appear to be in general agreement that the two cases that should control the resolution here are the ally bruce terminix case and the citizens bank versus out of case that decided by the u s supreme court we obviously disagree on the application of the principles that are decided that are discussed and in those cases those cases set up to alternative approaches pursuant to which interstate a connection with interstate commerce sufficient to trigger the f a a to be found congress was exercising its commerce clause power at its broadest reaches it then present when a while and and look at the transaction and found that it was in fact in commerce because the pest control company operated in a multiple number of states secondly that the supplies that were used to provide the the pest control treatments came from a number of states and thirdly because supplies that were used to repair the house after there had been problems also came from out of state you look at the facts here look at the arbitration agreement itself for example the agreement recitals that the defendant is affiliated with a company that operates multi state two hundred fifty nursing facilities in a variety of different states that it engage is it reaffirmed the allies response but it said that's not the only way that you can find that the f a a is triggered because of the connection with interstate commerce and in order to understand citizens bank it's important to understand have a supreme court had done initially big case involved an agreement between an alabama bank and an alabama company to restructure certain loans transactions in alabama the alabama supreme court exclusively at those loans transactions and concluded that because there was no evidence that the funds related to the transactions had moved in interstate commerce in any point with respect to those transactions that those every once in a while but the teaching of the citizens bank case is that the commerce clause power can be exercised without any shelling of a specific effect on interstate commerce of the transaction the economic activity that is an issue in a given case instead if the economic activity viewed in the aggregate represents a general practice that would be subject to federal fact test and the citizens bank test are satisfied but if you put a put aside the commerce in fact test and just look at citizens back when we believe we are i don't think there's any question that it is satisf was a connection with interstate commerce and secondly it pointed out that the deficit issue in the case those loan restructuring transactions were in fact secured by goods and assets that had been constructed with parts and materials that had been purchased out of state and then what then we want to say if you put it in there's still any doubt about the general practice that's involved represents transaction that subject to federal regulation that general practice was not the individual loans between now go and citizens bank the general practice was commercial lending and the court said that there can't be any question about the impact that commercial which is the court said to be in the aggregate not based on a specific transaction with an individual  i think that one of the problems that the trial court had here was that it focused exclusively on the transaction between the deceit and misguide and the nursing home but that's not what the supreme court of law says is the is the test that is to be applied and to get something that i mean i don't think it's really necessary to to actually demonstrate the connection that the delivery of longer term care considered in the aggregate has a need conny anymore than it was the demonstrate the impact of the commercial lending that was involved in the citizens bank but if you look at this record this is one nursing home received two point seven million dollars in medicare payments those bills were submitted to mutual dong coffin in nebraska and they were paid by neutral no zero zero zero on behalf of the medicare program from omaha nebraska those funds all of interstate commerce and that's just one facility that's not the aggregate inquiry that the the the court says should be pursued in essence what happens here in the trial court is that the trial court adopted the individual transaction must affect interstate commerce approach that the alabama supreme court had used in ins in citizens bank book by focusing on that it got off the rails and to to i think there are two cases that drive home the point that citizens bank is trying to make both of the cases are cited in the citizens bank and then one of the cases is cats and backers of mcdonald's and the other cases where versus filler good versus bill were involved we form the there was no evidence that the wheat farmer purchased we in their state commerce or that he sold the interstate commerce what he did was he grew wheat for his own personal use the court said the congress had the power the barbecue also barbecue in birmingham alabama it was several blocks away from an interstate highway and the court looked at the amount of goods that mr upon had purchased in that had moved in interstate approximately forty six percent of his meat just to me had moved the interstate commerce roughly seventy to distort the seventy thousand dollars the court found that that was sufficient in order to establish the connection with ron i'll jump ahead to the to those issues that i don't mean by doing that the bit that somehow affects anybody's argument with regard to the competition and i think your honor i think anywhere standing in front of a court would rather talk about what the court needs to hear about  argument assumes its conclusion because what it does is it ignores the fact that the arbitration agreement itself provides for other consideration we put aside the promise to arbitrat sufficient to establish mutuality that is consistent with this court's recent decision in heat which made the point that the promises don't have to be equal there has to be an obligation that is imposed on both parties