Attorney in Infosys Visa Fraud Case Outlines Pre-Trial Plans

Don Tennant

The attorney representing Infosys employee and whistleblower Jay Palmer in his visa fraud lawsuit against the company has begun making plans to present his case to a jury in federal court in August. Those plans include obtaining sworn testimony from current and former Infosys employees, and from employees of some of the company's highest-profile clients in the United States.

 

As I reported last week in my post, "Federal Judge Schedules Infosys Visa Fraud Trial for August," U.S. District Court Judge Myron H. Thompson has scheduled the trial to start during a two-week window beginning Aug. 20. In his scheduling order, Thompson set a timetable for the completion of discovery materials, the phase in which Palmer's attorney, Kenny Mendelsohn, will gather additional evidence by requesting documents from Infosys and deposing - that is, questioning under oath - current and former Infosys employees. He said that process has already begun:

We've already started a little bit of the discovery process - we're going to be filing some paperwork probably the first part of [the week of Dec. 4] to require Infosys to produce certain documents. Either they will, or they'll object to it, and then we'll have to go to court and ask the court to order them to if they don't produce the documents. We'll start getting more of their internal stuff that Jay doesn't have. He's got a lot of documents, but there are other things we're going to need to do. After that, we'll start taking depositions of some of the key witnesses in this case.

Mendelsohn said those key witnesses will include some of Infosys' top clients, and he explained what he'll be looking for:

Documentation of the use of the B-1 employees at their sites, and to be able to further prove that those folks were actually working and were not at meetings, as the welcoming letters would have suggested. There will also be questions and information sought about the labor costs, and what they were paying Infosys for the use of these employees, and how Infosys charged it back. A lot of that relates to Jay, in his whistleblower complaint, pointing out that Infosys was getting reimbursed for the labor costs, and that they weren't paying federal withholding tax, social security, Medicare, things like that.

Mendelsohn said that process will go into full swing in early January.

 

As I noted in last week's post, Thompson's order stipulated that the two sides are required to engage in good-faith negotiations at a face-to-face settlement conference by the second week of May. The order also contained a suggestion that the two sides consider voluntary mediation as a means of facilitating a settlement. You may recall that Thompson had earlier denied Infosys' motion to compel arbitration in the case, so it might be helpful to distinguish between arbitration and mediation. This is how Mendelsohn explained the difference:

In the case of arbitration, it's like a court - you present your evidence to an arbitrator, or sometimes it's three arbitrators, and whatever they rule is the final decision. Mediation is when you sit down - usually in federal court they have you do it with a federal magistrate - and he listens to both sides and tries to help them resolve the case. The idea is that 90 percent of all cases settle, so let's try to settle it today instead of playing the game. But it is non-binding. The mediator has no authority. Everything is confidential, and in fact, the judge never knows [what took place during the mediation]-the mediator writes the judge and says either they settled, or they didn't settle.

I asked Mendelsohn if mediation is a realistic option in this case. His response:

I would have to have something from Infosys indicating to me that they truly, in good faith, want to try to resolve this case, and I go back to what I said before: An apology to Jay Palmer [for calling him a liar] would go a long way. But I think they've learned now that they're not going to be able to come in and just wave some amount of money in front of Jay in the hope he'll take it and drop all this. He is dead set on proving the wrongful conduct and showing he wasn't a liar, and trying to stop Infosys from continuing this kind of illegal conduct.


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Dec 6, 2011 1:09 AM Don Tennant Don Tennant  says: in response to Su

It's absurd to say that "Palmer suddenly is okay with the real fraud and all wrong things happenning in Infosys and just concentrating too much on what someone called him liar." The exact opposite is the case, as I've repeatedly reported, including in this post -- read the last comment from Mendelsohn. Demanding an apology does two things: It demonstrates that Palmer and Mendelsohn aren't going to sit back and allow Infosys to slander Palmer and get away with it; and it says to Infosys, "We have the upper hand in this case, and we both know it."

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Dec 6, 2011 1:32 AM Su Su  says: in response to Don Tennant

Ok but I have my reasons to interprete what are you saying. You might like to agree or disagree. Without know these people I don't form any opinion on people. I personally don't know whether Palmer is liar and greedy person or Infosys is fraud.

