Infosys Flounders, Deposes Whistleblower Despite Dismissal Motion

Don Tennant

In a glaring demonstration of how incoherently Infosys is handling the lawsuit brought against the company by Infosys employee and whistleblower Jay Palmer, the company's attorneys deposed Palmer on Friday to question him on the same counts that they had earlier filed a motion to dismiss. That left Infosys in the terribly awkward position of procuring discovery material related to the very counts it contends are invalid and therefore insufficient to compel Infosys to produce the discovery material requested by Palmer's attorney.


As I reported in my Jan. 24 post, "With Options Limited, Infosys Tries Dismissal Tack in Palmer Case," Infosys a day earlier had filed a motion in the U.S. District Court for the Middle District of Alabama to dismiss five of the six counts listed in Palmer's suit. Those counts related to the retaliation and harassment Palmer suffered after he blew the whistle on alleged violations of U.S. immigration, visa and tax laws. Kenny Mendelsohn, Palmer's attorney, on Friday filed a 15-page brief in opposition to the motion to dismiss, in which he cited case law to challenge each of the Infosys attorneys' arguments. This was his conclusion:

Mr. Palmer's Complaint is well-plead; it details the wrongful conduct; and it sets out viable and plausible causes of action under Alabama law. Infosys has initiated discovery, including the taking of Mr. Palmer's deposition today. This motion should be denied and Mr. Palmer should be entitled to conduct his discovery. Infosys will have a right to revisit these issues at the summary judgment level if it desires. However, with all due respect, this is just not a case to be decided on a motion to dismiss.

Present to take Palmer's deposition earlier in the day were Jay St. Clair, Infosys' outside counsel representing the company in the Palmer case; and Jeffrey Friedel, Infosys' corporate counsel and, ironically enough, the person who advised Palmer to file the whistleblower complaint. (Read my Aug. 1, 2011, post, "Internal Changes Are Needed to Prevent Visa Misuse, Infosys Admitted." I disclosed in that post the full text of an email from Friedel in which he acknowledged internally that Palmer's complaint warranted corporate action and compelled Infosys' management to make changes to prevent misuse of the B-1 visa program.)


I spoke with Mendelsohn on Saturday, and asked him about the deposition. This is how he described it:

It was a very professional deposition. They questioned him for over six hours, and Jay explained the retaliation, harassment and suffering he's been through, solely because he did what Jeff Friedel told him to do, and followed Infosys' whistleblower policy. It was very uneventful.

If the fact that Infosys deposed Palmer at all was peculiar, given that it was extracting discovery information related to counts that it claimed in a motion filed in federal court were invalid to compel the release of discovery information, the fact that it was so uneventful helps to explain the head-scratcher. Infosys' attorneys in the civil case appear to be grossly uninformed, and have no real sense of the significance of Palmer's suit or what it is they're dealing with. It's as if they're wearing blinders so that all they can see are Palmer's charges in the lawsuit, which relate to harassment and retaliation, with absolutely no appreciation for the seriousness of the allegations of visa and tax fraud outlined in his whistleblower report, which is what generated the harassment and retaliation in the first place. They appear to be very happy to leave the whole visa and tax fraud mess to Stephen Jonas, the outside counsel who's representing Infosys in the matter involving the federal government's criminal investigation.


The magnitude of the situation appears to be lost on the Infosys attorneys in the civil case, who are approaching it in the same formulaic manner they approach any number of other civil cases they're dealing with. Mendelsohn put it this way:

There are a bunch of cases out there against Infosys-racial discrimination cases, sex discrimination cases, religious discrimination cases-and I think they're treating this just like any old, run-of-the-mill lawsuit against them.

But consider just how stunningly shortsighted that is. When this case goes to trial in August, the jury is going to hear in excruciating detail all about Infosys' wanton violation of our immigration, visa and tax laws, because it will need to fully understand what Palmer was blowing the whistle on to appreciate the sinister nature of the harassment and retaliation he suffered. Wearing blinders at this point will eventually prove to be horribly imprudent, if not downright negligent. If Infosys' attorneys don't get that, should we be at all surprised that they don't get the deposition process?

