and that's why those two settled the other two ok i guess i get a little bit older your honor i like i think more and more about cutting to the chase  always a good policy and i think there's a couple of things i think we can agree on one is that attorney fees provision that should be strictly construed i think the board expressly agrees with that and i don't think there's a lot of debate about that the alexander case and others second is the provision should be read as a whole if we can and third is we can look to legislative intent in certain cases if it is of some guy and your honor i submit that if you look at the provision as an integrated whole and you take into account legislative history the pow should prevail on its interpretation and i say that your honor read through the provision it starts with a description of a violation that constitutes an unfair method of competition or an unfair deceptive act or practice declared on lawful by the then a little bit later it uses the words the misconduct what is the misconduct referred to i submit it refers back to the provision that started out that section and then it refers to the unfair act or practice refers to that couples phrase later the unfair act of practice i submit that will revert back to the unfair act of practice that we started with and then it says awarding in tourney fees incurred by the dealer in the litigation i submit that the litigation is referring back to the litigation over the unfair and deceptive acts and practices and then it has this section that says when you're talking about  award of fees whenever there's injunctive or other relief sought then blah blah blah that sentences talk is a tiny sentence it's a sentence about timing what it's saying is when have you substantially prevail in terms of when can you say ok now i can ask for my tourney's fees in a temporal sense when judgment is an earth when the consent order is enter when there's a board ruling if a firm it's a timing provision it tells us room can you ask for the fees it doesn't tell you what it's not what act in practice that is integrated through out that provision it's the what their position is substantially prevails means substantially prevailed on anything that that doesn't make it doesn't make any sense that if we go to court we have a one off claim in the court rules for you but it has nothing to do with a violation if i substantially prevail if i if i send a letter in the board does something and communicate something have i substantially becomes an unworkable and unwieldy and an unconstitutional standard i would submit and then there's the provision the engineer i know with the most clear language i can imagine this is how it ends violation it ends it's almost like a code is tied at the end of this provision it talks about an unfair act or practice in violations that it talks about the unfair act it talks about the litigation it talks about  misconduct and it ends it ends with the conduct act or practice alleged to be in violation your honor the integrated whole  if we're going to give weight to the integrated whole it ties together perfectly you have to substantially prevail lation or an unfair of an unfair act or practice would be unlawful by this statute it fits perfectly i would submit your honor we could stop there and if you didn't read there's a lot of ways they could've structure of the statute the way they're claiming it the legislature knows how to do that they didn't and and and it and then so i submit the language is is pretty clear but if we were to say it's unclear because this is one of those rare cases where they say well it's absolutely clear we went in and we say well it's absolutely clear we were in well the language can't be that clear to both parties but in the manner in which i just walk through it i respectfully submit that it is reasonably clear if we can construe it as an integrated whole but if we throw all that out the window and we say you know what i have no idea what this language i have no clue no one has rebuttal to our legislative history no one i know of the board did not try to do it at all in their brief and the dealers made an argument which does not fly and our legislative history we painfully reconstructed this this history this came about because they wanted the attorney general to enforce the un  violations of the act or when something was about to become unlocked when something unlawful was about to happen and they had the attorney general doing all the work and then one of the and then the legislature decided you know what we don't want the attorney general to incur all these costs so we're going to substitute out the attorney general and we're going to let the dealership do it and we're going to add a treble provision and we're going to add attorneys and we cited the legislative debates and it said we've taken out the attorney general and we've let the dealers recover tourney's fees for a violation of the act he seemed to be speaking as if the be viewed two different ways on the one hand your position is general motors there's nothing wrong by really going through the process saying we would like to have these  second example well there's there's like twenty different examples of unfair deceptive practices first of all terry conduct bad faith contact unreasonably withholding vehicles  and there's a whole series of unfair and deceptive practices for not appointing a successor when you were supposed to appoint a successor and all of those well i'm not sure it's i clear it shall be a non law and unfair act or practice to grant an additional franchise in a market area so you could a franchise without going through hoops there would be absolutely i mean under the