amended complaint the defendants will continue to manufacture sterling type vehicles but rebranded in a room in other name without a cause in violation of section or six forty six stop manufacturing of sterling type trucks in march of two thousand and nine due to product overlap that is to say similar products between sterling type trucks and other d t n a products western star or freightliner also in their nose d t n a indicated that crossroads franchise will be and terminated that will receive formal notice of translation  later date and receive repurchase assistance repurchase assistance is a term used for compensating a dealer upon terminations of his franchise also on the october fourteenth two thousand and eight over relabeled under a different name and the key the key statute that i think is the heart of the first three counts anyway involve section forty six d of the yakked that gives the manufacturer a good cause to cancel or terminate a franchise if the manufacturer permanently discontinues the manufacturer or assembly of maker the verb here is to do with the manufacturing of the vehicles not manufacturing only where a and name or line made a sterling vehicle is still  complaint is true had the there will be handing any continuing of the manufacturing of those vehicles due due to the statement by the t n a that their product overlap between sterling and and other by sterling in other words there's a shifting basically here of the products that were sterling type dealers crossroads him to other companies t controls freightliner and western star and that that is a violation of the area in general motors pretty much do the same thing with the discontinued part here not that i'm aware joe i mean they just the been other situations where other dealers i'm sorry where other manufacturers have discontinued lines but not in the same not in the same vein here i mean this i don't think there's a case like this anywhere else in the country that i can find that well actually there isn't another state with a statute that has the or the sixty good cause definition that we have here so i don't find i'm not aware of anything you i mean i would assume we could very well be a business decision to discontinue or correct it could be a business decision that made sense that they were for whatever reason to afoul of illinois law well they they can't they have to compensate us they made the business decision in setting up this network they made this business decision and getting the dealers to invest in the dealership business state made this is to set up this network of their own and they've created this product overlap they've they've decided that they want to stay in this type of online they will have to compensate the dealers or alternatively they just stop making that type of truck altogether but in this case we play and taken exhibits from their own statements that they're not abandoning this market they've told their shareholders through their s t c announcement we're going to go away after we're still going to go after those those type of markets for the type of truck that was exclusively by crossroads we're going to stick in that we're going to put the product additions over here in another all in another brand name western star sterling so the what's the deal once the manufacturer sets up this network and gets it gets the it's dealers to invest it either asked to abandon those markets altogether or compensate the dealer for coming in and tries compensation under section kind of trucks to other dealers and that operates to the detriment of sterling dealers and to the benefit of other freightliner dealers evidently to t n a feel felt some decision some business needs to stay in that market and if they're going to stay in that market they're going to have to pay the freight for setting it up the way they ha the court interpreted the language in forty six d iranis levy for the reason that that statute requires that the defendants the manufacturers permanently  the manufacturing of the trucks and it's there permanently that runs contrary to rebury and so the defendants have not you know the defendants under the allegations of  complaint have not afforded themselves the benefit of that glucose definition in forty to sixty so there must have been some reason for the legislature to include the word permanently in that big says it says it has to be it has to permanently the manufacturer has to permanently stop the manufacturing of those type of vehicles and if they're going to continue it under another name that's just  shell game and it's an abuse runs contrary to the policy of the motor vehicle franchise there in the act is their part to protect dealers from manufacturer abuse and you would prohibit the piecemeal approach or to suggest that i think your question goes a little bit deeper than that when it refers to the fields case and talks about the circuit court determining the cause it referred down to the administrative agency while still keeping jurisdiction of the case then the administrative agency could decide the the merits of the good cause and assuming there crossroads for the dealer the court's decision below it was also inconsistent with the definition of good cause in the motor vehicle franchise act which in section two sensually the fines could cause as commercial reasonable to us under the general motors decision the supreme court's decision in general motors rebranding here as alleged serve no valid commercial purpose other than to destroy the motor vehicles among dealers and that's essentially what's happening here or the court sort of along didn't press section forty one it's silent on that matter but the allegations clearly showed that that there would rebranding and a continuing to manufacture of the same type of vehicles it's a shifting from one type of dealer sterling killers to other types of dealers in the western star or for it minor and that that's a violation of the act well one could look at forty six i'm sorry forty one and say well they had a allocation