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Jury to begin deliberating in Don Marsh trial

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A jury is expected to begin deliberating Friday afternoon whether Don Marsh owes Marsh Supermarkets Inc. more than $3 million in personal expenses he allegedly charged the company while he was CEO.

Closing arguments were scheduled for 10 a.m. Friday, but were pushed back to 11:30 a.m. after a lengthy closed-door conference between U.S. Judge Sarah Evans Barker and attorneys representing the former chief and the locally based chain.

The company filed a civil lawsuit against Marsh in April 2009, claiming he used the company as a personal checkbook to finance global travels and trysts with mistresses. Flights on the company jet included several trips to New York City and Smyrna, Tenn., to visit two of the five mistresses that Don Marsh, 75, admitted to during the two-week trial.

The trial began Feb. 4 in federal court in Indianapolis.

His dirty laundry was aired as his wife, Marilyn, sat in the courtroom during much of the proceedings.

Marsh Supermarkets lawyers have attempted to convince the jury that Don Marsh spent $3.3 million in company money for personal entertainment with no real benefit to the business.

Don Marsh’s attorneys, on the other hand, painted the veteran CEO as a networking master who traveled the globe in hopes of bringing more business to Marsh Supermarkets.

Sun Capital Partners purchased Marsh Supermarkets in September 2006 and directed the grocery to file suit after an investigation into company finances uncovered what it considered lavish spending by the former CEO.

Central to Marsh Supermarkets’ case is a report compiled by Patrick Calhoun, a former Internal Revenue Service agent, highlighting the $3.3 million in spending.

Among the expenses listed:

—$927,210 in nondeductible outings.

—$804,141 in company plane costs.

—$625,775 in Marsh family travel.

—$397,616 in professional organization costs.

—$315,451 in professional services.

On Thursday, lawyers for Don Marsh called a veteran tax adviser as an expert witness to refute Calhoun’s report.

Wayne Hoeing, who joined Clifton Larson Allen LLP in 2010 following a 24-year career at Ernst & Young LLP, attempted to discredit the findings by claiming that Calhoun used the wrong tax code to calculate the expenses.

At one point, Jonathan Mays, a lawyer for Don Marsh, asked Hoeing whether it mattered if an annual Marsh Christmas card was sent by the family of Don Marsh or Marsh Supermarkets. Company lawyers claim Don Marsh needlessly spent Marsh Supermarkets’ money to fly family members to Indianapolis annually for a Christmas card photo.

Hoeing said it did not matter.

“I grew up watching Mr. Marsh on television commercials,” he said. “It’s not too hard to equate Mr. Marsh with Marsh Supermarkets.”

Indeed, Don Marsh was one of Indiana’s highest-profile executives for decades and frequently appeared in the company’s TV advertising.

Don Marsh’s father founded the company in 1931 and took it public in 1953. He died in 1959 in a plane crash.

The younger Marsh, a graduate of Michigan State University, became a director of the company in 1960 and rose to president in 1968. He became CEO in 1980, a title he retained until Sun Capital took the company private with its purchase in 2006.

Sun Capital began paying Marsh $4.2 million in severance but only paid half after it discovered the millions of dollars of what it considered personal expenses charged to the company. Marsh is countersuing Marsh Supermarkets in an attempt to receive his full severance.

Upon its sale, Marsh Supermarkets had $1.7 billion in annual revenue and more than 100 stores in Indiana, Illinois and Ohio.
 
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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