time to phase in that increase instead this case is about seattle's decision to treat one class of small employers differently based on their association with a network engaged in interstate commerce indeed if seattle had simply imposed a higher minimum wage on employers quote associated with a network in interstate commerce and quote this would be an utterly blatant violation of the commerce clause and straightforward case but by imposing the same discriminatory treatment on networks affiliated with the franchise business seattle has not avoided discrimination under the commerce clause instead this ordinance plainly discriminates in both effect and in purpose now i think it's ultimately in purpose in effect the point i was trying to make is although it is not facially discriminatory on the basis of interstate commerce it is facially discriminatory see the number of commerce clause cases that are about a requirement that it's completely neutral like railroad cars can only have you can only fourteen cars on a railroad or you have to have a certain kind of label on an apple and those apply to everybody across the board here you have a statute that does expressly discriminate it just discriminates on a basis of affiliation with a franchise network as opposed to on the basis of affiliation with an interstate commerce network if i also seem to base its does decision on this classification that you're attacking your client is with backing on the ability of franchisees to have access to support in hell all from parent organizations in war cost of supply that sort of thing what's wrong with wrong with that your honor is that the very sources of support that they were talking about where the sources of support from a national network a national franchise network so if you want to look for example to the statement that the mayor made when the suit was filed he talked about an interest in trying to level the playing field between a purely local sandwich shop in capitol hill compared to franchise he's who could drive drive benefits from a court corporate national entity i think is the phrase that he used four times in that release and with all due respect to the mayor that's not a valid interest under the commerce clause you can't take essentially the benefits that a participant in interstate commerce derives from participating in interstate commerce and had an express interest in eliminating those benefits to the benefit of local businesses the city council  had to make a decision about how to steer a ramp up to the objective of the minimum wage ordinance and they based their judgment in part  the ability of the financial ability for inches ease and yet you say that's wrong you can't do that i do say that's wrong your honor because it and i put it this way i mean it would be fine if they wanted to use some neutral metric of ability to pay and that applied equally to all companies but you can't say that well i think companies that have a greater connection to interstate commerce have a greater ability to pay and escape scrutiny under the commerce clause either under effects or under purpose is there anything in the ordinance itself the description of purpose that even mentions interstate commerce no your honor it there isn't but what it's focused on is so are we talking about discriminatory impact as opposed to purpose we're talking about both because independent of what's in the face of the ordinance itself there is extrinsic evidence that strongly support from statements of politicians and lobbyist and that sort of thing that's right which does count in the context of the purpose inquiry under the commerce clause it is also supported i should say by the face of the statute itself because one of the things that's unusual about the statute is that it obviously distinguishes between small employee employers and large employers it then considers the issue of when to employers are sufficiently linked that they should be treated as a quote integrated enterprise and then adopts a neutral standard for that but then it's pacifically says but that doesn't apply to franchises franchises are all swept into the large employer treatment as long as they have more than five hundred employees nationwide and so similarly situated to the in state businesses because it's a different business model explain why this isn't a similar type case where we've said it's a different business model so not similarly situated what your honor i think the  because there you had a centrally two kinds of businesses opticians on the one hand and up tom interest in up the mileage just on the other and this court pointed to things completely extrinsic of the statute and that showed that the state had wineries above two hundred thousand and five hundred thousand in production the court didn't say well they're differently situated because a five hundred thousand case production wineries a different animal here you have single market really i mean you have sandwich shops that are clearly competing head on in the same market they are clearly similarly situated we have to say that the franchisees and the non franchisees businesses are not similarly situated or are similarly situated in order to fi favor well i think that is actually a threshold for this court's analysis but i think this court has said that that really just is a test of whether you are competing in the same market for the same customers when you have something like the optometrist situation where you really have kind of different animals because the ophthalmologists are state licensed they had fiduciary responsibilities that the opticians don't have yet all couldn't say that franchisees in fact i think they did say franchisees are differently organized and a small business and that was the distinction they made and that is is simply erroneous i don't think you can do that in a void inquiry under the commerce clause at the threshold question of whether you're similarly situated i think that would be frankly a very dangerous precedent and at are they similarly situated i mean was it reasonable to say they were similarly situated he was i don't think they ever said in those terms that they were not situated for purposes of the commerce clause analysis and i think it's very