The settlement — reached last summer — requires Motel 6 to compensate guests who were questioned or placed in deportation proceedings by Immigration and Custom Enforcement (ICE) officials. Unclaimed funds would go toward nonprofits that provide legal assistance and scholarships to undocumented immigrants.
In an amicus brief filed on May 24, Brnovich argued that the settlement harms Arizona consumers because most of the money would likely benefit the nonprofits, rather than class members directly affected by Motel 6's collusion with ICE, a practice revealed in September 2017 by Phoenix New Times.
Thomas A. Saenz, president of the Mexican American Legal Defense and Education Fund (MALDEF), which represented the plaintiffs in the lawsuit, called Brnovich's claim "utterly meritless."
Today, Arizona U.S. District Court Judge David G. Campbell denied Brnovich's amicus brief because the parties in the lawsuit are renegotiating the current settlement and plan to reach a new agreement by June 28. A hearing on the settlement, originally scheduled for June 20, was pushed back 30 days.
Brnovich spokesperson Ryan Anderson claimed a small victory over the rescheduling of the case.
"We've already had an impact and the new settlement will almost certainly offer more for harmed consumers," Anderson said in an email.
Saenz disputed that Brnovich's brief affected the case, calling the assertion "horseshit."
He said the settlement renegotiations are unrelated to the proposed nonprofit beneficiaries. Saenz added that the agreement is almost finalized and the hearing was rescheduled to give attorneys more time to prepare paperwork.
"[Brnovich] has had absolutely no impact except on his own ego, apparently," Saenz said in a phone interview.
The settlement reached in 2018 provides monetary damages to three groups of people whose civil rights were allegedly violated by Motel 6.
Any guest whose information was turned over to ICE from February 1, 2017, to November 2, 2018, are entitled to $50 under the agreement. Guests questioned or interrogated by ICE get $1,000. Immigrants placed in removal proceedings as a result of Motel 6 would get $7,500. Awards for each of the three classes could be up to $1 million for the first two, and up to $5.6 million for the third, for a total potential payout of $7.6 million, if enough immigrants apply for a share.
Funds not dispersed directly to immigrants would go to the following groups: 40 percent to the Arizona-based Florence Immigrant and Refugee Rights Project, 40 percent to the Washington-based Northwest Immigrant Rights Project, 10 percent to the National Immigrant Justice Center, and 10 percent to TheDream.US, which provides college scholarships for undocumented youth.
Brnovich argued that the goals of the proposed nonprofit beneficiaries in the settlement agreement have "no connection" to the claims in the case.
"Much of the Florence Project's resources go to assisting children, yet the class members are adults," Brnovich argued in his filing. "The Northwest project assists individuals in Washington State, yet the class is comprised of mainly Arizona residents."
He further argued that the National Immigrant Justice Center and TheDream.US "do not engage in activities that directly benefit class members."
Brnovich's argument is based on a common criticism of cy pres ("so close" in French) settlements, wherein damages are awarded to charities with missions related to the interests of the plaintiff in a lawsuit.
The U.S. Supreme Court in March declined to rule on Frank v. Gaos, a case that challenged the propriety of cy pres settlements that awarded damages to charitable organizations in a judgment against Google. Brnovich had also submitted an amicus brief in the California case arguing against large cy pres payouts.
MALDEF president Saenz stressed that the nonprofits listed in the agreement would only receive damages if an "unexpectedly small" number of class members file settlement claims. If that happens, Saenz said, Motel 6 should not benefit by paying fewer damages. "You would be providing an incentive to wrongdoers to target vulnerable populations that are least likely to step forward," he said.
Brnovich's amicus brief is his first filing in the Motel 6 lawsuit, but it's not his first the first time he's addressed the company's relationship with ICE. In October 2017, his office sent a letter to Motel 6 asking for more information on its practice of providing guests lists to immigration officials.
His office declined to answer in January 2018 when asked whether he plans to take action on Motel 6. By deadline, Brnovich's spokesperson did not have an update on the office's inquiry into the company.
Last month, Washington Attorney General Bob Ferguson announced that Motel 6 agreed to a $12 million payment to settle his office's lawsuit over Motel 6 tipping off ICE about customers in his state.