When I broke the news on July 4 that U.S. District Court Judge Myron Thompson, the federal judge hearing Jay Palmer’s whistleblower lawsuit against Infosys, had ordered the parties to convene a mediation conference on July 24 to try to resolve the case, the Indian press jumped on the story. And they mangled it.
Now I have readers posting comments on my blog in which they link to stories in the Indian press that are reporting some variation of the theme that Palmer has had a change of heart and suddenly wants to settle, or that Palmer’s attorney, Kenny Mendelsohn, will settle as long as Infosys admits guilt. It’s time to get the facts back onto the table. Bottom line: Nothing whatsoever has changed. Palmer and his attorney are no more or no less open to a settlement than they were the day the lawsuit was filed.
I am directing this post to those in the Indian press who are covering the Infosys visa fraud story. I know you read my blog, because so many of you regurgitate what I write, almost always without attribution. There are notable exceptions to what I have observed, like Surabhi Agarwal of Livemint.com, who is a great reporter and whose work I respect and admire. But overall, you guys are pathetic. One media outlet will write or broadcast something after getting the lead from my blog, and everybody else jumps on it and either writes/broadcasts the same thing the first media outlet did, or butchers it even worse.
In this case, the main culprit appears to have been CNBC-TV18, which bills itself as “India’s No. 1 Business Channel.” On July 9, this particular media outlet broadcast a piece that included an audio recording of Mendelsohn, with the text of his comments written out in the clip. This was the key quote:
If Infosys continues to say that they didn’t do anything wrong, then we probably won’t settle the case.
The CNBC-TV18 reporter understood that to mean that Mendelsohn was extending an “olive branch” that came with a price: “an admission of guilt from Infosys.”
Even though she noted that the mediation conference to strive to reach a settlement was mandated by the court, the reporter somehow concluded that the fact that Mendelsohn was speaking about such a settlement meant Palmer had “changed track.” She went on to say:
Last year, Jack Palmer had sworn to take Infosys to court, without giving a shot at settlement. A year on, however, he appears to have had a change of heart. He is now open to a settlement.
Time out. Let’s go back and look at the facts.
As I have repeatedly reported, Mendelsohn from the very beginning never ruled out a settlement. For one thing, lawyers really can’t rule out a settlement, because judges expect litigants to try to settle civil cases before they go to trial.
In fact, in the very first interview I conducted with Mendelsohn, back in March 2011, I asked him if he would consider a settlement offer from Infosys. This was his response:
Yes, I’d always entertain a settlement offer in any case, mainly because in a lawsuit such as this, the only thing I can do, really, is seek monetary compensation for my client anyway. That’s really what you go with. I’m just a street lawyer in Montgomery, Alabama. I can’t solve all the world’s problems, and I can’t really force a whole lot of changes with this lawsuit. So it’s a matter of protecting my client. He is in a very tough situation working in this environment. So we would consider a settlement where they could do something to make his job condition better than it was. Overall – he’s said it before, and he’s stressed it to me – there are a lot of good things about Infosys, and there are a lot of bad things about it [involving] certain people. But he loves his clients, he loves the work he does, and if there’s a way to work out some sort of a settlement, that’s kind of where you go with any case. So yes, I’d entertain one.
Mendelsohn never wavered from that position. There was a time when he was demanding an apology from Paul Gottsegen, the Infosys chief marketing officer who released a statement branding Palmer as a liar, as a precondition for a settlement. But that was blown out of the water when Gottsegen revealed in a sworn deposition that the statement wasn't really his — that in reality it was crafted by a cabal of Infosys attorneys (see my post, “Court Documents Reveal Infosys Lawyers Were Behind Effort to Discredit Whistleblower”).
Beyond all that, the Indian media outlets appear to think the topic of mediation came as a surprise. I reported back in December that Judge Thompson’s scheduling order contained a suggestion that the two sides consider voluntary mediation as a means of facilitating a settlement. I even provided Mendelsohn’s explanation of the difference between mediation and arbitration, in light of the fact that Thompson had earlier denied Infosys’ motion to compel arbitration in the case.
So this whole notion that Palmer suddenly had a change of heart and wants to settle is sheer nonsense. But the damage was done, because that goofy CNBC-TV18 piece appeared to have slanted the coverage of the pack of other Indian media outlets that eventually got around to reporting on the mediation story. Business Standard headlined its piece, “Infy Visa Case May Be Headed for Settlement.” At least that was better than the totally inaccurate headline of the Indian Express version: “US Judge for Arbitration in Infosys’ Visa Abuse Case.”
What I actually have said is the evidence that I have submitted proves that Jay did everything right, that he was required by their own whistleblower policy to report this to Infosys. All the Infosys employees we have deposed said he did nothing wrong; they’ve all confirmed he shouldn’t have been retaliated against for reporting this. What I’m hoping is Infosys will come in and acknowledge that Jay Palmer did the right thing, as opposed to coming in and calling him a liar and a lone wolf. What I said is if they come in and [call him a liar and a lone wolf], I don’t think the case will settle. If they come in and recognize that Jay did the right thing and in good faith want to try figure out how to resolve this in fairness to both sides, then we may get it settled. I have not said that they’ve got to admit guilt to get it settled. I’ve basically said if they come to me saying, “This is ridiculous, Jay Palmer is a lone wolf, he’s just out to get a big payout from the company,” if that’s the attitude they take at the mediation, saying this is a ridiculous case and they did nothing wrong, I don’t think we’ll get very far.
Mendelsohn was very gracious about his comments being butchered by those covering the story in the Indian press, and he made it clear that he didn’t want to blame or disparage them in any way. “How are they going to understand some redneck with a southern accent?” he asked, with characteristic self-effacement.
I’m disinclined to be quite so charitable. You guys in the Indian press who are covering this story need to get your act together. Your shoddy reporting is creating confusion and spreading misinformation, and you’re doing a disservice to your readers and to mine.