Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Connie J. Dutton, 844 F.2d 726 (10th Cir. 1988). · Go Syfert
Search
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Connie J. Dutton, 844 F.2d 726 (10th Cir. 1988). Cases Citing This Book View Copy Cite
“an injunctive remedy that would deprive an arbitration panel" of the authority given to it by the parties under their agreement would exceed "the court's power to preserve the prearbitration status quo”
39 citation events (25 in the last 25 years) across 18 distinct courts.
Strongest positive: Herbal Aspect LLC v. Alexander Gish (wisctapp, 2026-04-30)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Herbal Aspect LLC v. Alexander Gish (2×) also: Cited as authority (rule)
Wis. Ct. App. · 2026 · quote attribution · 1 verbatim quote · confidence high
an injunctive remedy that would deprive an arbitration panel" of the authority given to it by the parties under their agreement would exceed "the court's power to preserve the prearbitration status quo
discussed Cited as authority (rule) Uptown Cheapskate v. DDM Fashions 1
D. Utah · 2022 · confidence medium
Instead, the parties entered into an Agreement requiring the parties to participate in a dispute resolution process— potentially culminating in an arbitration—if “any claim, controversy, or dispute” arises.34 30 Reply 2, ECF No. 25, filed Aug. 23, 2022; Agreement 50–51. 31 844 F.2d 726, 727 (10th Cir. 1988). 32 Id. 33 Id. 34 Agreement 49.
discussed Cited as authority (rule) iGlobal Exports v. Shoemaker
D. Utah · 2022 · confidence medium
Because the parties clearly and 29 Id. at Rule 7(a). 30 Response at 3-4; Plaintiff’s Sure Reply at 2-4, docket no. 35, filed Aug. 17, 2022. 31 Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 727-728 (10th Cir. 1988). 32 Employment Contract ¶ 11.c. at 6 (emphasis omitted). 33 Dutton, 844 F.2d at 728 . 34 Response at 2. unmistakably evinced their intent to arbitrate issues of arbitrability,35 the arbitrability of iGlobal’s claim, including the arbitrability of iGlobal’s Motion for Preliminary Injunction, must be decided by the arbitrator.
discussed Cited as authority (rule) Fitness Together Franchise, L.L.C. v. EM Fitness, L.L.C. (2×)
D. Colo. · 2020 · confidence medium
Third, all of the forum-selection clauses mandate initiating a lawsuit based on the Fran- chise Agreements in a state or federal court in Colorado, so Fitness To- gether was “within its contractual rights” to “resort to the district court,” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 728 (10th Cir. 1988).
discussed Cited as authority (rule) Frontera Generation Ltd. Partnership v. Mission Pipeline Co.
Tex. App. · 2012 · confidence medium
Corp. v. Amgen, Inc., 882 F.2d 806, 812 (3d Cir.1989); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 726-28 (10th Cir.1988); Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 51 (1st Cir.1986); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1051-54 (4th Cir.1985); Roso-Lino Beverage Distribs., Inc. v. Coca-Cola Bottling Co. of N.Y., 749 F.2d 124, 125 (2nd Cir.1984); Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348 (7th Cir.1983); but see Peabody Coalsales Co. v. Tampa Elec.
discussed Cited as authority (rule) Toyo Tire Holdings of Americas Inc. v. Continental Tire North America, Inc.
9th Cir. · 2010 · confidence medium
Corp. v. Amgen, Inc., 882 F.2d 806, 813-14 (3d Cir. 1989) (district court has jurisdiction to issue injunctive relief pending arbitration, provided movant satisfies traditional four-pronged test); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 726-28 (10th Cir.1988) (affirming district court’s grant of preliminary injunction to preserve status quo until arbitration panel takes jurisdiction); Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 47-51 (1st Cir. *982 1986) (“We hold, therefore, that a district court can grant injunctive relief in an arbitrable dispute pending ar…
discussed Cited as authority (rule) Toyo Tire v. Continental Tire
9th Cir. · 2010 · confidence medium
Corp. v. Amgen, Inc., 882 F.2d 806, 813-14 (3d Cir. 1989) (district court has jurisdiction to issue injunctive relief pend- ing arbitration, provided movant satisfies traditional four- pronged test); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 726-28 (10th Cir. 1988) (affirming dis- trict court’s grant of preliminary injunction to preserve status quo until arbitration panel takes jurisdiction); Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 47-51 (1st Cir. 1986) (“We hold, therefore, that a district court can grant injunctive relief in an arbitrable dispute pending a…
discussed Cited as authority (rule) Rath v. Network Marketing, LC
Fla. Dist. Ct. App. · 2001 · confidence medium
Advisors, Inc. v. Makarewicz, 122 F.3d 936 , 940 (11th Cir.1997) (reversing denial of injunctive relief to preserve the status quo pending arbitration where arbitration agreement provided for such relief); accord RGI, Inc. v. Tucker & Assocs., Inc., 858 F.2d 227, 230 (5th Cir. 1988); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 727 (10th Cir.1988); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Shubert, 577 F.Supp. 406, 407 (M.D.Fla.1983); Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir.1972).