Add Comment      Leave a comment on this blog post
Feb 6, 2012 2:31 AM hoapres hoapres  says:

You are making a mountain of a molehill. ALL that is going on is STANDARD litigation practice.  Pretrial motions, depositions, etc. are just part of a ROUTINE civil lawsuit.  Infosys is treating the matter for what it is a ROUTINE civil lawsuit.

Kudos for making it known but the point is that it is NOT known to the extent NY Times, ABC, CBS, MSNBC, WSJ are not giving the story the time of day.

Feb 6, 2012 4:05 AM Techie Techie  says:

There is no company in the billionaire club that does not have harassment / improper firing / discrimination case against it. Take ur best estimate on how much Jay Palmer is going to settle for. Look at Infosys's balance sheet (Liquid Assets) do the map. Itz dust to infosys. Certain things happen. I go to inn-n-out itz all whitey white. I got el pollo loco itz all se habla espanol..go to google or cisco and plot the age of tech workers in a chart..what happened to tech workers in their 50s ? Have u seen any programmer with a full time job in his sixties..More importantly, will u hire a sixty year old tech worker looking for a job..and hold the canned answer "yeah I would if he can perform on the job." thatz what companies that don't hire aged workers say. DISCRIMINATION exists. Stuff happens. And start blogging about something else or you may not have this spot anymore.

Feb 6, 2012 5:10 AM Don Tennant Don Tennant  says: in response to Techie

It is not your place to tell me what to write. I'll blog about what I choose to blog about. If you find that this blog has no value, don't read it. Go read something else. This blog is required reading for no one.

Feb 6, 2012 12:38 PM Richard Richard  says:

Don, let these Infosys attorneys sleep. Haven't you heard the famous saying - Lull before storm. Once they open their eyes it would have been already too late to mend and this is what we want to happen. Infosys has to and will lose the court case this time.

Feb 7, 2012 1:03 AM hoapres hoapres  says: in response to cguy

As I said before, this stuff has been going on for decades.  Nothing is likely to change.

Feb 7, 2012 1:55 AM Richard Richard  says: in response to cguy

Dude, there are some differences.

1. Nobody is saying it is the end of world for Infosys and it is well known that they had lawsuits against them. But please note the previous lawsuits were for different reasons not for visa frauds.

2. Even companies like GE / IBM have criminal violations. Agreed, but in case of Infosys the violation is massive and comes at a time when US is grappled with high unemployment rate for its own citizens. On top of that elections in 2012 are decisive for next president. So no political candidate would favour Infosys in lieu of winning US citizens support. Infosys verdict is before the elections. If it was after elections then the consequences would have been milder.

3. Think of Bhopal gas tragedy where 10,000s have died due to criminal negligence of a major US corporation. Dude in this case a weak government of India could not stand up against a giant country US. So dont compare apples to oranges. A US citizen's life is treated more preciously by the government here than an ordinary man's life is treated in India.

4. Infosys has violated immigration law - 0.5 million USD fine to US govt. and some settlement with Palmer.  0.5 million USD is a very small fine. Infosys has added millions to its pockets since 2009. Infosys should be fined to the tune of atleast 500 million dollars

5. some settlement with Palmer - Let palmer decide how much to fine the rogue firm Infosys

@hoapres, please find an english dictionary and learn some new words. Pls dont repeat the same every single time "Nothing is likely to change".

Feb 7, 2012 2:27 AM George George  says: in response to Richard

Richard, for you, ignorance is bliss. Please continue to be in your small world and wish you good luck.

Feb 7, 2012 2:34 AM hoapres hoapres  says: in response to Richard

I just call them the way I see them.  Brevity is the soul of wit.  "Nothing is likely to change" seems accurate.

Feb 7, 2012 5:08 AM VV VV  says:

I sincerely hope you dont get paid for writing all this stuff...??

Feb 7, 2012 7:07 AM SealTeam6 SealTeam6 SealTeam6 SealTeam6  says: in response to Richard

3. Think of Bhopal gas tragedy where 10,000s have died due to criminal negligence of a major US corporation.

I don't know why people seem to have the idea that it was wholly an American company's fault here:

Union Carbide India Limited (UCIL) was a chemical company established in 1934, eventually expanding to employ 9,000 people working at 14 plants in five divisions.[1] UCIL was 51% owned by Union Carbide Corporation (UCC) and 49% by Indian investors including the Government of India.

