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LAW OFFICES 

One Arizona Center, 400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

602.382.6000 

Donald W. Bivens (#005134) 

Patricia L. Refo (#017032) 

SNELL & WILMER L.L.P.

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

Telephone: 602.382.6000 

Facsimile: 602.382.6070 

E-Mail: dbivens@swlaw.com 

prefo@swlaw.com 

Attorneys for Defendants 

Additional attorneys on next page 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jane V.; John A.; John E.; Jane F.; John D.; 

John M.; Jane N.; and John W.; 

individually and on behalf of all others 

similarly situated, 

Plaintiffs, 

v. 

Motel 6 Operating L.P., a limited 

partnership; G6 Hospitality LLC, a limited 

liability company, dba Motel 6; and Does 

1-10, 

Defendants. 

No. 2:18-cv-00242-DGC 

JOINT MOTION FOR AN ORDER 

(1) GRANTING FINAL APPROVAL 

OF AMENDED CLASS ACTION 

SETTLEMENT, (2) CERTIFYING 

THE SETTLEMENT CLASS, (3) 

ENTERING A CONSENT DECREE 

TO GOVERN INJUNCTIVE 

RELIEF, AND (4) APPROVING 

ATTORNEYS’ FEES AND COSTS 

 

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Thomas A. Saenz* (Cal. Bar. No. 159430) 

Andrés Holguin-Flores* (Cal. Bar No. 305860) 

MEXICAN AMERICAN LEGAL 

DEFENSE AND EDUCATION FUND 

634 South Spring Street, 11th Floor 

Los Angeles, California 90014 

Telephone: (213) 629-2512 

E-mail: tsaenz@maldef.org 

aholguin-flores@maldef.org 

*admitted pro hac vice 

Nina Perales* (Tex. Bar No. 24005046) 

MEXICAN AMERICAN LEGAL 

DEFENSE AND EDUCATION FUND 

110 Broadway St., Suite 300 

San Antonio, TX 78205 

Telephone: (210) 224-5476 

E-mail: nperales@maldef.org 

*admitted pro hac vice 

Daniel R. Ortega, Jr. (Ariz. Bar No. 005015) 

ORTEGA LAW FIRM, P.C. 

361 East Coronado Rd., Suite 101 

Phoenix, AZ 85004-1525 

Telephone: (602) 386-4455 

Facsimile: (602) 386-4480 

E-mail: danny@ortegalaw.com 

Attorneys for Plaintiffs 

Donald B. Verrilli, Jr.* (D.C. Bar. No. 420434) 

MUNGER, TOLLES & OLSON LLP 

1155 F St. NW-- 7th Floor 

Washington, DC 20004 

Telephone: (202) 220-1100 

Email: michael.desanctis@mto.com 

*admitted pro hac vice 

Peter J. Kadzik* (D.C. Bar No. 964007) 

VENABLE LLP 

600 Massachusetts Ave. NW 

Washington, DC 20001 

Telephone: (202) 344-4147 

Email: PJKadzik@Venable.com 

* admitted pro hac vice

Stacie E Tobin* (MD Bar No. 11331) 

VENABLE LLP 

750 E. Pratt Street, Suite 900 

Baltimore, MD 21201 

Telephone: (410) 244-7878 

Email: SETobin@venable.com 

* admitted pro hac vice

Attorneys for Defendants

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I. INTRODUCTION 

By Order entered on August 2, 2019 (the “Preliminary Approval Order”), this Court: 

1) granted preliminary approval of a proposed class action settlement memorialized in a 

Second Amended Settlement Agreement and First Addendum; 2) conditionally certified the 

Settlement Class and the Injunctive Relief Class; 3) appointed Class Representatives and 

Class Counsel; 4) approved the Notice Plan; 5) appointed a Claims Administrator and a 

Settlement Administrator; and 6) scheduled a Final Approval Hearing for February 7, 

2020.1

Since entry of the Preliminary Approval Order, the Claims Administrator (“ACS”) 

and the Parties have delivered notice of the proposed settlement to Class Members via mail, 

social media, a widely-distributed press release, and a settlement website, 

www.motel6settlement.com (the “Settlement Website”). Thereafter, 2061 persons 

submitted claims for monetary relief to ACS. Ferrante Decl. ¶ 11. Of the 2061 claims 

submitted, ACS has verified 2018 of them. Id. It deemed 85 claims to be ineligible, and 

43 to be deficient but subject to cure. Id.; Ex. 5, Ferrante Decl. Not one Class Member 

opted out of the class or objected to the settlement.2

In the Parties’ Joint Motion for Preliminary Approval of Settlement (“Preliminary 

Approval Motion”), they asked the Court to certify conditionally two monetary classes of 

Plaintiffs, defined therein as the Primary Class and Class 2. The chief distinction between 

the two classes was whether the claimant had a been a Registered Guest of a Motel 6 

Location whose Guest Information had presumably been disclosed to Federal Immigration 

Authorities (Primary Class), or a non-registered Guest of a Motel 6 who suffered an 

interaction with Federal Immigration Authorities as the result of the disclosure of someone 

else’s Guest Information (Class 2). Both classes would be eligible to recover damages 

 

1

All initial-capped words refer to the terms and definitions in the Third Amended Settlement 

Agreement, except as stated herein. See Exhibit A to Proposed Order. 

2

Of the claims submitted, there were 31 claims that, though otherwise valid, were submitted 

after the December 31 claims deadline but by January 14. ACS has determined—with the 

Parties’ consent—to accept those claims as timely. The total value of those claims is $2,175, 

and therefore they have a de minimis impact on the total amount to be paid. 

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stemming from having to defend their immigration status, but only Registered Guests would 

recover a specified amount ($75) for the disclosure of their Guest Information. 

Now that the claims submission process is complete and ACS has produced its Final 

Claims Report, Ex. 5, Ferrante Decl., the Parties realize that there are vastly more claimants 

in the previously defined Primary Class than in Class 2. Indeed, there are 1,966 members 

of the Primary Class and only 10 members of Class 2 (not counting persons who submitted 

claims that arguably would have been Class 2 claims but were deemed ineligible).3

 To 

address the lower-than-expected number of Class 2 claims, and in an effort to ensure that 

the purposes of the Agreement are realized and that valid claimants are paid, the Parties 

have approved a Third Amended Settlement Agreement (the “Agreement”), which modifies 

the prior agreement only by merging the Primary Class and Class 2 and creating one 

monetary relief class, the Settlement Class.4

 The Agreement reflecting this proposal is 

attached to the Proposed Order as Exhibit A. For all the reasons stated, the Parties request 

that this Court grant final approval of the Agreement as amended and certify the Settlement 

Class. 

If the Court grants final approval of the proposed Agreement, as amended, the 

Administrator would make payments to the Settlement Class of at least $1,906,225 (for 

those already verified claims) and as much as $5,468,975 (including the currently deficient 

claims).5

 Merging the originally defined Primary Class and Class 2 has no consequence on 

 

3

Between December 13, 2019 and January 10, 2020, ACS issued deficiency notices to 43 

claimants (37 in the Primary Class and 6 in Class 2), who have 45 days to cure. Thus, the 

final determination of those claims will be made on or before February 24, 2020. For 

present purposes, those arguably deficient claims are included in the 1,976 claims discussed 

herein. 

4

The origin of separate classes (the Primary Class and Class 2) is an artifact of the Parties’ 

original settlement agreement, where the Parties had agreed to class-specific caps on 

monetary damages. See ECF No. 33-1, Settlement Agreement § XII.A. (Nov. 2, 2018). 

The Parties eliminated the class-specific caps in its Second Amended Settlement and First 

Addendum, ECF No. 70-1, Second Amended Settlement Agreement § XII.B (July 31, 

2019), and thus the merger of the classes would have no adverse impact on claimants. 

