MEMORANDUM ORDER

RICHARD CASEY, District Judge

On October 24, 2006, Petitioner Credit Suisse Securities (USA) LLC ("Credit Suisse" or "Petitioner") applied to this Court for injunctive relief pending arbitration against Respondent Hilliard Ebling ("Ebling" or "Respondent"). Respondent cross-moved for an order dismissing the petition for lack of personal jurisdiction and improper venue, and for an order staying the JAMS mediation and arbitration proceedings and compelling arbitration in Boston pursuant to the procedures of the National Association of Securities Dealers ("NASD").

For the following reasons, Petitioner's request for a preliminary injunction is hereby GRANTED and Respondent's cross-motion is DENIED.

I. BACKGROUND

After Ebling left Credit Suisse and began working for Morgan Stanley, Credit Suisse commenced arbitration in New York, pursuant to its Employment Dispute Resolution Program, claiming that Ebling had breached his obligation to (1) provide 30 days' notice prior to terminating his employment with Credit Suisse, and (2) refrain from soliciting Credit Suisse's customers, clients, and employees for an additional 30 days after termination. (Pet'r Mem. 1.) Credit Suisse asserted claims of breach of contract, breach of fiduciary duty and misappropriation of confidential and proprietary information or trade secrets. (Pet'r Mem. 7.) To preserve the efficacy of the arbitration process, Credit Suisse applied to this Court for injunctive relief pending arbitration.

On October 24, 2006, the Court issued an order to show cause why a preliminary injunction should not be issued and ordered that Hilliard Ebling be temporarily restrained pending a hearing on Petitioner's application for a preliminary injunction. After hearing oral arguments, the Court extended the temporary restraining order ("TRO") through today's decision on the petition for a preliminary injunction.

Under the TRO, Hilliard Ebling and all persons and entities acting in concert with him have been temporarily restrained as follows:

* from directly or indirectly soliciting any customer or client of Credit Suisse to transfer its business from Credit Suisse to any other person or entity, and

* from directly or indirectly soliciting any employee of Credit Suisse to leave the employ or service of Credit Suisse to join or work at another entity, and

* compelling Respondent and all those acting in concert with him to return immediately to Credit Suisse all of Credit Suisse's confidential information and trade secrets, including, but not limited to, information regarding Credit Suisse customers, accounts, and market research that Respondent unlawfully took from Credit Suisse.

Petitioner seeks a preliminary injunction that would extend the terms of the TRO until December 19, 2006, further enjoining Respondent from soliciting the business of Credit Suisse customers or the employment of Credit Suisse employees, and compeling Respondent to return confidential customer and market information to Credit Suisse.

II. DISCUSSION

A. Personal Jurisdiction

As a threshold matter, Respondent argues that the Court lacks personal jurisdiction over him. The parties agree that Respondent Hilliard Ebling is a citizen of Massachusetts who works in Massachusetts. (Pet. Mem. 9; Ebling Decl. ¶ 5.) However, Petitioner asserts that Respondent is subject to the Court's jurisdiction because he agreed to be bound by the terms of Credit Suisse's Employment Dispute Resolution Program and thereby consented to arbitrate in New York. The dispute program provides that "[a]ny mediation or arbitration will be held in the New York City metropolitan area or, at the request of the party initiating the proceeding, with the consent of the other party, in the location of the Credit Suisse First Boston office where the employee applied for a position or works or worked. . . ." (Dale Decl. Ex. G, at 6) Respondent signed an agreement to be bound by Credit Suisse's Employment Dispute Resolution Program and to abide by its procedures. (Id. at 8.)

The law is clear. "A party who agrees to arbitrate in a particular jurisdiction consents not only to personal jurisdiction but also to venue of the courts within that jurisdiction." Doctor's Assocs. v. Stuart, 85 F.3d 975, 983 (2d Cir. 1996); see also Farr Co. v. CIA Intercontinental De Navegacion De Cuba, 243 F.2d 342, 346-47 (2d Cir. 1957) ("[B]y agreeing to arbitrate in New York a party makes himself as amenable ot suit as if he were physically present in New York."). Therefore, it appears that having agreed to arbitrate in New York, Respondent consented to jurisdiction here.

Respondent argues, however, that a carve-out provision in the Employment Dispute Resolution Program documents applies to him, and that under the terms of the carve-out provision, he did not actually agree to arbitration in New York. The dispute program documents state in pertinent part:

An employee who is (or is required to be) a registered representative, shall be subject to the arbitration provisions of the Program with regard to an Employment-Related Claim asserted by him or her except to the extent he or she is legally required to arbitrate such Employment-Related Claim pursuant to particular rules or in a particular forum (for example, pursuant to the rules of a stock exchange or the National Association of Securities Dealers), to the exclusion of all other rules and forums. If such a requirement applies, it will take precedence over the arbitration procedure described in Step Three of the Program.

(Dale Decl. Ex. G, at 2-3.)

