## Facts

- Larry Marshak held an unsatisfied federal money judgment (about $17,683 plus interest) against David Rick.
- Rick managed and promoted musical groups using the registered trade name “VITO AND THE SALUTATIONS.”
- To collect the judgment, Marshak obtained an ex parte district court order directing the U.S. Marshal to attach and sell whatever proprietary interest Rick had in the registered name.
- The district court later amended the order to require only one day of newspaper advertising and to conduct the sale at the offices of Marshak’s attorneys.
- The Marshal conducted the auction; Marshak purchased the trade name for $100, and no money was actually received by the Marshal.
- Before the sale, Rick moved to stay the attachment, execution, and sale; the district court denied relief.
- Rick was preparing to try a pending trademark-infringement action concerning the same name against a competing group, and he asserted that counsel associated with the judgment collection was also involved with the competitor’s interests, creating unfair prejudice.

## Issues

1. Whether a registered trade name/trademark interest may, in principle, be attached and sold to satisfy a money judgment.
2. Whether the ex parte attachment and execution sale should be set aside or stayed where the sale procedures and surrounding circumstances suggested unfairness and prejudice, including minimal notice, nominal consideration, and interference with related trademark litigation.

## Decision

- The Second Circuit vacated the district court’s order authorizing attachment and sale and remanded for further proceedings.
- The court accepted that a debtor’s proprietary interest in a registered trade name can be subject to judgment enforcement in appropriate circumstances.
- The court held that the sale at issue could not stand given the ex parte process, abbreviated advertising, sale location at the creditor’s counsel’s office, and the nominal bid that did not reflect meaningful value.
- The court directed that Rick be relieved from the effect of the judicial sale of the trade name.

## Legal Principles

- Intangible proprietary rights, including interests in registered trade names/trademarks, may be reachable by post-judgment enforcement mechanisms, subject to limits imposed by the nature of the right.
- Federal courts must closely supervise execution procedures to ensure they function as neutral collection tools rather than devices for obtaining strategic advantage.
- An execution sale may be vacated where procedures (notice, advertising, sale conditions) are inadequate to yield a fair realization of value, particularly for assets whose value depends on ongoing litigation and enforcement rights.
- Equitable relief is warranted when judgment-enforcement steps threaten to prejudice substantive rights in related litigation or appear structured to distort the adjudication of competing claims to the same property.

## Conclusion

The court vacated and remanded because, although a trade name interest may be subject to execution in principle, the ex parte sale here—marked by minimal notice, suspect sale conditions, and apparent prejudice to pending trademark litigation—was inequitable and could not be allowed to stand.


Marshak v. Green, 746 F.2d 927 (2d Cir. 1984)