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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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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