With a criminal investigation by federal authorities hanging over its head, Infosys Technologies is now maneuvering to prevent a public hearing of the visa fraud lawsuit brought last month by Infosys employee and whistleblower Jay Palmer.
Palmer's attorney, Kenny Mendelsohn, said Infosys has filed a motion to compel arbitration in the case. That means the case would be heard behind closed doors, rather than in a courtroom where the charges and Infosys' response to them could be heard by the public. While Mendelsohn clearly isn't afraid of arbitration, he's going to file an objection to the motion. After speaking with him about it, I could tell that the idea just doesn't sit well with him.
We can arbitrate it, we can litigate it. The bottom line is at some point in time, Infosys is going to have to face us and our questions about their wrongful conduct and why nobody's been protecting Jay when all he did was follow their policy and report violations of the law. That isn't going to change, regardless of whether we litigate it or arbitrate it. The facts are the facts, and those won't change. I prefer it being in federal court, mainly because I'd like to see this thing tried in a public setting. Arbitration has its place, and it's not always a bad thing to do. I'm not afraid of the arbitration rules, or the arbitrator, or anything like that. In this case, if we have to arbitrate it, I have confidence there will be a fair and neutral arbitrator. Anybody who hears these facts is going to conclude that Jay has been harassed and retaliated against, all because he stood up and reported some criminal violations. I don't care who hears it. Those facts are not going to change. I'll be happy with whatever ruling [on arbitration] the judge gives.
As I noted in an earlier post, "Infosys Under Federal Investigation in Visa, Tax Fraud Case," the company had previously filed a motion to move the case from Lowndes County, Ala., Circuit Court to the federal court in Montgomery. Mendelsohn explained where that fits into the arbitration scenario:
Apparently what they wanted to do was get the federal judges to rule on the arbitration issue rather than the Lowndes County judge. They could have filed a motion to compel arbitration in the Lowndes County Court. But if they lost that, they'd wind up having to try it in Lowndes County. Apparently, their view is that if it doesn't go to arbitration, they'd prefer to be in federal court, as opposed to Lowndes County Circuit Court.
Separately, as I also noted in the earlier post, after it became aware that Palmer was cooperating with federal investigators, Infosys demanded that Palmer surrender his laptop, and threatened to fire him if he didn't comply. Mendelsohn told me on Monday that the federal investigators have asked for the laptop, and that they're going to get it:
They have asked us to secure it until they can formally request it, and I'm not sure exactly what the procedure is. I'm assuming there's some kind of warrant or subpoena or something like that to get it. They're going to do it the correct way, I'm sure. It is secured right now. Infosys provided him with another laptop at his request. I have made the decision that it is going to remain secured until the federal government obtains it. These [documents on the laptop] are critical documents in an ongoing investigation. Infosys didn't ask for it in October and November when they were supposedly doing the whistleblower investigation, which I don't think they were actually doing, by the way. Now, after they find out that there's a federal criminal investigation going on, they suddenly want his laptop. I'm not going to take the chance of anybody interfering with those documents.
You certainly can't blame Infosys for wanting to get its hands on that laptop, or for not wanting to have its dirty laundry aired in public. But I, for one, hope it loses the arbitration battle the way it lost the laptop battle. If the case goes to federal court, the possibility exists that this civil case could suddenly turn into a criminal case. It's not uncommon in either state court or federal court for judges to Mirandize a witness and call in a district attorney if it appears that criminal activity has taken place. It's difficult to read the case facts in the lawsuit Mendelsohn filed on Palmer's behalf, and the evidence he's collected, and not conclude that criminal activity has likely occurred at Infosys, and that it has likely been rampant.
I wouldn't be surprised if Infosys has hired a criminal defense attorney to begin the process of trying to keep Infosys executives out of jail. Even if the case does go to arbitration, the facts of the case, as Mendelsohn says, aren't going away. And unfortunately for Infosys, neither is the federal criminal investigation.