cited Cited as authority (rule) IDS Life Insurance v. SunAmerica Life Insurance
7th Cir. · 1998 · confidence medium
See also Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1386 (6th Cir.1995); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 728 (10th Cir.1988).
cited Cited as authority (rule) Ids Life Insurance Company v. Sunamerica Life Insurance Company
7th Cir. · 1998 · confidence medium
See also Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1386 (6th Cir.1995); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 728 (10th Cir.1988).
discussed Cited as authority (rule) American Express Financial Advisors, Inc. v. Thorley
W.D.N.Y. · 1997 · confidence medium
See Merrill Lynch v. Salvano, 999 F.2d 211, 216 (7th Cir.1993) (district court erred in extending temporary restraining order after arbitration panel was in place and able to consider plaintiffs request for injunctive relief); Merrill Lynch v. Dutton, 844 F.2d 726, 728 (10th Cir.1988) (remanding case with directions to “modify the preliminary injunction to expire when the issue of preserving the status quo is presented to and considered by the arbitration panel”); Merrill Lynch v. Masri, No. 96-CV-3804, 1996 WL 283644 *5 (E.D.Pa.
cited Cited as authority (rule) Hughley v. Rocky Mountain Health Maintenance Organization, Inc.
Colo. · 1996 · confidence medium
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 728 (10th Cir.1988).
discussed Cited as authority (rule) NOS Communications, Inc. v. Robertson
D. Colo. · 1996 · confidence medium
Corp. v. Envirmech Contracting Corp., 80 Md.App. 662 , 565 A.2d 693, 696 (1989)). 2 As I have already noted, various circuit courts of appeals, including the Tenth Circuit, recognize “their issuance of injunctive relief to preserve the status quo pending arbitration is often necessary and, in circumstances analogous to these, have found it fully consistent with and appropriate under the [Federal Arbitration] Act.” (Order at 10) (citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 728 (10th Cir.1988) and Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2…
discussed Cited as authority (rule) Fed. Sec. L. Rep. P 95,417 Stephen Blumenthal and Les Fein v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
2d Cir. · 1990 · confidence medium
See Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 47-51 (1st Cir.1986); *1053 Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1051-54 (4th Cir.1985); Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348, 350-52 (7th Cir.1983), cert. denied, 464 U.S. 1070 , 104 S.Ct. 976 , 79 L.Ed.2d 214 (1984); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 727-28 (10th Cir.1988).
cited Cited "see" Optum, Inc. v. Smith
D.D.C. · 2019 · signal: see · confidence high
See Merrill Lynch v. Dutton , 844 F.2d at 728 .
cited Cited "see" American Federation of State v. City of Albuquerque
N.M. Ct. App. · 2013 · signal: see · confidence high
Id. at 1068 ; see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726 (10th Cir. 1988); RGI, Inc. v. Tucker & Assocs., Inc., 858 F.2d 227 (5th Cir. 1988); First Alim erica Fin.
cited Cited "see" AFSCME v. City of Albuquerque
N.M. Ct. App. · 2012 · signal: see · confidence high
Id. at 1068 ; see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726 (10th Cir. 1988); RGI, Inc. v. Tucker & Assocs., Inc., 858 F.2d 227 (5th Cir. 1988); First Allmerica Fin.
discussed Cited "see, e.g." Archuleta v. Triad National Security LLC
D.N.M. · 2021 · signal: see, e.g. · confidence medium
See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 728 (10th Cir. 1988) (“Courts have effectively protected the parties' competing interests by approving initial grants of injunctive relief pending arbitration.
cited Cited "see, e.g." State ex rel. the Kansas Department for Children & Families v. United States ex rel. Carter
D. Kan. · 2016 · signal: see, e.g. · confidence medium
See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dutton, 844 F.2d 726, 727-28 (10th Cir.1988).
cited Cited "see, e.g." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Rodger
M.D. Penn. · 1999 · signal: see, e.g. · confidence low
See, e.g., Merrill Lynch v. Dutton, 844 F.2d 726 (10th Cir.1988).
Retrieving the full opinion text from the archive…
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Plaintiff-Appellee,
v.
Connie J. DUTTON, Defendant-Appellant
88-1247.
Court of Appeals for the Tenth Circuit.
Apr 13, 1988.
844 F.2d 726
Gordon D. Gee of Rich, Granoff, Levy & Gee (Ron Bodinson of Shook, Hardy & Bacon, Overland Park, Kan., with him on the brief), Kansas City, Mo., for plaintiff-appel-lee., Major W. Park, Jr., of Gage & Tucker (J. Patrick Shepard of Gage & Tucker, Overland Park, Kan., with him on the briefs), Kansas City, Mo., for defendant-appellant.
McKay, Alarcon, Moore.
Cited by 24 opinions  |  Published
JOHN P. MOORE, Circuit Judge.