important i mean almost every statute or ordinance that discriminates between business classes is going to have some theory as to why that discrimination is appropriate if you say therefore threshold they're not even similarly situated you're going to clearly completely circumvent any meaningful analysis under the commerce clause and so i would think for example if you had a simple case in the lens crafter case of a distinction between national chains of opticians and non chain opticians i don't think this court would have reached the conclusion that those groups of opticians are not similarly situated and they would have gone on to the rest of the unanimous s and i think it's the same test case for the as black rock you're saying well i have my best case for that is black rock i think you know the judge gould case in the rocky mountain fuels case is another one where the court got past that threshold question i don't i can't actually think of any situation where the court hasn't gotten past that threshold question when there was really only one market at issue so the only cases that really stand for that proposition to me seem to be the case of th maybe the exxon case but there in both cases what you're trying to do is trying to isolate a single market where the discriminatory treatment is taking place and that's obvious here i mean these are computers competing head on for both customers at the retail level verses others most of whom are as state yeah and again there there's something completely independent of the statute that's being challenged in the particular case it shows that they really are different animals and they're the local utilities have a universal service obligation that the out of state utilities don't and so to treat those like they're both apples i think is a mistake and it's not just that the statute itself that's being challenge made the distinction for the first time and here this really is anchises not a franchise relationship it's not a different apple in some ways it's not saying and why is that i guess i don't understand is they're competing in the same market for the same customers there's nothing like general motors also if they were competing in the same market the were just some distinctions in their business model but the business models there came from independent factors like the universal service obligation in tracy in the lens crafters case you had the  to their patients there's nothing like that whatsoever your honor and i really would urge you that i mean you know i really do think you would be cutting off the commerce clause analysis at its knees if you were to adopt that analysis in this case where there's nothing like that for other purposes seattle treats a franchise businesses employee council for sick leave ordinances and things like that they treat franchise employees just as if they're normal employees so a small franchise has ten employees you don't aggregate them for all purposes so this statute is an anomaly it treats two companies that are competing for the same customers in the same markets differently and i think you need to get past that threshold analysis and i think once you do the discrimination here is pla can quite get at well i maybe the best way to think about this is that in the year two thousand and seventeen this statute in practice will tell a local company that's deciding whether or not to set up as an independent shop or as a franchise business that they will pay the effect of a hundred sixty dollars per week per employee fine if they affiliate with a franchise now what's travelling interesting commerce it what's the burden on interest and congress isn't the license that you're talking about or what is no out of the burden is the differential treatment of two businesses in seattle based on their affiliation with interstate commerce and i think in that space sense it's very analogous to the when case that the supreme court and where you were treating t maryland tax payers differently based on whether their income came from in state or out of state and here you're treating two local businesses differently based on whether they have an affiliation with a network in interstate commerce one hundred percent of the franchise networks here are engaged in interstate commerce they involve ninety six percent of them involve out of state franchise ors and one hundred percent of them involve either out of state franchise source or other out of state franchises that go into the employment camp so you clearly you finish your search clearly differentially treating businesses based on their affiliation with interstate commerce or their new supreme court cases that's a regulation affecting franchisees discriminates against interstate commerce there there are there there's not i mean you know i wish there were and eventually maybe there will be i mean you know they're obviously of the would be strong of course it would be but i do have i was nice to have you know with us in them but we do have the cases from the eleventh circuit which i think stand for the proposition that when you discriminate against franchise businesses or with the called formula businesses in the ordinance there but if you look at the definition it's the same thing that you are discriminating against interstate commerce i don't think that's an accident your honor because if you think about what allows especially a service business to operate across state lines it is the ability to have common trademarks common advertisements a common menu between i mean that's what allows somebody when they come into us you know town they haven't been to before they see a restaurant it's something that they've seen before it has a familiar logo and if you go all the way back to the framing and think about why there's the clearly trying to knit together a national commercial republic i think the trademark laws are a great example of that you have the federal congress empowering people to have a trademark that so you know mcdonald's is going to be in the same thing in seattle that it's going to mean somewhere else you're not going to walk into another state is going to a completely different mcdonald's and you know the arches are green here or something like that might be more for a big