Seems to me that UCIL was completely under Indian jurisdiction and staffing at the time of the disaster.

Hardly a fair comparison to the ownership and staffing of Infosys.

Feb 7, 2012 8:44 AM R. Lawson R. Lawson  says: in response to cguy

Let's say there is a million dollar fine - you are right, that isn't a big deal. 

The real issue is that Infosys discriminates against American workers.  They will become a political poster-child for what is wrong with the H-1b "offshoring visa".  In an election year when offshoring is "enemy #1" again, it could have some real consequences. 

A conviction of Infosys in criminal courts could be that watershed moment in H-1b visa history.  And maybe I can finally start talking about other issues besides this one.  It's been a nice decade + conversation, but I'm ready to close the chapter on this one.  I would like to talk about something else, believe it or not.

Feb 7, 2012 9:32 AM Brian Tallon Brian Tallon  says: in response to R. Lawson

The other thing that could come out of this is that the U.S. government prohibits infosys from participating in any of the U.S. Visa programs. Also, perhaps the government will begin to investigate other indian firms (as I would hardly think that infosys is the only violator of the B1 visa rules)

Feb 7, 2012 11:32 AM cguy cguy  says:


Everyone in this blog seems to think that this case is an "end of the world" for Infosys. Even companies like GE / IBM have criminal violations. Think of Bhopal gas tragedy where 10,000s have died due to criminal negligence of a major US corporation.

Infosys has violated immigration law - 0.5 million USD fine to US govt. and some settlement with Palmer.

End of the story.

Feb 7, 2012 11:50 AM Swami Swami  says:

The author sets off with a biased mind.

I think Jack Palmer is one frustrated individual who is trying his best to make his retirement money

Feb 8, 2012 1:18 AM Richard Richard  says: in response to Swami

Palmer is a gutsy american who has dared to challenge Infosys. Not like the typical Indians who try to save a corrupt individuals/company as long as they are getting bread and butter even if it by means of cheating and violating laws. On top of that Infosys accused Palmer wrongly by calling him a liar. Infosys even sent him death threats over phone. "Death to you stupid american"- these are the words Infosys managers used against Palmer. Now you tell me who is frustrated, who is at fault and who is feeling insecure - clearly Infosys.

Feb 8, 2012 2:36 AM Richard Richard  says:

Don's name is mentioned in this website. Great going Don

Feb 8, 2012 4:16 AM Bystander Bystander  says:

I am not sure why Indian(s) companies make so much noise on creating jobs in the US. They brought all corrupt practices from India to the US In fact no Indian company has ever developed a product or technology in computers /IT which can be used worldwide. Their technical skills and so called technical premacy is fake and fabricated and stealing jobs by hook or crook is rampant and they at times feel proud of these skills. Infosys is exposed on B1 visa is TCS, Wipro and all other cronies. These companies won't succeed in open and fair competition.

Feb 8, 2012 9:19 AM Vincenzo Vincenzo  says: in response to cguy

Indeed - other companies have had criminal violations.  In (many of?)  these cases, the outcome was more stringent regulations, better standards, etc.  However, in the case of Infosys, what they're being accused of goes to the heart of their business model.  They make their money using cheap labor.

If the outcome of all of these proceedings is to deny Infosys a huge source of cheap labor, and public and political opinion turns against them - poof! Their goes their business model.

Feb 8, 2012 12:35 PM SP SP  says: in response to cguy

It is hardly the "End of Story" as you put it: DoJ has identified some employees as "targets" in the criminal investigation. That could mean that some of these guys who work(ed) for Infosys could potentially be charged. I'll grant you it's not going to be any one of any real consequence- All those guys sit in India and those who work here are largely powerless to frame any kind of policy. The CEO could be imprisoned- I doubt that will happen- the Government stands to gain more by penalizing the Corporation. And how do you know Palmer's just looking for a settlement? He has been unfairly sidelined for almost 3 years now- He cannot even look for another job because he hasn't accomplished anything these past 3 years as a Consultant.There's more at play here, Infosys needs to understand that they cannot bribe or threaten their way out of this mess.