statute  and then it's interesting the way the legislature constructed that provision i would ask the court to study very carefully subsection eight because it says to grant and we all know the great you sign a franchise agreement you give a dealership to someone that's a violation that would be an unfair act or practice but it's very interesting when you look at aig closely it says that is the violation that's the unfair act or practice but it then says however comma however comma that's the way that sections re structured however if the manufacturer wishes to grant such an additional franchise yada yada yada give notice and and we'll test whether or not it makes sense and bear in mind again your honor these factors are not wrongful factors that people are looking at i mean there are some fifty cases in this country that say more dealers are good for consumers they're convenient they help competition and so on i'm not here to debate those i'm just saying the question of whether you add another make another dealership there's a whole lot of great things that come from it employment and so on and so on i mean taxes i mean we party this many many times and of course there's an argument that says no no no there's too many together as three wines so these two dealers wanted to add g m c thirty's that's all g m did we had two dealers in illinois that wanted to add g m c to their existing g m dealerships we thought it made sense we had a hearing there was a battle of the experts the hearing examiner disagree but there's nothing evil or unlawful or wrong for we were trying to benefit consumers in illinois we lost the hearing but it's just a means of testing whether or not the market makes sense and your honor i think when you sort of view it in its whole context it just doesn't make penalize this manufacturer others essentially hundreds of thousands of dollars it would in fact discourage manufacturers from potentially benefitting consumers with the plan and again i'm not saying the plan is right or wrong but the hearing examiner decide that but let's not set up a system where we penalize you for guessing wrong i know your honor there's a lot of constitutional cases out there i would i would ask the court to consider this case as odd in that three things are at work we have an innocent party we're we're an innocent party we comply with illinois law we have a unilateral fee the golf case at the supreme court you that states the gulf case from over one hundred years ago was pretty close to on point i know it's an old case but it's pretty doggone close when you read that gulf but when you take those three intersections i don't see how anyone can not see constitutional concerns if i were to do it analogy where if i were if i want to expand my house i'm required to get a license from the state i have to give notice to my neighbors i carry the burden of proof for showing i can expand my house and if my neighbors protest and i lose i have to pay their attorney's fees i know we could spend a lot of time on the constitutional issue but that is troubling to me and there's a lot of case law that says it should be troubling now i know the no i mean ironically the manufacturer later went bankrupt but the record in this case one of these dealers or one of these dealers has and norma's operation i don't want to say the figures because it's but it's in the record i mean they have of just it's a matter of public knowledge i mean automation the dealers these days are enormous companies where billions of revenue in some cases the notion that this little guy somehow is always the little guy there is no record of that to support this particular case and you are saying the deal cited the birth cited the marriage cases the marriage case and they cited those as really the only cases that that's this unique combination of innocent parties are required to pay fees anyway that's really the only good set of cases they argue for that it's interesting when you look at those first of all those statutes said there had to be a showing that once house couldn't pay and the other spouse could that was the rational relation that saved that statute we don't have that here if we had something here that said if the dealer makes a showing it's unable to pay someone to be paid that be a different story the other interesting thing about those marriage cases garners their spouse new trial their spouse neutral husband or wife can advantage this is not party neutral this is giving the dealers all with their right the unilateral right to punish innocent conduct and the thing that's interesting about this case is your honor is there actually fighting over fines that presumptively or both they are worse i mean that statute is trying to say look this is presumptuously a pool of money we don't want the husband or the wife restricting funds for an attorney while they're fighting over the allocation but we don't have that here these are presumptuously our funds over which we're trying to allocate them imagine taking this principle a step further and yet a step further and we just create arbitrary classifications of people that can get a good lateral feel or to punish innocent conduct and put the burden of proof i'm the guy that's being penalized if he doesn't meet the burden to get full license regardless of all the merits and the merits of that theory i respectfully submit that i think when you look closely at the cases our constitutional argument is stronger than theirs but regardless i think we can all agree that we should interpret the statute to try to avoid constitutional infirmities and i think when you interpret the statute as an integrated whole and you take is that you know though ok so when you take the