macin madison wisconsin and you would texas i grew with that your honor as well but i think the point is you have the faith that if the federal congress passed something like a trademark law precisely to knit together the commercial nation that we have and for a local jurisdiction to say that we are going to treat you very disfavor billy if you take advantage of a trademark if you take advantage of joint advertising i think that is very problematic and i want to underscore that we're not talking about just some minor differential treatment of franchises i mean you know the arizona brief i think is quite helpful in showing that the differential treatment per employee for the entire phasing period is almost thirty two thousand dollars and as i alluded to earlier with respect to the year two thousand and seventeen this is going to operate as a hundred sixty dollars per week per employee called a fine call it a tax call it a levy on local businesses that decide to do i think you think about it three ways they join a franchise network i think that's a commerce clause violation if they engage in joint advertising i think that's a first amendment problem if they use a trademark i think that's a preemption problem and i think the problem that seattle faces in this case is if they simply passed an ordinance that did one of those things directly if they said look if you're a business and you want to engage in joint advertising with another business you're in to pay one hundred sixty dollars per employee per week fine i think that's a plain first amendment violation that would be a problem in your remaining time and don't want to dominate you know let me get your argument on the same sort of enterprise the local sandwich shop versus  f i get that what's your best proof of discriminatory effect taking and keeping in mind that this comes up not on an evidentiary record but basically affidavits with experts saying it could be this it could be that what's your best evidence of discriminatory and i think that the best evidence your honor is the fact that ninety six point seven percent of the franchises are out of state combined with the fact that the impact here is to the tune if the interstate commerce but issues i mean just to me discriminatory and that means that over a fixed period of time there you to say the declaration of the of ms lyons who says that this is going to threaten her business and that doesn't seem if you think about her business which is to provide income in home care i mean it's almost all of her costs are labor costs she's basically got a business where they take people who can perform these services and match them up with people who need the services i mean this is going to debilitate her business but i think that so there is a sort of concrete evidence but i think the clear evidence is you know this is not something where there is some sort of ephemeral effect and you have to trace it through that like maybe washington is going to lose market share if it can't have the labels it once and the apples i mean here we know that for every employee it's going to cost thirty two thousand dollars we know in two thousand and seventeen it's going to be one hundred sixty dollars per week and so i think this is a case where the discriminatory treatment part of it if you accept that discrimination against franchisees can have the effect of being discrimination on your state commerce the discriminatory impact is overwhelming and i would only not be clearer after a trial on the merits i don't think would be any clearer than it is right now the only thing i'll say before i sit down is i do think that as in many cases when you have clear imp evidence of a discriminatory effect it's not surprising that you find some evidence of discriminatory purpose and i think that if you take for example the protectionist sort of motivations of mr hanauer i mean the only hope the said anything about him he was on the commission right he was on the commission but he was more than that people thought he was on the commission on the recommendation that came out of the commission did not contain what you're complaining about that's right your honor but but he didn't go away at that point he was intricately involved in the discrimination that emerged after the commission made its it's and if you look at those he was no longer on the commission didn't exist anymore it's a job and sure they're really had a point of view and was lobbying for a point of view i would just ask you take a close look at the e mails that are in the record from him because what they show is after the commission finishes its work it doesn't like your client there's no doubt absolutely but and if he was just a private citizen who didn't like my client i wouldn't be bringing up his name the reason i bring up his name is that even asked after the commission to provides its recommendations he is first e mailing every member of the city council and explaining to them how they should respond to an unfavorable editorial about this very issue and he's thanked by the president of the city council for his leadership on the issue the other one i think is incredibly revealing is the other email is to you to members of the mayor's office and mr han i was explaining to them essentially how this provision got into the ordinance so it's to dismiss mr hanauer and some crank or some outsider and i'm sorry it's just not occurring but somewhere in between a lot of us down some someone with an ax to grind no question and very much on the inside of this and here i don't think that i mean we can forward this evidence based on basically a fair request and we've been very easy to have a declaration from the mayor the president of the city council to say oh this is nonsense hanauer had nothing to do with this we did it ourselves here how here is how this came into the ordinance and that evidence isn't there and i think what that shows  although we're both prepared to answer questions on any issue ms laden is principally going to be addressing the discriminatory effects pronk of the commerce clause both the case law and the evidence of record on that point i'll be addressing the other commerce clause issues in the case including purpose and also the issue that mr