This is an appeal from an order granting injunctive relief to the plaintiff, Merrill Lynch, Pierce, Fenner & Smith, Inc., in an action to enforce an employment contract with a former employee, defendant Connie J. Dutton. Because the contract calls for mandatory arbitration, Ms. Dutton argues the district court’s injunctive order violates section 3 of the Federal Arbitration Act, 9 U.S.C. § 3. In light of[*727] the agreement between the parties, we hold a preliminary injunction preserving the status quo until the arbitration panel takes jurisdiction does not violate § 3. We therefore affirm.

When Ms. Dutton accepted employment with Merrill Lynch, she executed a contract that prohibited her from removing client lists from her Merrill Lynch files and from soliciting her former Merrill Lynch clients for one year after her departure. The contract also provided:

I further consent to the issuance of a temporary restraining order or a preliminary or permanent injunction to prohibit the breach of any provision of this contract, or to maintain the status quo pending the outcome of any arbitration proceeding which may be initiated.

This contract, like the employment contracts of all brokerage employees, is supplemented by the Rules of the New York Stock Exchange, of which Merrill Lynch is a member. Rule 347(b) of the Exchange mandates compulsory arbitration for resolution of disputes between members and their employees.

After approximately three years’ employment, Ms. Dutton resigned from Merrill Lynch and accepted a position with a competing broker. Immediately following her resignation, she began soliciting customers she had served while employed by Merrill Lynch.

Merrill Lynch filed this action seeking to enforce the terms of the employment contract. The district court granted Merrill Lynch a temporary order restraining Ms. Dutton from soliciting her former customers and prohibiting her from using for solicitation purposes any information she obtained during her employment with Merrill Lynch. In reliance upon § 3 of the Federal Arbitration Act, Ms. Dutton moved for an order compelling arbitration and for a stay of further proceedings in the trial court.

Merrill Lynch conceded the propriety of the stay but demanded entry of a preliminary injunction to protect the status quo. After hearing evidence on the motion for injunctive relief, the court entered an order enjoining Ms. Dutton from use of her customer lists and from soliciting those persons whom she had served while employed by Merrill Lynch. At the same time, the court ordered the parties to “proceed with haste to arbitration to be held ... in accordance with the rules of the New York Stock Exchange.” In accordance with 9 U.S.C. § 3, the court stayed further judicial proceedings until completion of arbitration.

Ms. Dutton appealed, contending the entry of the preliminary injunction violates § 3, which states:

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or preceding is referable to arbitration ... shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

While conceding the propriety of the temporary restraining order entered in the district court, she contends the open-ended preliminary injunction invades the authority of an arbitration panel and thus interferes with the policy of the Federal Arbitration Act encouraging arbitration. In essence, she maintains a preliminary injunction that survives the initiation of an arbitration proceeding inhibits remedies within the jurisdiction of the arbitration panel.

Merrill Lynch argues that, having contractually agreed to the entry of injunctive relief to protect the status quo, Ms. Dutton cannot object to the remedy ordered by the district court. Yet, Merrill Lynch also concedes it is only entitled to judicial preservation of the status quo until the arbitration panel can decide whether injunctive relief should be granted and how it should be structured.

Our resolution of the controversy is founded upon our agreement with positions taken by both parties. First, plaintiff is entitled by the employment contract to the[*728] entry of orders protecting the status quo until the merits of its dispute with its former employee can be resolved. Whether the forum for such relief is in the first instance a court or an arbitration panel is left open by the terms of the contract. Thus, Merrill Lynch’s resort to the district court was within its contractual rights. The entry of the temporary restraining order was appropriate. See Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 51-52 (1st Cir.1986); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1054 (4th Cir.1985); Roso-Lino Beverage Distribs., Inc. v. Coca-Cola Bottling Co. of N.Y., Inc., 749 F.2d 124, 125 (2d Cir.1984); Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348, 351-52 (7th Cir.1983), cert. denied, 464 U.S. 1070, 104 S.Ct. 976, 79 L.Ed.2d 214 (1984).

Yet, when Ms. Dutton invoked the right conferred upon her by the Federal Arbitration Act to seek arbitration of the dispute, she initiated a course of events which led to a statutorily mandated suspension of judicial authority. The purpose of the Arbitration Act is to compel a party to honor an agreement to arbitrate. Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-20, 105 S.Ct. 1238, 1241-42, 84 L.Ed.2d 158 (1985); Albatross S.S. Co. v. Manning Bros., Inc., 95 F.Supp. 459, 463 (S.D.N.Y.1951). To facilitate that compulsion, the Act deprives a court from proceeding to trial when it finds arbitration is required by agreement of the parties.

Courts have effectively protected the parties’ competing interests by approving initial grants of injunctive relief pending arbitration. Teradyne v. Mostek, 797 F.2d at 51; Merrill Lynch v. Bradley, 756 F.2d at 1052; Sauer-Getriebe KG v. White, 715 F.2d at 350. Yet, Merrill Lynch concedes an injunctive remedy that would deprive an arbitration panel of the full span of its broad authority over the parties and over all arbitrable issues would be contrary to the purpose and limitations of the Arbitration Act and transcend the court’s power to preserve the prearbitration status quo. We agree and hence conclude the open-ended preliminary injunction entered by the district court was improper. Upon remand, the district court shall modify the preliminary injunction to expire when the issue of preserving the status quo is presented to and considered by the arbitration panel.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for modification of the order granting preliminary injunction in accordance with this opinion.