warning it may please the court this past sunday october th when i was looking over the record in this case was the th anniversary of the signing of the agreement that gives rise to the contract claims in this case i think to state that fact kind of highlights the contract issue before us today was that the opening act was that just the st twenty six dollars of two hundred and sixty four years or somewhere during that twenty six year period of time do we have a right to terminate this agreement incidentally the th amendment of this agreement the actual rail line this border line that runs off from the b n s f track to these chemical plants the record shows is a coming of one hundred years somewhere in its th anniversary depending on how you measure that so this this question of the scope duration of this contract and our rights as p and r s rights to terminate this contract it's defined by only law there's been a lot of briefing about the cases i was hopeful in my time here i could speak to two aspects of those cases both state and federal applying illinois law on this question and i think provide perspective sort of a structure from which i think we can see what i think would be the correct result in this case the two aspects being one is textual what our agreement says compared to certain other cases and the language they have focused on the nd is practically the type of business relationship jesperson they were different for some distinctions in the language but what the clause in jesperson text of it had some provisions that allowed determination in the event of material breach and what it said about that and what rico said picking up a similar provision that required writing to have a modification is those are of no moment there simply just saying rights you already have you already can terminate if there is a material breach you can already agree to modify you  things in writing that's something the law gives you anyway so functionally and linguistically in the case of rico the text of our agreement is on point with the leading supreme court case of illinois and the most relevant court of appeals case since that the one about the juke boxes but it distinguishes between cases where things are done already and cases where there is an ongoing business relationship with ongoing back and forth dealings between the  parties this is skipping ahead to the injunction part of the briefing but there's this line of cases about injunctions and specific performance in the language you see in the old contract cases you can't make a caged bird same and the seven circuit involved when some arises that sort of authority says it's why employment relationships are generally terminable at will and discusses about how the relationship in that case was distinct but if you look at cases where the illinois courts or courts applying a well known law have been willing to find determination condition that otherwise not apply jesperson rico it's because something already happened a salesman made the connection brought in the big client and is going to get paid a certain percentage from there on  or there is some question raised about the recruitment of some sort of investment someone put a bunch of money at it and it seems or there's an option that's been agreed upon and it seems fair under the circumstances that for some amount of time the contract be allowed to continue to have so that can be brought to fruition but not one not one case under everman illinois case the court since jesperson are in the recent history proceeding that often the th circuit has involve and on and off with the obligations that we have for it towards each other back and forth about how you line up cars and who's responsible for that stuff on them of us to store things and that kind of thing and that is classic caged bird type they offered that were persuasive to the district court here was that yes this is exactly what you said twenty six year long relationship even one hundred years and therefore railroad contracts are distinctive under in illinois  and when you look at this one it's integrated it had three parts and it contemplated that b and that would give its portion of consideration early but your client then had this ongoing relationship there in the final portion of the argument if you can keep in your head is that actually the text allows who are multiple ways to get out you could assign your rights to somebody else you could as you did mutually revise it repeatedly and maybe most importantly if they ever didn't pay you correctly breach i think those are distractions you think then judge easterbrook went a bit of field when he started really looking at all the practical colonies and he said yeah in a single incident contract both people consideration same time it would be a servitude forever but where one side performs early and the other one has to perform with multiple ways to adjust that it would be absurd to say you gave it all and now this guy can walk away from as to the termination provision in that case it's different than jesperson his points are well taken there is more in there than just terminations for material breach as to the the right to walk away what he says there is these people were trying to separate from each other for the various wurl had a falling out and they were trying to in the license agreement as part of a terminations agreement and they were done all they had to do was have a license agreement in place to keep them apart from each other nobody had to go back and forth and do all things in this type of agreement and he goes on to discuss i was referring to earlier the cases that do allow a mutual right of terminations when you have that kind of ongoing relationship so i think his points are well taken as to certain aspects of this me as to which is i guess your i'm a vote lost for this but i understand what the court is saying what they're saying in the briefing the one case they cite about railroads is from a long long time ago he was talking about construction for one thing we're not construction it was talking about a unique policy issue of one hundred years ago this construction of a union terminal and somewhere in chicago and then it kind of went from there the part of that d opinion is always central case that talks about this issue is one paragraph at the end the other ninety five percent leading up to it talks about some unique policy issues but nothing in the worlds to do with this relationship this relationship and we're not this isn't about trains it's the talk about track the tracks from their century it's not about the trains we've been out of this contract for a year we bonded the injunction is not in place we've been handling freight there was a common carrier in the trains commons trains go the only thing this is about is whether customers get two bills one from b in a south one from us consideration for this property that was that was be unicef did