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The lawyer who wants to bring back Lochner
You knew this was going to happen. Part of Seattle's new $15 an hour minimum wage law classifies franchise restaurants such as McDonald's as large businesses that employ over 500 employees, and therefore subject to the $15 an hour law.

Well. The lobby group International Franchise Association, representing such local businesses as McDonald's, Taco Bell, and others, filed a lawsuit challenging the law.

On the one hand, this suit should have no chance of succeeding at all.

Part of the argument is that the law

...violates the First Amendment because “by increasing the labor costs of franchisees, the Ordinance will reduce the ability of franchisees to dedicate funding to the promotion of their businesses and brands.” In other words, the law requires businesses to spend money paying workers a living wage that they could otherwise spend on advertising, and this somehow violates the Constitution’s guarantee of free speech. If this were actually what the Constitution required, then any law imposing costs on anyone would be unconstitutional, including all taxes. After all, every dollar paid in taxes is a dollar that can’t be spent to buy an ad promoting the deliciousness of the Big Mac.
But that's not the most insidious part. The main thrust of the lawsuit deals with the way the law treats franchised businesses as opposed to other types of companies. The law has two different schedules--one for large businesses, one for small. The large business (defined as companies with over 500 employees) must be at $15 per hour by 2017. Small businesses must be there by 2021. Franchises, like an individual McDonald's, are treated as part of the larger company. So, because McDonald's is a large business, each individual franchise falls under the same schedule that applies to large businesses.

So, the suit first claims that by treating franchisee restaurants of out-of-state companies like McDonald's differently than mom-and-pop places, the law violates a constitutional doctrine prohibiting discrimination against out-of-state commerce. Which would have merit if Starbuck's were treated differently. Which it's not.

HOWEVER:

The suit does contain two claims, however, that are entirely plausible — if this were 1905. In the Nineteenth and early Twentieth Centuries, judges frequently invoked open-ended doctrines that have largely been discarded as unworkable. One of these was a prohibition on “class legislation,” defined as “legislation that picks out a group of people for special benefits or special burdens without adequate public justification.” On the surface, this seems reasonable, but it turned out that nearly any law can be characterized as discriminatory if a judge tries hard enough — laws banning murder, after all, discriminate against killers. If judges have the final word on which laws have an “adequate public justification,” then they have an effective veto power that they could and did use quite arbitrarily. In an infamous New York case, one judge claimed that a law prohibiting bakery owners from overworking their workers was unconstitutional class legislation in large part because it only applied to the “small fraction of the community who happen to conduct bakeries or confectionery establishments.”

When the New York bakery case reached the United States Supreme Court, it became what is now known as Lochner v. New York. Lochner is widely taught in law schools, often alongside cases upholding separate-but-equal segregation or Japanese detention camps, as an example of how judges must not behave. It was what legal scholars often refer to as “anti-canon” — a decision that is instructive only because it warns the reader that judges wield tremendous power that can be used in terrible ways.

And we all know what happened because of Lochner. Minimum wage laws were repealed, labor laws were struck down, unions were forbidden to organize, and so on. It took FDR appointing new Justices to the Court to repeal Lochner.

Here is the most dangerous part of the suit:

Which brings us back to the much more recent Seattle lawsuit. The plaintiffs in this lawsuit do not simply want to resurrect a very Lochnerian notion of freedom of contract, they want to inject it with steroids and then send it on a rampage through the American system of law. According to these plaintiffs’ complaint, they are subject to a franchise contract that “comprehensively define[s] the rights and obligations of each party.” Seattle’s minimum wage ordinance, they argue, “will make it difficult—if not impossible—for the franchisees to continue to meet their obligations in terms of operating hours and product quality due to the increased costs imposed by the Ordinance.”

It is certainly true that, if a business has higher labor costs then it will have less surplus cash lying around enabling it to meet its other financial obligations. But, once again, if a law became unconstitutional simply because it imposes financial obligations on businesses, than taxing or regulating businesses would be impossible. McDonald’s franchises are also subject to a web of health regulations, and they could presumably save money if they were allowed to serve diseased meat that they could purchase at a discount. That doesn’t make food safety regulations unconstitutional.

The Seattle lawsuit seeks to revive something very close to antiquated notions regarding class legislation. The ordinance engages in unconstitutional discrimination, according to the lawsuit, because it “arbitrarily and irrationally discriminates against small franchisees, i.e., those that employ 500 or fewer workers but are associated with a franchise network that collectively employs more than 500 workers.”

See that gentleman in the photo above? that's Paul Clement, the "solicitor general of the Republican Party". He's the guy that nearly got the Affordable Care Act declared Unconstitutional. He's the guy who argued for Hobby Lobby against the contraception mandate. He's a lawyer who makes ridiculous arguments sound plausible to conservative judges.
But there’s also a reason why lawyers do not typically make the kind of arguments that Clement signed his name to in the Seattle case. A lawyer’s most important commodity is his or her credibility before the judges that hear their cases. Attorneys, or, at least, attorneys of Clement’s caliber, do not typically argue that the First Amendment prohibits the government from costing businesses money because this argument is so ridiculous that it undermines the lawyer’s credibility with the court. If an attorney is willing to make an argument that is this outlandish, how can judges trust anything else he has to say? Clement, however, is such a successful attorney in large part because he has his finger on the pulse of the conservative legal thinkers who dominate the Supreme Court of the United States. He is a better judge of how far he can push the justices than nearly anyone else in the country. And, if he thinks that the kind of arguments that he makes in his brief can be made with a straight face, then that is saying something quite significant.

The conventional wisdom, based not just on speculation but on the justices’ own statements, is that the Roberts Court is quite conservative but it certainly isn’t prepared to revive the judicial overreach that pervaded the Lochner Era. One of the best lawyers in the country, however, appears to have concluded that this conventional wisdom is wrong. If Clement turns out to be correct, that should frighten anyone who works for a living.

And I don't think there's anyone on this site who doubts that at least Scalia and Thomas wish to return to Lochner.

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Comment Preferences

  •  Tip Jar (287+ / 0-)
    Recommended by:
    Alumbrados, Angie in WA State, SteveLCo, copymark, laurak, Geenius at Wrok, Gooserock, Emerson, Shockwave, wu ming, jazzizbest, cotterperson, OLinda, mslat27, eeff, xynz, Matilda, Ahianne, RubDMC, opinionated, concernedamerican, missLotus, TracieLynn, highacidity, chuckvw, SCFrog, Aquarius40, fumie, Cedwyn, tidalwave1, TexDem, Dr Colossus, brainwave, TiaRachel, HeyMikey, NYFM, Steveningen, defluxion10, lcrp, Brian82, barbwires, Diana in NoVa, zerelda, KayCeSF, Steven D, sawgrass727, sb, rapala, historys mysteries, Simian, marina, UncleCharlie, democracy inaction, basquebob, dewtx, ChemBob, eru, GreyHawk, Isara, PinHole, Tool, Tunk, Pluto, Sister Havana, xaxnar, Mother Mags, BachFan, Kingsme, G2geek, ORswede, GeorgeXVIII, tofumagoo, janatallow, Chaddiwicker, Aaa T Tudeattack, Urban Space Cowboy, Rosaura, night cat, deepeco, J Orygun, thanatokephaloides, Dont Just Stand There, Alfred E Newman, Fox Ringo, George3, jedennis, begone, flavor411, BMScott, Lefty Coaster, Tortmaster, Jeff Y, Involuntary Exile, Youffraita, kurt, apimomfan2, DSC on the Plateau, jbob, skohayes, Laughing Vergil, Floande, JBL55, coppercelt, fugwb, NBBooks, Mayfly, Hirodog, richardvjohnson, TX Unmuzzled, hbk, parse this, roses, MKinTN, StrayCat, shortgirl, PrahaPartizan, J M F, livingthedream, mattc129, tle, Chrislove, shaharazade, Fabienne, Its the Supreme Court Stupid, eightlivesleft, milkbone, Brunette, semiot, Shadowmage36, millwood, GreenMother, FloridaSNMOM, ramara, boran2, trumpeter, joynow, regularJoe, TheMeansAreTheEnd, mcstowy, Oh Mary Oh, whaddaya, Creosote

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Thu Jun 12, 2014 at 11:55:24 AM PDT

    •  Astonishing (6+ / 0-)

      that these minimum wage laws may very well cause the destruction of all kinds of labor laws-including the minimum wage!

    •  Blazehawkins - I don't think so (4+ / 0-)

      I think the final issue will be can a franchise owner with one restaurant, and 15 employees, be considered a big business?

      "let's talk about that" uid 92953

      by VClib on Thu Jun 12, 2014 at 09:08:07 PM PDT

      [ Parent ]

      •  I'd like to think so... (3+ / 0-)

        but why would Clement involve himself if he wasn't going after bigger fish?

        America, where a rising tide lifts all boats! Unless you don't have a boat...uh...then it lifts all who can swim! Er, uh...um...and if you can't swim? SHAME ON YOU!

        by Back In Blue on Thu Jun 12, 2014 at 09:48:32 PM PDT

        [ Parent ]

        •  BIB - I think this is going to be a big issue (2+ / 0-)
          Recommended by:
          zenbassoon, KenBee

          and that companies built on a franchise model have the resources to litigate this issue all the way to the SCOTUS. What cities are trying to do is use local laws to change the economics of franchised restaurant chains. Like nearly everyone here I have no knowledge of the microeconomics of being a franchise owner, however my guess is that the franchisees can't pay $15/hr without some relief with their franchise payments (or charging higher prices than the national ads). Changing the franchise fees is a very big deal if you are McD's, or another big franchise chain.