Feb 8, 2012 12:36 PM insider insider  says: in response to Swami

Palmer is right.  And then some....Infosys has really broken multiple agency laws and a lot of people know - a lot.  The CFO is a cheapskate and directs the company employees to squeeze every dime from every individual and from every client.  It's not just Infosys either.  All the Indian outsourcing companies break the U.S. immigration and tax law.  This is a valid story, a little over-exaggerated in some ways but still very true, and it's just the beginning of the whole story.  All the dirty laundry will come out soon.

Feb 9, 2012 2:30 AM SP SP  says: in response to Bystander

It's not just the Indian Corporations- IBM, Accenture, Cap-Gemini- all of them engage in the B-1 violations. As long as they don't bill the client for the B-1 guy, they seem to think they can get away with it. And they do succeed in open competition- it's just that they brought every one down to their level. Tell me about ONE major consultancy firm in this model that doesn't have operations in India, Brazil, or anywhere else! There aren't any, not anymore! Whether they contract our jobs out or ship them off shore, bottomline: The IT job situation is a sink with an open drain! And looks like, to be successful, you don't have to develop stuff- You just need to memorize it and repeat it over and over! Though, to be honest, we don't ALL need to be innovators. But Bystander, your point here poses a concern to me: If most of the innovation is coming from the US, why are we losing our edge? Why are we, when we are so careful while development, so careless when we share? MS,Google, Oracle- all these companies were started here- Why are so many of their employees non-American? They're probably American now, but you now what I mean! Why are MS and Accenture and now, the Banks, hiring more people abroad? They're not paying them low wages- Is it just the size of the pool they can choose from? Why blame them when it's OUR Corporations selling our people down the river? I feel like there's more going on than just deceiving Indians and cheap labor.

Feb 10, 2012 2:13 AM IAmNumber813 IAmNumber813  says: in response to SP

"MS,Google, Oracle- all these companies were started here- Why are so many of their employees non-American?"

This is a key question and the status quo will not change until more American customers and individual/institutional investors of these companies demand change.

As another example, most of NYC is very demographically diverse and is considered the melting pot capital of the world. However, the IT departments of many financial services companies (banks, etc.) in the NYC area consist of mostly Indian citizens residing in the U.S. under various work visas (H-1B/L-1/B-1).

Many people believe the Hindu religion's caste system (social classification, social status, etc.) in India is a major underlying reason causing the demographic stratification and exclusion of American professionals in U.S. corporations.

There has been much feedback across the internet by American professionals regarding whether or not "Indians hire non-Indians" (excluding token hires). However, the mainstream media generally does not discuss this "sensitive" subject due to its racial overtones.

Also see:

Do Indians hire Non-Indian IT workers?

Feb 10, 2012 10:28 AM SP SP  says: in response to IAmNumber813

So you're telling me that the reason Americans are not hired is because they don't have a caste? AYKM!! Wonder what would happen if we stopped all new visa activity for a while- they're gonna HAVE to hire locals

Feb 12, 2012 2:04 AM Amit Amit  says:

It seems like Infosys would just take a stance that it has no policy to mis-use visas as there seems no explicit documentation of that nature. The organisation would make specific employees as a scape goat in this matter. Between the time the case was logged and the trial begins which is 1.5+ years, they would have done something to make it seem that those specific employees(scape goats) have some action taken against them. At the end the organisation would get away with at most a fine that they can afford to bear.

Feb 13, 2012 1:56 AM Richard Richard  says: in response to Amit

Agreed. But they should also be banned/restricted from applying for US visas for a period of 3-5 years. They will also have to pay settlement fees to Palmer.

Feb 16, 2012 11:12 AM SP SP  says: in response to Amit

Doubt that- Not for any noble reason, but a practical one. The DoJ does not want these individuals,they want to nail Infosys, and anyway, the ones who actually control this stuff are in India, and I don't know if they can be extradited. WRT the folks here in the US, (a) They most likely were powerless to influence these decisions; and (b) They could just as easily make a deal with the prosecution and turn witness for them, pulling the Corporation down-- If this is the **** Infosys is in with ONE Jay Palmer, I'll bet anything, they don't want anymore-- Especially if they are Indian- I'll bet there was a lot JP didn't even realise, because he doesn't speak their language/dialect! Not deriding Palmer, just saying, that the folks in India are likely have been more open about their scam with one of their own.


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