clement raised about whether this is in fact officially neutral law time permitting also address the preliminary injunction standard but i have a hunch time may not permit if you don't march through each of the elements still it would help me at least if you indicate whether there's any significance for us in the fact that this case comes to us on appeal of the are marion junction rather than a summary judgment or a trial record i'd be happy to do that your honor i'll make sure and save at least a couple minutes to to address that point the principal reason this court should affirm is that the a as all refer to the plaintiffs hasn't shown that it's likely to succeed on the merits of any of their claims and in particular hasn't shown discrimination against interstate commerce as the courts where there are a number of other claims in the case but unless the court has specific questions about any of those i'm content to go with what's in the briefs needless to say we think that the district court got it exactly right on each of those claims in addition to the commerce clause or careless talk about purpose what was the purpose and  in changing from the recommendation from the citizens committee that recommended lemaire said we need to address income inequality tell us what to do and they came out with a recommendation that did not include the franchise current what there are i'm sorry what was the purpose what was the purpose and adding that the purpose was identifying other businesses that while on their face they may have fewer than five hundred employees nevertheless share characteristics that to the council indicated they had the ability to pay more sooner the what the way the ordinance is structured is if you can pay more sooner you must and franchises and the contemporaneous statements of the very statements that the i f a is looking at of the mayor of the council members are all about the resources available to franchises and so even though that wasn't part of the recommendation of the advisory commission nevertheless there were the members of the council in the mayor made a policy decision that franchisees that are part of large networks similar to the integrated enterprises that's also in the ordinance are another example of a business with the where with all the pay more because of the resources that are available to franchisees consistent with the expert testimony and rebutted expert testimony that we put in on that point so this is about financial wherewithal have repeatedly talks about this ordinance as if it was targeting franchises but again that's not what it's doing this is the fundamental policy here is to raise wages based on all the reasons stated in the ordinance of the one who was across the board with that why not do it across the or because as the ordinance recognizes on its face some small businesses are going to need more time because of lack of resources to accommodate to the higher wages so you know they could have just up to five hundred if you're below five hundred above but they were looking for a way to get the point is to get more money into the pockets of workers and if there are businesses that fall below the five hundred threshold they nevertheless should have to pay more sooner if they can so the argument is as as i understand it is that the it's it's not a problem there's no proxy for out of state as there is as has been conceded not one word in the ordinance about where anything is located it is all about ability as a practical matter they say ninety six percent f l franchises are out of state so when we see the word franchise we should say out of state and and once you do that you say these small businesses are identical they are similarly situated they're in the same market same number of employees the only thing that's different this impermissible connection to out of state franchise or so how do you respond to that that's exactly what they're arguing i through responses one is the question about are they in fact similarly situated i know misleading is going to address that in more detail than certainly our argument is they are not similarly situated these are different business structures that are regulated by separate statutes both at the federal and state level that apply to franchises it's a different business structure and that's the exact term this court used in that that lens crafters case the other point i would make is that i think the rocky mountain case and the portion of the case relating to ethanol addresses this exact issue about what if we read between the lines and see that this read this as a surrogate for saying out of state what the majority opinion said in rocky mountain is that even if you do ffs see some differential treatment based on location on the face of a regulation before you to strict strict scrutiny you can still look and see are there reasons apart from location for that differential treatment that brings us back again to the expert opinions unrebutted that say absolutely there are there are resources available this is a different type of business arrangement where the resources of a franchise or can help a franchisee even when there is going to be a bit of a wage disparity for a few years i hope that that address your question is is there anything in the record indicating that franchise owners are going to open their coffers to doubt their franchisees it would not be in their interest to say that and so no i am not aware of any statement by national franchiser saying not a problem of course they're telling a very different story but the evidence about the effect the parade of horribles you've heard about what's going to happen as a result of this wage disparity the only known us what's on the face of the ordinance yes for a few years there's going to be a wage disparity but what flows from that and this is directly addressed by the experts we've put in is pure speculation there are economic expert for professor shane said it's every bit as likely that the result of paying higher wages you're going to get more motivated employees less turnover you're going to have employees working for the independent businesses who may want to go across the street and work for a franchise or because there's more  there's more money