          "let's talk about that" uid 92953

          by VClib on Fri Jun 13, 2014 at 06:56:51 AM PDT

          [ Parent ]

          •  Maybe the real issue is slave labor. If you have (4+ / 0-)

            a business model that depends on paying slave wages, than maybe you need a new business model.  

            We have franchise owners because they benefit from national advertising and name recognition.  This should not give them the added benefit of being able to pay less than a living wage and throwing their workers onto the taxpayer.  

            The fact that they are challenging the minimum wage may create a powerful blowback as did the the whining and complaining of the corporations over the ACA.  Papa John didn't win any friends in that one and his restaurants suffered a big decline in sales, one he is still trying to reverse.

            The more we here these arguements raised by the powerful against their workers, the more people will start to think about what is really happening here.  

            •  By having the Association carry the legal fight (2+ / 0-)
              Recommended by:
              zenbassoon, importer

              I think each individual chain hopes to stay below the radar.  

              I don't think there is much chance that they will be successful challenging the entire concept of a minimum wage, but I do think they have a chance of winning the issue that a local franchise owner with 15 employees is a small business.

              "let's talk about that" uid 92953

              by VClib on Fri Jun 13, 2014 at 07:42:50 AM PDT

              [ Parent ]

              •  Win or lose, I don't think they want to open (1+ / 0-)
                Recommended by:
                zenbassoon

                this can of worms.  The media has been very good at suppressing any rational discussion of the minimum wage.  With a case before the court, is would be much harder to avoid discussion and for big players to be drawn into the conversation.  The real sin is the hospitality industry being able to keep wait staff at 2.32? an hour for 20 years.  They don't want to talk about that either.

                Just as a local anecdote, I am seeing help wanted signs all over our small town, mostly in the chains and a big ad by Walmart and their Sam's Club affiliate on the brink of job fairs to fill the local payrolls.  

                I was in Issaquah, Wa a few years ago a small town with a lot of wealthy baseball players and professionals near Seattle.  They were offering starting wages of $14.00 an hour in a local Taco Bell, the Krispy Kream that moved in there brought in illegals to avoid paying a decent wage.  I know about the Krispy Kream because a sexual harrassment suit was filed against the manager and the whole thing came to light.  So you can save pulling the race card.  

                They are like roaches, they can't take the spotlight, and smart politicians are going to seize on this populist movement that is taking shape and win elections.  

                They are trying to down play Cantor, but I believe there was a lot of laundry went to the cleaners after that one.  Brat ran a populist campaign on $40K against Cantor's $5M and won.  

          •  Changing the fees... (2+ / 0-)
            Recommended by:
            zenbassoon, Metric Only

            Yes, that hits McD's corporate bottom line, as it should.  Investors should be grateful they got away with such an unethical business practice for so long, not to mention the health care burden heaved on the taxpayers.  

            America, where a rising tide lifts all boats! Unless you don't have a boat...uh...then it lifts all who can swim! Er, uh...um...and if you can't swim? SHAME ON YOU!

            by Back In Blue on Fri Jun 13, 2014 at 12:28:32 PM PDT

            [ Parent ]

      •  if the issue entails intrinsicly the resposibility (3+ / 0-)
        Recommended by:
        zenbassoon, shaharazade, FloridaSNMOM

        of a franchise to corporate advertising expenditure at the expense of responsibilities to any or all of those 15 little employees, I don't believe there is a question serving as a significant obstacle to a quick and resounding:

        FUCK YES
        in response

        Righteousness is a wide path. Self-righteousness is a bullhorn and a blindfold.

        by Murphoney on Fri Jun 13, 2014 at 01:38:24 AM PDT

        [ Parent ]

      •  Most franchise (2+ / 0-)
        Recommended by:
        zenbassoon, Metric Only

        owners have multiple sites under separate business entities. If one goes down due to a lawsuit or bankruptcy, the rest are untouchable. Most franchisees are mufti-millionaires.

    •  Not even Scalia (1+ / 0-)
      Recommended by:
      zenbassoon

      will go this far yet.

      You can allege anything in a lawsuit.  Doesn't mean you are going to to win.

      And the Lochner portion of this lawsuit won't.

      This diary is an overreaction. No I have no doubt this is the direction groups like the Federalist Society would like to go - but we are nowhere close to there yet.

    •  Mandatory minimum wage laws (1+ / 0-)
      Recommended by:
      zenbassoon

      create a level playing field and prevent wholesale exploitation, it can be argued.

  •  Small point that may not be germane, but... (85+ / 0-)

    Advertising is not "free" speech.  It is already limited by law (at least on paper), and you can ask any media buyer how "free" it is.

    I smell ALEC all over this.  It's not their usual playbook, but it reeks of them.  Normally they'd make the play in the legislature, but I guess that ship has sailed in this case.

    I'll believe corporations are people when one comes home from Afghanistan in a body bag.

    by mojo11 on Thu Jun 12, 2014 at 12:31:19 PM PDT

    •  That's not even the issue - (3+ / 0-)
      Recommended by:
      zenbassoon, semiot, FloridaSNMOM

      The law doesn't even ban advertising.  When you get into the indirect downstream effects, it can prove anything.  Taxes mean less money spent on advertising, and therefore are unconstitutional.  The laws enforcing contracts with the bun suppliers mean less money spent on advertising, and are unconstitutional.  Under Clement's standard, literally anything can be unconstitutional.  

      As far as the first amendment, advertising is much more regulated in terms of time, place, and manner, but it would be unconstitutional to tell McDonald's it couldn't advertise.  Good thing this law doesn't do that!   It's protected speech, but "low value," like obscenity, which sounds about right.  So, yeah, using the constitutional status of advertising as a minor premise in this argument is like using a Rube Goldberg machine to pull yourself up by your bootstraps.

      Difficult, difficult, lemon difficult.

      by Loge on Fri Jun 13, 2014 at 05:48:03 AM PDT

      [ Parent ]

  •  Many laws, regulations, ordinances, (28+ / 0-)

    both at the federal level, and local level, have clauses that specify different treatment for different organizations based on size, or when it was founded.

    There are scored of regulations that exempt smaller. businesses. Small non-profits don't have to meet the same legal requirement as large ones. New building codes often either exempt older structure from the regs, or only enforce them for the next owner.

    Think of the legal and economic nightmare if this court goes full metal Lochner, and carries it even to other laws.

    And if they use this to decide to abolish the minimum wage, I dread to think how low the race to the bottom go. We'll see how much whites who vote Republican like small government when they find themselves working in WalMart for three dollars and hour.

    I don't think scotus will go this far, because the gang of five know the political blowback would come back to hurt the Republicans.  Well, maybe a few of them are too ideologically blind to see this. But I don't think all five of them are.

    Just another underemployed IT professional computer geek.

    by RhodeIslandAspie on Thu Jun 12, 2014 at 12:39:04 PM PDT

    •  If the Supreme Court (21+ / 0-)

      were to go "full metal Lochner", as you describe it, any moral authority the United States has left is bogus.

      Washington State would be morally obligated to nullify the decision and enforce the minimum wage law anyway, and if that fails, to secede from the United States. Many other states would follow.

      I am not kidding in the slightest about this. Home rule on such matters — and the gains we have made since the Lochner era — must be defended by any means necessary.

      •  I didn't want to be the first to say it, (4+ / 0-)

        since somebody else went down that route, I'll jump in to these waters.

        I think it would be the beginning of the end of what would be known as the First Republic, and the beginning of the Second, or maybe even the dissolution of the United States as we know it. Yes, I think you would see that dirty word nullification used by the good guys. We could see a country tearing itself apart. I don't think it would be a bloody civil war,but you could see a 1989 East European situation where the old regime falls push by people taking the street. I don't want to see us ever to be forced down that route, because I do believe the reactionaries would use violence to preserve the old order. And this is why I don't think the SCOTUS gang of five would take us down that route.

        Just another underemployed IT professional computer geek.

        by RhodeIslandAspie on Thu Jun 12, 2014 at 06:25:04 PM PDT

        [ Parent ]

        •  The NeoConfederacy movement known as GOP (1+ / 0-)
          Recommended by:
          zenbassoon

          would love nothing more than the end of a strong centralized government, and the dissolution of the union into large city-states. so it's plausible.

          "It were a thousand times better for the land if all Witches, but especially the blessing Witch, might suffer death." qtd by Ehrenreich & English. For Her Own Good, Two Centuries of Expert's Advice to Women pp 40

          by GreenMother on Fri Jun 13, 2014 at 08:29:36 AM PDT

          [ Parent ]

    •  Do you really think it'll hurt Republicans? (4+ / 0-)

      A sizable portion of our populace gleefully, even enthusiastically, votes for people that screw them over economically because they're taking on people they can't do with what they wish. (due to 'political correctness') And a sizable portion believe that 'everyone else' should have a low wage, especially government workers. Of course they would never cut their own paychecks, because they themselves work hard.

