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Appeals court upholds Marsh's $18.2M award from Roche

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The Indiana Court of Appeals upheld an $18.2 million judgment Monday in favor of Marsh Supermarkets LLC on its complaint alleging that Roche breached a contract to sublease space in the Fishers building that houses Marsh’s headquarters.

Marsh’s multimillion-dollar award stemmed from a breach of contract suit it filed in July 2008 to enforce a deal with Roche Diagnostics Corp. to sublease the local supermarket chain’s entire 148,000-square-foot-headquarters in Fishers.

The deal, worth more than $47 million over 18 years, would have been one of the largest of its kind in central Indiana.

Judge William Hughes announced the original award following a bench trial in October 2011. Hughes reduced the amount based on a new sublease Marsh obtained with First Advantage Background Services Corp.

Roche, which had its North American headquarters and 2,800 employees spread over several buildings along Interstate 69 near East 96th Street, announced the lease of Marsh’s headquarters in March 2008 but backed out in late May of that year.

The abrupt reversal was a shock to Marsh, which had vacated most of the building, and Roche employees already were moving in and conducting meetings in the auditorium, the lawsuit claimed.

But Roche said it had a right to terminate the deal because Marsh failed to deliver certain documents, including a so-called subtenant non-disturbance agreement—standard paperwork that protects sublease tenants in many of the same ways primary tenants are protected.

In the appeal, Judges Patricia Riley and L. Mark Bailey affirmed in favor of Marsh. Judge Terry Crone dissented.

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  1. How can any company that has the cash and other assets be allowed to simply foreclose and not pay the debt? Simon, pay the debt and sell the property yourself. Don't just stiff the bank with the loan and require them to find a buyer.

  2. If you only knew....

  3. The proposal is structured in such a way that a private company (who has competitors in the marketplace) has struck a deal to get "financing" through utility ratepayers via IPL. Competitors to BlueIndy are at disadvantage now. The story isn't "how green can we be" but how creative "financing" through captive ratepayers benefits a company whose proposal should sink or float in the competitive marketplace without customer funding. If it was a great idea there would be financing available. IBJ needs to be doing a story on the utility ratemaking piece of this (which is pretty complicated) but instead it suggests that folks are whining about paying for being green.

  4. The facts contained in your post make your position so much more credible than those based on sheer emotion. Thanks for enlightening us.

  5. Please consider a couple of economic realities: First, retail is more consolidated now than it was when malls like this were built. There used to be many department stores. Now, in essence, there is one--Macy's. Right off, you've eliminated the need for multiple anchor stores in malls. And in-line retailers have consolidated or folded or have stopped building new stores because so much of their business is now online. The Limited, for example, Next, malls are closing all over the country, even some of the former gems are now derelict.Times change. And finally, as the income level of any particular area declines, so do the retail offerings. Sad, but true.

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