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Settlement talks set for Don Marsh severance dispute

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Lawyers for Marsh Supermarkets Inc. and its former CEO are set to meet Monday in hopes of finally ending their years-long court battle in which the company already has notched a partial victory.

Following a two-week civil trial last month, a federal jury ordered Don Marsh, 75, to pay the local grocery chain $2.2 million, finding that he used company money to finance global travels and other unnecessary expenses.

Judge Sarah Evans Barker now must rule separately on whether Marsh Supermarkets can recover roughly $2.1 million in severance it has paid to Don Marsh. The original severance agreement called for a $4.2 million payment.

But first the two sides will attempt to settle the severance dispute on their own. According to a recent court document, each side was set to file by noon Friday “a brief confidential settlement statement” outlining their positions.

The settlement conference is set for 8:30 a.m. Monday.

David Herzog, a partner at Faegre Baker Daniels LLP who is representing Marsh Supermarkets, told IBJ in an email that “the company has always been eager to resolve its dispute with Mr. Marsh and looks forward to another opportunity to try.”

Marsh’s lawyer, Andrew McNeil, a partner at Bose McKinney & Evans LLP, declined to comment on the settlement proceedings.

A settlement could be critical for Don Marsh, who could end up owing his former company as much as $4.3 million if he is forced to pay the jury's $2.2 million judgment plus the $2.1 million in severance he’s already received.

After Marsh Supermarkets sued him in federal court in 2009, he countersued, asserting the company improperly halted his post-retirement payouts in 2008 and still owed him about $2.1 million. The jury denied his counterclaim.

Marsh left the company he had led since 1980 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.

Don Marsh's attorneys insisted his globe-trotting trips were business-related and within the bounds of his employment contract.

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

Although the grocery chain had asked for $1.6 million to cover expenses and penalties related to the IRS audit, the jury awarded the company half that amount, saying it shared responsibility.

Besides the $2.1 million in severance Marsh Supermarkets also is hoping to recover, the company believes it’s entitled to $1.8 million in life insurance policy premiums paid on Marsh's behalf.
 

IBJ is a sister publication of Indiana Lawyer.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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