there what they haven't shown is sufficient evidence either of effects of the type they're talking about this is going to close our businesses down or that it's actually going to have a true impact on the flow of goods and services in interstate co district court correctly found that case just hasn't been made i like to talk a bit about the discriminatory purpose evidence because that is certainly something the f a a has looked at a fair amount  i say it's unclear from the case law whether in intent alone could ever make an otherwise valid law unconstitutional in the win case the supreme court said the commerce clause regulates effects not motives and that makes sense if you had all nine members of the city council say our intent today is to violate the commerce clause of the us constitution but you had a an otherwise benign wall with only local effects who does that statement strike it down no court has held that as far as we're aware and the the best the evidence even the evidence they're relying on again shows that the purpose here is just one of determining ability to pay sooner rather than be fitting in the pocket of small businesses that needed more time the statement of the mare franchises have resources that a small business in the rainier valley or a small sandwich shop on capitol hill don't have now mr clemente touches on the mare used the phrase corporate national entity he said national is review the mcdonald's of the world in the starbucks of the world both as having the capability to phase in wages on the regular schedule as opposed to needing more time that's if that's what they're doing the statements from the council members also about you know council member so want says she doesn't believe that franchisees are struggling small businesses council member o'brian says he thinks the franchise ors are going to make adjustments agree or disagree with the substance a lot of people disagree approve or not approve of the attitude or the tone expressed a lot of people didn't those are policy judgments that the council those are policy judgments that we've determined that large network franchisees are among those misses that are going to have the resources to pay more and that's what we want to see we want to see more money going into the pockets of the workers that this court has stated in rocky mountain that the best evidence of  f purpose is what the lawmakers say at the time quoting the supreme court this court said the court will assume that the objectives are to kill aided by the legislature or actual purposes of the statute unless the circumstances force us to conclude that they could not have been a goal of the legislation none of the evidence here rises to that level we say a couple words about mr him i'm sorry to hear of it all appear listening let me say a couple words about mr hanauer who as you know was one of twenty four citizens on a an advisory commission the first observation is that seattle is a city that loves its process and there's no shortage of citizen commissions boards it vies regroups and as the district court observed behind the scenes in the legislative process and especially here there are always going to be lobbyists industry representatives citizens all expressing their strong points of view including by the way in this case the franchise's they got a chance to have their say but the counsel in the marriage decided to go in a different direction so what do they say about nicanor they say he's not just anybody he's he's important is that really going to be the constitutional test that an email from a citizen can strike a laws knows how this franchise categorisation got into the ordinance agree it is it he is not just any citizen but he is not a lawmaker and as the district court noted there is no evidence that the that can't possibly be the burden that you feel you've implicitly adopted the views of a constituent writing to you unless you negate it though i want to leave time from his late in the last thing i'll say is that i think there would be an obvious chilling effect on citizen participation if you can pluck aced the sentiments of a citizen and use it to strike down the law i think the council and mayor would have to think long and hard next time before they establish a commission what question of course i that nothing would be improved from by a trial on the merits are you no reason to go back and hash this out and have a long trial or even a short trial to determine things like purpose if they chose to come here on this record they could have stayed in the district court trial is scheduled for next month we could have had a ruling on the merits in a few weeks they also didn't seek a stay pending appeal this law went into effect in april and people have been living under it for five months  they've chosen to put in the record they did they in our view should have put in a lot more if they were really going to try and prove an effect on interstate commerce on this record we think a firm and says clearly mandate you think you i'll be addressing the discriminatory effects prong of the dharma commerce clause analysis and explaining why for two separate and independent reasons this court should affirm the district court's conclusion that discriminatory effects were not shown first because franchisees that are part of large franchise networks are not similarly situated to small independent businesses and second because plaintiffs did not meet their burden of showing a substantial effect on interstate commerce i'll start with a similarly situated analysis there's no dispute here that a discriminatory effects analysis considers the disparate treatment of similarly situated entities the district court found that franchisees were not similarly situated to small independent businesses because they have different business structures and explained that there were advantages to the franchise the structure of the eye if they argues that franchise are similarly situated to small businesses because they are in almost the igs they are in almost the exact same position as their non franchised competitors in all relevant respects they compete for the same customers and provide the exact same services here's what the supreme court says about similar situated