In the wake of a federal judge's denial of Infosys' motion to compel arbitration in the visa fraud case brought by Infosys employee and whistleblower Jay Palmer, the question of whether Palmer would agree to a settlement in the case rather than have it tried in federal court is looming. It's clear that any approach by Infosys to settle so it doesn't have to endure the discomfort of having its dirty visa and tax laundry aired in public is going to be met with some strict demands. The first demand: Apologize to Palmer.
I asked Palmer's attorney, Kenny Mendelsohn, if he expects to see the case tried in federal court, or if there's a chance it will be settled. Mendelsohn's response was unflinching. "If Infosys wants to settle," he said, "the first thing it needs to do is apologize to Jay."
Mendelsohn has been demanding that apology since July 26, when Infosys Chief Marketing Officer Paul Gottsegen branded Palmer as a liar in a statement he released in response to the damning testimony Palmer had submitted to a Senate subcommittee hearing on immigration reform earlier that day (see my post, "Infosys Whistleblower's Attorney Releases Incriminating Evidence"). Here's the full text of that statement:
The commentary submitted today by Jay Palmer (via Senator Charles Grassley) to the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security, is full of inaccuracies, exaggerations and falsehoods. Mr. Palmer is obviously intent on spreading his falsehoods about Infosys and our business practices as broadly as possible in order to advance his objective of getting as big of a payout as he can from the Company.
Here are the facts:
- There is not, nor was there ever a strategy, scheme, or policy by the company to use the B-1 visa program to circumvent the H-1B visa program;
- The company did not have a practice of sending unskilled employees to the United States on B-1 visas to do the work expected of skilled individuals in the U.S. on H-1B visas;
- Mr. Palmer's complaints to the company were handled in complete accordance with our published procedures for handling whistleblower complaints and in compliance with the law;
- The company did not retaliate against or mistreat Mr. Palmer in any way.
As for the rest of Mr. Palmer's commentary, it is rife with misstatements. However, we will not now take on a point-by-point rebuttal of his comments and instead we will leave that to the current litigation.
Infosys is a world class company providing critical technology-based business solutions for our clients throughout the world. We take very seriously our obligations under the law and specifically our responsibilities to comply with the immigration laws and visa requirements in all jurisdictions where we have clients whose needs we serve on a daily basis. We have a deep understanding that the Company's integrity and compliance with law must be uncompromised. To that end, we have made and may continue to make changes in our policies regarding immigration and visa requirements with the intent of having the absolute best practices in place.
Mendelsohn was absolutely incensed by that statement. He began to release some of the incriminating evidence he has against Infosys to vindicate Palmer, and said he would continue doing so until Infosys apologizes to Palmer for calling him a liar. Now it appears that the stakes are higher, and Infosys is between a rock and a hard place. If it wants to talk about settling the case, the first thing it has to do is apologize to Palmer. If it doesn't settle, the public will be able to scrutinize every sordid detail of the trial. Either way, the pain will be excruciating for Infosys.
Mendelsohn said he hasn't heard from Infosys since the arbitration motion was denied. I asked him what his next step is, and his response made it clear that he's eager to proceed:
There are a few procedural issues that will be decided very shortly. Then I plan on filing a Request for Production of Documents, which, by law, will require Infosys to produce internal records. Actually, Jay and I have been working on that request for some time, but we have not been able to file until this ruling [against arbitration] by Judge Thompson. I will also be contacting Infosys' clients and obtaining their documents and information. At some point I will depose current and former Infosys employees.
Finally, I asked Mendelsohn what Palmer's response was to the news that Infosys' motion to compel arbitration had been denied. He said the decision wasn't really a surprise:
The law was clear. However, Jay is pleased because we now can move forward. Although we have substantial evidence already, now that we can use the legal process we can obtain a lot more of Infosys' internal documents. And we know which ones to ask for.
It sounds to me like Infosys would be well-advised to start crafting that apology. My own advice would be to make it unreservedly heartfelt and remorseful. Mendelsohn is loaded for bear.