BUt here is what you mentioned:

"I go back to what I said before: An apology to Jay Palmer would go a long way. "

In your blog 'As Settlement Question Looms, Attorney Demands Apology from Infosys'

"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.'"

These things tells me Palmer is pretty much ready to settle if someone appologize for calling him liar. You might know more information personally and be sure that is not the case. I'm not questioning that but you can't tell me what is "absurd to say" either. I don't have any pre occupation in mind like you and I just take or go by what you write only without knowing any other TRUTH.

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Dec 6, 2011 4:01 AM Roy Lawson Roy Lawson  says:

This is a general commentary, addressed to no one in particular...

A person's reputation has value.  In the IT world it has monetary value.  Infosys characterized Jay as a "liar" and as such they have harmed is his character and harmed him monetarily.

If it can be proven that Infosys engaged in libel, or knowingly characterizing Palmer as something he is not, the penalties can be large.

There is absolutely nothing wrong with Palmer seeking financial reward against Infosys.  Their actions most certainly have been a financial burden and are likely to continue being a burden into the future - especially if they continue characterizing him as a liar.

You can't toss a corporation in jail.  It is an artificial entity.  Many people in the corporation are protected against crimes committed by the corporation.  The only true way to penalize a corporation is with monetary punishment.

If your argument is that "it penalizes investors" - of course it does and it should.  That will teach investors that investing in criminal corporations comes with a risk.  Penalty is all about some sort of pain.  Either a revocation of freedom, or a financial burden.  Without pain for doing wrong, there is no incentive not to.

Jay Palmer isn't being greedy by attempting to punish Infosys.  He is assisting in righting a wrong.  Infosys will have due process and their day in court - or an opportunity to settle out of court.

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Dec 6, 2011 4:43 AM IAmNumber813 IAmNumber813  says:

"Those plans include obtaining sworn testimony from current and former Infosys employees, and from employees of some of the company's highest-profile clients in the United States."

"After that, we'll start taking depositions of some of the key witnesses in this case."

There have been some recent high-profile cases where lawyers have made bad decisions in letting let their clients talk in pending criminal matters.

The lawyers for Michael Jackson's doctor made a boneheaded decision and let the doctor give a videotaped interview to the police before being charged and resulted in his jail time a couple weeks ago. The lawyer for Jerry Sandusky (former Penn State football coach) made a bad decision and let his client give interviews on TV (last week) and to the NY Times (this week) denying the child molestation charges (you can bet the prosecutors will use those interviews).

There is no way that Infosys or their financial services clients want their management employees dragged into videotaped depositions in this case (and increasing their exposure); the clients will pressure Infosys to take the black eye and make this go away.

Infosys (or their insurance company) will probably take a page from Goldman Sachs' recent "indiscretions" and cough up a wad of cash to make this case disappear. I'd bet that this civil case settles on Saturday, December 24, 2011, the day before Christmas and when nobody in the mainstream media is paying attention. All bets are off regarding the feds, including the IRS.

Jay needs to talk to a good CPA and understand that, except for a few exceptions, the IRS and the state will tax his lawyer's fees in the settlement as income attributed to him and arrange the settlement amount and agreement accordingly.

"He is dead set on proving the wrongful conduct and showing he wasn't a liar, and trying to stop Infosys from continuing this kind of illegal conduct."

A majority of American IT professionals (and U.S. lawmakers) already know that Indian outsourcing companies like Infosys are engaging in wrongful conduct. The major issue is convincing U.S. lawmakers (who receive money from Infosys' major clients) to make the right corrections.

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Dec 6, 2011 5:24 AM SealTeam6 SealTeam6 SealTeam6 SealTeam6  says: in response to IAmNumber813

Ironically I think Infosys will not go with their own business model and will hire the best and hence expensive legal team they can hire to protect themselves. I bet this time they wouldn't want "freshers" on a high profile/risk project.

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Dec 6, 2011 5:47 AM IAmNumber813 IAmNumber813  says: in response to SealTeam6 SealTeam6

"I bet this time they wouldn't want "freshers" on a high profile/risk project.

Ha Ha. That's funny. That's an inside joke known to American IT professionals.