      I don't think this will hurt Republicans at all as only liberal and center Democrats (as well as various and sundry third parties) care about wage inequality.

      •  This sort of new corporate order would cut (6+ / 0-)

        most people's paychecks. Current minimum wage jobs at best would stay locked at the level they are now for a very long time, and at worst, there would be a spiraling downward of the wages for these jobs. There would be a ripple effect for people not too far above the minimum wage. How far this would spiral up, who knows? Ten dollars an hour might be the new fifteen.

        Those fifteen an hour white people who look down on all those people making minimum might find their wages being sucked down.

        Actually the minimum job is popular with most ordinary people who call themselves Republicans - not talking about the politicians, and the commentariat here. I'm talking about Billy Bob and Carmine who work at the warehouse.

        Just another underemployed IT professional computer geek.

        by RhodeIslandAspie on Thu Jun 12, 2014 at 06:32:32 PM PDT

        [ Parent ]

        •  There'll still be someone lower. (3+ / 0-)

          Besides, use the Calvinist "work ethic" in the USA and they'll just blame themself anyway when the chips are down. Well, more likely blame 'illegals' and the other 'takers.' They could also listen to talking heads that would say, "Well, if only we didn't have all these business-destroying safety regulations and stuff. I mean, Mexico does fine when companies just dump their untreated sewage in the gutters. I mean, at least they don't dump it right in the middle of the road. What a bunch of whiners."

          Besides, a lot of people are with the program of "Hey I don't get any bennies at my job, my wage sucks, so why should someone else make so much money? Cut that other worker's income!"

          •  Plenty of that to go around. (2+ / 0-)
            Recommended by:
            zenbassoon, sethtriggs

            That sums things up pretty well. But there's only so many times you can go to any well.

            The one percent has learned nothing and forgotten everything, and are so tone deaf that so many of them think nothing about flaunting their wealth and power so openly, demanding even more, and complaining that the 99 percent has too much wealth and too much power. They are giving this country an education. More of us are opening our eyes.

            The Occupy movement changed nothing, nor could it have been expected to. But it was the beginning of getting progressives to start talking about the things we were afraid to talk about.

            We don't need to win all the rednecks overnight. Just win five percent of them and have another ten percent just start being more cynical about the propaganda they've been served, and we will be looking at a very different political battleground.

            Just another underemployed IT professional computer geek.

            by RhodeIslandAspie on Fri Jun 13, 2014 at 03:11:29 AM PDT

            [ Parent ]

        •  It would cause reverse immigration issues. (2+ / 0-)
          Recommended by:
          zenbassoon, sethtriggs

          People would be crossing the Rio Grande to find better jobs/Lives  in Central and South America.

          A lot of these people are not skilled labor, but thanks to the economic downturn in 2008, a lot of them are and could find jobs in other poorer countries where the cost of living is cheaper.

          "It were a thousand times better for the land if all Witches, but especially the blessing Witch, might suffer death." qtd by Ehrenreich & English. For Her Own Good, Two Centuries of Expert's Advice to Women pp 40

          by GreenMother on Fri Jun 13, 2014 at 08:31:06 AM PDT

          [ Parent ]

    •  that may be the key to the case: (4+ / 0-)

      "Think of the legal and economic nightmare if this court goes full metal Lochner, and carries it even to other laws."

      The question is, whether there's any way to craft a decision narrowly enough to avoid those side-effects.

      If yes, we're still at risk.

      If no, then I also doubt the USSC would "go there."  It would be roughly similar to imposing the Metric System by court decision.

      We got the future back. Uh-oh.

      by G2geek on Thu Jun 12, 2014 at 08:41:59 PM PDT

      [ Parent ]

  •  Sloppy diary writing (5+ / 0-)

    There are corporate owned McDonalds restaurants, and there are restaurants owned by small local businesses that pay McDonalds for the right to use their name, menu, etc.  big difference.

    As long as the Seattle ordinance makes a difference between the size of businesses, then this difference needs to be enforced consistently.

    When I complained to the local McDonalds ownership about ads running on the Rush Limbaugh show, they told me that they own three McD's places, and that they did not run the ads...corporate did as part of a region wide effort.  This small business with three grease emporiums must not be treated the same as the huge corporation they buy their identity from.

    •  ALL McDonald's will be classified the same. (35+ / 0-)

      They all will be classified as large companies.

      This is why I'm saying franchisees.

      "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

      by zenbassoon on Thu Jun 12, 2014 at 12:53:09 PM PDT

      [ Parent ]

      •  Ridiculous Lawsuit aside (12+ / 0-)

        The minimum wage law has taken upon itself to simply redefine a small business as a large business for the purpose of defining wage requirements.

        In every other instance, including state and federal taxation, these small businesses are indeed small businesses.

        It does seem somewhat unfair to define a local business with 450 employees as a small business but the Burger King next door with 25 employees as a large business.

        •  Unfair to whom? (29+ / 0-)
          It does seem somewhat unfair to define a local business with 450 employees as a small business but the Burger King next door with 25 employees as a large business.
          It also seems unfair that the local business with 450 employees enjoys a huge disadvantage in terms of advertising, supply chain, and such things as legal representation and lobbying when compared to the 25-employee Burger King next door, and yet the Burger King gets treated identically.

          The entire franchise system is designed to offload the responsibility for illegal and/or abusive acts from the mother ship onto hapless local owners, while moving most of the profits to the mother ship. And the local owners know exactly how this game is played, which is why franchisees tend to be among the worst employers: they cut costs as much as they can by making people work illegal hours for no pay, paying under-the-table below minimum wage, and so forth.

          •  Unfair to anyone (8+ / 0-)

            who understands the difference between small and large.

            If the purpose is to punish franchises then I suggest that separate legislation is created specifically for that purpose. The so-called advantages that you cite do not make a small business large, those are advantages that are paid for monthly with rather large fees.

            BTW...

            The entire franchise system is designed to offload the responsibility for illegal and/or abusive acts from the mother ship onto hapless local owners...
            Ridiculous assessment.
            •  But what happens when an employee has to take (1+ / 0-)
              Recommended by:
              zenbassoon

              on their local franchise? It goes straight to corporate? And then what? A minimum wage employee has to take on a corporate behemoth with unlimited legal and monetary resources and political connections.

              Yea, it's all so unfair to the Franchise. Next on our list--the unfairness of paying protection money to the mob!

              "It were a thousand times better for the land if all Witches, but especially the blessing Witch, might suffer death." qtd by Ehrenreich & English. For Her Own Good, Two Centuries of Expert's Advice to Women pp 40

              by GreenMother on Fri Jun 13, 2014 at 08:33:54 AM PDT

              [ Parent ]

          •  BINGO Fred Fnord! (1+ / 0-)
            Recommended by:
            zenbassoon

            "It were a thousand times better for the land if all Witches, but especially the blessing Witch, might suffer death." qtd by Ehrenreich & English. For Her Own Good, Two Centuries of Expert's Advice to Women pp 40

            by GreenMother on Fri Jun 13, 2014 at 08:32:17 AM PDT

            [ Parent ]

        •  Actually ... What is unfair (25+ / 0-)

          is allowing ANY business to pay employees below the minimum wage.

          I hope that the quality of debate will improve,
          but I fear we will remain Democrats.

          Who is twigg?

          by twigg on Thu Jun 12, 2014 at 04:25:51 PM PDT

          [ Parent ]

          •  twigg - does anyone disagree with that statement? (5+ / 0-)

            That all businesses have a legal and ethical obligation to pay the statutory minimum wage?

            "let's talk about that" uid 92953

            by VClib on Thu Jun 12, 2014 at 07:23:49 PM PDT

            [ Parent ]

            •  No ... (4+ / 0-)

              Small businesses appear to want to pay below minimum for years to come. There is no good reason to allow such an extended period.

              The lawsuit attempts to scrap the minimum altogether; in effect granting the right for all businesses to pay below minimum.

              Quite frankly ... if a business is sound it should be paying a living wage, not a minimum wage.

              I hope that the quality of debate will improve,
              but I fear we will remain Democrats.

              Who is twigg?

              by twigg on Thu Jun 12, 2014 at 08:31:54 PM PDT

              [ Parent ]

              •  I misunderstood your comment (3+ / 0-)
                Recommended by:
                twigg, thanatokephaloides, zenbassoon

                You are arguing that if there is a new minimum wage all employers should have to meet it as soon as it goes into effect. I think that's a reasonable view, although I do think that small employers often need more time to adjust to a new labor cost structure. I would not like to see an increase in the minimum wage cause lots of small businesses to fail.

                "let's talk about that" uid 92953

                by VClib on Thu Jun 12, 2014 at 09:01:09 PM PDT

                [ Parent ]

                •  I would agree with that (4+ / 0-)

                  but for the definition of "small", currently set at less than 500 employees.

                  Set it at less than 5, then by all means help them manage.

                  I hope that the quality of debate will improve,
                  but I fear we will remain Democrats.

                  Who is twigg?

                  by twigg on Thu Jun 12, 2014 at 09:44:52 PM PDT

                  [ Parent ]

                  •  We can argue about the number but I agree (2+ / 0-)
                    Recommended by:
                    zenbassoon, twigg

                    500 doesn't seem very small to me. I would be inclined to make the number more like 25 than 5.

