABB Chief Executive Björn Rosengren in the company’s statement. “We have a clear, zero-tolerance approach to nonethical behavior within our company.”