I would think that the cost of an expensive legal defense would exceed the cost of a settlement to Jay on the civil side. Especially when the Infosys' management team will be exposed during videotaped depositions and the videos can be subpoenaed by the feds. If Infosys' management refuses to be deposed in the civil case, they'll risk injunctions, default judgment and contempt of court charges which can include daily fines and/or jail time.

I don't think some members of Infosys' Indian management team would get treated very well at "club fed".

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Dec 6, 2011 12:15 PM Chamat Chamat  says:

Dont know how useful this information is to anyone but if it is then I can also contribute. Both sides have bought some stationary to write their plans, some lawyers have even decided the dress code for the most important day in the history of this planet. Other imp info coming soon...

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Dec 6, 2011 12:40 PM Su Su  says: in response to Chamat

"An apology to Jay Palmer would go a long way. But I think they've learned now that they're not going to be able to come in and just wave some amount of money in front of Jay in the hope he'll take it and drop all this." ~

Off late I'm hearing this sentiment too many times from Palmer's side.

I can't understand why is this so "An apology to Jay Palmer would go a long way". Why Palmer suddenly is okay with the real fraud and all wrong things happenning in Infosys and just concentrating too much on what someone called him liar. Some company who indulge in fraud will have no credibility of what their marketing person called someone liar, who is actually doing a great thing.

I simply don't understand why this tone is coming from Palmer's side repeatedly. For me case doesn't really end even if Infosys CEO apologize at Palmer's feet for someone calling him liar. What about his real concern on lodging the case.

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Dec 6, 2011 12:41 PM hoapres hoapres  says:

This is just standard Federal pretrial practice.  Nothing special is going on here and this is just another Federal case getting prepared for trial.  Usually the parties agree to a scheduling order and the court approves it.

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Dec 6, 2011 12:54 PM SealTeam6 SealTeam6 SealTeam6 SealTeam6  says: in response to Su

I can't understand why is this so "An apology to Jay Palmer for calling him a liar would go a long way". Why Palmer suddenly is okay with the real fraud and all wrong things happenning in Infosys and just concentrating too much on what someone called him liar.

I don't think Palmer is "ok" with the real fraud.  In the midst of this complex case the personal pettiness shown by Infosys should be not be lost in the noise.

Because by calling him a "liar" Infosys made it also a personal attack on him. If they had contained their responses to the civil charges made, then they would have shown some ethics. They have made themselves appear crass by choosing to make Palmer as a person also the subject of their manner of response. Plamer (in my opinion) doesn't want to let that part be forgotten, that is,  that Infosys hit below the belt by crossing a threshold.

That is why a personal apology (to me) is important.

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Dec 8, 2011 6:51 AM IAmNumber813 IAmNumber813  says:

"The idea is that 90 percent of all cases settle, so let's try to settle it today instead of playing the game."

I wanted to follow-up with my observations on why this statement is true for civil cases. As I've stated before, I'm not a lawyer but just a good observer.

These are the potential judicial steps (and people) that are involved for litigants in U.S. federal court:

- U.S. District Court (1 judge + 6-12 jurors)

- U.S. Court of Appeals partial panel (3 judges)

- U.S. Court of Appeals whole panel (if granted) (12+ judges)

- U.S. Supreme Court (if granted) (9 judges)

In actuality, there are many people (judges/law clerks/jurors) with different biases and numerous possible combinations that make going through this judicial forest highly risky and highly time consuming (i.e., it could last years).

For example:

- a jury has the ability to ignore or misinterpret evidence

- a U.S. District Court judge has the ability to override a jury verdict (i.e., increase or decrease a monetary award)

- a U.S. Court of Appeals partial panel has the ability to override a U.S. District Court judge

- A U.S. Court of Appeals whole panel has the ability to override a partial panel of U.S. Court of Appeals judges or a U.S. District Court judge

- the U.S. Supreme Court can override everybody or create new case law or send it back to square one or square two, etc. or not review the case.

The process could go up and down the ladder with each step taking an unpredictable amount of time (i.e., federal judges don't have a time clock).

For a corporation, one reason this process makes financial sense is if future significant revenue is at stake (i.e., Oracle v. Google). If you don't have the press or public opinion on your side (like Infosys), this process doesn't make sense.

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