                    "let's talk about that" uid 92953

                    by VClib on Fri Jun 13, 2014 at 07:01:23 AM PDT

                    [ Parent ]

                    •  but you must have seen the legal shiftiness (2+ / 0-)
                      Recommended by:
                      zenbassoon, twigg

                      in the franchise details that attempt to do just that, set up stores that can be classified small business while retaining ther advantages of a larger franchise, like saying Taco Bell-Podunk as being a small business when 18 employees, not the same as Taco Bell-East Jesus that has 50.

                      The 7-11 franchise story recently was revealing in the struggles between the local owner/lessee/(whatever they are calling to minimize legal oversight, regulation and responsibility and maximize profit). Their 7-11 corporate overlord surveillance was used to disclose or claimed to disclose where store lessees I think were cheating with coupons and all manner of cheap scams to avoid sharing store profits.

                      There are so many  specific legal details in all these franchise agreements I would expect this to be a very arcane fight..so why not hyperbole as part of it, by both/all sides of the evolving issue.
                      And zenB, thanks for the diary, I bet this won't be the last on it.

                      This machine kills Fascists.

                      by KenBee on Fri Jun 13, 2014 at 08:24:25 AM PDT

                      [ Parent ]

                      •  Ken - I am of the view that a franchise owner (3+ / 0-)
                        Recommended by:
                        zenbassoon, twigg, 1918

                        should be subject to the same rules as a local mom and pop store or restaurant. The small business designation should be based on the number of employees being paid by the company who actually signs the paychecks. I think a local franchise operator with 15 employees is a legitimate small business and should be treated as such with all the same rights and responsibilities as any other local small business. I don't think that a small business franchisee should be penalized for being part of a chain, and paying a franchise fee.

                        "let's talk about that" uid 92953

                        by VClib on Fri Jun 13, 2014 at 10:18:06 AM PDT

                        [ Parent ]

                        •  They are not taking the same risk (1+ / 0-)
                          Recommended by:
                          zenbassoon

                          that an entrepreneurial business start-up takes.

                          They are buying into a successful corporate model, and in many cases they can take it to the bank.

                          I hope that the quality of debate will improve,
                          but I fear we will remain Democrats.

                          Who is twigg?

                          by twigg on Fri Jun 13, 2014 at 11:41:11 AM PDT

                          [ Parent ]

                          •  While that may be true the also have less (2+ / 0-)
                            Recommended by:
                            nextstep, zenbassoon

                            control over their costs. They have to source all of their food through the parent, as an example.

                            My big issue is that the people making the laws haven't tried to determine if the microeconomics of being a franchise owner is really different than being a mom and pop. If some legislative entity really did a thorough analysis and was able to prove that the net total compensation to the owners of a franchise were significantly higher than a mom and pop, with the same number of employees, I could be convinced that they should be treated differently. However, I haven't seen anyone claim these rules are being based on economic facts, only that the legislators seem to despise franchise operators and in turn their local franchisees. Given that most of the franchisees are independent local business owners, I think that is unfair.  

                            "let's talk about that" uid 92953

                            by VClib on Fri Jun 13, 2014 at 12:26:38 PM PDT

                            [ Parent ]

                          •  Bigger issue is why are employees of smaller (2+ / 0-)
                            Recommended by:
                            VClib, zenbassoon

                            businesses treated as less deserving than those who work for large companies.

                            If you work for. A small company, do you get to pay less for food, rent, etc.?

                            The most important way to protect the environment is not to have more than one child.

                            by nextstep on Fri Jun 13, 2014 at 01:11:03 PM PDT

                            [ Parent ]

                          •  That's a legitimate question (2+ / 0-)
                            Recommended by:
                            nextstep, zenbassoon

                            but I am convinced that if you are proposing a significant increase in labor costs a smaller employer, particularly a retail store or a restaurant, likely needs more time to absorb that higher cost than a larger enterprise. I don't think any of us would want to force small stores and restaurants out of business by rapidly increasing the minimum wage.

                            "let's talk about that" uid 92953

                            by VClib on Fri Jun 13, 2014 at 02:10:50 PM PDT

                            [ Parent ]

                          •  Whether a business is stressed from the change (1+ / 0-)
                            Recommended by:
                            zenbassoon

                            is not based upon the number of employees, but other factors in its economics.  

                            The degree that it competes with other businesses subject to the same min wage change would be a much bigger factor.

                            The most important way to protect the environment is not to have more than one child.

                            by nextstep on Fri Jun 13, 2014 at 04:46:00 PM PDT

                            [ Parent ]

        •  They will all eventually reach the same (5+ / 0-)

          minimum wage; "small" businesses will simply have longer to reach it. They don't need it, but leave it to Democrats to water down a good law, even without the presence of Republicans.

          In any case, no one can claim the government has to treat all businesses the same--else how could they dole out those tax abatement goodies? They don't do that for "small" businesses . . .

          And God said, "Let there be light"; and with a Big Bang, there was light. And God said "Ow! Ow My eyes!" and in a flash God separated light from darkness. "Whew! Now that's better. Now where was I. Oh yea . . ."

          by Pale Jenova on Thu Jun 12, 2014 at 06:39:43 PM PDT

          [ Parent ]

        •  Companies get away with classifying workers as (4+ / 0-)

          being independent contractors in order to deny them basic rights employees would otherwise have, and this is indeed quite legal, apparently. And they classify puppet companies with nominal independence as independent companies.

          About time we have some truth in labeling. If it has the Golden Arches, the logo, the employees wear the uniform, and the same menu - then, I'd say it's a McDonalds.

          Just another underemployed IT professional computer geek.

          by RhodeIslandAspie on Thu Jun 12, 2014 at 09:04:14 PM PDT

          [ Parent ]

          •  That's how a lot of businesses denied employees (1+ / 0-)
            Recommended by:
            zenbassoon

            access healthcare coverage via the company, overtime, and lot of other stuff.

            "It were a thousand times better for the land if all Witches, but especially the blessing Witch, might suffer death." qtd by Ehrenreich & English. For Her Own Good, Two Centuries of Expert's Advice to Women pp 40

            by GreenMother on Fri Jun 13, 2014 at 08:36:55 AM PDT

            [ Parent ]

        •  I Think That The Franchise Portion... (6+ / 0-)

          will be struck down by the Supreme Court.  With a near unanimous vote.

          I don't understand why people in Seattle dislike Franchises.  Are they going to do the same thing with gas stations?  How about service franchises?

          Why not just cover everyone instead of having a two tier system?

      •  zenb - if I own one McD's franchise in Seattle (7+ / 0-)

        with 15 employees why should I be subject to a difference schedule than Jane's Diner next door, who also has 15 employees. My employees receive paychecks from VClib, Inc not McDonald's Corporation. I have never understood why local franchise owners should be penalized because they are part of a larger franchise operation even though the employees have their wages and hours set by the franchisee who has a very different set of micro economics than the parent.  

        "let's talk about that" uid 92953

        by VClib on Thu Jun 12, 2014 at 07:21:34 PM PDT

        [ Parent ]

        •  there might be an "unforeseen effect." (2+ / 0-)
          Recommended by:
          thanatokephaloides, zenbassoon

          Assume the law is changed such that the franchisee-owned restaurants are treated as small biz, but the corporate-owned ones are treated as big biz.

          That creates an immediate incentive for the corporation to either ditch its corporate-owned locations, or require that the management of those locations buy them out as the price of not being closed.

          And/or it creates a situation where two nearby restaurants, one corporate-owned, the other franchisee-owned, have different cost structures and then either different profits or (if allowed by their contracts) different pricing for the same items on the menu.

          OTOH, treating even the franchisee-owned restaurants the same way as the corporate-owned ones, prevents all of that.  Their cost structures all increase simultaneously, for which the logical step is to increase their retail prices simultaneously.  In effect "everything moves up a notch" but there is no relative movement because it all moves up the same degree and at the same time.

          We got the future back. Uh-oh.

          by G2geek on Thu Jun 12, 2014 at 08:53:33 PM PDT

          [ Parent ]

        •  You get free advertising from the parent company (3+ / 0-)

          as well as a ton of corporate benefits such as legal protections. You also have the responsibility as a franchisee to meet the standards that the parent corporation sets--in essence, you must be equal to the corporation.

          "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

          by zenbassoon on Thu Jun 12, 2014 at 10:25:45 PM PDT

          [ Parent ]

    •  Why? (9+ / 0-)
      As long as the Seattle ordinance makes a difference between the size of businesses, then this difference needs to be enforced consistently.
      So you're saying that a law that says 'we will treat large employers with procedure A, small independent employers with procedure B, and small franchisee employers with procedure C' is not a thing that should be allowed? Because for why?
      When I complained to the local McDonalds ownership about ads running on the Rush Limbaugh show, they told me that they own three McD's places, and that they did not run the ads...corporate did as part of a region wide effort.  This small business with three grease emporiums must not be treated the same as the huge corporation they buy their identity from.
      And if all of the local McDonaldses complained to corporate, then corporate would stop. And a good way to get them to do that would be to boycott them.

      You seem to be under the impression that franchisees of a hideous company somehow deserve to be treated the same as the mom and pop corner store. I can't imagine why you would think that?