statute as an integrated whole and you take the legislative and you try to interpret the statute to avoid constitutional infirmity if possible there's only one interpretation that works and that is absolutely if a manufacturer commits an unfair act practice and violation statute and dealer approves it they get attorney's fees absolutely if they enter a consent order that does the same thing absolutely but not just if anything it's not just in the air devoid from any connection whatsoever let's just take the word consent order your honor their interpretation says well when you substantially prevail in anything including by way by consent before you get you get your feet what does that mean a consent order and what a consent order doing what that construction of no sense it's a consent to order that stops on lawful practices in violation of the act that makes sense when you have one of those you get your attorneys that makes sense it fits if it's the hundred percent because they did have in violation there and they make a fair point but it's extremely close but the court there found is this makes no sense guys we're not violating the statute plowing with the statute doing what you asked us we're hearing the notice we're having the hearing that's not a violation that is something that should not warrant attorney's fees thank you so thoughts about this case the statute provides a means by which general motors in a case like this could request for additional franchises for g m c general motors went through the process various hoo or he's dealers to spend a million dollars in order to stop it and if they're and if those dealers are not awarded attorney's fees they are punished to the tune of a million dollars by the wrong decision the general motors i mean this wasn't a common lie action this wasn't a contract action story action here's a six story action that you have of every century action that i'm aware of almost all of them have attorneys whose losses almost all of them in that sense violate the american role because i'm very familiar with american and i'm not aware of any other president which would you know result if you did what you in this proposing here where there is a person of the stature yes miss you me some examples of the bad stuff in the good court is a right well if the legislature in their ways decided to parse the stare and say if you just make a decision which causes a hearing you don't get legal fees and if you do a walk which by the way i want to liberate on i don't think there are many some tiny miniscule subset of the cases under the statute ok but i think i don't have the slightest cases are by the board attorney's fees were not intended by the legislature by i think that's an impossibly odd assumption america that the legislature to general motors adding these points knowing that they'd have to spend a million dollars in order to do it i mean i don't think it was totally perfect she had talked about the dealers and such little were actually referring to the other dealer my client is a little guy the record shows my client was barely profitable and the stations about getting these one since late in the legislative history there conceive a rational reason for the fee shifting it should be up held by constitutional grounds and i think many of the cases mr jerome cites are older cases that were that were decided a rational basis the purpose is to protect dealers who are generally considered to be in an inferior so they actual position to the manufacturers and i think that's why we have this fee shifting because the situation here and there is a rational basis to reach that conclusion generally yes in th situation we have a manufacturer did file a chapter eleven petition but under rational basis review there does not have to be a perfect fit between the means  motor vehicle franchise act similar franchise act in the least thirty others states did not come out of nowhere they came out of palm a situation where the legislatures of least perceive that there was a history of uses by automotive manufacturers against dealers and that's the contest for a was like this and the legislature could have rationally concluded in that situation that it was appropriate to shift fees in this situation where the manufacturer to fund domestic violence in that situation the supreme court concluded that was arbitrary because marital status wasn't really reluctant related to domestic violence sometimes it was  d partners who engaged in domestic violence here the fee is being shifted to a party that did have quite a bit to do with the fact that fees were incurred the manufacturer the morning and may please the court we were here earlier a few years ago as you may or may not recall and church you had a statement  what's seemingly lost this is that this case which also down below came here and went up to the supreme court the supreme court agreed that there is in fact the purpose of the sack to address the disparity in the bargaining power between dealers and they ruled in the underlying narrative case in that regard that section of the act one get to a case like this where the legislature decides let's create or it's not really the place for the courts to look at this for us let's create a special work and let's add a provision power which both has been said before this case now said by their our supreme court and that's the purpose of the statute whether you want to say it was bigger little at this time and i would disagree with that characterization but that  an appeal to the circuit court here on the ministry you can appeal to this court and appeal to the illinois supreme court that at the end of that g m wasn't a fact of the enjoin from adding these