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Jury to begin deliberating in Don Marsh trial

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A jury is expected to begin deliberating Friday afternoon whether Don Marsh owes Marsh Supermarkets Inc. more than $3 million in personal expenses he allegedly charged the company while he was CEO.

Closing arguments were scheduled for 10 a.m. Friday, but were pushed back to 11:30 a.m. after a lengthy closed-door conference between Judge Sarah Evans Barker and attorneys representing the former chief and the locally based chain.

The company filed a civil lawsuit against Marsh in April 2009, claiming he used the company as a personal checkbook to finance global travels and trysts with mistresses. Flights on the company jet included several trips to New York City and Smyrna, Tenn., to visit two of the five mistresses that Don Marsh, 75, admitted to during the two-week trial.

The trial began Feb. 4 in federal court in Indianapolis.

His dirty laundry was aired as his wife, Marilyn, sat in the courtroom during much of the proceedings.

Marsh Supermarkets lawyers have attempted to convince the jury that Don Marsh spent $3.3 million in company money for personal entertainment with no real benefit to the business.

Don Marsh’s attorneys, on the other hand, painted the veteran CEO as a networking master who traveled the globe in hopes of bringing more business to Marsh Supermarkets.

Sun Capital Partners purchased Marsh Supermarkets in September 2006 and directed the grocery to file suit after an investigation into company finances uncovered what it considered lavish spending by the former CEO.

Central to Marsh Supermarkets’ case is a report compiled by Patrick Calhoun, a former Internal Revenue Service agent, highlighting the $3.3 million in spending.

Among the expenses listed:

—$927,210 in nondeductible outings.

—$804,141 in company plane costs.

—$625,775 in Marsh family travel.

—$397,616 in professional organization costs.

—$315,451 in professional services.

On Thursday, lawyers for Don Marsh called a veteran tax adviser as an expert witness to refute Calhoun’s report.

Wayne Hoeing, who joined Clifton Larson Allen LLP in 2010 following a 24-year career at Ernst & Young LLP, attempted to discredit the findings by claiming that Calhoun used the wrong tax code to calculate the expenses.

At one point, Jonathan Mayes, a lawyer for Don Marsh, asked Hoeing whether it mattered if an annual Marsh Christmas card was sent by the family of Don Marsh or Marsh Supermarkets. Company lawyers claim Don Marsh needlessly spent Marsh Supermarkets’ money to fly family members to Indianapolis annually for a Christmas card photo.

Hoeing said it did not matter.

“I grew up watching Mr. Marsh on television commercials,” he said. “It’s not too hard to equate Mr. Marsh with Marsh Supermarkets.”

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

Don Marsh’s father founded the company in 1931 and took it public in 1953. He died in 1959 in a plane crash.

The younger Marsh, a graduate of Michigan State University, became a director of the company in 1960 and rose to president in 1968. He became CEO in 1980, a title he retained until Sun Capital took the company private with its purchase in 2006.

Sun Capital began paying Marsh $4.2 million in severance but only paid half after it discovered the millions of dollars of what it considered personal expenses charged to the company. Marsh is countersuing Marsh Supermarkets in an attempt to receive his full severance.

Upon its sale, Marsh Supermarkets had $1.7 billion in annual revenue and more than 100 stores in Indiana, Illinois and Ohio.
 

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