      •  Re (6+ / 0-)
        So you're saying that a law that says 'we will treat large employers with procedure A, small independent employers with procedure B, and small franchisee employers with procedure C' is not a thing that should be allowed? Because for why?
        What business does the government have to encourage or discourage any particular business model?

        (-5.50,-6.67): Left Libertarian
        Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

        by Sparhawk on Thu Jun 12, 2014 at 05:47:03 PM PDT

        [ Parent ]

        •  They Hate Large Companies... (3+ / 0-)
          Recommended by:
          zenbassoon, Sparhawk, nextstep

          This is just a way to punish them.

          Unfortunately, it will be the consumer, just average citizens, that will be affected the most.  Fred may dislike "a hideous company" and prefer to shop at the "mom and pop" corner store, but apparently his neighbors prefer the "hideous company" or they wouldn't be in business.  Or maybe Fred just wants to keep the wages low at his favorite corner store so he can pay less as long as possible.

        •  All the business in the world, given that the g... (1+ / 0-)
          Recommended by:
          zenbassoon

          All the business in the world, given that the government, being the duly elected representatives of The People, you, me, and others (in theory, creeping oligarchy aside) has a vested interest in the general welfare of The People the government represents, as enshrined in the Constitution.

    •  If these franchised McDonalds are (2+ / 0-)
      Recommended by:
      zenbassoon, GreenMother

      really small independent businesses, than they would be free to vary the menu - maybe add Italian grinders, or tacos, beef stew. Or for that matter, take the McDonalds sign down, and call the place, Billy's Big Burgers or something. But if they tried any of the above out of the box choices, they'd be booted out of their franchise, and it would be turned over to someone else.

      These small independent franchises are nothing more than feudal manors within the larger corporation.

      Just another underemployed IT professional computer geek.

      by RhodeIslandAspie on Thu Jun 12, 2014 at 08:22:33 PM PDT

      [ Parent ]

    •  You're right, but ... (2+ / 0-)
      Recommended by:
      zenbassoon, milkbone

      I agree there is some sloppy reasoning in the diary.  I agree completely with you that there are franchises that are small businesses that should be treated as small businesses.  

      But the diary is mixing up and confusing a lot of different issues. Plus the law as applied to franchises is really unworkable.  

      Here are a few thoughts.

      First, there are a lot of franchises that are very small businesses.  The owner owns one or two restaurants, and has very few employees.

      Second, it's actually surprising how many fast food franchises are owned by very large corporations that are not the franchise corporation.  It's a very weird industry and weird industry structure.  So as you point out, some McD's are owned by the parent corporation and some are owned by very small businesses.  But a very large segment is owned by corporations you've never heard of that own lots of franchises.  These big corporations will own a regional bunch of McDs, a bunch of Taco Bells, whatever.  They should be treated as big businesses because they are, even if formally their individual restaurants may be legally separated.  I don't think there are that many really small franchise operators.

      The law if changed to accommodate small franchises would be pretty unworkable.  You'd have people working at small McD franchises and people working at large McDs franchises making different pay.  On the one hand, this would give a competitive advantage to small operators, but why would any worker stay at a small franchise doing the same work for less pay?

      •  Even though it may be a "small owner", it's still (0+ / 0-)

        a McDonald's and must meet all corporate regulations. That owner pays the parent corporation for the name, and in return gets a whole lot of stuff that he would otherwise have to pay for himself.

        "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

        by zenbassoon on Fri Jun 13, 2014 at 07:46:38 AM PDT

        [ Parent ]

  •  And that's the problem here... (11+ / 0-)

    If all the McD's were corporate owned, then they would obviously fall into the large business group.  But the privately owned franchises likely don't have the financial backing to absorb the additional costs.  It's not in Seattle, but I know of one McD's that is a single franchise, the owner pays his employees over minimum wage because he thinks they deserve it (he's a Republican, btw...) but he operates his business on something of a shoestring budget.  Not quite that bad, but he's not rich by any means.  3 years abo he was bouncing around in happiness because he'd finally made $50k that year (hadn't done that in the past)  If an operation like his were forced to increase pay by 75% or better, it would likely have him start looking at whether or not it's worth even owning his own franchise vs. shutting the whole thing down and going elsewhere (those are his words when the fed was talking min wage hikes)
    Now, the first amendment argument makes me giggle a little bit, that makes no sense whatsoever.

    •  Goodness me (6+ / 0-)

      How terrible. We might lose some franchisees who exploit and abuse workers. Which might in turn increase business to actual local companies.

    •  If you carve out this exception (17+ / 0-)

      it'll take about 8 hours for all corporate chain stores to set up shell franchise corporations.

      "What could BPossibly go wrong??" -RLMiller "God is just pretend." - eru

      by nosleep4u on Thu Jun 12, 2014 at 03:46:49 PM PDT

      [ Parent ]

    •  Perhaps he should open his own brand hamburger .. (2+ / 0-)
      Recommended by:
      tobendaro, zenbassoon

      shop and try to earn more money. If franchises are put under the hammer, that creates opportunity for smart entrepreneurs to step in with local businesses. In other words, reverse the trend of the past 50 years.

      Obi Ben Ghazi to House Republicans: "Use the Farce."

      by edg on Thu Jun 12, 2014 at 03:47:57 PM PDT

      [ Parent ]

    •  Labor is a small fraction of a franchise costs... (5+ / 0-)

      A franchise has a huge benefit over a small mom & pop restaurant; the advertising is massive, the brand recognition is obvious it has the benefit of bulk purchases, highly efficient work stations (we actually studied fast food restaurants in six sigma/Lean classes) and it has access to legal help and other.  Whether it is one franchise or a dozen.  If that owner only cleared $50K last year then he may want to consider a new line of work with or without this minimum wage increase.  

      Some businesses fail.  Should we simply continue to make people work for a substandard living and subsidize the franchise buy paying for food stamps for its employees just because he has a poor location?  Or maybe it is mismanaged?  Or maybe it has too much competition?  I do not know but I can assure you, the average franchise owner makes more than $50K a year or it would not be worth their time and their ROI would be for crap.

      "Perhaps the sentiments contained in the following pages, are not YET sufficiently fashionable to procure them general favour..."

      by Buckeye Nut Schell on Thu Jun 12, 2014 at 07:02:12 PM PDT

      [ Parent ]

      •  BNS - I don't know anything about franchisee (3+ / 0-)

        economics, just like nearly everyone else here at DKOS. However, maybe you have more first hand knowledge and expertise. While labor may not be a large cost for a local franchise operator, something I would find surprising, I would think it represents the most significant variable cost that the franchisee can intensively manage.

        "let's talk about that" uid 92953

        by VClib on Thu Jun 12, 2014 at 07:28:49 PM PDT

        [ Parent ]

        •  That is true... (10+ / 0-)

          labor is always the first thing companies want to reduce.  It is not what I do currently but for most of my career, I was responsible for improving a companies profitability through cost reduction.

          A company has a target market that is established through their business strategy.  The market sets the price for the goods or service provided.  Cost has almost no impact on price unless it is an essential item and/or the price is raised slowly in a coordinated effort mainly through collusion or a universal cost increase that the market accepts.  Even then, if it is not an essential product or service, the loss in market share (people opting out of the market or lowering their market position) will limit how much of an increase the market will absorb.  Once the market price is established, cutting costs is the only way for a business to increase their margin.  This is true whether their margin is break even or if it has a 500% ROI.

          A franchise is contractually obligated to purchase franchise supplies.  They cannot competitively shop for cheaper french fries somewhere else.  Their lease is a fixed rate, their utilities and advertising are all fixed.  You are right that labor is their most variable cost and the one in which they have the most control.  For that reason, they want to pay as little as they possibly can for it.  Again, it doesn't matter if they are breaking even or if they are making a huge profit... keeping wages low means more profit on the bottom line.  

          Now, labor is still only a small part of the cost.  Raw materials, building costs and franchise costs make up the lion's share of expenses but as you pointed out, labor is something they can control... to an extent.  In a labor market like we have today where high unemployment means people are desperate for work, the minimum wage is the only thing keeping employers from paying less than the already pitiful wages they already pay. A person who works full time should be assured an above poverty paycheck.  Period.  

          If you give around 35% of you waking hours to a company to make them money, you should at least be able to afford the basic necessities of life such as a decent shelter, healthy food and basic transportation, healthcare, etc...  I believe they need to take it a step farther and require all part-time workers be paid time and a half to end the loop hole for not providing benefits and making people work two and three jobs to make ends meet (therefore working more than forty hours a week without getting paid overtime).  these companies hire twice as many workers as they need (if they would have hired full time workers) so they can purposefully deny paying benefits and overtime.  I have seen companies hire someone part-time in two different areas working them as much as 60 hours a week but since it is two different areas, they do not have to pay them overtime and no benefits.

          The bottom line is that a person who works a job deserves the right to be paid enough to eat and survive.  The current minimum wage does not provide that.  If a few business fail because they do not make enough profit to pay a living wage then so be it.  If they are running that close to the margin already, it is probably just a matter of time anyway.

