for your honour's metadata concedes that the claims of eva six to arbitrate are intertwined with the contract containing the arbitration agreement and here it would be under the facts specific equitable stoppel analysis required by this court it would be unfair for medicaid to up to avoid its contractual arbitration requirements where it forced its us based employees to sign employment agreements that contain broadly worded arbitration clauses that sought to specifically regulate their post employment conduct including that mr tillery is there a an arbitration pending against the employees or did did just abandon any effort to enforce these contracts directly against the employees or do you not know all i know is that what happened procedurally is that happened in this case actually this case they sued the employees and then they dropped that suit that's correct there is no currently pending arbitration against the employees that's what i was asking that you do know that they're they're not pursuing that at least at this moment in either form that's correct your honor but the employees were dismissed without prejudice such that these claims could certainly be brought in arbitration against the employees and any time including one so why do you say they are evading their obligation to under the contract to arbitrate the dispute with the employees they either have abandoned those claims or they're going to pursue them in arbitration what were they have waiting for your honor the complaint as filed initially named the former employees as defendants that complaint included their pictures their profiles their employment contracts and also the employees want to sue for abuse of process or something like that and say that  this complaint was filed in bed faith just to smear them with no intention to pursue it they could do that i suppose and they'd win or lose and that would go on so i mean i guess the real issue here isn't it is whether your relationship with those employees as their employer in titles you your client to arbitrate that's that's we're talking about here right that's correct your honor i think more broadly i the relationship between metadata and the former don't have a relationship with data that's the problem right your relationship with them is competitor that is correct or right or there is an underlying business relationship in vivo and met a data but that is i don't think it issue and this is the issue here you claiming that the alliance that's in the described in the point is a basis for that relationship between the two companies and not your honor what's the w the ongoing relationship i'm simply commenting that there is there is this relationship between even meditate and we're not arguing it is alleged in the complaint we're not arguing here today that it is the subject that is relevant to this motion  all of the parties relevant to this dispute including the former employees so so your honour's is you know the law requires that the court look at the relationship between not only  between meditate on the former employees but the relationship between viva and the former employees and in this case mehta data is seeking to litigate claims that are based on and fact rely on alleged breaches of the employment context that contain these arbitration pray how is that different than the so called case why does that case not control this your honor i believe that the social case has been interpreted as a bright line rule that in any in any take your point that these cases of what constitutes the kind of relationship that would make it fair to allow a non signatory to demand arbitration or be forced to arbitration for that matter are case by case but i don't know that you have to be that one has to interpret so call that broadly at all it seems to me it's a case just like this one so even if we're looking at it case by case it's not just a question of alleged misconduct it's a question of weather the situation in which one party is accused tortur interfering with the contract by hiring away employees and so on is the kind of relationship that qualifies and sokol says it didn't and i'm trying to figure out how we would how you would distinguish that case from this one for i think there are four important distinctions that i'd like to make first in socal as in ross the only relationship between the signatory plaintiffs in the non signatory defend a rose out of tortious allegedly tortious conduct in socal for example that was a a an attempt to breach and you sir a sale of a company in this case there is a broader real employment relationship  not inherently tortious that relationship can exist outside of any claim of tortious conduct and that is a significant difference and second there is nothing to suggest that levy saying that the the arbitration agreement is concerned and should be governed by the nature of the claim that there's an employment relationship and that has constraints that were breached and so really any party who comes in contact that wants to challenge some element of the employment relationship should be subject to arbitration that are you kind of looking at the subject matter is opposed to the parties i think it is it is both in the subject matter here relates to the individual employee as it relates to their alleged breaches of these underlying employment agreements and unlike sokol the employment agreements here expressly contemplate and seek to regulate the employees post employment conduct they made an agreement that any dispute would be arbitrated but she isn't it seems to me that most of the cases in which we've said the non signatory gets to play a role in the arbitration are cases like corporate affiliates where it's almost just a technicality of the wrong corporations signed the agreement and the parent or the sub or the affiliate is the one who's really involved in the dispute and their practice they're practically alter ego cases do you know of any case in which simply an employer employee relationship was sufficient to let the employer invoke the employee's arbitration agreement where the employment relationship arose after in other words it wasn't that the employee signed the arbitration agreement with somebody in effect on behalf of his employer but a case where an employment relationship that was created after the fact let the employer claim the employee's arbitration rights there are no cases i believe in this circuit that have decided that issue there are cases in other courts that have decided that exact issue and again this is an interview in what's the strongest case outside of the circuit for the invocation of an arbitration clause in a former employer a new employer kind of situation there is a case in the disrepute jersey called persuasion funding group versus national  mortgage that deals with exact this exact issue there is another case called do you have a cite for that yes i do i apologize your honor it's it's a west law it's not it's not a published case so it's two thousand and thirteen west minute clip complaint includes additional allegations against the employees that lie at the heart of this dispute namely their failure to allege failure to return metadata documents in their personal possession and those documents now why are the source of the trade secrets alleged by meditating again this only goes further goes to show that this case is really about the employees conduct they are now being dragged through the i'm just asking about the operative complaint forget this is the appeal there were two appeals good morning your honor in this case the court can and should affirm the district court's decision below because it's entirely consistent with this court's prior  american express in this case simply put the only relationship with it is with the employees it has no relationship with metadata and it has no relationship with the contracts at issue as ross would put it is a complete stranger to those employment agreements