of vehicles is only within the same type of franchise meaning only within sterling type dealers and not transferring from from one type to the other i disagree with that reading up box clearly the policy expressed by the legislature in prohibiting all of the new vehicles that a sterling type dealer would have and ship them over to them or favor western star or freightliner type  f dealerships that still survive and that will be handling this product overlay out with the additions to the to the network that were previously and will exclusively by sterling a we have alleged other other counts in our complaint mostly having to do with the amendment to the motor vehicle franchise in fact the curtain that was effective in a host terminations after may twenty second two thousand and nine when the manufacturer here was the defendants here claim that there is no termination no terminations no terminations and terminations is not it is not an element of the positive action in this case in there or it's not really a consideration yet  them dealers to cross roads and just let them with their sort of on the vine without the without the ability to get new trucks and remain viable business will go through trucks are shifted to a different please the court john christianson for the fans that there are five or six key facts that i think drive resolution one was that nov twenty fourth two thousand and eight as attached to the complaint it was a letter sent by sterling and donal are saying that the sales and service agreement would continue if the dealer elected not to accept the package that was offered to them and exchange for these since that time that the buy a fax that we operate under is that crossroads estate in business doing parts and service work and as alleged in the complaint even bought twelve more for the first time i've heard mr smith say that terminations not a legit case because if you read the complaint there is an allegation that crossroads was terminated as a sterling dealer when sterling ceased the manufacturing can allege inconsistent theories they can't allege inconsistent facts that the waves of grain but the light was also red so we have to take them at what he's saying today that they're not alleging terminations and if they're not alleging termination is an ancient egypt to a marsh that sandhu over and swallow the entire site i apologize for the length of my brief but it was simply necessary to address all the issues that were danced in the complaint and  diction is not the way and we start with the fields decision which said that in a case not involving terminations but involving the addition of another franchise so called at point statute of franchise act because the district court the trial court was being asked to address facts that essentially were administrative or legislative in nature then the court could not properly exercise jurisdiction was  unconstitutional because of the separation of powers so in the light of the fields decision the legislature went back to work and amended the statute to create the board you have a jurisdiction over certain kinds of cases and then  describe what would be good cause for terminations in section twelve deep what would be good cause for adding another dealer in twelve  so there was an elaborate administrative remedy created in harmony with the dealer's ability for cases other than twelve p or four d six  forty eight to go to court in a claim not for monetary years and it also kept the provisions although mended of section thirteen that allowed the dealer a remedy for damages that statute is not of clarity and problem as to how to interpret it given what the legislature was attempting to do after the fields case follow a protest with the board if they wish to enjoin or challenge determination very clearly the statute provides that if a protest is filed then determination doesn't go forward there isn't an administrative joined by virtue of filing protest the board resolves the matter and the manufacturer either has good cause to terminate in which case it's game over or the manufacturer is in joint by the boards or different terms so termination even mr smith is regular counsel for dealers could contemplate the board ordering sterling to reopen its factories in order to continue to supply trucks to the to the sterling dealers the question here is one of statutory construction not a constitutional challenge by my by my client does the revised statute permitted dealer sue for damages right away or must they go before the and the manufacturer somehow failed honor the injunction or affected the board's decision and created damages to deal with then it would be damages but what we're saying is as the dissent second part investments in construing the statutory keep field in mind it were to award a construction of the statute that creates the constitutional problem if you were to display with me and send this case back to judge kelly and he will have to apply the definition of good cause under section twelve of the statute one of the factors of which is whether it's in the public interest and that's exactly the point that the fields court said was a legislat legislative board ministry decision i'm just nit tends to get around that by saying no no no if we're in the circuit court then you look at the good cause definition the general one of section two v of the statute which talks about for a reason but if you read the statute in section twelve d it gives a laundry list of things that one looks to the border post to terminate whether or it would make no sense from a statutory interpretation stand point to say that we are going to have one definition of good cause for terminations before the board and that different definition of good cause it can't be a question of primary or concurrent jurisdiction as mr smith alleges here because in my view of the statute is interpreted in a way that would permit him to go to the circuit court for damages directly that would run afoul  you disagree with me on that then the argument is that