the test is do they provide different products compete in the same market for different cup of customer bases or occupy the same position in the distribution chain so how does a small sandwich shop on capitol hill differ from mcdonald's franchise in the same location in terms of that test i'm not sure which which decision that test is from your honor's worst recent general motors and the one the general motors versus tracy case actually has as judge you could have pointed out the supreme court held that even when the gas companies were competing in the same market when the public utilities were selling gas on the open market and they were competing with the natural gas companies there were none the less it nonetheless did not violate the dormant commerce clause to treat them differently and that  because in some cases business structure is a relevant factor in determining whether entities are similarly situated the optometrists case in this court specifically says that part of the similarly situated analysis is whether there are differences in business structure and it in turn relies on the exxon case in both the exxon case and in the optometrist's or lens crafters cases it's also called the companies were selling the same product in the same markets in one case they were selling eyeglasses to customers and the other case we were talking about gas stations in some cases on cases owned by independent retailers and other cases owned by oil producers or refiners but there is a difference between opticians and well it's true that the ninth circuit in the optometrist case did also consider that the two types of entities had different professional obligations but the ninth circuit also considered that there were differences in business structure and specifically said that and i'll quote here that  a business entity structure is a material characteristic for purposes of determining if entities are similarly situated i think this case is a good example of why it can't be a materialist material characteristic where a city is considering what a company is able to pay and on what schedule the district court found that they were independent that there were different business structures and that that difference was relevant to their ability to pay because of the advantages that franchisee status conferred and the fact that these entities are not similarly situated in terms of their ability to pay should be enough to decide this case but this court could also decide the case and affirm on the separate and independent ground that the plaintiffs did not show that the minimum wage ordinance would have a substantial impact on interstate commerce and it's clear from this court's case law and from the supreme court's case law that that requires a showing that there will be a change in market share between in state businesses and out of state businesses and the blackstar case this court rejected a showing that was similar to hear that a law that had a greater detrimental effect on out of state companies by requiring them to adhere to a burden some distribution system was a sufficient showing of discriminatory effects because the plaintiffs in that case had not shown that the law would cause local goods to constitute a larger share and goods with an out of state source to constitute a smaller share of total sales in the market so opposing counsel says was clear on that on its face that if you're going to put in additional costs on district court found that there was no credible evidence that this would cause franchisees to close to loose businesses not to open new franchise he locations and that is because there is a series of inferences first that actually the franchisee will be paying higher wages than their competitors but the competitors won't have to some of the increase their wages in order to compete for workers who could earn more across the street then that the higher wage that they won't be able to make up for it in terms of reduced costs of turnover for example or cutting other costs and so they'll have to pass the costs on to their customers and then the customers will actually choose not to patronize the franchisees and will choose to patronize another entity so there are a series of inferences that are required in order to show that the franchisees will be harmed at all but then even beyond that under blackstar and under the exxon decision particularly note sixteen of the exxon decision it is their burden to show not only that franchisees will lose business but that the business that franchisees lose will go to in state independent operations rather than for example to their corporate owned competitors if a franchisee coffee shop legion loses business customers may go to the small better able to respond quickly with higher wages during the transition period that the pin on the promise that the franchise or open up was resources in some way for the friend no your honor it does not there was substantial evidence in the record that there are inherent advantages to a franchise to franchise the status or advantages that characterize almost all franchisee relationship those are found in the expert declarations that the district court credited that include a common advertising and recognition that include assistance with loans that include purchasing power that larger entities have that franchisees can join in with those do not ors to do anything different but there is also no dispute the franchise ors have the authority and the discretion to step in and that in other instances they have supported their franchisees that were facing difficult economic situations and that they could do that in this case but it does not depend on a conclusion that they will i would just close with a with a reference to the pharma case from this court where i think there were there was a useful analogy judge a could ask the question whether we should read the ordinance to say interstate where it says franchises but the pharma case from this court in actually the pharma case in the supreme court provided a similar analysis and asked whether a company could evade the burden that was imposed by a law by relocating to be in state in this case even if most of the franchisees or all of the franchisees are affiliated with