          "Perhaps the sentiments contained in the following pages, are not YET sufficiently fashionable to procure them general favour..."

          by Buckeye Nut Schell on Thu Jun 12, 2014 at 08:15:45 PM PDT

          [ Parent ]

          •  Thanks BNS for a very thoughtful reply (3+ / 0-)

            "let's talk about that" uid 92953

            by VClib on Thu Jun 12, 2014 at 08:26:01 PM PDT

            [ Parent ]

          •  My sister works for a McDonald's (3+ / 0-)

            in a small Southeastern city. She rarely works full-time any more; some weeks she doesn't get 30 hours. She lives in a Section 8 apartment and collects some $50-75 a month in SNAP benefits. The franchise owner (and he's one of those guys who owns 10-15 stores) is offloading his cost of labor onto taxpayers, while making millions in profits. I don't have a hell of a lot of sympathy if his profits get cut by 10% if he actually has to pay his employees enough that they don't qualify for government assistance.

            Hige sceal þe heardra, heorte þe cenre, mod sceal þe mare, þe ure mægen lytlað

            by milkbone on Fri Jun 13, 2014 at 08:10:25 AM PDT

            [ Parent ]

  •  Maybe they have a case. (11+ / 0-)

    Text of the law is here (PDF)

    I'm kind of torn.  The first amendment claim is kind of bizarre, but I think they may have a case regarding the counting of franchises towards the "large business" limit.

    The bill does have to pass equal protection muster, which is rational basis review, and generally really easy... except they don't seem to offer any justification as to why the small business phase-in (justified by the burdensome cost of adaptation, in the text) wouldn't also apply to franchises.

    The government can legally discriminate for any non-constitutionally-prohibited reason that reaches some public policy goal, but not simply because "screw those guys."

    Even if Seattle lost on those grounds, it wouldn't have any larger impact on minimum wage laws, and there's no reason they couldn't just fix the law.

  •  I would need to see more evidence (15+ / 0-)

    that Clement wants to go back to Lochner, and not just get franchises out from this particular minimum wage law. It is quite common for lawyers to ask for the moon knowing full well that it is impossible to get, and then propose a compromise with a pretense of reasonableness.

    McDonalds and many other franchised operations are not independent companies in any meaningful sense, given how exacting their contracts are.

    Back off, man. I'm a logician.—GOPBusters™

    by Mokurai on Thu Jun 12, 2014 at 02:01:22 PM PDT

  •  If it goes to the Roberts court (9+ / 0-)

    is there any question what the decision would be?

    A true craftsman will meticulously construct the apparatus of his own demise.

    by onionjim on Thu Jun 12, 2014 at 02:27:12 PM PDT

  •  Scotus, imho, is stuck in bygone centuries. Those (6+ / 0-)

    on the court who are unwilling to respect the best interests of all US citizens should be impeached.  We will have our day. We will have our opportunity to reject any insane decisions from all 3 branches.  Not by violence, by the word we shall drowned these voices with the voice of reason.

  •  A private non-corporate owned franchise (7+ / 0-)

    with less than 500 employees should not be considered a large business.  It sounds like the Seattle law is flawed.

  •  Mom and Pop Franchises? (3+ / 0-)

    Now that is pretty fucking stupid.

    Best Scientist Ever Predicts Bacon Will Be Element 119 On The Periodic Table

    by dov12348 on Thu Jun 12, 2014 at 02:42:07 PM PDT

    •  What do you (2+ / 0-)
      Recommended by:
      zenbassoon, erush1345

      think most Subways, brake shops, and corner gas stations are? Often, they're local people running a franchised business.

      If the city wants to carve out an exemption for small business, fine, but I don't see how they can arbitrarily discriminate based on the particular business model a company chooses.

      Franchises come in a thousand flavors-- some are jealously-guarded golden Wonka tickets and some are contractual prison sentences. Does the mechanic who owns a Shell station and employs five people have more resources to pay higher wages than the independent sandwich shop owner? Can he reopen negotiations with Shell to lower his franchise fee? Will they adjust his wholesale cost on gas? That's a fantasy.

      The small business exception is perfectly fine, but discriminating against franchises isn't defensible. And I don't think the plaintiffs will have to overturn a century of law to prove it.

      •  goes to the sensibility of the law, but not the (1+ / 0-)
        Recommended by:
        zenbassoon

        Constitutionality. there are many laws that apply to only franchises, such as the PMPA.  By the way, I work with a lot of gas station and franchise owners.These days, it is quite rare that you find an owner that owns one and only one franchise.  

  •  THey know they have (3+ / 0-)

    Alito and Thomas for sure to bring back helots and peasants and indenture servitude. Scalia 90% in too.

  •  Even the 1% benefits when... (7+ / 0-)

    ...the minimum wage increases.

    http://www.whitehouse.gov/...

    The Franchise Association has the mindset of slaveholders.

    Daily Kos an oasis of truth. Truth that leads to action.

    by Shockwave on Thu Jun 12, 2014 at 03:05:22 PM PDT

  •  I really don't know how to say this without using (5+ / 0-)
    Recommended by:
    chuckvw, Pluto, NXNW, Hayate Yagami, zenbassoon

    a bunch of 4 letter words. By 2017, the minimum wage will need to be $20 and by 2021 it will need to be more than $25 per hour.

    That's if anyone is ever going to break even and have a hope of getting ahead.

    Right now a head of lettuce is $5. What will it be in 2017? 2021?

    We are so far behind right now we need large immediate jumps to keep up.

    Tracy B Ann - technically that is my signature. I scroll with my middle finger.

    by ZenTrainer on Thu Jun 12, 2014 at 03:16:37 PM PDT

  •  asdf (5+ / 0-)
    But, once again, if a law became unconstitutional simply because it imposes financial obligations on businesses, than taxing or regulating businesses would be impossible
    Now you're getting it.

    There is no way for a citizen of a Republic to abdicate his responsibilities. ---Edward R. Murrow

    by SouthernLiberalinMD on Thu Jun 12, 2014 at 03:40:15 PM PDT

  •  What about Alito? (5+ / 0-)

    As for Kennedy, if he "swings" toward Lochner in this, can we at last stop calling him a centrist or a moderate or independent or whatever the hell we've been calling him for the last twenty-five years?

    There is no way for a citizen of a Republic to abdicate his responsibilities. ---Edward R. Murrow

    by SouthernLiberalinMD on Thu Jun 12, 2014 at 03:42:11 PM PDT

  •  Haven't studies already been (6+ / 0-)

    done that the change in the wage has a minimal impact on the price of food served?  I think there was something on what would happen if Papa John's paid their employees a decent wage and it came to like .50 on a pizza.  

    "You cannot win improv." Stephen Colbert (https://www.youtube.com/watch?v=m6tiaooiIo0 at 16:24).

    by Publius2008 on Thu Jun 12, 2014 at 03:57:58 PM PDT

    •  Less. (4+ / 0-)
      Recommended by:
      NXNW, kimoconnor, Ahianne, zenbassoon

      http://www.pizzamarketplace.com/...

      Schnatter estimates that the Health Care Act, set to go into effect in 2014, will cost the company about 11 to 14 cents per pizza or 15 to 20 cents per order

      "He who fights monsters should see to it that he himself does not become a monster. And if you gaze for long into an abyss, the abyss gazes also into you."

      by Hayate Yagami on Thu Jun 12, 2014 at 04:42:55 PM PDT

      [ Parent ]

    •  Publius - nearly all the data on minimum wage (3+ / 0-)

      increases have been for changes of about 10-15% a few years. There is little data on large increases in the minimum wage and how it impacts employment and the local economy. I hope some of the early cities where there are large increases have economists collecting really good baseline data so we can measure the impact in a year or two.

      "let's talk about that" uid 92953

      by VClib on Thu Jun 12, 2014 at 07:34:55 PM PDT

      [ Parent ]

      •  Actually France has quite good data on this (2+ / 0-)
        Recommended by:
        zenbassoon, VClib

        They did quite radical wage increases between WWII and the late 80s

        Piketty is a good read.  His book talks about this, and I'm pretty sure his online spreadsheets could give you exactly the kind of data your'e interested in.

        I don't remember the details but I am pretty sure I remember a passage that said people have studied the USA wage in context with its economy and you'd have to raise it a hell of a lot higher than $15 to cause a blip...because it is so freaking low now.

        Remember, $15 is what it was in the late 60s.  For a point of reference, in the 1990 recession, the minimum wage was a bit over $12 in today's dollars.

        I lived on that wage in 1990, with 40 full hours a week and overtime (one "6 day" every 4 weeks or so, plus extra on holidays and such).   It was a real struggle just to operate a vehicle to get to work on time, keep my uniform cleaned and put food on the table/rent over my head (with 3 roommates, none of whom had much money either).

        The current minimum wage is utterly pitiful.

  •  Well the won't be able to afford to advertise (8+ / 0-)

    is pure bullshit.  Their franchises are only viable because of the outrageous amount of money spent on advertising by McDonald's.  That's the point of having a franchise.  Your advertising is done for you.  It's in the contract.  So fuck you ya cheap bastard.  Your speech is still free, in the constitutional sense.

    As David Cross said "McDonald's, yeah, you sell hamburgers, wet get it."

    There is an endless supply of white men, there has always been a limited number of Human Beings

    by ratprique on Thu Jun 12, 2014 at 04:45:26 PM PDT

  •  Seattle would survive nicely without (4+ / 0-)

    big macs. I'm pretty sure.