dealers in and that we the dealers didn't they make a decision to grant an additional franchise the signing of the deal or remit which they try to make a distinction of is just a formality in this process they grant that franchise to somebody who they say let's add another piece to your dealership that very systems other dealers are in that same market they know it's a violation of the statute to in fact do that in the last they can show good cause and then what happens is course they don't put the dealer  because they have to provide this notice but they all have granted that franchise at that point in time and it's simply here's the notice if you guys decide protests we have to prove because they didn't prove good cause so they couldn't  or win or prevail under this statute and the way it's set up and there's nothing about section thirteen that says anything more than if we prepare we get our fees and that's the few shifting provision that also is what the legislature set up and i don't think there's any reading on that unless you want to use new words and change the statute which g m is suggesting they want to do they want to add within this language because you would have us read the stash be getting with if you franchise here do substantially prevails in reading out the first part now five misunderstanding your argument explain how the first practices which are identified including section four under which this case arises and all that does is then create a remedy under those sections which some legislator direction then to go to that section connects to that section and then you read through that section it's as simple as that they can create extra hoops or are obstacles but they don't exist all it says within that is once you go from forty to this from the first section which we have to file a protest at that they've made the decision to get to work and there's never been any challenge before when this issue and i don't think the legislature as you've said before we're not here to thank you your honor i think the fact that the statute uses the phrase the cork or arbitration panel or bork in conjunction oppresses counsel's argument it's clear that the statute is saying court or arbitration panel or board if you substantially prevail when you talk about the court in the arbitration panel it's patently clear that it's referring to the prior language of the act of the of that provision and the same applies to the board it uses court panel or board it's absolutely clear that for court panel it incorporates the prior language the same must be true for the board in order to read it as an integrated whole if you read the hearing examiners opinion it is absolutely variations on that theme and don't forget this all started with two dealers two dealers wanting to add a line of eight they already were in the market they already had g m lines they just wanted to add c but we had to become the spokes person by statute for giving the two dealers their additional line makes council said it would kill the bill no it wouldn't there's other states where they have protest provisions and you don't get attorney's fees and dealers file protest counsel said other states have provisions like this they do look at massachusetts the matches choose a statute reads  very similar to this one and the massachusetts supreme court said no we're not going to give attorneys fees when you comply with the statute one hundred percent and you use the test for whether you can proce counsel said well they'll incur a lot of attorney's fees that's the american rule yes little against do incur tourney's fees if they sue and lose and there are exceptions to the bat but they should be strictly construed and they should be read in light of the legislative history and the provisions as a whole and i submit that if you take all of those into account their interpretation does not withstand analysis counsel also says that ninety eight percent of this or that i'm not quite sure where those statistics come from there's lots of protest in front of the board i have another one that's not any of those but in any event it's also interesting to note the terminations provision is different than end point for vision the terminations provision says it shall be a violation if you do x y and z the adequate provision is structured very uniquely it says if you grant it in the market that's a problem however if you wish to then go through this procedure it's just like getting a license it's just like getting a license and if we're going to create interpret this statute to say any crook any person can protest you're getting a license from the government that you're required to get and then you have to pay the fees of those who protest against you to fulfill the requirement of the state that is a constitutional problem it really is i think particularly given the law that if you look at all of their cases on the constitutional issues almost everyone further along was an unfair terminations sanderson was a refusal by the insurance company you make payments required by the act color hand was an unlawful withholding of records crotchety it was a consumer that had shown there was a violation of the law with bad faith almost every case they cited when you look at it closely there's some wrongful conduct or there some violation off something something there is something unlawful we don't have that here there is no on lawful contact we had two dealers who wanted to add a line make we thought that their request made sense we sent out the notices were required to do both parties to turn this hearing into the hearing that it became we wanted it to be a short hearing but it became a longer if you violate the statute you get your