Will Infosys Manage to Avoid Criminal Indictment?

Don Tennant

With the civil case against Infosys brought by whistleblower Jay Palmer slated to go to trial in just two months, and the U.S. government’s criminal investigation of the company so inextricably tied to the civil case due to the stacks of incriminating evidence that Palmer and the other whistleblowers have supplied to the feds, it’s not too much of a stretch to conclude that time is running out for Infosys.

At some point, the feds are going to come knocking on the door of Stephen Jonas, the partner in the Boston-based law firm WilmerHale who was hired by Infosys to defend it in the criminal investigation, and they’re going to engage in a lot of lawyer-speak. But the translation of what the feds will say will be simple: “Checkmate.”

What’s still open to conjecture is what will follow the feds’ game-over pronouncement. There are a lot of people — and I’m one of them — who say justice demands that Infosys, and certain of its employees, be criminally indicted. The evidence that the company knowingly and systematically violated U.S. immigration and tax law is so overwhelming, and so egregious, that holding the company criminally accountable is essential for justice to fully be served.

So the ideal scenario, in my view, would be for a representative from the Department of Justice, flanked by the officers from the Department of State and the Department of Homeland Security who led the criminal investigation, to swoop in on Jonas and inform him that a criminal indictment is forthcoming. But there’s a second scenario that, though not ideal in my view, would be palatable: Give Infosys the choice to either bend over backwards to right the wrongs and make amends for its actions, or be indicted.

As far as I’m concerned, Infosys hasn’t earned that choice. But if such a choice were to be presented, I would want to see the feds demand, at minimum, that Infosys take the following actions:

  • Pay the United States the fees that would have been charged had it sent workers here legally on H-1B visas instead of illegally on much less expensive B-1 visas, along with the most severe financial penalties allowed under the law.
  • Pay the United States all tax revenue that would have been collected if Infosys had abided by U.S. tax law, along with the most severe financial penalties allowed under the law.
  • Agree to a settlement of additional punitive damages that reflects the egregiousness of its actions, including falsifying I-9 employment forms and failing to truthfully apprise its shareholders of the extent of its wrongdoing. The amount of such a settlement would likely be in the hundreds of millions of dollars.
  • Agree to monitoring and regular audits of its compliance with U.S. immigration and tax law, and reimburse the U.S. government for all costs associated with such monitoring and auditing.
  • Provide any assistance the U.S. government deems necessary in determining whether immigration fraud is prevalent in other companies, including Wipro, Tata and Cognizant, and provide that assistance at no cost to the U.S. government.

Regardless of which scenario prevails, my guess is it will be presented sooner rather than later. Just in case the feds do opt to show some mercy and present the company with that choice, Infosys would be very well advised to start practicing its contrition and remorse now. After all, it will be starting from scratch.

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