5

Class Counsel will reach out to any claimant that received a deficiency notice and will seek 

to expeditiously cure the deficiency prior to the hearing on February 7, 2020. HolguinFlores Decl. ¶ 17. 

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ACS’s distribution of funds to the claimants. Of the remaining unclaimed funds, Section 

XII.B.3 of the Agreement provides that $1,500,000 is to be returned to Defendants, and the 

remainder is to be paid, subject to Court approval, to the designated cy pres recipients in 

the percentage amounts designated in Section XII.B.4 of the Agreement. 

Because the proposed Agreement satisfies all criteria for final approval, the Parties 

now jointly request an order: 1) granting final approval of the proposed settlement 

memorialized in the Third Amended Settlement Agreement; 2) certifying the Settlement 

Class and the Injunctive Relief Class; 3) entering a consent decree to govern the equitable 

relief portion of the Agreement; 4) authorizing ACS to distribute the Settlement Amount in 

accordance with the Agreement; and 5) authorizing the payment of attorneys’ fees and 

costs. 

II. FACTUAL AND PROCEDURAL BACKGROUND6

A. Factual Background 

In late 2017, press reports stated that certain Motel 6 properties in Phoenix were 

regularly providing guest lists to Federal Immigration Authorities. See Ex. 1, VanBeest 

Decl. at ¶¶ 7–8, Preliminary Approval Motion. Defendants determined that Motel 6 likely 

provided guest lists to Federal Immigration Authorities on a recurring basis at eight 

properties operated by Defendants—two in Arizona and six in Washington state. Id. ¶¶ 9–

10. Federal Immigration Authorities have never disclosed the number of persons with 

whom they interacted as a result of the guest lists disclosed. 

B. Procedural Background 

On January 24, 2018, Plaintiffs filed the complaint in this action alleging that 

Defendants employed a corporate policy to provide Guest Information on demand to 

Federal Immigration Authorities. ECF No. 1. Plaintiffs challenge Defendants’ alleged 

policy as discriminatory, unconstitutional, and violative of state laws protecting consumers. 

 

6

To avoid unnecessary repetition, the Parties reference and incorporate their (Second) Joint 

Motion for an Order Granting Preliminary Approval of Amended Class Action Settlement, 

ECF No. 58, and set forth herein a shortened version of key facts, authorities and discussion 

from that paper to assist the Court. 

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Id. On June 5, 2019, Plaintiffs filed, with Defendants’ consent, an Amended Class Action 

Complaint for Declaratory Injunctive Relief (the “Amended Complaint”). ECF No. 54. 

The Parties began vigorous, adversarial negotiations to resolve this case on or about 

March 8, 2018. Preliminary Approval Motion at 3. On June 15, 2018, the Parties engaged 

in a day-long mediation with Martin F. Scheinman, Esq., an independent and respected 

neutral, which resulted in a tentative settlement. Agreement § IV.C. After filing the Joint 

Motion for Preliminary Approval of their original proposed settlement agreement on 

November 2, 2018, the Parties had a hearing with the Court in which the Court requested 

additional information about the settlement. Id. §§ IV.E–F; ECF No. 39. After a telephonic 

hearing with the Court on March 27, 2019, the Parties engaged in an additional mediation 

on April 3, 2019. Agreement § IV.G. The Parties filed a second Joint Motion for 

Preliminary Approval on June 28, 2019. ECF No. 58. 

On July 19, 2019, the Court held a hearing and raised additional questions regarding 

the Parties’ amended settlement. The Parties filed a proposed order and exhibits revised 

per the Court’s instructions on July 26, 2019. ECF No. 67. The Parties addressed two 

additional questions raised by the Court on July 31, 2019 and August 1, 2019. See ECF 

Nos. 70 and 73. On August 2, 2019, the Court entered the Preliminary Approval Order. 

ECF No. 75. 

C. Overview of the Proposed Amended Settlement Agreement 

1. Summary of the Equitable Relief Provisions

Defendants agreed to injunctive relief obligating them to institute, implement, and 

maintain a five-part Policy relating to requests for Guest Information from Federal 

Immigration Authorities and when a warrant or subpoena for such information is required. 

Agreement § X.A.1.a–b. In addition, Defendants agreed to train appropriate employees at 

Operated Locations to understand their responsibilities regarding the Policy and the 

resources available to them when they need guidance. Id. § X.A.1.c. Defendants also 

agreed to abide by recordkeeping and reporting requirements. Id. § XI. The Parties seek 

an order that will enter this equitable relief as a three-year consent decree, providing the 

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Court jurisdiction to enter all orders necessary to implement the relief provided. Id. §§ 

VI.A–B. The beneficiaries of the injunctive relief are the Injunctive Relief Class, defined 

to include: all persons who were Guests at a Motion 6 Location in the United States during 

the Class Period, and whose Guest Information was provided to Federal Immigration 

Authorities by a Motel 6 Location in the United States. Id. § VII.B. 

2. Summary of the Monetary Relief Provisions 

For purposes of monetary damages under Rule 23(b)(3), the class represented by 

Plaintiffs is a Settlement Class consisting of all persons who were Guests at a Motel 6 

Location in the United States during the Class Period, and as a result of a Registered Guest’s 

Information having been provided to Federal Immigration Authorities by a Motel 6 location, 

suffered a privacy violation and/or were questioned, interrogated, detained, and/or placed 

in immigration removal proceedings by Federal Immigration Authorities. Agreement 

§§ VII.A, XII.A.7

 The Agreement specifies the criteria to determine the amount of any 

award, subject to a cap on any individual award of $200,000. See id. § XII.C.1. 

3. Scope of Release 

The Agreement provides for release by the Class Representatives, Plaintiffs, the 

Releasing Class, each member of the Releasing Class (“Releasors”), and the Releasor’s 

estates of all claims that arise out of or relate to conduct within the Class Period concerning 

the provision of Guest Information to Federal Immigration Authorities by a Motel 6 

Location, including, but not limited to, any conduct alleged and claim asserted or that could 

have been asserted or alleged in this action. See Agreement § VIII.B. 

4. Settlement Administration and Notice 

In the Preliminary Approval Order, the Court appointed: Arden Claims Service as 

the Claims Administrator; Martin F. Scheineman, Esq. as the Settlement Administrator; 

Centro de los Derechos del Migrante, Inc. (“CDM”) to perform tasks specified in the 

Agreement; and Plaintiffs’ Counsel as Class Counsel. ECF No. 75 ¶¶ 15–18. 

 

7

The Settlement Class excludes those who have filed a timely request to opt-out of the 

Settlement Class, but no opt-outs were filed. 

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The approved notice plan provided for notice in English and Spanish to be: 

(1) delivered by first-class mail, postage pre-paid, to all Class Members who could be 

identified by Defendants’ records as potential Class Members; (2) published on MALDEF 

and CDM’s Facebook and Twitter accounts; and (3) published on the Settlement Website 

established by ACS. Id. ¶¶ 19–20; Agreement § XII.F. After entry of the Preliminary 

Approval Order and in consultation with CDM, ACS, and the Settlement Administrator, the 

Parties agreed to the additional step of authorizing CDM to issue a press release—which 

was distributed to more than 150 media outlets in Mexico, El Salvador, Honduras, and 

Guatemala—that, in English and Spanish, provided key terms of the Agreement and the 

address for the Settlement Website. Botts Decl. ¶ 7; Ex. 3, Botts Decl. 

5. Attorneys’ Fees, Costs, and Expenses 

The Parties agreed to a payment of $500,000 to Class Counsel for attorneys’ fees 

and costs incurred in litigating this lawsuit on behalf of Plaintiffs, the Settlement Class, and 

the Injunctive Relief Class. Agreement § XIII.A; Holguin-Flores Decl. ¶ 15. 