interstate networks or with out of state franchise ors they could not evade the obligation to have all of the employees at the franchise network counted by relocating to being an entirely intrastate franchise network the ordinance talks about franchise status it does not make any reference to interstate obligations and in the pharm case this court held that a statute that treats all private companies exactly the same does not discriminate against interstate commerce this is so even when only out of state businesses are burdened because there are no comparable in state businesses so for that the city's lawyer says we're trying to get at is financial where with all i think that is a very helpful answer for our side of this case because one of the things that you look at when you're looking for purpose evidence first you look at the kind of actual evidence we have like f mr hanauer but then you also look for a complete absence of fit between the stated justification and what's really going on here and if they were looking for financial wherewithal there are one hundred different ways to measure that directly that are much more responsive to that point than there are then than just simply using as a proxy affiliation with the franchise network there are some local franchisees that are operating on a knife's edge and have very little margin to pay these wages there are some local businesses that are doing very well and can pay small businesses that can pay this and so you can look at the accounting statements of the various companies or look at how much they paid in income tax as a corporate entity the year before and you can determine which of these companies have the where with all the pay and which don't connection to a franchise network is a terrible proxy for that now my friends on the other side say well that franchises have inherent advantages like trademarks and joint advertisements well first of all i think it's a problem when the advantages that they're pointing to are things that are constitutionally protected or a supremacy clause problems but the other thing the other side how it's forgets about in this case is those advantages come at a cost those aren't just gifts that franchise businesses have that don't don't have a corresponding cost they pay rent to the franchise or and in some of those cases they may get to getting a good deal in some of those cases they may be getting a bad deal and that's why you have some franchisees who can afford to pay this and some who very much can't that's what they should have been looking at if they were concerned about financial wherewithal but they looked in the wrong place and the only way this works that the only way this works is if those payments to the franchise or  renegotiated and that's what some of the council members sent directly they said hey you have more ability to pay this because you can out was go to corporate headquarters ninety six percent of which are out of state in a renegotiate your rent will that kind of naked effort to affect out of state commerce is an independent commerce clause problem so that can't be what saves them or provide some sort of neutral justification now what and they rely upon reason that may not be accurate i  don't think they can especially when that reason is at the heartland of the concerns of the commerce clause i mean expect every member of the city council a ph d in economics from the university of chicago  so if they say business structure they have these advantages based on business structure they might be right they might be wrong but well but i don't discrimination i don't well i don't think that's this case i don't think they said business structure i think they said things like corporate national headquarters corporate national entity and those i mean i just don't think it might be rational to say that businesses that are engaged in interstate commerce are on  balance sort of better able to pay so we're going to counteract that i think that would be an obvious commerce clause problem because that's not the kind of benefit that you can counteract and i think that's what you have in this case i would just close by saying that i would encourage you to take a look at those hanauer emails they just can't distance themselves from him or say he's an ordinary citizen if you look at the excerpts of records page sixty seven sixty eight excerpt of record fifty one those are not the kind of emails that you normally have with government officials where the outsider is telling the insider how something got into the bill or the outsider is telling the insider site or here's how you respond to this criticise criticism and there thanks for their leadership on the issue i would just close by saying on the record here i mean  i'm happy to go you know for a trial if we have a pulmonary injunction in place but the record here seems to me to support exactly what you're supposed to look for at this stage of the case which is likelihood of success i'm sorry  well we had just asked for a preliminary injunction from a district court we brief the whole thing we got a hearing before the district court and we lost now in that situation when you've just asked for a p r when you're asking for a stay pending appeal  not really asking just for a state you're asking essentially for an injunction pending appeal and you're asking on sort of very emotions panel briefing to overturn the district court's decision now in a number of cases including this one i generally tell my clients that's a losing bet you want to go up there and you want to prefix fully on the merits and have the real chance to influence them to come out differently and the thing that really makes that i think a particularly prudent judgment here by to say something self is that you know that the differential in two thousand and fifteen is a livable differential it's a dollar but it's two thousand and sixteen when it's two and a half dollars an hour and in two thousand and seventeen when it's four dollars an hour so we made a calculated judgment that we could get a decision from this court before the real discriminatory differential kicked in so with the court's indulgence for allowing me to go over a few minutes i create thank you thank you we appreciate the