sterling did not violate the statute and judge kelly if he had the subject manager stiction to determine this rule correct but we also have reserved the arguments of the judge held not the most important which i'm of which in my view is that there was no terminations you cannot have a terminations violation you can't have a requirement of argument to the court today is that there is no one on the basis of this complaint we can determine that there has been no statutory terminations would trigger a violation of stature could trigger a statute or violation either by  sterling excuse me crossroads concedes these points in its number one that the nov twenty fourth letter told crossroads that there would be no term number two that it purchased vehicles from sterling in two thousand and nine that dozen of them and sold them to the public out of sterling's corporate inventory number three that it has continued in the parts and service business now one of the points not taken up by mr smith is my request that the circuit court take judicial notice of fact that crossroads wasn't business by virtue of their website i believe this court can take you from notice of that on  two six fifteen motion and there's been no objection to that by mr smith in his opposition so i believe that in fact that any evidentiary objection w the definition of a franchise which is supposedly being terminated or there's a lack of a notice of term which is pretty specific under seven o two but should be seven ten slash two high of act and it says that it could it involves an agreement to sell motor vehicles or service so either one constitutes the definition of french or it doesn't seem to be a dispute in this roads as a ford europe and still be and still stay in business second do parts and service work and warranty work for stir though that has been no terminations the franchise agreement without terminations there is no violation had other case of in vermont district court in the l and b case a statute somewhat similar to the bill in statute although without that the manufacturers discontinuous on specific provision and the court there said that sterling's actions do not constitute a terminations of the sales and service agreement and that's the same conclusion i'm asking these facts court mr smith seems to suggest that he is not arguing there was a constructive term the so called death of a thousand cuts but rather there was a constructive notice of term should i don't understand constructive notice of terminations either there was terminations wasn't needed there was a notice or was and but there could be in a different case an allegation that the manufacturer a succession of manufacturing works such a hardship on a dealer l marketing practices act suggests that as long as you continue to in business and use the manufacturer's trademark you can't be a constructive in america today there has to be some right on the part of the manufacturer where it's consistent with the manufacturer's contract to stop manufacturing there was a term then we get to the reason that judge kelly rule for us and that was that the term a nation would still be permitted under forty six which allows a manufacturer have good cause for terminations if they permanently cease the manufacture of vehicles of a particular line cross road sponsors that there was rebrand and they do specifically wage this in point there was a  type vehicles and that's important sterling type is not sterling but sterling type vehicles will be made by the d n a and sold to freightliner and western started here as you see in my a g securities and exchange filing and the content of the cobra fourteenth two thousand a letter from dialer to crossroads and neither of those says anything that could be construed  doing violence to the english language to the effect that the same trucks that sterling was making for cross roads we're now going to be sold by freightliner and western star dealers judge kelly didn't reach that decision either he said i don't care about that even if they were the very same trucks i'm going to look to the statute and say so long as the same line make is not so vehicles of the same line make o there's no jurisdiction there's been no terminations and there's going to be no way that you can interpret the complaint about being reprinting bit of all that is wrong then we could still do that without violating the statute because we would have good cause because sterling vehicles were being sold anywhere and there's no allegation that anybody selling sterling manufacturing sterling  the state of illinois to force sterling to either stay in business or to pay what amounts to an exit tax to dealers here for actions taken in other states and manufacturing plants in other countries honor some of the key salient facts the house having to do with sterling making the sign over fourteenth announcement is a bit misleading it was not sterling that made that october fourteenth announcement it was the mother a that was making the announcement he referred to the contractual provision of allowing sterling to cease the production of various models of trucks or any and all trucks but the franchise agreement provision that he's referring to there is it is clearly limited by the motor vehicle franchise act and even the franchise or secure sale service agreement incorporated el that limitation of applies and does not give them an out in this case the manner of jurisdiction seems to be a source of some concern in questioning th circuit courts to determine good cause as a as a matter of course under the uniform commercial code of matters of commercial reasonable notice are are something that courts are power to and and do own rule and have jurisdiction rule and so it's not a separation of powers issue involving public interest as was the case in the fields where we have here is t that dismissal was without prejudice and i think there is some disagreement in the bridge in terms of whether or not the time period has passed with regard to the statute of limitations we