The precise issue of this carve-out provision has been previously litigated before a number of my colleagues, and my colleagues have rejected similar arguments to that made by Respondent. See Hearing Transcript, Credit Suisse Securities (USA) LLC v. Carroll, No. 06 Civ. 6699 (S.D.N.Y. Sept. 5, 2006) (BSJ); Hearing Transcript, Credit Suisse Securities (USA) LLC v. Kenny, No. 06 Civ. 7924 (S.D.N.Y. Oct. 11, 2006) (GBD); Hearing Transcript, Credit Suisse First Boston v. Jacobs, No. 05 Civ. 3475 (S.D.N.Y. Apr. 12, 2005) (PKC). As Petitioner points out, the carve-out plainly applies to claims asserted by the employee. (See Dale Decl. Ex. G, at 2-3 (explaining procedures "with regard to an Employment-Related Claim asserted by him or her" (emphasis added)).) Under the terms of the parties' agreement, NASD arbitration is not required where, as here, Credit Suisse seeks to enforce its rights under the Employment Dispute Resolution Program. The parties contracted to this, and Respondent agreed to arbitration in New York. Accordingly, Respondent has consented to personal jurisdiction here in New York, and venue here is proper.

B. Preliminary Injunction

Credit Suisse seeks a preliminary injunction to preserve the status quo pending arbitration. Title 9, United States Code § 4 provides, in pertinent part, that "[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition . . . for an order directing that such arbitration proceed in the manner provided for in such agreement." And as the Second Circuit has recognized, "[t]he issuance of an injunction to preserve the status quo pending arbitration fulfills [a district] court's obligation under the FAA to enforce a valid agreement to arbitrate." Blumenthal v. Merrill Lynch, Pierce, Fenner Smith, Inc., 910 F.2d 1049, 1054 (2d Cir. 1990).

To obtain a preliminary injunction, a petitioner must show irreparable harm absent injunctive relief and either a likelihood of success on the merits, or a sufficiently serious question going to the merits to make them a fair ground for litigation, with a balance of hardships tipping in petitioner's favor.Jackson Dairy, Inc. v. H.P. Hood Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam).

Here, the facts warrant issuance of a preliminary injunction pending arbitration of Petitioner's claims. Ebling agreed as a condition of his employment with Credit Suisse not to solicit clients and employees for a period of 30 days following termination; he also agreed to the arbitration that Credit Suisse has now commenced. Without a preliminary injunction, the harm that Petitioner seeks to address via arbitration will occur before the arbitrator can render a decision, and Petitioner will lose its right to meaningfully resolve these employment disputes via arbitration. This constitutes irreparable harm. Further, Petitioner faces immediate and real harm without a preliminary injunction preventing Respondent from soliciting Credit Suisse's clients and employees. Respondent began soliciting Credit Suisse's clients the very same day that he announced his resignation. (See Ebling Decl. ¶ 26.) Without a preliminary injunction, Credit Suisse faces losses of clients, employees, and goodwill — harm that cannot be compensated by money damages.

Credit Suisse is likely to succeed on the merits of its breach of contract, breach of fiduciary duty, and misappropriation of confidential and proprietary information or trade secrets. Accordingly, the Court grants a preliminary injunction, through December 19, 2006, prohibiting Ebling and those acting in concert with him from directly or indirectly soliciting any customer or client of Credit Suisse to transfer its business from Credit Suisse, and from directly or indirectly soliciting any employee of Credit Suisse to leave the employ or service of Credit Suisse, and compelling Ebling and those acting in concert with him to return immediately to Credit Suisse all of Credit Suisse's confidential information and trade secrets, including, but not limited to, information regarding Credit Suisse customers, accounts, and market research.

Like the TRO previously granted in this case, the preliminary injunction does not include a provision enjoining Ebling from employment with any competitive entity other than Credit Suisse. Ebling has already resigned from Credit Suisse and begun employment with Morgan Stanley. (Ebling Decl. ¶¶ 3, 1.) Credit Suisse has not shown that specific irreparable harm will occur that, at this juncture, could be prevented by a preliminary injunction restricting Ebling's employment.

C. Defendant's Cross-Motion

As discussed above, this Court has personal jurisdiction over Respondent. The employment agreements signed by Respondent included an agreement to arbitrate in New York under New York law. This agreement gives the Court personal jurisdiction over Respondent and makes this District a proper venue.

The Court has also found that the carve-out provision in the Employee Dispute Resolution Program is inapplicable because it was Credit Suisse, not Ebling, that asserted the claims at issue here. The partics have agreed to forego NASD arbitration in cases where Credit Suisse brings the claim.

Accordingly, Respondent's cross-motion for an order dismissing Credit Suisse's petition for lack of personal jurisdiction over Respondent and improper venue and for an order staying the JAMS mediation and arbitration proceedings and compelling Petitioner to arbitrate pursuant to the Rules and Procedures of the NASD is DENIED.

III. CONCLUSION

Petitioner's motion for a preliminary injunction in aid of arbitration is GRANTED.

So Ordered: