plaintiffs darryl reeves and james king should be a stopped for refusing to arbitrate their claims for unpaid overtime under the fair labor standards act it's been filed against their employers customer enterprise products and pay them a day rate each before commencing employment signed an arbitration agreement promising to arbitrate their disputes that arose out of their employment including any disputes that arise out of a relate in any way including overtime claims only after each promised to herb a trait their employment related disputes were the assigned to perform inspection services it enterprise products partners despite this promise reason can have now brought claims in federal court on under the f l essay seeking to route represent a collective that encompasses all pipeline inspectors employed by any vendor of enterprise who is paid a day rate with no overtime mysteries of mr king allege that enterprise which is their employer's customer jointly employed them and therefore is also liable for the failure to pay them over time they simultaneously though deny they are duty bound to arbitrate these employment obtain a judgment against enterprise without cyprus even being in the same zip code so mr reeves or mr king could certainly obtain a judgment against enterprise neither can prove their claim against enterprise without bringing cyprus and kestrel into the dispute because cyprus and kestrel have all of the witnesses the documents and the information as to how they were paid and c will be dragged into the dispute which is precisely what the stoppel doctrine preclude as set forth and grigson as adopted by high sierra and as adopted by sunoco by the oklahoma appellate courts and so it or castles a necessary party under rule nineteen they are not we certainly could intervene under rule twenty four a person kestrel could intervene under rule twenty four as a matter of right they have not done so as of this point but again whether or not they're going to be dragged in is exactly what matters under the oklahoma standard it does not matter who from home the plaintiffs seeks relief what matters is who is the real party  interest and that is precisely what grigson in the th circuit sets forth and i would point this court to the fact that in grigson the people who sought to compel arbitration i'm sorry the people with whom mr griggs and had executed the or and also were not parties to the dispute and from whom they did not seek relief there in the great sin mr griggs and had acquired or purchased the rights to a film the texas chainsaw massacre and they had they had obtained distribution rights or contracted with a rd party to distribute the film the film distributors delayed distribution and they originally sought really from them for the delay a breach of contract that dispute was compelled to arbitration mr griggs and then turned around and sued the actors in the film alleging that they had induced the delay because they perceive that film no longer consistent with their brand and what the th circuit recognises look you all have attempted to evade your duty to arbitrate by dropping your claim against the named the signatory to the agreement recasting your claim as one against these additional parties who may also have culpability but who for whom you will in extract of levy intertwined with the distributor who will have to come to the proceedings and incur expense and time and that's the quote from briggs and that because the actor and his agent will also pull it or the plaintiffs will also pull in the distributor that distributor has been deprived of their bargain you the supreme court of oklahoma has not adopted court that is true year out of the oklahoma supreme court has not officially adopted that but i would suggest that this court in stickley versus state farm is made clear that when you're making an eerie guess the best signal as to where the state would land is decisions of the appellate court and unless there is persuasive evidence to the contrary you are to adopt it and here there is no persuasive authority and i would point you to long versus you look like you want to ask a question you had an account with kidder peabody she had executed a arbitration agreement to litigate any disputes with the brokerage firm over the handling of her account with through arbitration and there too after suing the brokerage firm in federal court she was compelled to arbitration by the federal court she turned around then and sued the individual broker mr greer and said look i'm not i don't have an arbitration agreement with mr degree air and he too is culpable and the supreme court said look this is not appropriate the only way that kidder peabody can act is through its representatives and if you've agreed to arbitrate with kidder peabody then your duty bound to  arbitrate with mr greer even though he's not signatory that's precisely the situation here here we have an outsourcing arrangement whereby enterprise products partners outsource the inspection of their pipeline firms like kestrel and firms like cypress and enterprise relied upon those those inspection companies to hire fire set the pay and supervise the people and whether they may also have some supervisory authority it is inevitable that those are the firms that engaged in the very practices which the plaintiff now claims violate the f l let's say and as a result there a prize likewise can only act through the testing firms or i'm sorry through the inspection firms through two hundred outsource to kidder peabody in dots that rationale and i do think that we see indicative in the adoption of all the way to your honor i actually think that if you have any concerns that you might get get the issue wrong we think it would be a perfectly acceptable solution to certify to the oklahoma supreme decision the decisions but i think it would be appropriate we did not we did not ask the district court to certify your honor i would note that so this is not interesting lee this is not a new case mr birch and i have been litigating this issue around the country in various other states including  justice person to person down there and in new mexico and so the district court there as been pondering whether it ought to certify potentially these issues under new mexico law to the new mexico supreme court i think know whether or not they were going to supervise other other people was out enterprise or was outside was so in the record that right now we say that is  only would imagine on any given day there could be things going on that would have enterprise protect particularly dictate what's happening on a project that could affect that but cyprus and kestrel are the people that set the pay  hours and all innocent bystander to some extent yes we're talking every minute and a contractor to provide these services we hired an independent contractor precisely because we lack the expertise and the independence to do this and in fact if you understand what's happening here and it's in our brief we enterprise would build a pipeline we hire or repair or maintain it and we hire contractors to do that work but then we hire an independent inspector to ensure the contractor is doing what they are supposed to be doing and those independent inspection companies are firms like kestrel and cypress and that's why we have multiple vendors for those allegations are they made in your motion compel i believe that we do have those allegations those facts in our briefing and we cite in our appendix the general nature of this business because these are i'm going to apply the you know the the two prong approach for equitable and stop one should be able to find adequate allegations of independent and concerted misconduct cyprus for example so iran or in this record there are independent that that is there but i would point you back to the howard versus feral gas partners which was authored by justice court gorsuch and a motion to compel arbitration you actually are obligated to pierce the pleadings and look to the record as a whole and if there are did you bring them into this last enterprise certainly could and that's precisely again why the interdependent and concerted misconduct rule applies because again i come back to griggs and to sunoco which say if arbitration agreements are merely contracts nothing last for sure but also nothing more and there's nothing in the federal arbitration act that arbitrator that authorizes a court to compel arbitration by any parties cain and had no expectation that any dispute with those gentlemen would be resolved anywhere other than in court nonetheless the folks at enterprise say that they can compel arbitration because according to them mr canning and mr reeves are bringing claims that are intertwined with some other companies and those rd party companies more than one entity an employee and employee joint employment in in my view of the fair labor standards act occurs when you are trying to hold  employer liable for someone else's violations of the f l s and let me give you a concrete example using the situation that we have here the folks  at cypress for example are staffing and they place these folks at enterprise and then enterprise control their hours told them what to do tell them what to wear tell them what they were supposed to do the employer you know the staffing company who they say are the employers and i'm looking at the declaration that was actually attached by the senate at enterprise and that is that mystery's is sole employee of enterprise and again i believe that that misstates liability under the apple s i a joint employer li do with spreading of liability across different employers and such that its mysteries have been assigned to multiple companies right that the folks at enterprise would be liable not just for the work he did for them but for the work no other one that missed your argument is mystery is employed by paid by those that work by and controlled by enterprise  our theory does not depend on it so i think that's a call for a yes or no and i think your answer to that is no because you don't think that the law requires that that and that's fair judge so in our view joint employment of the l s a has to do with the spreading of liability it does not have to do with whether or not you are liable for were performed for you that is the employer's right if you know whether or not mr reeves was asked to another company if he is a joint employer if enterprise and the folks at cypress for example or joint employers then enterprise could be liable for work done wherever mystery or form work for the folks at cypress because they are joint  jointly to gether and so he they are liable for that our theory is far more narrow our theory is that enterprise is liable for their work perform it that is arthur let me ask you a question so cyprus and what's in castro all are they both are you suing both of them also in separate lawsuits no are you suing you there of them  case and they were never part so that that's my my position is that they were part of it for a time enterprises position is that they were at least at that time they were not ok let me ask you another cyprus orchestral move to compel arbitration and that in that case no ok although in fairness to my co counsel there mr fifty you never s agreement can enforce that agreement in certain circumstances but it's only if i quote traditional principles of the relevant state contract law allow a contract to be enforced by the non art and it's important to note that the case said that arthur andersen it roque from what was going on in the federal courts at that time the concept this federal common law of our richer ability was the range that was what in and various courts were developing their own strands are rich ability law often quite distinct from traditional principles of state contract law arthur anderson author obviously found that was an error and that's a notion that was reinforced by our judge corsets just last term when he said the opportunities for federal common law making are few and far between so the question here is what does oklahoma traditional contract law require and the oklahoma supreme court has repeatedly said what it considers to be equitable a stop and it matches whatsoever of the other party has to have reasonably relied on back to its detriment there's absolutely no evidence reliance by the folks at enterprise under oklahoma entitle to the benefit of that person's contract even though we had met or don't provide any evidence that we knew about it or relied on it in any way and so you have taken equitable the traditional notion of equitable a stop taking it from being a defense they will to a misled party and making it into then often simple weapon that somebody accused of wrongdoing can wield based on it's own description of the pla employment relationship with this defendant yes or no whether or not you have a relationship with another defendant is irrelevant for the purposes of that question from our perspective so so to the extent judge bollox says reason his paycheck from cyprus just like i get my paycheck from paychecks as opposed to proctor burch there are lots of people who get paid into the question is where does the money come from and are you characterization i don't think because i mean you pay checks i'm assuming is a payroll company edition of her muses and i notice that one of these persons is being paid by eighty p so right that's the equivalent of being saying they're being paid by eighty p as opposed to cast stroller or cyprus i mean they're they're being paid i mean the payroll service isn't that's that's not a fair characterization they're being paid by either kestrel or cyprus  and you can quote to you that no and that's not a fair characterization from our perspective because the person went to work the person paying the money is enterprise and the fact that it passes through the you if you are talking about a well under the evillest if you are not you can't see any one of your employer for failing to pay and so you could absolutely see enterprise and say look i didn't get the money and enterprise could say look at this person over here right now get your money from them but under the f l i say the liability runs to the employer  joint and several right and so even if they are joint employers as folks allege you can get a one hundred percent recovery from any employer and then they get certified about oh well i enterprise it and or the company enterprise contracted with exercise control over all aspects of his job and there's an identical allegation in paragraph twenty nine dollars with regard to the job dut  nd i too am counsel of record in the fifty in matter pending in tulsa and i can explain also what happened justice person or judge person to be clear this is your th city and filed a collective action seeking to represent among other people also mr aris mr reeves was a putative member of the collective who submitted a declaration in support of collective action within days of bringing this case in that he had tested under oath cypress required me to work ten to twelve hours a day five dollars to seven dollars days per week this schedule was typical of all type or its inspectors all of cypresses inspectors routinely work more than forty hours a week without receiving overtime compensation and if you look at their declarations both mr king and mr reed's paragraph three in each say that kestrel and cyprus where their employers and enterprise is their joint employer and also although not in the record martin would make a final point if you were to remand this case to the district court for further evidence you would find that in fact the evidence would show when these gentlemen filed for unemployment or workers compensation they bring those claims against cyprus and kestrel never enterprise they are not and these are not payroll service companies as with events in the record yes they do go to a d p but these are professional service firms to whom enterprise outsource