when you look at the socal case it talks about of a very i think useful framework in socal the court looked at the parties there and said that where you have a signatory x who is bringing claims in a non signatory why one who is seeking to compel arbitration of those claims you have to look at the relationships and where there is another signatory why how did why one come into the picture in socal there was an oil and gas lease in kazakhstan there was an employment relationship there that arose after the contract was entered into between x and y x and y had a contract y turned around and entered into relationship with y one the b n b defendants the b and b defendants actually hired why the former signatory as their general manager of their oil and gas project in kazakhstan and the circle court said we're the only relationship that the non signatory has with another signatory whose breach it has induced even where there is an employment relationship that's not sufficient to compel x to arbitrate its claims the non signatory defendants there could not compel arbitration because their only relationship was a product of their own tortious interference with that contract that they were now the employer of the one whose breach they had induced did not change the analysis this case is just like that and as the court said there if you were allowed to compel arbitration of claims here where it comes along later it had no relationship with metadata at the time of contracting there are only three former employees who had arbitrate it had no relationship with the employees either at the time it had a relationship with them at the time of contracting vivah did not even exist at the time two of the three contracts were entered into two of them were prior to  existence one of them was only a year after it existed so he could not have been the case that meditative would ever have thought that viva which was never a prospective employer or anything with respect to these employees was somebody who would who had to arbitra with you can imagine a situation in a small industry where there might actually have been a future employer who was named in a non computer provision you cannot go work for this entity in that situation one might say it would be fair to say that you have to  itrate claims with that entity that's not this situation there is no relationship with viva here that existed with the contract or with metadata and thus it's not fair to ask mitigated to arbitrate these claims with e as i mentioned your honour's this is also consistent with ross the court there was very focused both on the relationship with the entity bringing the claims who would be a stopped and with the contract it's also consistent with this  applied for example an asteroid over from two thousand and three then judge now justice sotomayor applied the same reasoning that is applied in socal looking at the relationship and finding there that where the non signatory y one had actually negotiated the contract issue on behalf of the signatory y and had been called upon to perform under it by x there was a close relationship both with x and with the contract that warranted the non signatories who were involved in that tax scheme all had a relationship at the outset there were services that we were being provided to the worker really they didn't have a corporate relationship but they were providers of services to the plaintive investors who are investing the tax scheme and claim that they have losses and when you look at the case then on remount it goes back and actually finds that there was no intertwined ness because that relationship was the contract was not sufficient and in fact on remand not compel arbitration one other case i'd like to mention your honour's is the regrown case which the district court cited below from two thousand and ten which builds on this court's reasoning in both sokol eros the court there looked and said where going who had an employment agreement with atlantic video was seeking to avoid arbitration e s p n could compel it because e s p n had actually been named in the contract was known to be the person for whom we're going was being hired to provide services knew that she would be supervised by e s p n personnel and in fact it had a working relationship with them that was known to her at the outset when you look at sokol that knowledge  consent of the signatory apps is very important what vivus saying is essentially that a relationship between viva as y one and the former employees as y is sufficient to warrant a stoppel even where there is no relationship with x x could not have known of y one could never have consented this is a very different situation from the cases that viva itself relies on with respect to the precision funding case in new jersey that even  case actually applied a very different standard the district court in new jersey imprecision funding looked only at whether there was a relationship with any contracting party not with the contracting party who would be bound by applicable of stoppel that's quite a different test similarly the other cases that refers to in its briefs outside of the circuit do not apply the second circuit's test which has been very consistently applied over many many years through sokol through ross dragged through federal litigation they are going to be deponents in this case the case turns on whether they breached their employment agreements the same agreements that contain the arbitration provision and the kicker is that they are still subject find those are binding in the arbitration that type of that is unfair to the former employees i think that's the thing you don't represent them it seems to me those employees could make any number of claims  to have adverse effect findings held against them and say they bargain for betrayed not for being bound by what happens in court but that's a venom what i'm interested in is where does any of that viva employees these former meditate employees the conduct is alleged to have happened under vivas guidance these employees are agents of viva viva seeking to stand in the shoes of these employees and  arbitration of claims that no one disputes are arbiter ball under these agreements that they are that the claims are intertwined with the underlying employment agreements and this court in smith eradicate is that entirely so that i mean there's an allegation that there was tortious interference by the new employer with the old relationship and then there are different kinds of claims against the employees that they took confidential information with them and that they use to solicit them and to tortious lee interfere are different kinds of activities why why isn't that appropriate for judicial rigidness solution court has a very good question and the issue here is that these claims cannot be resolved against vivo without determining whether the employees breached and langridge may be the sole issue of whether there was interference but all the other claims the trade secret claims you know the host of other claims that are asserted here all clearly turn on the employees a legit reason are not entirely overlapping my point your honor but i think they are basing the complaint that has been brought the complaint focuses on is exclusively on the conduct of the former employees and again turns on whether they took confidential information and provided it to be that issue is is subject to arbitration and vive i believe is as the employer of these employees has a right to step in it is their shoes but more importantly this court this court if i may just finish your honor this court in smith enron has specifically found that the type of  gamesmanship the type suing a party who is not a signatory to a contract to resolve claims against a signatory is the type of gamesmanship that this court accords and this is exactly what happened here they sued the individual employees and you understand that you've seen the complaint the