16-843-cv 

Merrill Lynch, Pierce, Fenner & Smith Inc. v. Oliver 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on 

the 27th day of February, two thousand seventeen. 

Present: 

JOHN M. WALKER, JR.,

DEBRA ANN LIVINGSTON, 

Circuit Judges,

VINCENT L. BRICCETTI,



District Judge. 

_____________________________________ 

MERRILL LYNCH, PIERCE, FENNER & SMITH 

INCORPORATED A/K/A BANC OF AMERICA 

SECURITIES, LLC, 

Plaintiff-Appellee, 

v. 16-843-cv 

MARC A. OLIVER, 

Defendant-Appellant. 

_____________________________________ 

For Plaintiff-Appellee: Joseph C. O’Keefe, Pinchos N. Goldberg, 

Proskauer Rose LLP, Newark, New Jersey 

For Defendant-Appellant: Marc A. Oliver, pro se, Los Angeles, 

California 

 

 Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York, 

sitting by designation.
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Appeal from a judgment of the United States District Court for the Southern District of 

New York (Furman, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Defendant-Appellant Marc A. Oliver, proceeding pro se, appeals from a judgment 

enjoining his Financial Industry Regulatory Authority (“FINRA”) arbitration and granting 

declaratory relief in favor of Plaintiff-Appellee Merrill Lynch, Pierce, Fenner & Smith Inc. 

(“Merrill Lynch”), the surviving entity of a merger with Oliver’s former employer, Banc of 

America Securities, LLC (“BAS”). We assume the parties’ familiarity with the underlying facts, 

the procedural history of the case, and the issues on appeal. 

BAS terminated Oliver’s employment in 2004, after which BAS filed with the National 

Association of Securities Dealers, the predecessor of FINRA, a required Form U-5 Uniform 

Termination Notice for Securities Industry Registration, which stated that Oliver’s separation was 

“involuntary” and “performance, non-securities related.” Oliver sued for discrimination, and the 

parties subsequently entered into a settlement agreement. In 2015, Oliver initiated an arbitration 

proceeding with FINRA, claiming, inter alia, defamation and breach of the settlement agreement. 

Merrill Lynch responded by filing in district court to enjoin the arbitration and for declaratory 

judgment. On appeal from the district court’s judgment in favor of Merrill Lynch, Oliver 

primarily argues that (1) the forum-selection clause in his settlement agreement with BAS is 

unenforceable because it impermissibly circumvents Merrill Lynch’s obligation as a FINRA 

member to arbitrate disputes before FINRA, (2) the information in the Form U-5 was defamatory, 
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and (3) that same information violated the neutral-employment-reference provision of the 

settlement agreement. We address his arguments in turn. 

Oliver first challenges the district court’s order enjoining his FINRA arbitration. When 

reviewing an order granting a permanent injunction, “we review the district court’s legal 

holdings de novo and its ultimate decision for abuse of discretion.” Goldman, Sachs & Co. v. 

Golden Empire Sch. Fin. Auth., 764 F.3d 210, 214 (2d Cir. 2014). “FINRA is an independent 

organization authorized by Congress to regulate the U.S. securities markets and professionals 

who sell securities in the United States.” Credit Suisse Sec. (USA) LLC v. Tracy, 812 F.3d 249, 

253 (2d Cir. 2016). In this role, FINRA “(among other things) sponsors an arbitration forum” 

for disputes related to U.S. securities markets. Id. (quoting Cohen v. UBS Fin. Servs., Inc., 799 

F.3d 174, 176 (2d Cir. 2015)). Our cases have recognized several instances where the 

arbitration provisions of a self-regulatory organization such as FINRA “may be overridden by 

more specific contractual terms.” Id. at 254. Although Oliver correctly argues that FINRA 

Rule 13200, where applicable, generally obligates Merrill Lynch to arbitrate, where, as here, “a 

party initially consents . . . to arbitrate certain types of claims, but later enters into a settlement 

agreement that releases claims that had been subject to the initial consent to arbitrate, the claims 

that have been released by such a settlement are no longer subject to arbitration.” In re Am. 

Express Fin. Advisors Sec. Litig., 672 F.3d 113, 133 (2d Cir. 2011). 

The settlement agreement here, which vested exclusive jurisdiction in the courts or 

agencies of New York and New York City and contained a merger clause stating that the 

agreement constituted the complete understanding of the parties and superseded any prior 

agreements, displaced any agreement on the part of Merrill Lynch under FINRA Rule 13200 to 
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arbitrate Oliver’s claims. See Applied Energetics, Inc. v. NewOak Capital Mkts., LLC, 645 F.3d 

522, 524–26 (2d Cir. 2011). Accordingly, the district court correctly concluded these claims 

not subject to FINRA arbitration. 

Oliver next challenges statements in his Form U-5 as defamatory and as a breach of the 

settlement agreement. We review a district court’s grant of summary judgment, and its grant of 

declaratory relief, de novo. Spring Spectrum LP v. Conn. Siting Council, 274 F.3d 674, 676 (2d 

Cir. 2001) (per curiam). Through his settlement agreement with BAS, Oliver broadly released 

his claims against BAS or its successors arising from his employment or termination. 

Accordingly, the district court correctly concluded that the agreement released any claims based 

on the Form U-5—which contained the allegedly defamatory reason for the termination of 

Oliver’s employment, and which his employer filed well before the execution of the settlement 

agreement. See Interpharm, Inc. v. Wells Fargo Bank, Nat’l Ass’n, 655 F.3d 136, 142 (2d Cir. 

2011) (“Under New York law, . . . ‘a valid release constitutes a complete bar to an action on a 

claim which is the subject of the release.’” (quoting Centro Empresarial Cempresa S.A. v. Am. 

Movil, S.A.B. de C.V., 17 N.Y.3d 269, 276 (2011))); Pampillonia v. RJR Nabisco, Inc., 138 F.3d 

459, 463 (2d Cir. 1998) (“Under New York law, a release that is clear and unambiguous on its 

face and which is knowingly and voluntarily entered into will be enforced.”). 

Additionally, Oliver argues that the statements in the Form U-5 were themselves a breach 

of the settlement agreement’s neutral-employment-reference clause. This claim is meritless. 

The clause to which Oliver refers specifically outlines the procedure by which BAS would 

neutral job references, which includes potential employers either calling or writing to BAS’s 

Personnel Center. Nothing in this clause or elsewhere in the agreement suggests that BAS was 
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under any further obligation to provide neutral employment references, including by amending 

Oliver’s Form U-5. 

We have considered Oliver’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the district court’s judgment. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk