Marsh Supermarkets rests case against former CEO

Back to TopCommentsE-mailPrintBookmark and Share

Lawyers for Don Marsh got their first chance to go on the offensive Wednesday after Marsh Supermarkets Inc. rested its case against the company’s former CEO.

The locally based grocery chain is suing Don Marsh in an attempt to recoup more than $3 million in what it alleges are personal expenses he charged to the company before Florida-based Sun Capital Partners purchased it in 2006.

Lawyers for Don Marsh called as their first witness P. Lawrence Butt, the company’s former corporate counsel.

Butt said he once traveled to Russia for a week as Don Marsh explored business opportunities there, meeting with Nadia Kovarskaya. Her name has been prevalent during the nearly two-week trial, as Don Marsh admitted to jurors that he had numerous extramarital affairs, including a tryst with Kovarskaya.

Butt, however, told jurors he was unaware of the affair and believed Don Marsh’s relationship with her was legitimate business. Kovarskaya had a consulting agreement with a Marsh Supermarkets subsidiary called Marsh Cultural, he said, and Don Marsh was exploring whether to sponsor a Russian ice ballet in the United States.

Don Marsh admitted to jurors that he visited Kovarskaya about twice a month in the year 2000 while he put her up in a New York City apartment, part of the expenses Marsh Supermarkets is trying to recover.

Earlier Wednesday, Don Marsh's son David concluded his testimony, restating his belief to jurors that the numerous trips he and others took were essential to the business of Marsh Supermarkets Inc.

David Marsh, who served as the company's president, remained adamant that the trips he took with either his family or father benefitted the company, even when presented with thousands of dollars of charges relating to a 10-day trip he and his then-wife took to Beijing in May 2005.

The charges included a $10,000 balance owed to the Young Presidents’ Organization, which was holding a conference in the Chinese city, along with airline tickets that cost $8,099 each.

Two months later, he and his father jetted to Alaska on the company plane for Marsh Supermarkets’ retreat.

“We believed it was very, very effective for the company,” David Marsh said when questioned by company lawyer David Herzog.

In 2005 alone, David Marsh took roughly 25 trips to such far-reaching destinations as Beijing, Toronto and Thailand. David Marsh contended that he or company suppliers picked up the tab for some of the travels when necessary.

David Marsh testified that he often needed the company jet—he sometimes took as many as three trips in a single month—because his time was valuable to Marsh Supermarkets.

He told jurors he gave “120 percent” to the company and often was the last person to leave the office in the evenings.

That prompted Herzog to respond, “forgive me, but you weren’t at the company very much.”

Marsh Supermarkets launched a legal fight against David in 2006 after he sued the company, alleging it shorted him $102,000 on his $2.1 million severance package. The company shot back that he had used the company “as his personal checkbook,” submitting expenses from family trips, and should have to repay more than $750,000. The parties reached a confidential settlement in 2007.

David Marsh testified for about an hour early Tuesday evening before Judge Sarah Evans Barker halted proceedings.

He said then that Marsh Supermarkets picked up the tab for a lease on a new BMW and $25,500 in financial planning services because he believed his contract with the company allowed for it.

“It’s an open-ended clause,” David Marsh said after pointing out a section in his contract that he thinks entitled him to the perks.

David Marsh said he and his father often discussed business while on hunting and fishing trips to Alaska and South Dakota. When Herzog asked why they didn't instead go to an Arby's across the street from company headquarters, David said, "It’s not the same as getting out of town."

In earlier testimony Tuesday, jurors heard from Patrick Calhoun, a former IRS special agent hired by Marsh Supermarkets to investigate Don Marsh's expenses. His job was to identify business and non-business expenses from 1999 to 2006, to determine whether they were "ordinary and necessary."

Calhoun found more than $3.3 million in expenses he said had no benefit to the company.

Here’s a sample:

—$927,210 for “nondeductible outings” that included taxidermy services and hunting licenses.

—$397,616 for professional organization costs that included trips to Young Presidents’ Organization and World Presidents’ Organization meetings.
—$625,776 for Marsh family travel expenses .

—$159,169 for “cultural” expenses that included hotel charges for Nadia Kovarskaya, the head of a Russian ice ballet with whom Don Marsh had an affair.

—$315,415 in estate planning services.

—$120,640 in nondeductible credit card expenses that included the purchase of several pairs of boots at an Alaskan store.

—$135,468 in “other” nondeductible expenses, such as gifts for weddings.

—$64,871 in daily per-diem charges that Marsh Supermarkets says Don Marsh collected while also billing expenses to the company.

—$21,500 for cash advances Don Marsh took to spend on trips to such places as Cuba, where credit cards aren’t accepted.

The trial is expected to conclude Friday.


  • What Sun Needs
    Sun Capital Partners should consider a Consumer Advisory Panel that reports directly to the Board of Directors. Set aside the belief that starting operations in Russia or Canada or places with big game hunting, was the next big wave, the current management has no idea what surfing really is, so they will miss the big wave anyway. Marsh is over priced in every department, and an average household cannot afford to keep the Marsh Jet fueled for the next big trip. I feel like "Algernon the Mouse" each time I enter a Marsh Supermarket. Whomever convinced Marsh Management that weaving up and down aisles in search of one or two product needs will create additional sales as people see more items to purchase, does not understand the value of "time and motion" for the average working man or woman. I stopped going to Marsh long ago, and seeing the waste and abuse that was allowed at the top only validates my position that Marsh Supermarkets lost their Consumer Compass long ago.
  • IRS
    Sun got stuck paying an IRS penalty for Don's "oversight" on expenses. There's been a real cost to them on this.
  • Do you have a map?
    Toronto? a far reaching place? are you kidding....perhaps Mr Herzog should look at a $5 map.......
  • Confused
    I thought Sun was trying to recover money expensed after the buyout, not before as the article reads. If the expenses occured before the buyout why does Sun care? Expenses would have been inflated and they would have presumably got a better deal. If you add back those $3MM the deal looks even better. What am I missing?
    • Better under new ownership
      I believe that Marsh is much better under the new ownership. They've always offered high-quality meats and produce and their prices are becoming more competitive. Some of stores do have a very funky layout, but most neighborhood stores are easy to navigate.
    • and expensive
      ...not to mention their prices are the highest in town. Every time i shop at Marsh i feel like i am getting gouged.
    • Justified
      This is the worst supermarket in existaaaaaance The worst layout Poor product placement poor assortment frozen meat in the fresh meat section his daliances are the least of their problems

      Post a comment to this story

      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 IBJ 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

      Follow on TwitterFollow IBJ on Facebook:
      Follow on TwitterFollow IBJ's Tweets on these topics:
      Subscribe to IBJ
      1. I had read earlier this spring that Noodles & Co was going to open in the Fishers Marketplace (which is SR 37 and 131st St, not 141st St, just FYI). Any word on that? Also, do you happen to know what is being built in Carmel at Pennsylvania and Old Meridian? May just be an office building but I'm not sure.

      2. I'm sorry, but you are flat out wrong. There are few tracks in the world with the history of IMS and probably NO OTHER as widely known and recognized. I don't care what you think about the stat of Indy Car racing, these are pretty hard things to dispute.

      3. Also wondering if there is an update on the Brockway Pub-Danny Boy restaurant/taproom that was planned for the village as well?

      4. Why does the majority get to trample on the rights of the minority? You do realize that banning gay marriage does not rid the world of gay people, right? They are still going to be around and they are still going to continue to exist. The best way to get it all out of the spotlight? LEGALIZE IT! If gay marriage is legal, they will get to stop trying to push for it and you will get to stop seeing it all over the news. Why do Christians get to decide what is moral?? Why do you get to push your religion on others? How would legalizing gay marriage expose their lifestyle to your children? By the way, their lifestyle is going to continue whether gay marriage is legalized or not. It's been legal in Canada for quite a while now and they seem to be doing just fine. What about actual rules handed down by God? What about not working on Sundays? What about obeying your parents? What about adultery? These are in the 10 Commandments, the most important of God's rules. Yet they are all perfectly legal. What about divorce? Only God is allowed to dissolve a marriage so why don't you work hard to get divorce banned? Why do you get to pick and choose the parts of the Bible you care about?

      5. Look at the bright side. With the new Lowe's call center, that means 1000 jobs at $10 bucks an hour. IMS has to be drooling over all that disposable income. If those employees can save all their extra money after bills, in five years they can go to the race LIVE. Can you say attendance boost?