    "Show up. Pay attention. Tell the truth. And don't be attached to the results." -- Angeles Arrien

    by Sybil Liberty on Thu Jun 12, 2014 at 05:00:49 PM PDT

    •  though, in an era of questionable food supply... (3+ / 0-)
      Recommended by:
      VClib, zenbassoon, erush1345

      .... McDonalds and the other fast food chains are a huge benefit to travelers.

      You go to a city you're not intimately familiar with; it's business travel and you have a job to do.  

      Where are you going to eat?  

      You don't know which places got lousy scores on their health inspections, you don't know which places buy their ingredients from dodgy sources.  You can't count on Yelp and the like because they are subject to all manner of positive and negative spam, and in any case Yelp is an extortion racket (pay up or your positive reviews will disappear).  

      Do you ask your client?  Can you be sure?  

      Or, if you're driving a long distance, where do you eat along the way?  Your client won't know.

      Or perhaps it's an early morning or a late night: what's still open?

      Aha!, but there along the road is the familiar "golden starches" sign, brightly lit.  

      It's not gourmet delight, but it's always a safe choice.  The kitchen will be clean because the corporation requires it to keep the franchise.  The ingredients will be standardized for the same reason.  Every Big Mac and Quarter Pounder will be just like every other you've ever eaten.  And that's a good thing.

      You know you can get a decent meal, actually a pretty darn good meal, for less than ten bucks, and if you actually take advantage of what's on the menu it'll be well worth it and your doctor won't scold you later.

      That to me is the major value of McD's and the rest: good safe food on the road, in an era where "safe" can't be taken for granted.

      We got the future back. Uh-oh.

      by G2geek on Thu Jun 12, 2014 at 09:11:34 PM PDT

      [ Parent ]

  •  ZenB, this is really well presented. (7+ / 0-)

    And as contemporary as the issues are, there is something timeless about the serfdom class, which exists to serve other serfs. The fast-food world, for example, which exploded during the Reagan administration when they became the de facto soup kitchens of America. A necessity as the middle class ended and the two income family because a survival tactic.

    The only perspective I might add, is that China -- which plans it economic  strategies a decade in advance -- sees moving its factories to the US in the future, where there is an assumption that wages for skilled labor will be among the lowest in the world -- in an atmosphere where there is no real awareness of labor or human rights.

    China is making enormous investments in the US still -- but not through Treasuries. The investment is now in commercial and residential property.

    In other words, they expect the US robber barons to prevail.

    •  They look at their own region's history and see (1+ / 0-)
      Recommended by:
      zenbassoon

      … the same cycles playing out over the centuries, again and again, perhaps?

      Despite some apparent successes of the People's Republic, when has it ever paid to bet long-term against corrupt warlords and oligarchs?

      Just like in Russia, long-term it doesn't seem to pay to bet against all the power ending up concentrated in the hands of one guy in Moscow.

      I recall reading shortly after Watergate that the Chinese leadership didn't understand that Nixon was really through. They thought that he was just going to be in time-out, possibly to return to power if and when conditions warranted. Deng Xiaoping was purged not once but twice before coming back to lead China's opening-up in the 1980s.

      The Dutch kids' chorus Kinderen voor Kinderen wishes all the world's children freedom from hunger, ignorance, and war. ♥ ♥ ♥ Forget Neo — The One is Minori Urakawa

      by lotlizard on Fri Jun 13, 2014 at 09:42:49 AM PDT

      [ Parent ]

  •  Awesome diary, zenbassoon! (2+ / 0-)
    Recommended by:
    Pale Jenova, zenbassoon

    And dread-inspiring. I hate to think of what might happen.

    "Religion is what keeps the poor from murdering the rich."--Napoleon

    by Diana in NoVa on Thu Jun 12, 2014 at 05:48:51 PM PDT

  •  They just hate people (2+ / 0-)
    Recommended by:
    zenbassoon, shaharazade

    when they have to pay them, but love them when they spend money in their establishments!

    People act on the outside how they feel on the inside. If you acknowledge it, you can change it.

    by Raggedy Ann on Thu Jun 12, 2014 at 05:53:22 PM PDT

  •  If it weren't for all the humans, consumers too (2+ / 0-)
    Recommended by:
    zenbassoon, shaharazade

    our business model would work perfectly!  - With much love, Your Owners.

  •  The "Constitution in Exile." (2+ / 0-)
    Recommended by:
    zenbassoon, shaharazade

    A whole school of thought trying to get us back to pre-Lochner days: http://en.wikipedia.org/...

    "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

    by HeyMikey on Thu Jun 12, 2014 at 06:33:43 PM PDT

  •  Deny cert. (2+ / 0-)
    Recommended by:
    G2geek, zenbassoon

    My guess is that's where this ends.

    •  What? (1+ / 0-)
      Recommended by:
      zenbassoon

      Please explain.

      "this level of stupid snark should be upgraded"

      by Chuckling Quietly to Myself on Fri Jun 13, 2014 at 07:24:27 AM PDT

      [ Parent ]

      •  With a few exceptions... (0+ / 0-)

        The Supreme Court basically hears only the cases it wants to hear.  At least four justices have to agree to hear a case, else it doesn't get heard.  SCOTUS's acceptance to hear a case is called a writ of certiorari.  When a case is appealed to SCOTUS and the justices do not accept it, it is a denial of certiorari.  The legal citation for that is "cert. denied."  In this case, the decision of the lower court from which the attempted appeal was made (federal circuit court or state supreme court) stands.

  •  Lucy & Albert Parsons, Mother Jones: Come back! (2+ / 0-)
    Recommended by:
    G2geek, zenbassoon

           Illinois workers and federal employees were supposed to have been covered by an eight-hour day law since 1867 but federal government did not enforce its own law, and Illinois employers forced workers to sign waivers of the law as condition of employment. Summer 1884 the Federation of Organized Trades and Labor Unions, predecessor of the American Federation of Labor, called for May 1, 1886 to be the beginning of a nationwide movement for the eight-hour day. On May 1, 1886, Albert Parsons, head of the Chicago Knights of Labor, founder of the International Working People's Association [IWPA] and his wife Lucy and their children led 80,000 people through the city’s streets in support of the eight-hour day. May 3rd Chicago police outside the McCormick Reaper Factory murdered and wounded several workers who were locked out three months since February by the owners and who had come under attack from Pinkerton guards during an 1885 strike action. Scabs under protection of 400 police were leaving the factory: a confrontation of fighting and rock throwing happened so police attacked the locked out workers using clubs and revolvers. That evening at Greif's saloon on West Lake Street it was decided to hold a protest in Haymarket Square 24 hours hence.  May 4th the meeting started late, not well attended as sponsors hoped 20,000 would come but only 4,000 turned out. Chicago's mayor Harrison was present, listened to most of the speakers and then told police captain Bonefield to dismiss most of his force. Bonefield insisted on keeping his main body assembled at a police station a block away for fear the meeting was only a diversion for some violent activity. At 10pm a storm arrived; the crowd down to only a few hundred as speaker Samuel Fielden was finishing. Captain Bonefield was told by one of his many undercover officers in the crowd that Fielden had urged the crowd to "throttle the law,"  so Bonefield marched the police force into Haymarket Square, into the crowd, demanding they disperse. Fielden pleaded "but we are peaceful" and just finishing, he started to climb down from the wagon-speakers' stage. Someone no one knows who threw a bomb into the ranks of the police. A police riot ensued in which many civilians and several police were shot dead and wounded. A policeman told the story that

    "A very large number of the police were wounded by each other's revolvers. ... It was every man for himself, and while some got two or three squares away, the rest emptied their revolvers, mainly into each other." (Chicago Tribune, June 27, 1886, quoted in Avrich, The Haymarket Tragedy, p. 209.)
    Albert Parsons, August Spies, Samuel Fielden, Michael Schwab, Oscar Neebe, George Engel, Adolph Fischer and Louis Lingg, were arrested, tried and convicted of murder.  Lingg committed suicide in his cell on November 10, 1887. November 11th Engel, Fischer, Parsons, and Spies were taken to the gallows in white robes and hoods singing the Marseillaise, then the anthem of the international revolutionary movement. Family members including Lucy Parsons attempted to see them for the last time, were arrested and searched for bombs (none found). Witnesses said Spies shouted, "The time will come when our silence will be more powerful than the voices you strangle today!" That promise is now the epitaph on the base of the Haymarket Martyrs' Monument (pictured here)  A half-million Chicago workers lined Milwaukee Ave. on November 13, 1887, as the funeral of the Haymarket Martyrs wound its way along Milwaukee Ave. to what was then the Grand Central Railway Station for the trip to German Waldheim Cemetery (U.S. National Register of Historic Places, U.S. National Historic Landmark, now The Forest Home Cemetery, Forest Park, Illinois).

            Songs were written like "the Eight Hour Day" (available on American Industrial Ballads, Folkways, FH 5251); everywhere slogans were heard like "Eight Hours for Work, Eight Hours for Rest, Eight Hours for What We Will!" or "Shortening the Hours Increase the Pay".