III. ARGUMENT 

At the preliminary approval phase, this Court preliminarily found that the previously 

defined Primary Class and Class 2 appeared to meet the applicable requirements of Rules 

23(a) and (b) and should be conditionally certified, and that the settlement was fair, 

reasonable and adequate, and thus was likely to be approved. While fewer than expected 

Class 2 Members filed claims, thousands of claimants have come forward, in effect 

validating the Court’s preliminary findings and supporting the conclusion that the 

Settlement Class should be certified, the Agreement approved, and the Settlement Amount 

distributed. Closer analysis of the applicable Rules and case law further supports final 

approval. 

To guard against the potential for abuse, “Rule 23(e) of the Federal Rules of Civil 

Procedure requires court approval of all class action settlements, which may be granted only 

after a fairness hearing and a determination that the settlement taken as a whole is fair, 

reasonable, and adequate.” In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 946 

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(9th Cir. 2011). Rule 23(e)’s class settlement process generally proceeds in two phases. 

“In the first phase, the court conditionally certifies the class, conducts a preliminary 

determination of the fairness of the settlement (subject to a more stringent final review), 

and approves the notice to be provided to the class.” Mora v. Cal W. Ag Servs., Inc., No. 

1:15-cv-01490-LJO-EPG, 2019 WL 2084725, at *3 (E.D. Cal. May 13, 2019). “In the 

second phase, the court holds a full fairness hearing where class members may present 

objections to class certification, or the fairness of the settlement agreement.” Id. at 

*4. “Following the fairness hearing, the court is to take into account all of the information 

before it and confirm that class certification is appropriate, and that the settlement is fair, 

reasonable, and adequate.” Id. “[T]he court has discretion to modify class definitions 

where appropriate,” including prior to and following the fairness hearing. Weeks v. Kellogg 

Co., No. CV 09-08102(MMM)(RZx), 2013 WL 6531177, at *5 (C.D. Cal. Nov. 23, 2013). 

A. The Court Should Approve the Parties’ Modification of the Monetary 

Relief Class Definition. 

The Parties seek to modify the Agreement by redefining the monetary relief class as 

one class by combining the originally defined Primary Class and Class 2 into one Settlement 

Class. The Parties’ modification of the Agreement is proper, is in the best interests of the 

Class Members and the Parties, and will preserve judicial economy. 

First, there is no question that this Court has the authority to redefine the classes at 

this stage of the proceedings. Id. (citing Armstrong v. Davis, 275 F.3d 849, 871 n. 28 (9th 

Cir. 2001) (“Where appropriate, the district court may redefine the class.”); see also In re 

Motorola Sec. Litig., 644 F.3d 511, 518 (7th Cir. 2011) (“[A] district court has the authority 

to modify a class definition at different stages in litigation, and the litigants are free to 

modify a class via a court-approved settlement agreement.” (citations omitted)). District 

courts regularly approve such modifications before, and even following, a fairness hearing 

and before issuing a final approval decision. See, e.g., Weeks, 2013 WL 6531177, at *19 

(granting final approval after the parties modified an agreement regarding the distribution 

of cy pres funds to address the court’s concerns expressed at the fairness hearing); Urbaniak 

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v. Stanley, Nos. 5:06-CT-3135-FL, 5:07-CT-3145-FL, 2010 U.S. Dist. LEXIS 142939, at 

*1-2, 9-12, 19-21 (D. N.C. Aug. 27, 2010) (granting motion for final settlement approval, 

noting that parties had filed supplement in response to concerns the Court expressed finding 

that “the amendments to certain provisions remedy any concerns the court had as to the 

adequacy of the settlement”); Adams v. S. Farm Bureau Life Ins. Co., 417 F. Supp. 2d 1373, 

1377 (M.D. Ga. 2006) (final approval granted, in part, because “the parties had negotiated 

modifications and enhancements to the Stipulation of Settlement in response to objections” 

(internal quotation marks omitted)). 

Second, because the change to the class definition does not adversely alter the rights 

or obligations of the Class Members, additional notice is unnecessary. The Settlement Class 

does not seek to enlarge or reduce the class or change who can benefit. It merely seeks to 

eliminate an unnecessary distinction between two classes and protect the right of all valid 

claimants to receive the compensation allocated to them under the Agreement—for which 

they have already applied. In fact, merging the two monetary classes benefits all claimants 

by ensuring that the numerosity requirement for class certification is met, increasing the 

likelihood they will be paid. See Weeks, 2013 WL 6531177, at *38 (“Courts do not 

generally require that additional notice be provided to the class where modifications of a 

settlement increases benefits to the class.”) (citing In re Prudential Ins. Co. of Am. Sales 

Practices Litig., 962 F. Supp. 450, 473 (D.N.J. 1997) (“Class members have already 

received adequate notice both of the pendency of this class action and of the Proposed 

Settlement. Class members need not be informed of the Final Enhancements to the 

settlement because the Proposed Settlement is only more valuable with these changes.”)).8

B. The Classes Should Be Certified. 

To confirm that the classes should be certified, the Court should assess the 

requirements of Rules 23(a), 23(b)(2), and 23(b)(3), see, e.g., In re Lifelock, Inc. Marketing 

 

8

Without certification as to all Class Members, Defendants would not obtain the closure for 

which they bargained and would have to consider exercising their contractual right to 

terminate the Agreement, depriving all claimants of any benefit of Agreement. 

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& Sales Practices Litig., No. 08-1977-MHM, 2010 WL 3715138, at *1–3 (D. Ariz. Aug. 

31, 2010), and confirm that the Court’s ordered notice procedure was adequate and 

effectively executed. See id. at *6; see also Etter v. Allstate Insur. Co., No. C17-00184-

WHA, 2018 WL 5791883, at *2 (N.D. Cal. Nov. 4, 2018). 

1. The Proposed Classes Satisfy Rule 23(a). 

Rule 23(a)(1) requires the class to be “so numerous that joinder of all members is 

impracticable.” Generally, classes of forty or more are sufficiently numerous. Harris v. 

Palm Springs Alpine Estates, 329 F.2d 909, 913 (9th Cir. 1964); Lee v. Glob. Tel*link Corp., 

No. 2:15-cv-02495-ODW (PLA), 2018 WL 4625677, at *5 (C.D. Cal. Sept. 24, 2018). The 

Settlement Class is comprised of 1,976 claimants. Accordingly, the Settlement Class more 

than satisfies the requirements of Rule 23(a)(1). 

The Injunctive Relief Class also satisfies the numerosity requirement. See MultiEthnic Immigrant Workers Org. Network v. City of Los Angeles, 246 F.R.D. 621, 631 (C.D. 

Cal. 2007) (citing advisory committee notes to the 1966 amendment (“Illustrative of 

23(b)(2) are various actions in the civil-rights field where a party is charged with 

discriminating unlawfully against a class, usually one whose members are incapable of 

specific enumeration.” (brackets and original emphasis omitted))). Defendants’ records 

indicate that there are more than 52,000 Registered Guests who qualify as members of the 

Injunctive Relief Class. Preliminary Approval Motion at 9; ECF No. 75 ¶ 2(a). Joinder of 

all such persons is impracticable, and thus the Injunctive Relief Class satisfies Rule 

23(a)(1). 

Rule 23(a)(2) requires “questions of law or fact common to the class.” “Where the 

circumstances of each particular class member vary but retain a common core of factual or 

legal issues with the rest of the class, commonality exists.” Evon v. Law Offices of Sidney 

Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) (internal citation omitted); see also In re Live 

Concert Antitrust Litig., 247 F.R.D. 98, 117–18 (C.D. Cal. 2007). “[C]ommonality is 

satisfied where the lawsuit challenges a system-wide practice or policy that affects all of 

the putative class members.” Hernandez v. Cnty. of Monterey, 305 F.R.D. 132, 154 (N.D. 

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Cal. 2015) (internal citation and quotation marks omitted). “Where such a policy exists, 

individual factual differences among the individual litigants or groups of litigants will not 

preclude a finding of commonality.” Id. (internal citation and quotation marks omitted); 

accord Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014).

Here, all Class Members have claims based on a common core of legal and factual 

issues. All are alleged to have suffered injury, albeit to different degrees, stemming from 

the same alleged policy that authorized Motel 6 employees to share Guest Information with 

Federal Immigration Authorities. The fact that certain claimants are entitled to higher 

awards under the Agreement depending upon the degree of interaction with Federal 

Immigration Authorities should not preclude the Court from finding commonality to be 

satisfied. When differences “between the injuries allegedly suffered by particular class 

members is merely one of degree, . . . [that] is not enough to destroy the basic commonality 

of their claims.” See Kagan v. Wachova Secs., L.L.C., Nos. 09–5337 SC, 11–0412 SC, 2012 

WL 1109987, at *4-5 (N.D. Cal. Apr. 2, 2012); see also In re Deepwater Horizon, 739 F.3d 

790, 810-11 (5th Cir. 2014) (“[T]he legal requirement that class members have all ‘suffered 

the same injury’ can be satisfied by an instance of the defendant’s injurious conduct, even 

when the resulting injurious effects—the damages—are diverse.”). 

Rule 23(a)(3) requires that named plaintiffs’ claims be “typical” of the claims of the 

class. Fed. R. Civ. P. 23(a)(3). Claims are typical if they are “reasonably co-extensive with 

those of absent class members,” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 

1998) overruled on other grounds by Wal-Mart Stores, Inc., 564 U.S. 338 (2011), and the 

representative plaintiffs are members of the classes they seek to represent, Gen. Tel. Co. of 

Sw. v. Falcon, 457 U.S. 147, 156 (1982). 

Here, the Class Representatives have claims typical of the Settlement Class and the 

Injunctive Relief Class. Six Plaintiffs were Registered Guests whose Guest Information 

was disclosed. See Exhibits 4–9 to the Preliminary Approval Motion. The remaining two 

Plaintiffs (Jane F. and Jane N.) were not themselves Registered Guests so their personal 

information was not disclosed, but they were staying with family members who were 

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Registered Guests whose information was disclosed. As a result, Jane F. and Jane N. were 

subjected to immigration action. See Exhibits 10–11 to the Preliminary Approval Motion. 

All named Plaintiffs submitted claims to ACS that are not materially distinct from the other 

1,976 eligible claims submitted. The typicality requirement is met. 

Rule 23(a)(4) requires that Class Representatives “fairly and adequately protect the 

interests of the class.” This requires resolving two issues: (1) whether the class 

representatives have interests in conflict with the proposed class; and (2) the qualifications 

and competency of proposed class counsel. Staton v. Boeing Co., 327 F.3d 938, 957 (9th 

Cir. 2003); In re Live Concert Antitrust Litig., 247 F.R.D. at 118. 

Plaintiffs do not have any interest that conflicts with the proposed Settlement Class. 

Jane V., John E., John D., John A., John W., and John M. have sworn that they, like others 

in the Settlement Class and the Injunctive Relief Class, contracted for hospitality services 

with Motel 6 during the period of time that a Motel 6 Location disclosed Guest Information 

to Federal Immigration Authorities. See Exhibits 4–9 to the Preliminary Approval Motion. 

Jane F. and Jane N. have sworn that they, like others in the Settlement Class, were 

questioned, interrogated, detained, and/or placed in immigration removal proceedings 

because of the disclosure of Guest Information to Federal Immigration Authorities. See

Exhibits 10–11 to the Preliminary Approval Motion. Nothing in any Plaintiff’s experience 

presents any conflict with their fellow Class Members and the Plaintiffs are treated 

identically to all other Class Members. No other Class Member has objected to the Class 

Representatives or their ability to represent other Class Members. 

To assess the qualifications of Class Counsel, the Court should consider “(i) the work 

counsel has done in identifying or investigating potential claims[;] . . . (ii) counsel’s 

experience in handling class actions, other complex litigation, and the types of claims 

asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources 

that counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). Here, 

Class Counsel is amply qualified. Their thorough investigation resulted in a detailed 

Amended Complaint, demonstrating that they had an adequate information base from which 

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to assess the strengths and weaknesses of the claims. See Fed. R. Civ. P. 23(e)(2)(A)-(B) 

advisory committee’s note to 2018 amendment; Hefler v. Wells Fargo & Co., No. 16-cv05479-JST, at *6 (N.D. Cal. Dec. 18, 2018); Ex. 3, Holguin-Flores Decl. ¶¶ 6–12, 

Preliminary Approval Motion. The vigorous and extensive settlement negotiations—with 

an experienced mediator—also bore out that Class Counsel had developed enough support 

for the claims pled and that injunctive and monetary relief were supportable. Moreover, 

Plaintiffs’ counsel has numerous years’ experience and demonstrated success in bringing 

class action claims, based in part on their command of the relevant law. Ex. 3, HolguinFlores Decl. ¶¶ 14–22, Preliminary Approval Motion. Finally, now that Class Members 

have stepped forward, it is apparent that Class Counsel has adequately protected Class 

Members’ interests, enabling thousands of Class Members to receive compensation should 

the Court grant this Motion. 

2. The Proposed Injunctive Class Satisfies Rule 23(b)(2). 

In addition to satisfying the requirements of Rule 23(a), the Injunctive Relief Class 

must also satisfy Rule 23(b)(2). Certification under Rule 23(b)(2) is appropriate where 

defendants have acted on “grounds that apply generally to the class, so that final injunctive 

relief or corresponding declaratory relief is appropriate respecting the class as a whole.” 

Fed. R. Civ. P. 23(b)(2). Courts in this Circuit recognize that it can be appropriate to 

separately certify injunctive relief and monetary damages classes that are largely 

coextensive. See, e.g., In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 977 (C.D. Cal. 2015) 

(“[T]he Ninth Circuit has suggested on multiple occasions that district courts consider 

certifying separate Rule 23(b)(2) and 23(b)(3) classes. . . . Consequently, . . . it appears that 

the court can separately certify an injunctive relief class and, if appropriate, also certify a 

Rule 23(b)(3) damages class.”). 

Here, the purpose of the proposed injunctive relief is to prevent future conduct by 

Defendants that is similar to the past misconduct Plaintiffs allege, and it requires Defendants 

to implement and enforce a policy and training that will protect the Injunctive Relief Class 

from suffering similar harm in the future. That benefit is separate from, but co-extensive 

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with, the monetary relief to be awarded to the Settlement Class, and it provides relief that 

respects the class as a whole. The Injunctive Relief Class should also be certified. 

3. The Monetary Relief Classes Meet the Requirements of Rule 

23(b)(3). 

In addition to meeting the requirements of Rule 23(a), the monetary relief classes 

must also meet Rule 23(b)(3), which requires that: (A) questions of law or fact common to 

the class predominate over questions affecting only individual members; and (B) a class 

action is superior to resolution by other available means. Fed. R. Civ. P. 23(b)(3); True, 

749 F. Supp. 2d at 1062. The predominance test is satisfied when common questions 

“present a significant aspect of the case and they can be resolved for all members of the 

class in a single adjudication.” Hanlon, 150 F.3d at 1022 (quoting 7A Charles Alan Wright, 

et al., Federal Practice & Procedure § 1778 (2d ed. 1986)). “[T]he presence of 

individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3).” 

Levya v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013). When analyzing 

superiority, courts consider: “(1) the interest of members of the class in individually 

controlling the prosecution . . . of separate actions; (2) the extent and nature of any litigation 

concerning the controversy already commenced by . . . members of the class; and (3) the 

desirability . . . of concentrating the litigation . . . in the particular forum.” True, 749 F. 

Supp. 2d at 1062. 

