ILNews

Marsh Supermarkets, former CEO spar over attorney fees

Scott Olson
September 12, 2013
Back to TopCommentsE-mailPrintBookmark and Share

The years-long legal spat between Don Marsh and the company he once led appeared to have concluded this summer, but has now turned to attorney fees and who’s paying the million-dollar bills.

In court documents, attorneys for Marsh and Marsh Supermarkets Inc. each have submitted expenses totaling roughly $1.7 million and are seeking reimbursement from the other. The requests have drawn sharp rebukes from both sides.

“Neither the court nor the company can determine without discovery the extent to which Mr. Marsh’s request is over-inclusive,” lawyers for Marsh Supermarkets wrote in a Sept. 3 court document. “But the fact that it is over-inclusive is apparent on the face of the request.”

The argument over attorney fees marks the latest dispute in the four-year federal court battle in which Don Marsh won a partial victory.

In July, Judge Sarah Evans Barker issued an order allowing him to keep nearly $2.2 million in severance paid by Marsh Supermarkets, which had attempted to recover the payments from its former CEO.

However, Marsh ended up losing nearly the same amount on another issue. Barker's order followed a two-week civil trial in February after which a federal jury ordered Marsh to pay the local grocery chain $2.2 million, finding that he used company money to finance global travels to entertain mistresses and other unnecessary personal expenses.

Many of the arguments presented by both sides involved the Employee Retirement Income Security Act, or ERISA, a federal law governing pension plans. Marsh’s victory on his ERISA claim for his severance also is at the crux of the fight over attorney fees.

Barker found that Marsh can recover attorney fees relating to his ERISA claims. But she also determined that the company can recover fees relating to non-ERISA claims.

Lawyers for Don Marsh argue that because the ERISA- and non-ERISA-related issues flow from the same set of facts presented at trial, “all fees and expenses in this case are ERISA-related.”

Marsh Supermarkets strongly disagrees.

“It was not his prerogative to say, ‘Here is just about everything’ and then leave it to the court and the company to try to determine from his supporting records what was attributable to ERISA and what was not,” company lawyers wrote.

Conversely, Marsh Supermarkets is asking Marsh to pay its $1.7 million attorney bill for costs relating to only the non-ERISA claims that it succeeded in proving during the trial.

Marsh argues that there’s no legal basis to award the company attorney fees.

“The plain language of the ERISA plan leaves the court with a ‘straightforward’ task that is ‘not a matter of discretion’ when it grants Mr. Marsh his attorneys’ fees, litigation expenses, and costs but makes no provision for the company,” Don Marsh’s lawyers wrote in a Sept. 9 court filing.

Marsh Supermarkets is represented by David Herzog of Faegre Baker Daniels and Don Marsh by Andrew McNeil of Bose McKinney & Evans LLP. Both declined to comment on the fee dispute.

The fight between the two erupted in 2009, when Marsh Supermarkets sued Marsh in federal court. He countersued, asserting the company improperly withheld his post-retirement payouts in 2008 and still owed him about $2.1 million.

Marsh left the company he had led since the late 1960s following its purchase in September 2006 by Sun Capital Partners, a Florida private equity firm.

Marsh Supermarkets stopped the severance payments after it said an Internal Revenue Service audit found “disallowed deductions” for personal expenses he racked up from April 2004 to September 2006. The company ultimately paid the IRS a $616,000 penalty.

The nine-member jury in February found that Marsh committed breach of contract and fraud, but stopped short of delivering Marsh Supermarkets a total victory.

Although the grocery chain asked for $1.6 million to cover expenses and penalties related to the IRS audit, the jury awarded the company half that amount on its fraud claim, saying it shared responsibility. The jury also awarded the company $1.4 million on its breach-of-contract claim.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

ADVERTISEMENT