it seriously except of amount of money for a railroad track and a whole bunch of other stuff it's all detailed in this contract and a material part of that consideration was a provision under a lot terminable well that will that could interest tomorrow if the plant shut down or if business changed of no particular value to it if people when they buy real estate they say i want to pay some money today i'm a play a certain amount over time or they have some kind of security interest in their agreement to ensure a very good assortment return back here or you don't have that you have a exchange of consideration by the way one that says i this agreement four of the rights and interests conveyed p n are shall pay suggesting that there's a match up there between the amount that was paid in the real estate that we received and then there's a lot of administrative things that we agree to do to make this run know what the record says about that they had the opportunity to prove lost revenue in there and in that relation to this particular client said they couldn't do it didn't try to do that the only damage numbers related to disgorge went from us of claiming profit that the actual what they tried to prove in terms of damage zero value none the value that us it's night and day that's all we get paid is what we get reimbursed which by the way is this notion of consideration and then getting paid overtime for the real property but we're getting paid we're making investments too that's why that line of cases matter so much in the justice and we're out there working the track doing these things fixing the things we've got a business to run as well and our costs and profitability decisions are just as important as they're in the ongoing business relationship and jesperson says after a while that's becomes controlling because at some point you just are back in the world of the world the buggy w back we have these administrative responsibilities or to find evidence shows that they had b s f and forty odd of these transactions in years around that they were just been deregulation they were trying to sell off the real state and make some money as opposed to a common carrier relationship but that was housekeeping we committed to do it they committed to do it back and we committed to do exactly what set the exactly it's the cadence a long time ago but i thought from their brief they're seeing the principal consideration they get is they get to control the prices to the clients of the years that are really nationwide that come on this little three thousand and thirty one mile thing but your client kept wanting to add surcharges but the contract gave them control over that pricing there's so  th related to particularly noxious ammonia product or they were willing to give us a concession the th carried that forward and had a kicker that if we went and did other things we've given up the benefit ammonia premium and that was that if you put the two next to each other they look exactly the same except it's got a couple extra cents as we say it was a thing to make the ammonia deal stick they say it was a wholesale revision of the price of formula bottom line it shows that we weren't getting a lot of shows why after twenty five years it was time for a change business environments change regulation changed and the business tenor of the business between these two companies changed earlier in the relationship we've probably got it by the  amendment they're arguing that they've got us and we've got the whole price thing as is done and that's the question are we their servants is it indeed a twenty five years or is this some sort of servitude that runs forever out there or for no could be an absurd result that the day after the contract had been signed we could say just kidding and walk away of course being a staff could have done the same thing it could have shut down the line there we would have sat with an empty bunch of cars going off the border that was a mutual business risk the absurd result was what just person says is no good us big stuck in this contract forever that's the economic incentive that you control today  contracts there's nothing nothing unusual or unique about it in the provision and respectfully your honor i would say there are unique things about these provisions and i would start with the assignment there after a rising obligations i mean you are in that unusual from the standpoint of it being more robust and specifically referencing throughout the agreement this ongoing and continuing nature of the obligations there's a paragraph in the agreement that says specifically the obligations of the parties are continuing we want to unusual your honor i've never seen that an agreement where it specifies that the obligations are continuing and the language were guarding each of those obligations indicates of emphasizes that continue nature and i think another provision that while maybe labeled ordinary when you read the provision you can see that's the integration clause it goes beyond the point of saying this is on target agreement as you would typically see in an integration clause it goes one step further because it says all the rights and obligations of the parties are entered group to this agreement and then it goes another step further and it says the consideration inducing these parties into this agreement includes all of their respective commitments to one another and i think that that is one of the biggest problems with piano as argument they are asking you to view a provision in this contract in isolation they are only trying to terminate part of this agreement they want to keep everything else the thing that gives them the right exclusive right to provide local services and collect that revenue they don't want to terminate that they just want to terminate the rate setting up the worthy of being s f and importantly that was never conveyed to them in the st place they are taking something that they did not pay for and it was not bargained for as council indicate jeopardize its relationships with those customers to have a rd party controlling cost for the last or st thirty one months but has been assessed world is considerably larger and it is a bit of the tail wagging the dog economically to think that if the n s f is moving freight for example from new orleans to border texas well that rate the b s f before took the freight all the way to border and then pa economic impact to be in s f and that's why the district courts awarded a specific performance was proper here when i read the more cases where we just look like it's true they're awfully particular about having to put that specificity in the contract given what giving the terminations date for the contract otherwise that that will contract i mean you know i mean it's easy to look back you know in hindsight the draft or a contract but it would have been very easy to put something in a minute but richard did you in