such that the parties that reciprocal obligations  the then secondly if we look at the the frogs that are afraid the arbitration agreement itself lays out when it describes what it covers it lays out a number of causes of action that the facility where spin a scenario where the nursing home would sue the resident for more than two hundred thousand dollars yes is it reasonable is it reasonably likely in most circumstances that the nurses were never going against the resident for more than two hundred thousand no it doesn't happen that often you're on track to be honest i look to try to find cases and i also talk to a number of are going to not just this going about it in one of the answers that i got back was that we don't s customers and they said that the other reason may be that a lot of those claims get resolved before there's ever litigation that that is brought up were or thought about because the nursing home has so much at stake from a business reputation standpoint right now to to be mutually binding on this agreement arbitrate wouldn't have to bind both sides to arbitrate their planes and in other words what i'm saying there is that just because one side agrees to pay for the arbitration does that give consideration to mutuality if that side's never going to have to arbitrate claims that they worry or not like you are i think that if i think that it is possible for parties to enter into an agreement that requires any one of the parties to arbitrate butt not the as long as there is sufficient consideration going back and forth and that's why i started off by saying let's just put the promise to arbitrate aside assume for the sake of the discussion at the moment that it is that it is  that that consideration those payments that are being made are obligations of the facility and to go beyond that gives us it was a situation where we're awaiting the value of the consideration and i don't think that that's the province of of the poor the promise is a loser is not supported by any evidence it's it's pure speculation and that's not something that that ought to be a basis for poor decision that says well the rule is that if one side promises  arbitrate the other side has to provide an equal promise to arbitrate in any and all circumstances or how about a reasonable most are three one that's reasonably likely to actually buy the other party but i don't think that the consideration has to be a promise to our trade i could if you would i would enter into a contract i could say you were buying we did for me you know we entered into a contract i could say if you have a problem i want you to arbitrate but i'm not willing to here's ten thousand dollars you could look at that and say i'll bet it's good enough for me i don't think i'm ever going to get there but that's that's good enough for me even though i haven't promised to arbitrate a single thing that i think in that lawyers saying you know we want to arbitrate your claims so bad that we'll pay this money but we want this agreement to be such that we never have to arbitrate our claims and you're saying that would be supported by valid consideration i think the wrongful death claim and the second is that based on the terms of the our tracing agreements that you know the illinois supreme court has held on multiple occasions that the existence of a wrongful death claim depends upon whether the sea at the time of his or her death had the right to maintain action and like the situation in some states in illinois because the wrongful death claim is condition on texas to talk about what it means when a claim is derivative i'm not aware of any bill on a case that addresses the precise issue in front of us now for and you thought but the illinois supreme court has decided what it means to say that a claim is the riveted in other contexts in the sense that the claim must be based on the same injury that it's the same cause of bashan and recently in the williams case the way they described it was to say what happens is that in the hands of the person who receives it it's different  your honor i'd like to more or less pick up where i left off the first i want to clear up one thing in response to the question you asked about comparability with missouri and the utah statute still in our statute in fact they are not the same there in decisions right to obtain damages not only on whether or not he could have maintained an action on his debt with respect to utah the utah wrongful death language derive from the state's constitution and the board has held the rather than being for scrying and strictly applied that it occupies a paid position of privilege among courts in the state and what utah statute says is that a cause of action arising out of personal injury to a person her death caused by the wrongful creates significant profit for example plaintiff concedes that there are some contractual limitations that the decision can enter into during these life time that would preclude overall death claim from being but aspects of it as property it produces an anomalous result that he can eliminate the entire plane but he can't address aspects of the claim and the other problem of course is as the texas supreme court held in the  then if you draw a distinction that's based upon whether or not something has to be arbitrated you're jumping right back into the f a a wrong if you're creating something that is specific to the  arbitration remedy i think ultimately if the plane is derivative that means that the plane gets it in the form that the decision had now with respect to the argument about the agreement space specifically says that it remains valid if the residence discharged in reading that it for later states so it says in its face that it continues in effect the second is that the first arbitration agreement applies to two stays the original two thousand and five legal representative executed the agreement whereas in two thousand and six on this guy's executed it and the one for the legal representative is not completed and finally the agreement expressly provides that it is