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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. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  2. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  3. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  4. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  5. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

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