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Marsh: Company code of conduct didn’t apply to him

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Don Marsh continued to use the company jet for personal reasons even after Marsh Supermarkets Inc. adopted a code of conduct to discourage financial fraud within the company, a lawyer for the supermarket chain alleged Wednesday morning in an Indianapolis courtroom.

Directors of Marsh Supermarkets signed off on the document in June 2004 following federal passage of the Sarbanes-Oxley Act, a high-profile law which mandates that top management of public companies certify the accuracy of financial information.

But Don Marsh told jurors in his civil trial that he didn’t think the code of conduct applied to him because he "wasn’t aware of it," even though his signature appears on the document.

“Where is that written?” asked David Herzog, Marsh Supermarkets’ lawyer, responding to Don Marsh’s assertation that he "wasn't under the code."

“It’s written from my lips,” Marsh said during his second day of testimony.

Locally based Marsh Supermarkets is suing its former CEO, alleging that he used company funds to pay more than $3 million in personal expenses from at least the late 1980s until after the company was acquired in 2006.

Early Wednesday, Herzog continued to present exhibits to illustrate to the jury Don Marsh’s lavish spending habits in his efforts to paint Marsh as a globetrotting executive with little regard for tracking expenses.

The then-new company code of conduct, which Don Marsh certified with his signature, first appeared in a Marsh fiscal 2005 annual report.

Under oath, though, Marsh said he didn’t have time to read the entire annual report.

“It’s stacks like this every day,” Marsh said, placing his hand about a foot above the witness stand to indicate the amount of paperwork he approved on a regular basis. “It’s impossible to read all this stuff.”

“Is it a fact that you traveled so much you didn’t have time for real work?” Herzog asked Marsh.

Marsh disagreed, saying “I worked that much.”

Herzog continued to hammer away at expenses Marsh claimed as business travel, including an annual fishing junket he and employees took to Alaska. In 2004, he requested reimbursement for $22,908 spent on fishing licenses, various apparel and 22 boxes to ship fish back to Indiana, according to court documents.

In addition, Marsh racked up $19,000 in tips to wait staff.

Marsh testified that he never looked at the cost of the yearly trips to Alaska that he described as a “company program,” but guessed they likely cost the chain a total of $90,000 not counting travel expenses.

He further said he didn’t commit fraud because he didn’t deliberately mislead the company.

“I paid for personal expenses,” he said. “We may debate on how I paid it, but it was standard practice.”

Marsh typically used the company credit card and simply marked “P” next to the charges on the statement he considered personal instead of using standard expense forms.

Florida-based Sun Capital Partners, which bought Marsh Supermarkets in 2006, terminated Don Marsh’s contract “without cause” after it took over, then stopped paying his severance in 2008, after it claims it discovered personal expenses charged to the company.

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

Attorneys for Don Marsh defended the expenses, saying they were within the boundaries of his employment contract. And they say his extensive travels were justified to promote the company and stay on top of trends in food retailing.

His attorneys aim to persuade the jury that the company was the party in the wrong. After Marsh Supermarkets sued him in federal court in 2009, he countersued, asserting the company improperly halted his post-retirement payouts in 2008 and owes him more than $2 million.

The trial in federal court is expected to last two weeks.

The IBJ is a sister publication of Indiana Lawyer.

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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