    According to an IWW (Industrial Workers of the World) website:

           New York Times offered the following solution to the anarchist threat, "In the early stages of an acute outbreak of anarchy a Gatling gun, or if the case be severe, two, is the sovereign remedy. Later on hemp, in judicious doses, has an admirable effect in preventing the spread of the disease."
           During the lengthy kangaroo court, in The Atlantic Monthly July 1886 article, "The Labor Question", journalist George Frederic Parsons promoted the idea that the workers had only themselves to blame for their troubles. That is a fine example of the mindset so popular today in which the "Just World" theory holds sway among the hard-of-heart, cold, indifferent, punishing oligarchs who own & run the U.S. with the backing of the Churches, the Court and the politicians.

            June 1893, Illinois Governor John Peter Altgeld pardoned the 3 men still alive, condemning the entire judicial system that allowed the injustice:

    (Quoting from an Opinion by a certain Judge McAllister)
    The chief political right of the citizen in our government based upon the popular will, as regulated by law, is the right of suffrage; but to that right two others are auxilary and of almost equal importance. 2. the right of the people to assemble in a peaceable manner to consult for the common good.

    These are among the fundamental principles of government and guaranteed by our Constitution. Section 17, article 2 of the bill of rights declares: The people have a right to assemble in a peaceable manner to consult for the common good, to make known their opinions to their representatives and apply for redress of grievances.

    Jurists do not regard these declarations of the Bills of Rights as creating, or conferring the rights, but as a guarantee against their deprivation or infringement by any of the powers or agencies of the government.

    The rights, themselves, are regarded as natural inalienable rights belonging to every individual, or as political and based upon, or rising from principles inherent in the very nature of a system of free government.

    The right of the people to assemble in a peaceable manner to consult for the common good being a constitutional right, it can be exercised and enjoyed within the scope and spirit of that provision of the Constitution, independently of every other power of the state government.

    "And I long to see the day when Labor will have the destiny of the nation in her own hands and she will stand as a united force and show the world what the workers can do." --- Mary Harris "Mother" Jones, May 1, 1830 – November 30, 1930. (video her saying this at her 100th birthday just before her death is the only video of Mother Jones)
  •  what stage is the case at? (1+ / 0-)
    Recommended by:
    zenbassoon

    Fortunately, Seattle should be in the 9th Circuit, which will almost certainly reject these arguments.  Fewer then 1% of these case ever get a writ from the supreme court, and it will be many years away.  In that time, we need to really mobilize and send a very loud message to the justices that we will not tolerate Lochner.  I believe the Supremes are well aware of what FDR was ready to do.

  •  They embrace their corporate association, right? (3+ / 0-)
    Recommended by:
    zenbassoon, shaharazade, milkbone

    Like they happily partake and be party to McDonalds et al corporate nationwide advertising, bulk discount buying, universal product recognition, goodwill from corporate charities like Ronald McDonald House ....
    ... now suddenly they aren't part of a big corporation but just an itsy business with 15 employees?
    Sorry, that shit don't fly.  You sign up with the devil, you pay the price. I'd say if these crybaby franchisees want to be treated like a small business, change their store names to MacDougal's or Taco Bill's or "We're just like Arby's except we're not" and cut all their business ties to the food corps. THEN they might have a case for not being considered part of a huge business enterprise.
    Those motherfuckers. Who says all the greedy capitalists are CEOs? You got 'em right in your neighborhood fast food joints.

    "Yes, I'm alone, but I'm alone and free" - Princess Elsa

    by fourthcornerman on Fri Jun 13, 2014 at 12:58:17 AM PDT

  •  Roberts won't go back to Lochner (1+ / 0-)
    Recommended by:
    zenbassoon

    for the same reason he decided not to overturn the ACA.  He's aware of his legacy, and he knows how much it would damage SCOTUS's credibility.

    Clement is swinging for the fences, but he's going to whiff on this one.  May well pick up Alito along with Big Grumpy and Li'l Dour, though.  (I suspect Alito's on his way to being just as big an asshole; he certainly lacks the temperament to be a decent Justice, pouting and making faces the way he does.  Petulant like the guy who appointed him.)

    "Happiness is the only good. The place to be happy is here. The time to be happy is now. The way to be happy is to make others so." - Robert Ingersoll

    by dackmont on Fri Jun 13, 2014 at 01:10:09 AM PDT

  •  Great analogy. (2+ / 0-)
    Recommended by:
    zenbassoon, shaharazade
    McDonald’s franchises are also subject to a web of health regulations, and they could presumably save money if they were allowed to serve diseased meat that they could purchase at a discount. That doesn’t make food safety regulations unconstitutional.
    I hope I can remember that the next time I'm talking to a let-the-market-decider.
  •  Grab a bucket and mop (1+ / 0-)
    Recommended by:
    zenbassoon

    Scrub the bottom and top.
    There is nothing so clean,
    As my burger machine.
    You deserve a break today.

    Imagine, if they paid higher wages, we might never have been blessed with this song.

    Please know I am not rude. I cannot rec anything from this browser. When I rec or post diaries I am a guest at some exotic locale's computer. Ayn is the bane!

    by Floyd Blue on Fri Jun 13, 2014 at 05:07:05 AM PDT

  •  His argument is basically that if the government (1+ / 0-)
    Recommended by:
    zenbassoon

    requires me to talk (ie: they require my speech) to someone; let's say, they call me in for an IRS audit, or to speak with an investigator from the FBI.  I can refuse to go because they are violating my Constitutional rights to free speech....on the grounds that while I am speaking with them - which they require - I could have been speaking freely about other things that I believe in, elsewhere.  This is the most ridiculous argument I may have ever heard.  Constitutional rights abridged by opportunity cost???

    .....And a bought and paid for Roberts just might buy it!

    Please know I am not rude. I cannot rec anything from this browser. When I rec or post diaries I am a guest at some exotic locale's computer. Ayn is the bane!

    by Floyd Blue on Fri Jun 13, 2014 at 05:13:12 AM PDT

  •  Pet peeve about diary writing (0+ / 0-)

    As far as I can tell this diary presents a little commentary interspersed with long passages lifted from, I assume, the one piece that is linked near the top of this piece.

    Putting my cursor to the link, I see that it's a ThinkProgress piece. Leaving aside questions of fair use, I think it's terrible form not to identify the source of any and all quotes. I"d have to read the original piece and compare it to the blockquote sections just to confirm whether or not this all comes from the one piece -- a piece which is never identified in this diary.

    While I appreciate very much learning about this case and thus appreciate the diarist bringing it up in this forum, I'm sure the real author of this piece would appreciate getting some credit, at least.

    Coming Soon -- to an Internet connection near you: Armisticeproject.org

    by FischFry on Fri Jun 13, 2014 at 06:00:03 AM PDT

  •  If the lawsuit is treated like cigarette suits, (2+ / 0-)
    Recommended by:
    zenbassoon, shaharazade

    it'll be a moot point.  It won't have a final resolution until 2021, at which time small businesses will be treated the same as large businesses.

    Not that that would matter to the corporate autocrats on the Supreme Court.

    I am become Man, the destroyer of worlds

    by tle on Fri Jun 13, 2014 at 07:39:01 AM PDT

  •  A few points: First, I really (4+ / 0-)
    Recommended by:
    Mnemosyne, zenbassoon, Onomastic, SallyCat

    could care less about the specifics of the law vis a vis franchisees vs Mom-and-Pops.  What I find to be important here is the attempt to resurrect substantive due process in the economic realm and to bring back "liberty of contract".  I had a professor in law school who thought that the overturning of Lochner was the worst thing since Dred Scott.  He was an elderly gentleman and was treated by the rest of faculty with respect, but with a roll of the eyes.  

    But, then, we had Bush appointing Janice Rogers Brown to the DC Circuit.  One Senator, opposing Brown, made the following observations about her and Lochner:

    For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can't regulate the free market because it is going to constrain people's use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States. That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation -- Social Security, minimum wage, basic zoning laws, and so forth -- then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

    Justice Brown, from her speeches, at least, seems to think overturning Lochner was a mistake. She believes the Supreme Court should be able to overturn minimum wage laws. She thinks we should live in a country where the Federal Government cannot enforce the most basic regulations of transparency in our security markets, that we cannot maintain regulations that ensure our food is safe and the drugs that are sold to us have been tested. It means, according to Justice Brown, that local governments or municipalities cannot enforce basic zoning regulations that relieve traffic, no matter how much damage it may be doing a particular community.

    The Senator who denounced her views on Lochner?  Barack Obama
    •  One quibble with Sen. Obama's analysis (1+ / 0-)
      Recommended by:
      zenbassoon

      I could be mis-remembering, but I don't think Oliver Wendell Holmes came to "realize" Lochner was wrong -- if that's what Obama was saying.  Holmes was always in favor of deference to state legislatures, almost fanatically so, and was therefore in favor of the constitutionality of economic regulation during his entire career.

      A better way of putting it might be that Holmes' jurisprudence eventually convinced the rest of the judiciary -- his jurisprudence and Roosevelt's threat to expand the court.

      Wasn't it Holmes who wrote in Lochner "the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics"?

  •  Seattle should reconsider (1+ / 0-)
    Recommended by:
    zenbassoon

    Classify franchisees (most of whom own multiple sites each under separate company structures and are in fact big business) as small business so that there would be no discrimination. Of course, the IFA would find some other whacked out reason to sue.

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