With respect to the Settlement Class, each member suffered harm as a result of the 

disclosure of Guest Information. Though the Class Members may have suffered varying 

degrees of harm as a result of the disclosure, common issues still predominate: whether a 

disclosure policy existed; the fact of disclosure; whether such disclosure was wrongful; 

whether it was discriminatory and otherwise meets the elements of the claims pled; and 

whether it caused injury. By certifying the Settlement Class, the Court avoids the need for 

separate adjudication of those issues. 

To the extent there are any differences in the degree of harm sustained amongst 

claimants, those have been addressed by the Agreement, and certification will not prevent 

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individual claimants from being appropriately compensated. Indeed, the Agreement sets 

forth a clear and common methodology for calculating damages that is directly connected 

to the alleged wrong, see Comcast Corp. v. Behrend, 569 U.S. 27, 34–38 (2013), and ACS 

applied that methodology, Ferrante Decl. ¶ 11, 16; Ex. 5, Ferrante Decl. As a result, ACS 

has calculated damages for each claimant based on the actual harm sustained. Id.

Resolving all claims for these proposed national classes in one proceeding also will 

preserve efficiency for the Court, the Parties, and other courts. It is neither economically 

feasible, nor judicially efficient, for the thousands of Class Members to file claims against 

Defendants on an individual basis. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 

338–39 (1980). Moreover, those who interacted with Federal Immigration Authorities will 

avoid having to bring claims and prove damages in separate proceedings, and instead may 

recover their damages by prompt distribution from ACS—a significant benefit to those who 

may be distrustful of legal authorities. The fact that no one has opted out—even though 

some are subject to the damages cap—speaks volumes about the benefits of this more 

streamlined process. 

4. The Class Action Notice Was Adequate, Effective, and 

Reasonable. 

For the monetary relief class to be certified under Rule 23(b)(3), the Court also must 

be satisfied that Class Members have been provided with notice that complies with Rule 

23(c)(2)(B), and have had adequate opportunity to decide whether to make a claim, opt out 

of the class, and/or object to the settlement. See Eisen v. Carlisle & Jacquelin, 417 U.S. 

156, 173 (1974); Silber v. Mabon, 18 F.3d 1449, 1454–55 (9th Cir. 1994). Notice of a class 

action settlement must be “the best notice that is practicable under the circumstances, 

including individual notice to all members who can be identified through reasonable effort.” 

Fed. R. Civ. P. 23(c)(2)(B). “Notice is satisfactory if it generally describes the terms of the 

settlement in sufficient detail to alert those with adverse viewpoints to investigate and . . . 

be heard.” Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004) (internal 

quotations and citation omitted). Here, the Parties provided notice that, in both substance 

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and delivery, complied with (and indeed exceeded) the requirements of the Preliminary 

Approval Order. 

a. The Delivery of Notice was Compliant and Effective. 

With respect to the delivery of notice, the Parties complied with the multi-part notice 

plan approved by the Court. First, ACS provided written notice via the “Postcard Notice” 

attached as Exhibit B to the Preliminary Approval Order. The Postcard Notice was mailed 

to all Class Members whom the Parties were able to identify from lists of Registered Guests 

at the mailing address provided at the time of registration. Ferrante Decl. ¶ 5; Ex. 3, 

Ferrante Decl. Based on that list, ACS made an initial mailing of 70,725 postcards by 

September 30, 2019. Id. ¶ 6. For postcards returned, ACS re-mailed to forwarding 

addresses, where applicable, and conducted advanced address searches for others. Id. To 

date, there are 7,976 persons—about 11% of the Registered Guests believed to be potential 

Class Members—for whom ACS has not been able to find a valid address. Id. However, 

the Supreme Court has held that “notice reasonably certain to reach most of those interested 

in objecting is likely to safeguard the interests of all,” and “reasonable risks that notice 

might not actually reach every [class member] are justifiable.” See Mullane v. Cent. 

Hanover Bank & Tr. Co., 339 U.S. 306, 319 (1950); Silber, 18 F.3d at 1454–55 (concluding, 

under Mullane and other precedent, that “the appropriate standard is the ‘best notice 

practicable,’” not actual notice); accord Ruch v. AM Retail Grp., Inc., No. 14-cv-05352-

MEJ, 2016 U.S. Dist. LEXIS 133832, at *15–17 (N.D. Cal. Sept. 28, 2016) (holding that 

notice to class members was adequate although approximately 8% of the mailed notice was 

deemed undeliverable and accepting that “an undeliverable rate between 10% to 20% is 

typical in class action settlements”). Here, ACS delivered Postcard Notice to 89% of the 

Registered Guests believed to be Class Members—more than enough to meet the 

controlling standard. 

Second, Class Counsel and CDM conducted an extensive social media campaign, 

carefully crafted to reach claimants that the Parties could not identify—who were not 

Registered Guests and thus would not have appeared on Defendants’ address list. HolguinCase 2:18-cv-00242-DGC Document 78 Filed 01/17/20 Page 17 of 31
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Flores Decl. ¶¶ 7-10; Botts Decl. ¶¶ 5-6; Ferrante Decl. ¶ 8; see Roes 1-2 v. SFBSC Mgmt., 

L.L.C., No. 17-17079, 2019 WL 6721190, at *8 (9th Cir. Dec. 11, 2019) (“Publication 

notice has long been used as a supplement to other forms of notice, and technological 

developments are making it ever easier to target communications to specific persons or 

groups and to contact individuals electronically at little cost.”). The social media campaign 

included published notice via Facebook and Twitter, each of which directed readers to the 

Settlement Website, www.motel6settlement.com, established and maintained by ACS. 

Holguin-Flores Decl. ¶¶ 7-10; Botts Decl. ¶¶ 5-6; Ferrante Decl. ¶ 8. MALDEF posted or 

tweeted about the settlement and Settlement Website in English and Spanish on 38 different 

occasions and reports that between 700 and 1,100 individuals were reached on each 

occasion. Holguin-Flores Decl. ¶¶ 8-10. CDM posted or tweeted about the settlement in 

English and Spanish on nine different occasions. Botts Decl. ¶¶ 5-6. CDM’s activity 

reached 53,520 to 199,679 persons per Facebook post and 234 to 863 people per Twitter 

post. Id. In the experience of MALDEF, CDM, and ACS, social media is highly effective 

at providing notice to geographically dispersed mobile populations, particularly the 

communities likely to comprise Class Members in this case. Holguin-Flores Decl. ¶ 13; 

Holguin-Flores Decl. ¶ 14, Preliminary Approval Motion; Ferrante Decl. ¶¶ 14, 18, 

Preliminary Approval Motion. 

Third, the Parties cooperated in the wide distribution of a press release to more than 

150 media outlets in Mexico and Central America to broadcast the proposed settlement and 

the Settlement Website to Class Members no longer in the United States. An Englishlanguage copy of that press release is attached as Exhibit 3 to the Declaration of Benjamin 

Botts (of CDM). Ex. 3, Botts Decl. 

Fourth, ACS published the Court-approved Website Notice on the Settlement 

Website. According to ACS’s data, there have been 69,722 unique visitors to the website—

far more than the number of persons who have submitted claims, suggesting that notice 

reached many more people than those who chose to submit claims. Ferrante Decl. ¶¶ 4, 9. 

There were 307,008 page visits, more than 170,000 of which were from outside the United 

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States, suggesting that many people outside the United States received notice of the 

settlement. See Ex. 5, Ferrante Decl. 

b. The Contents of the Notice Were Clear and Comprehensive. 

The Court approved the Postcard Notice and the Website Notice in the Preliminary 

Approval Order. These notices are neutral and written in easy-to-understand language in 

both English and Spanish. Each state: (i) the nature of the action; (ii) the class definitions; 

(iii) the claims, issues, and defenses; (iv) that a class member may enter an appearance 

through an attorney if he or she wishes; (v) that the Court will exclude any Class Member 

who so requests; (vi) the time and manner of requesting exclusion; and (vii) the binding 

effect of a class judgment. ECF No. 75, Preliminary Approval Order at Exs. B, D. They 

thus satisfy the requirements of Rule 23(c). See generally Fed. R. Civ. P. 23(c)(2)(B)(i)-

(vii). 

Likewise, the notices posted on social media, which were substantially the same as 

those approved by the Preliminary Approval Order, satisfied Rule 23. See ECF No. 75, 

Preliminary Approval Order at Ex. C; Ex. 4, Ferrante Decl.; Ex. 1-2, Botts Decl. 

c. Class Members Had Adequate Time to Consider and 

Respond. 

Notice was delivered such that Class Members had adequate time to decide whether 

to make a claim, to opt out, or to object to the Settlement. The initial mailing of the Postcard 

Notice was completed by September 30, 2019—three months before the Claims Submission 

Deadline. Ferrante Decl. ¶ 5. Though some postcards were returned as undeliverable, most 

were delivered more than two months before the December 13, 2019 deadline to submit an 

opt-out request or objection—more than enough time than is needed. See id. ¶¶ 5-6; cf. 

Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) (approving class 

notice sent thirty-one days before objections deadline and forty-five days before final 

approval hearing). In the ensuing weeks, thousands more were delivered as the result of 

efforts by ACS to find updated address. Ferrante Decl. ¶ 7. Not one person objected or 

opted out. Id. ¶ 5-7. 

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Likewise, the Website Notice and print and social media campaigns provided ample 

opportunity for consideration and response by potential claimants. The Settlement Website 

was launched on August 23, 2019—more than four months before the Claims Submission 

deadline. The social media campaign also began well in advance of the relevant deadlines; 

Class Counsel posted repeatedly about the settlement beginning in September and 

continuing through December, Holguin-Flores Decl. ¶¶ 8-10, and CDM began using social 

media to deliver notice in November, continuing through December. Botts Decl. ¶¶ 5-6. 

Had any Class Members wished to opt out or object, they had a meaningful opportunity to 

do so, but none did. 

d. The Notice Given Was the Best Practical Notice. 

In sum, when looking at the contents, methods of delivery, and results, it is plain that 

the notice delivered was the best practical notice that could have been delivered under these 

circumstances. Silber, 18 F.3d at 1454. The Parties had the means to contact the vast 

majority of Registered Guests directly based on Defendants’ records of their stay at a Motel 

6 Location and did so via the Postcard Notice. See Ferrante Decl. ¶ 6-7. The Parties did 

not have the means to identify other potential claimants but notified them using the broad 

public outreach. Finally, because of public interest in this case, coverage of the Agreement 

in the news media—in part due to the Press Release authorized by the Parties—provided an 

additional means by which claimants learned of the settlement. See Botts Decl. ¶¶ 7-8. 

MALDEF is aware of at least 750 articles or stories related to the Agreement that were 

published between July and December 2019. Holguin-Flores Decl. ¶ 12. 

As a result of the broad and varied forms of notice, approximately 3% of Registered 

Guests during the Class Period have submitted claims, a percentage that is not atypical of 

large consumer class actions and is in fact higher than others that have been approved. Keil 

v. Lopez, 862 F.3d 685, 697 (8th Cir. 2017) (“Although [one objector] points out that the 

low claims rate also means that only 3 percent of the class will receive this [monetary] 

benefit, we note that a claim rate as low as 3 percent is hardly unusual in consumer class 

actions and does not suggest unfairness.”); see Perez v. Asurion Corp., 501 F. Supp. 2d 

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1360, 1377-78, 1384 (S.D. Fla. 2007) (approving settlement where 118,663 out of 

approximately 10.3 million class members submitted claims, for a claim rate of 

approximately 1.2 percent); Moore v. Verizon Commc’ns Inc., No. C 09-1823, 2013 WL 

4610764, at *8 (N.D. Cal. Aug. 28, 2013) (approving consumer class action settlement with 

3% claim rate). 

The notice provided to those who were not Registered Guests also was 

sufficient. Under Rule 23(c)(2)(B), individual notice is required only to those “who can be 

identified through reasonable effort.” The Parties had no ability to identify persons in Class 

2 because they were not Registered Guests. As a result, they relied on the public notice 

approved by the Court. There always has been some uncertainty as to how many people 

met the criteria for that class because Federal Immigration Authorities have not disclosed 

the number of persons with whom they interacted. Though only a small number of Class 2 

claimants have brought valid claims, there is still enough information to conclude that the 

public notice was the best notice practicable. 

First, there are 70 persons who were not Registered Guests who submitted claims, 

and though some number of the claims were deemed ineligible, the fact that such claims 

were submitted demonstrates that the public outreach was effective. Ex. 5, Ferrante 

Decl. Second, the analytics provided by MALDEF, CDM and ACS reveal substantial levels 

of interaction with the public notice, including almost 70,000 website visitors, thousands 

more social media interactions, and hundreds of media articles in this country and Latin 

America. Third, the unique circumstances of this case suggest that response rates by 

claimants might be lower than would be typical in other cases because an encounter with 

Federal Immigration Authorities might cause some to be reluctant to engage in the legal 

process. Garcia v. City of King City, No. 14-cv-01126-BLF, 2017 WL 363257, at *7 (N.D. 

Cal. Jan. 25, 2017) (certifying class and granting final approval of settlement where 43 

potential class members of the “approximately more than 200 Class Members” filed claims 

and recognizing that class members may be “extremely and understandably reluctant to 

participate in this case, or to even make a claim for settlement benefits, due to a fear of . . . 

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a governmental inquiry into their immigration status”). In short, one cannot conclude that 

the small raw number of verified Class 2 claims reveals insufficient notice. On the contrary, 

resolving these claims by class action is the best option available for the class as a whole, 

even if some members have chosen not to engage. See e.g., Multi-Ethnic Immigrant 

Workers Organizing Network v. City of Los Angeles, 246 F.R.D. 621, 637 (C.D. Cal. 2007) 

(in certifying a class of plaintiffs with claims relating to the forceful dispersal of an 

immigration rally, acknowledging that “some class members may feel hesitant about 

coming forward on their own because they may be (or were at the time) in this country 

unlawfully.”); Ontiveros v. Zamora, 303 F.R.D. 356, 375-76 (E.D. Cal. 2014) (“Having 

found that the parties and their counsel took extensive efforts to locate and inform all 

putative class members of the settlement, and given that no class members have filed any 

objections to the settlement, the court finds and orders that no additional notice to the class 

is necessary.”). 

C. The Court Should Approve the Settlement as Fair, Reasonable and 

Adequate. 

Rule 23(e) identifies factors the Court should consider in determining whether to 

approve the Agreement.9

 All of the factors are satisfied here. 

1. Adequate Representation 

As set forth in Section IV.A.1.d, supra, the Class Representatives and Class Counsel 

have adequately represented the Settlement Class, and thus the first factor under Rule 23(e) 

 

9

Prior to the 2018 amendment, Rule 23(e) provided simply that the Court must find that the 

settlement is “fair, reasonable, and adequate.” To assess whether a settlement met that 

standard, the Ninth Circuit developed a list of factors for courts to apply. See, e.g., Churchill 

Vill., L.L.C., 361 F.3d at 575; 2018 Advisory Committee Notes to Rule 23(e)(2) (“Courts 

have generated lists of factors to shed light on this [“fair, reasonable, and adequate”] 

standard.”). The 2018 Advisory Committee Notes to the Rule, however, recognize that it 

was necessary to include in the rule a shorter number of factors than the Ninth Circuit in 

Churchill and others historically had used. Id. (“A lengthy list of factors can take on an 

independent life, potentially distracting attention from the central concerns that inform the 

settlement-review process.”). Thus, the Parties address this settlement using the factors set 

forth in the amended Rule 23(e). Should the Court have any concerns about whether the 

Churchill factors might still apply, however, the Parties will be prepared to address at the 

fairness hearing why this settlement meets those factors as well. 

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is met.

2. Arm’s Length Negotiations and Settlement 

The second factor also is met, as the negotiations between the Parties were vigorous 

and contested. The Parties engaged in a series of informal, arm’s length discussions over a 

period of months before enlisting the services of an independent, professional mediator. 

Holguin-Flores Decl. ¶¶ 6-7, Preliminary Approval Motion. A full-day mediation resulted 

in the original tentative settlement, and the complaint and agreement were substantially 

revised after a second full-day mediation. Agreement §§ IV.C, G. These lengthy 

negotiations before a third-party demonstrate that the Settlement was anything but 

collusive. See, e.g., Adams v. Inter-Con Sec. Sys., Inc., No. C-06-5428 MHP, 2007 WL 

3225466, at *3 (N.D. Cal. Oct. 30, 2007) (“The assistance of an experienced mediator ... 

confirms that the settlement is non-collusive.”). Moreover, the negotiations between the 

first agreement and the final Agreement produced a substantial increase in the amount of 

funds available to be paid to claimants and increased the amount that could be paid to an 

individual claimant with only a slight increase in the amount of fees to be paid to Class 

Counsel. These facts demonstrate that the negotiations were to the benefit of the Settlement 

Class, and not as part of a collusive scheme to benefit the lawyers. 

3. Adequacy of Relief 

Rule 23(e)(2)(c) requires the relief in a proposed agreement is adequate. Fed. R. 

Civ. P. 23(e)(2)(c)(i)-(iii).10 All of the factors are satisfied here. 

a. The Costs, Risks, and Delay of Trial and Appeal 

Considering the first factor, “[t]he Court cannot and need not determine the merits 

of the contested . . . issues at this stage, and to the extent courts assess this factor, it is to 

determine whether the decision to settle is a good value for a relatively weak case or a sellout of an extraordinary strong case.” Misra v. Decision One Mortg. Co., No. SA CV 07-

 

10A fourth factor is any agreement made in connection with the proposal. Fed. R. Civ. P. 

23(e)(2)(C)(iv). Here, there is no agreement other than what was provided to the Court in 

connection with the Preliminary Approval Motion. See Agreement § XIV.F. 

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0994 DOC (RCx), 2009 WL 4581276, at *7 (C.D. Cal. Apr. 13, 2009) (internal citation and 

quotations omitted). “Parties represented by competent counsel are better positioned than 

courts to produce a settlement that fairly reflects each party’s expected outcome in 

litigation.” In re Pacific Enters. Secs. Litig., 47 F.3d 373, 378 (9th Cir. 1995). Thus, “the 

Court should not without good cause substitute its judgment for [counsel’s].” Boyd v. 

Bechtel Corp., 485 F. Supp. 610, 622 (N.D. Cal. 1979). 

Here, counsel for the Parties assessed the strengths and weaknesses of Plaintiffs’ 

claims and the likelihood of certification and, with the assistance of a sophisticated 

mediator, arrived at an agreement that delivers substantial value to Class Members. Class 

Counsel made the judgment that the settlement was in the best interests of the Class 

Members by relying on their thorough investigation of the facts and their “considerable 

expertise in . . . class action litigation.” Knight, 2009 WL 248367, at *4; see also HolguinFlores Decl. ¶¶ 14-22, Preliminary Approval Motion. Likewise, they assessed not only the 

risks of loss, but also the costs associated with trial and appeal and the time that would be 

required to bring this to a successful conclusion and pay claims without a settlement – which 

could take several additional years. While Class Counsel are confident in the strength of 

their claims, and have investigated them fully, they recognize that Defendants have factual 

and legal defenses that, if successful, could defeat or substantially impair the value of their 

claims. See, e.g., ECF No. 23. As a result, they negotiated with ample knowledge of the 

strengths and weaknesses of their case. Holguin-Flores Decl. ¶ 8, Preliminary Approval 

Motion. “The Settlement eliminates these and other risks of continued litigation, including 

the very real risk of no recovery....” In re NVIDIA Corp. Derivs. Litig., No. C-06-06110-

SBA (JCS), 2008 WL 5382544, at *3 (N.D. Cal. Dec. 22, 2008). 

Defendants’ experienced counsel also assessed the same risks of loss and delay, as 

well as the burdens that extended public litigation would impose on the companies, their 

personnel, and their brand. A trial involving the claims of potentially thousands of potential 

class members who stayed at numerous, geographically dispersed locations would require 

the presentation of dozens of witnesses at a minimum, including a significant number from 

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Defendants. Continuing media coverage of the controversy could cause some of the public 

to develop negative attitudes—whether earned or not—about Motel 6. In contrast, the 

proposed Agreement will yield a certain, substantial, and prompt conclusion. “Avoiding 

such a trial and the subsequent appeals in this complex case strongly militates in favor of 

settlement....” Nat’l Rural Telecomms. Coop. v. DirecTV, 221 F.R.D. 523, 527 (C.D. Cal. 

2004); see Fed. R. Civ. P. 23(e)(2)(C)(i). Motivated by a genuine desire to implement a 

policy and practice that would prevent any future violation of law, Defendants made the 

informed and reasoned choice to agree to a consent decree and pay significant value, in 

exchange for controlled closure of this dispute. There is nothing to counter the presumption 

that the Parties’ counsel recommendation is reasonable. 

Moreover, the benefits of the relief obtained are obvious. First, the Agreement 

provides Class Members with injunctive relief, which will protect them from future 

disclosure of Guest Information except in specific, lawful circumstances. Such injunctive 

relief provides significant value, as it will prevent the alleged practices that Plaintiffs claim 

harmed consumers from reoccurring. See Riker v. Gibbons, No. 3:08-cv-00115-LRH-VPC, 

2010 WL 4366012, at *4 (D. Nev. Oct. 28, 2010) (approving settlement for injunctive relief 

that “achieve[d] the goals of the lawsuit”). 

Second, the Agreement provides generous monetary relief for members of the 

Settlement Class who had no direct interaction with Federal Immigration Authorities during 

their stay at Motel 6. Those Class Members will receive $75 (which equals or exceeds the 

nightly cost of many Motel 6 rooms). Agreement § XII.C.1. All other Class Members will 

receive as much as $200,000 from the Settlement Fund, depending on the specifically tiered 

formula in the Agreement. Id. ACS has determined that at least eight, and perhaps as many 

as twenty-one, Class Members are entitled to the maximum payment of $200,000; and as 

many as twenty other Class Members are entitled to compensation of $20,000 or more. See

Ex. 5 to Ferrante Decl. Final approval of the Agreement would enable those Class Members 

and others to receive meaningful compensation for serious harm they sustained. None of 

the Class Members has opted out or objected, a strong indicium that the proposed settlement 

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is fair, adequate, and reasonable. See Churchill, 361 F.3d at 577; Cruz v. Sky Chefs, Inc., 

No. C–12–02705 DMR, 2014 WL 7247065, at *5 (N.D. Cal. Dec. 19, 2014). 

b. Effectiveness of Distribution of Relief 

With respect to the second factor in Rule 23(e)(2), the Parties can distribute relief 

effectively. ACS and its principals have decades of experience handling claims 

administration, including distributions of payments. The handling of the claims submission 

process in this case has been seamless; it has processed thousands of claims timely and 

efficiently. 

For each submitted claim form, ACS has collected contact information for the 

claimant, including a mailing address, email address, and telephone number. Awards will 

be distributed by mail to the address submitted on the claim form. Agreement § XII.Q. For 

each claimant, ACS already has calculated the amount to be paid (with the exception of the 

43 claims that were deficient as submitted and are subject to correction no later than 

February 24, 2020). Thus, ACS has the information it needs to be able to send payments to 

claimants; it has the experience to know that it is capable of doing so accurately and 

efficiently; and it is willing to do so upon approval by the Court and once the deficient 

claims are resolved. 

c. The Terms of the Attorneys’ Fees Award 

The proposed attorneys’ fees award is a powerful indicator of the fairness of the 

Agreement. Court approval of class action settlements is predicated on the concern that 

defendants and class counsel may collude for their own respective benefit at the expense of 

the class. See Stanton, 327 F.3d at 957–58. This concern is not present in this case. Here, 

if this settlement is approved, Plaintiffs’ counsel will be entitled to $500,000—about 5% of 

the total settlement amount (not including fees and costs that Defendants have agreed to 

bear). Agreement § XIII.A. This is an eminently reasonable request, far lower than the 

25% of recovery benchmark used in this Circuit for class action attorneys’ fees awards. 

See, e.g., In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 949 (9th Cir. 2015) 

(“Under the percentage-of-recovery method, the attorneys’ fees equal some percentage of 

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the common settlement fund; in this circuit, the benchmark percentage is 25%.”). Even if 

one were to compare the proposed attorneys’ fees award to the amount to be distributed to 

claimants, the fee is still appropriate. Depending on the resolution of the deficient claims, 

claimants will receive a minimum of $1,906,225 and as much as $5,468,975. Even at the 

lowest end of that range, the proposed fee is about 25%; at the higher end, it is less than 

10% It also is in line with the hourly amount that Plaintiffs’ Counsel would have billed at 

this stage if they were charging their clients at a reasonable hourly rate. Holguin-Flores 

Decl. ¶¶ 15-16. Further, Class Counsel has delivered non-monetary benefits to the 

Injunctive Relief Class in the form of the Consent Decree that render their fee even more 

reasonable. 

4. Equitable Treatment of Class Members

The final factor under Rule 23(e)(2) requires the Court to assess whether the 

Agreement provides relief on an equal basis to all Class Members. Here, it does. All 

members of the Settlement Class are entitled to be compensated for their harm, and the 

variation in awards will be based on specific, objective criteria. See Agreement § XII.C.1. 

Thus, all members will be treated the same way, even if the amounts they receive are—

appropriately—different. Importantly, all Class Members are entitled to the same relief as 

the Class Representatives; the Agreement does not give preferential treatment to the Class 

Representatives. 

In the Agreement, the Parties anticipated the possibility that the full Settlement 

Amount might not be needed for distribution to Claimants, and thus they reached agreement 

as to how such funds should be distributed. Under the Agreement, $1,500,000 of the 

undistributed funds would be returned to Defendants, and the remainder would be 

distributed to specified non-profit organizations (subject to the Court’s approval).11

The proposed cy pres distribution does not offend any notion of justice or principle 

 

11Until the deficient claims are resolved and all payments are made, the Parties cannot 

determine the amount of any cy pres payment. Based on the current claims data, it could be in a range from $3 million to $6.5 million. In any event, $1.5 million of unclaimed funds 

would revert back to Defendants. 

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of law. Though some courts have on occasion questioned or rejected proposed cy pres

distributions that dwarf amounts to be paid to actual claimants, see e.g., Frank v. Gaos, 586 

U.S. ___, 139 S.Ct. 1041 (2019) (granting certiorari to review a settlement in which the 

parties proposed to apportion $3.2 million of an $8.5 million settlement fund for attorneys’ 

fees and $5.3 million to a group of cy pres recipients, with none allocated to direct monetary 

relief for class members), such concerns are not present here. Here, this is not a cy pres 

only settlement and every Class Member who has submitted a valid claim will receive a 

cash award between $75 and $200,000. Claimants will receive payments totaling 

approximately $2 million to $5.5 million, depending on the deficient claims. Class 

Members also will benefit from the injunctive relief contained in the Agreement. 

In addition, the limited cy pres payment is to be made here only because, after 

making all valid payments to Class Members, there remains more than $500,000 left in the 

Settlement Amount. This type of cy pres award routinely has been upheld by numerous 

courts. See, e.g., In re Baby Prod. Antitrust Litig., 708 F.3d 163, 172 (3d Cir. 2013) (“We 

join other courts of appeals in holding that a district court does not abuse its discretion by 

approving a class action settlement agreement that includes a cy pres component directing 

the distribution of excess settlement funds to a third party to be used for a purpose related 

to the class injury.”); see also 4 Newberg on Class Actions § 12:32 (5th ed.) (“Courts in 

every circuit, and appellate courts in most, have approved the use of cy pres for unclaimed 

class action awards.”). 

Common sense also supports approving the cy pres element in the unique 

circumstances of this case. As noted above, because Federal Immigration Authorities did 

not disclose the number of persons with whom they interacted as a result of the disclosure 

of Guest Information, the Parties had a limited ability to project the number of claimants 

who would make claims or the amount of their damages. Further, as explained above, a 

number of individuals may have felt reluctant to file a claim. See supra Section III.B.4.d. 

Here, Defendants, as a gesture of their good faith and commitment to the changes brought 

about by this litigation, agreed that, should less than $9.5 million be claimed, some amount 

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would be paid to the cy pres recipients, rather than being returned to Defendants. 

Finally, as discussed more fully in the Preliminary Approval Motion, the cy pres

recipients here “bear[] a direct and substantial nexus to the interests of absent class 

members,” Lane v. Facebook, Inc., 696 F.3d 811, 821 (9th Cir. 2012), by addressing “the 

objectives of the underlying statutes” and “the interest of the silent class members, including 

their geographic diversity,” Nachshin v. AOL, LLC, 663 F.3d 1034, 1039 (9th Cir. 2011). 

The Parties have agreed to propose the following four organizations as recipients of the 

capped cy pres amounts: 1) The Florence Immigrant & Refugee Rights Project; 2) The 

Northwest Immigrant Rights Project; 3) The National Immigrant Justice Center; and 4) 

TheDream.US. If any cy pres distribution is to be made, each of the first two listed 

organizations would receive 35%, and each of the latter two would receive 15%. HolguinFlores Decl. ¶ 9-10, Preliminary Approval Motion. 

D. The Court Should Issue All Orders Necessary to Effectuate the 

Settlement in Full. 

To effectuate the full Agreement between the Parties and deliver all intended relief 

to the Class Members, the Parties respectfully request that the Court enter the Proposed 

Order and the attached Consent Decree. In addition to providing for certification of the 

Classes and approval of the Agreement, the Proposed Order authorizes ACS to make the 

payments authorized by the Agreement to Claimants, as well as the reversion payment to 

Defendants and the cy pres payments to the designated cy pres recipients; releases all claims 

by the Releasing Class; and authorizes payment of the attorneys’ fees amount to Class 

Counsel. The proposed Consent Decree secures the performance of the equitable relief for 

the agreed-upon three-year period. 

IV. CONCLUSION 

For the foregoing reasons, the Parties respectfully request the Court grant the 

requested relief. 

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DATED this 17th day of January, 2020. 

 SNELL & WILMER L.L.P.

By: /s/ Patricia L. Refo

Donald W. Bivens 

Patricia L. Refo 

One Arizona Center 

400 E. Van Buren, Suite 1900 

Phoenix, Arizona 85004-2202 

MUNGER, TOLLES & OLSON, LLP 

Donald B. Verrilli, Jr. 

VENABLE LLP 

Peter J. Kadzik 

Stacie E. Tobin 

Attorneys for Defendants 

MEXICAN AMERICAN LEGAL DEFENSE 

AND EDUCATION FUND, INC. 

By: /s/ Andrés Holguin-Flores (With Permission)

Thomas A. Saenz 

Andrés Holguin-Flores 

Nina Perales 

Daniel R. Ortega, Jr. 

Attorneys for Plaintiffs 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on the 17th day of January, 2020, I electronically transmitted 

the attached document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing to the CM/ECF registrants on record. 

/s/ Catherine A. Ward 

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