Marshak v. Green

David Rick (defendant) managed and promoted musical groups for entertainment under the registered trade name Vito and the Salutations. As part of litigation, Larry Marshak (plaintiff) obtained a monetary judgment against Rick in 1981. To satisfy that monetary judgment, Marshak obtained an order of attachment and sale from the district court, which directed the sale of Rick’s trade name at public auction. Meanwhile, Rick was preparing to go to trial in a pending suit for infringement of his trade name against a competing musical group. Prior to the sale, Rick moved the district court for a stay of the attachment, execution, and sale, citing his pending infringement suit as the reason. Rick asserted that Marcus, the attorney who had obtained the monetary judgment against him in 1981, was representing the competing musical group and was attempting to effectuate a judicial sale of his trade name in order to gain an unfair advantage in the pending infringement suit. Rick claimed that this representation created a conflict of interest on the part of Marcus and prejudiced Rick’s rights in the pending infringement suit. The district court denied Rick’s motion for a stay of the attachment, execution, and sale. Rick’s trade name was thereafter sold at public auction to Marshak. Rick appealed the order of attachment and sale of his trade name Vito and the Salutations.