FTC Order Bans Former Pioneer CEO from Exxon Board Seat in Exxon-Pioneer Deal

The Federal Trade Commission took action to resolve antitrust concerns surrounding Exxon Mobil Corporation’s (Exxon) $64.5 billion acquisition of oil producer Pioneer Natural Resources by approving a consent order that prevents founder and former Pioneer CEO Scott Sheffield from gaining a seat on Exxon’s board of directors or serving in an advisory capacity at Exxon once it acquires Pioneer.

The proposed consent order seeks to prevent Pioneer’s Sheffield from engaging in collusive activity that would potentially raise crude oil prices, leading American consumers and businesses to pay higher prices for gasoline, diesel fuel, heating oil and jet fuel.

The FTC alleges in a complaint that Sheffield has, through public statements and private communications, attempted to collude with the representatives of the Organization of Petroleum Exporting Countries (OPEC) and a related cartel of other oil-producing countries known as OPEC+ to reduce output of oil and gas, which would result in Americans paying higher prices at the pump, to inflate profits for his company.

“Mr. Sheffield’s past conduct makes it crystal clear that he should be nowhere near Exxon’s boardroom. American consumers shouldn’t pay unfair prices at the pump simply to pad a corporate executive’s pocketbook,” said Kyle Mach, Deputy Director of the FTC’s Bureau of Competition. “The FTC will remain vigilant in its enforcement efforts to protect competition in these vital markets.”

Through public statements, text messages, in-person meetings, WhatsApp conversations and other communications while at Pioneer, Sheffield sought to align oil production across the Permian Basin in West Texas and New Mexico with OPEC+.

Sheffield, for example, exchanged hundreds of text messages with OPEC representatives and officials discussing crude oil market dynamics, pricing and output. In discussing his efforts to coordinate with Texas producers under a production cut mandated by the Railroad Commission of Texas, Sheffield said, “If Texas leads the way, maybe we can get OPEC to cut production. Maybe Saudi and Russia will follow. That was our plan,” he said, adding: “I was using the tactics of OPEC+ to get a bigger OPEC+ done.”

Sheffield’s appointment to Exxon’s board also would be anticompetitive as he currently serves on the board of The Williams Companies, Inc., which operates a host of natural gas pipelines; natural gas gathering, processing, and treating assets; and other businesses that directly overlap with Exxon’s operations. Sheffield’s appointment would facilitate a board interlock among competitors, in violation of Section 5 of the FTC Act.

The FTC’s proposed consent order would prohibit Exxon from nominating, designating, or appointing Sheffield to the Exxon board or from serving in an advisory capacity in any way to the Exxon board or Exxon’s management.

The proposed consent order also requires that:

• For a period of five years, Exxon shall not nominate, designate, or appoint any Pioneer employee or director, other than certain named individuals, to the Exxon board; and
• For a period of 10 years, Exxon will agree to certain Clayton Act Section 8 attestation and reporting obligations.

Further details about the order can be found in the analysis to aid public comment.

The Commission vote to accept the consent agreement and place the complaint and order on the record for public comment was 3-2, with Chair Lina M. Khan and Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya issuing separate statements. Commissioners Melissa Holyoak and Andrew N. Ferguson voted no and issued a joint dissenting statement.

The FTC published the consent agreement package in the Federal Register shortly. Instructions for filing comments appear in the published notice. Comments must be received 30 days after publication in the Federal Register. Once processed, comments will be posted on Regulations.gov. 

NOTE: The Commission issues an administrative complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions.