In what may be the most glaring demonstration of a calculated pre-trial housecleaning strategy to date, Infosys has made a sweeping change of personnel in its human resources operation in the United States. The overhaul includes the removal of key personnel who had responsibilities directly related to alleged illegal visa activity being investigated by U.S. government authorities.
The most recent U.S.-based senior HR official to be sent back to India is Poornima Prasad, who as Human Resources Business Leader was instrumental in running Infosys' HR operations in the Americas region, and in authorizing immigration-related activities from the company's Plano, Texas, office. Prasad's departure follows the quiet exits of Arun Silvester, Infosys' head of U.S. immigration, and Eshan Joshi, an associate vice president of human resources.
All three of these senior HR officials were slated to be deposed by Kenny Mendelsohn, the attorney representing Jay Palmer, the Infosys employee and whistleblower whose visa and tax fraud lawsuit triggered the federal government's criminal investigation of the company. I spoke with Mendelsohn on Thursday, and he said Prasad's departure is consistent with the actions Infosys has taken since the company was served with a U.S. grand jury subpoena in May:
To me, Poornima leaving is just another example of how Infosys is apparently trying to change the things that Jay Palmer pointed out to them a year and a half ago. My whole point is that if Jay Palmer was lying about this, or if his accusations were not true, Infosys would not be making all of these changes. To me, this is just another acknowledgement by them that they had these very problems in their immigration department that Jay tried to get them to correct a year and a half ago, and they wouldn't do it. I think what's gotten their interest is now this grand jury is impaneled, and federal authorities are seriously investigating and pursuing them, and it took that to get them to make changes. In the meantime, Jay has been harassed, retaliated against, exiled from the company, shut out of their system-that's the suffering he's been put through, and all he did was follow their own whistleblower policy, pointing out these very problems that they now see are true.
Mendelsohn said that while he wanted to depose the three departed HR officials for his civil case, what's really at stake is whether the federal investigators wanted to question them for their criminal case:
I can't answer that, but as a former prosecutor, that's what goes through my mind. I don't think it will hurt their prosecution not having them, but it's interesting to me that some of these people who were certainly involved to some extent in Infosys' immigration and human resources are no longer here in the country. We have received information that other Infosys employees have been requested to give statements and meet with them, and have been instructed not to talk to the federal authorities. The grand jury can subpoena people to be here, but not when they're out of the country.
I told Mendelsohn it appears to me that Infosys is trying to stay one step ahead of U.S. law, and I asked him if he thinks that's the case. His response:
I do. I honestly do. They will probably say, "Oh no, we just needed them here in India." But I have every reason to believe that even if these people aren't guilty of any crimes, they know what was going on during this time. This was going through their office. Arun Silvester was head of immigration in the U.S. That's the guy who was overseeing all of immigration, and we have undisputed evidence of immigration violations. So my guess is Infosys doesn't want him near a grand jury.
Mendelsohn also said he plans to raise all of this when he presents his case at trial:
You can't come out and call [Palmer] a liar and say, "We've done nothing wrong," but then revamp your whole immigration department. Why change it if you haven't done anything wrong? If you didn't do anything wrong, you don't change it. Truthfully, I think they're probably changing a lot of this to make themselves look better with the federal authorities-telling them, "We've made mistakes, it wasn't intentional, we've cleaned it up and gotten rid of all these people." It's either that they don't want the testifying, or they want to make the company look good by saying, "Look, we've gotten rid of all the people who were involved, and we're open under new management." That's a common defense tactic.
I asked Mendelsohn if that tactic wouldn't be a de facto admission of wrongdoing. His response:
It is to me-that's why the criminal outcome is going to be so important to me. I don't have access to everything in the federal government's criminal investigation, because the authorities aren't allowed to tell me everything that's going on. But Infosys' biggest fear right now is the federal authorities' criminal case. That, in my mind, is what they're trying to get worked out. Because if Infosys takes the position that they did nothing wrong, and doesn't try to work out something, my best guess is that they're going to get indicted, and they're going to have to try to defend themselves in court. And with all the evidence that the feds have on them, they're going down.
Mendelsohn said that as he sees it, Infosys needs to do everything in its power to avoid that indictment:
It's not unusual in any criminal case for somebody to come in and basically plead for mercy. As a former prosecutor, it looks to me like everything that Infosys has been doing is to come in and say, "Look, the board didn't know anything about it, we had some employees who didn't understand the law and they maybe got overly aggressive, and we've changed our policies. We didn't mean to violate the law. If we didn't pay the proper visa fees, we'll pay them; if we didn't pay the taxes, we'll pay them. But just don't prosecute us, and don't ruin our company. We're still a great company, and we love America." That's what it looks like they're setting up. I can't speak for the federal authorities or for Infosys, but it certainly appears to me that a lot of this is being done to try to make themselves look better in front of the federal authorities. I can't be sure, but certainly, just based on being a former prosecutor and my experience, that certainly looks like the defense they're setting up. Knowing what I know about Infosys' conduct, that would be the position I would be advising Infosys to take.
For coverage of related Infosys housecleaning activity, see my Dec. 11 post, "Infosys Recasts Immigration Team as Showdown with Feds Looms."