your honor i think the parties here did provide the language necessary to strip this contract from the termina will perception because the st the st thing as i said peon or looks at only one but it only wants to terminate just a little slice of this contract it is basic contract construction that you've got to look at the whole contract sure you'd be happy  terminate the whole contra i would i do you could not your honor you cannot put this genie back in the bottle and that's another reason why this is so distinct from an auto train manufacturer and a sales representative you cannot return these parties to their pre contract status their obligations as common carriers are perpetual under federal railroad law they can't stop neither party can stop providing service without regulatory approv so in the jesperson decision that was making ninety years had illinois and all been the same and the supreme court stated that it was just entering what law was or was just recently a change over i don't think jesperson was a change of law and with all due respect to p n r i don't read the case the same as then because just person doesn't say that you dispense with the parties intent and just person doesn't say you can terminate only part of a fully integrated agreement and the  paragraph of jesperson it says this case involves a twist in the general rule because the contract in just person had permissive provisions one party may terminate if if if the distributor could terminate for any reason or no reason with thirty days notice so what the court did was it looked at that language and it tried to discern the parties and ten they said based on these provisions it shows an intent by these parties that their agreement be  not terminable only for cause so just person makes perfect sense and just pick it's not politics i kind of strayed a little from your question but just person cites to old illinois cases so this was not you know brand new law in terms of potential agreements so these two parties negotiated the contract they negotiated aware of this doctrine i think they were charged with notice of what the state of the law is in fairness i think both sides are  and the but just person does not abrogate basic contract construction principles that's what the district court did it read the whole agreement it treated nothing is meaningless and it discern the intent of the parties  and baldwin piano was mention baldwin piano does an exercise that i think is useful here baldwin piano engrafted terminable will language of the agreement and they said does this make commercial sense now so if you do that here if you say instead of until such time as the parties otherwise mutually agreed you say the other party may terminate this agreement will it doesn't make sense that these parties in the context of this this is ticketed they are aware of the law let me judge easterbrook with a great deal of competence might say i'm going to realize what the contract should have been i mean that their argument is this is asking courts to remedy an oversight i don't think the court has to remit any of the ticket in the contract i think this contract it is implied by law that it's terminable for breach and by necessity it has to be until such time as you have the parties otherwise agree because otherwise  gets back to the judge they just want to your questions about putting the parties back so they keep the real estate they keep the exclusive right for local freight services and they take something for us baldwin speaks to that in terms of the stakes being reciprocal and they're not reciprocal here because being s f can't start going on their track the law doesn't provide that the n s f can't start serving customers all the way to board b n s f can't compete language is is different here it's it's far more robust than typical boilerplate language because it speaks to the fact that everything in this contract is important that all the consideration is important to these parties and it does not permit this slicing out of one thing that defeats the party's intent there would be no reason for them to have these this this lengthy discussion of what their arrangement was going to be on a go forward basis if it could be jerked out from context and it's well recognized in the employment contacts that you can't bind someone to an employment situation for eternity those contracts are treated is terminable at will but this is the exceptions if you look at the cases where it goes a different direction if you look at baldwin piano if you look at burford those cases show that the parties they're considering their entire agreement demonstrated intent that their contract not be will and that's the question that has to override everything here is did does this contract show that being assessed on one hand and piano or on the other intended that their contract be turned what will and it does it does in texas and elsewhere so you've got to look at what the parties intended to happen in the contract and the notion that i do i want to correct the notion that pian are was just on the brink of financial disaster because the record simply doesn't bear that out and the record reflects that piano was making net income in excess of seven million dollars in the two years before it proceed to terminate this contract the record also reflects that in two thousand and seventeen in one year know your honor we actually do know because it just so happens that the persons that negotiated this agreement the person that the attorney from the n s f that was the primary drafter of the two gentleman from p n r that w they were all the post in this case they're all still around and they all testified to begin with i'm not sure that that's not proper for us to look at i mean i think that the primary place we look is to the words of the contract i agree you honor i think that's what the district court did precisely it looked at all the words of the contract but the district court had before it that testimony it was part of the summary judgment record in this part of the record on appeal at four  different context sales representative is a toy salesman and i believe in rico in those context the party that i had the bigger bundle of rights and had given some to a salesman or distribut cetera that that party who is has the right to distribute or whatever is seeking to say that the party with the larger bundle of rights didn't have the right to terminate them so this would be more analogous it was be in s three m terminated just trust of this argument that the railroad situation is unique or is that just person really is limited to employment type contracts it's already the context is important your honor and railroads are unique it's different and none of these cases is the party's core obligation grounded in federal law and not subject to terminations absent regulatory approval the entire agreement was subject to regulatory approval so the you agree that p n r would then have kept the railroad i think it well it depends your honor that would be subject to regulatory approval it would other than federal regulatory approval they would have kept it so that was a possibility why does it make it absurd that that happened even over your objection i'm sorry i'm not totally following your question well but your interpretation of the contract is that the two parties could agree to terminate their relationship and i'm thinking in that case they would have the one they have been quick claim to the realistic so and you know if you look at exhibit one hundred dollars in there then the reason i'm asking that is why would it be why would the with the district court write that it would be absurd to have that be the option you could have ended up with exactly  does not and it makes no sense that by terminating only a slice of this contract they magically acquire something they did not pay for it is that rates is going to was no damage to you and i disagree your honor i didn't scre because what the district court relied on is uncertainty with the future because no one knows what they're going to do with their rates what p r is going to do and no one knows the impact of a higher rate from pre and are we have testimony trial one of the customers was moved looking at moving the truck ok well if that customer moves to try then the n s f is doing less business with that customer we have no way to know when we sit down with a large petrochemical customer in multiple white locations throughout the united states how does that impact our ability to serve the amount of facilities say in alabama if the prices at the rigs isn't on the st or last thirty one miles in the panel of texas there is no way to know what that that week we also then on that point if they enhance what was the enhanced surcharge that led to the breach on the nd issue i don't think they have done a fine i don't think they identified at all i think that's part of the problem they just throw it out there and hope it sticks and the  in the th amendment it says if they want to impose any chart on any customer it's got to have that customers consent so before being assessed does anything wrong or potentially could they got to show that and they simply had operate of fifty years or one hundred years i think it certainly is it seems more egregious as more time goes on i know we talked about absurd results and and i think there are some in the briefing about the day after being in a sort of well i think twenty three years later some sort of result it does seem more absurd as more time passes on but i don't you know i don't think that necessarily and as part of our green much we put in place this handling carrier would remove those waving around earlier with various ways we're going to handle these stripes we have the right to terminate that at will and so we're not that's that's what's left there's nothing else to terminate or not terminate it plays out over time it has a different subject matter but we're not that's there's no part of anything that's what's left the parties deal was to give us the real estate and we would have this ongoing relationship we're done with the relationship it can be terminated we have that right that's that so it's it's there it's just a bunch of words about integration and whatnot and some boilerplate language in the contract but the piece of it that was negotiated to still be ongoing is the piece that we're dealing with and that's fair because that's the part of it that still employee and still subject to the ongoing obligations of the contract which is i think the a fundamental problem with the argument you just heard there's not one case not one from illinois in this case where there is an ongoing business relationship with ongoing back and forth communication and dealing between the parties look at section three for almost all it material that has not been found to be terminable at will and the more they talk about the importance of this obligation how do you to have all this well that's that puts the burden on us we've got to make investments to do that we've got to work to do that we've got to try to accommodate the customers and do the other things and we don't have to do that if we don't want to do that after twenty six years is it going to be thirty years is going to be fifty years i mean that is the concern that just were always then it would have been the same argument after one month sir that's a that's a business risk that both parties chose to run when the plant couldn't well this whole thing could have been worthless depending on how with the economy amounts to different direction b n s f could've gone bankrupt everyone just thought it was a good idea business wise relationship wise we were getting along we had some early in the months that went through no problem and off we went twenty six years now past just person cites a case from this court it's a blockbuster case is the blockbuster video rental empire was falling apart and it touches on the other aspect of illinois law that hasn't been addressed in the in the last remark there are cases that talk about applying a term and contract to recoup an investment to give you some finite target to hit at the finite event of terminations this court said in the spot best case we don't have to look at what a reasonable duration would have been because it clearly has been enough time already and whatever it was that they value they perceived in this relationship going on if lucky if the plant stood open if it's a profitable if if surely after a quarter of a century and probably a century after they'd recoup their investment in this rail line something would allow it to to go those are the two witnesses under all the law this ongoing business relationship no case lets them do that and the lack of any finite event of terminations these cases that choose not to apply jesperson all do so by finding a way to terminate if you look at them they say they state say there are specifics they and that foreclose is a place for the presumption they don't want that they want it forever there's no term there's no implication it's simply our will and whether or not that is an awful hole to us or the degree to which some profitable that's not a relevant consideration as you said judge davis we look at what's up with document actually says what the parties agreed to couple of n reliable one of those witnesses because of witnesses is dennis wilson house lawyer who says they chose illinois law for all their agreements because they knew it understood it and like the predictability of having it so to the extent any of that parole evidence bears on anything if they kept back up though we're a common carrier on the line i mean we the only question here is whether section three is employed or not in place is going to move people are going to get paid stuff's going to move around one way or the other that's