FORD

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JENNIFER FORD, ERIC BEARD, )

and BRIAN OTTERS, individually )

and on behalf of all others similarly )

situated, )

)

Plaintiffs, )

)

v. ) 1:23-CV-756

)

VETERANS GUARDIAN VA )

CLAIM CONSULTING, LLC, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, Chief District Judge.

Plaintiffs Jennifer Ford, Eric Beard, and Brian Otters are disabled military veterans

who retained the defendant, Veterans Guardian VA Claim Consulting LLC, to assist them

in obtaining or increasing their disability compensation. Federal law restricts those who

may assist veterans in preparing, presenting, and prosecuting claims for benefits before

the Veterans Administration to persons or entities meeting specific qualifications and

accreditation requirements.

The plaintiffs contend that Guardian violates federal law by offering these services

without accreditation and that it charges illegal fees in violation of the North Carolina

Unfair and Deceptive Trade Practices Act and the North Carolina Debt Collection Act.

The plaintiffs move for certification of three classes. Because the plaintiffs have satisfied

the Rule 23 requirements for each class, the motion will be granted.

I. Facts As Alleged

Veterans may receive VA disability compensation, via a monthly payment, if they

became sick or injured while serving in the military or if their service made an existing

condition worse. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.4(a), (b)(1). To receive these

benefits, veterans must file a claim with the VA. 38 C.F.R. § 3.151(a).

Federal regulations provide that “[n]o individual may assist claimants in the

preparation, presentation, and prosecution of claims for VA benefits as an agent or

attorney unless he or she has first been accredited by VA for such purpose.” Id.

§ 14.629(b)(1). Federal regulations govern and limit the services for which an accredited

agent or attorney may charge fees and the amount of such fees. See id. § 14.636. By

statute, charging a fee is prohibited in connection with the filing of an initial claim. See

38 U.S.C. § 5904(c)(1).

Multiple veteran service organizations assist veterans in filing their disability

claims without charge. See Arnesen v. Principi, 300 F.3d 1353, 1360 (Fed. Cir. 2002)

(citing Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 311 (1985)). Many

veterans use these free services to help with their initial claims, while others file their

own initial claims. If a claim is denied or if a veteran believes the initial claim disability

rating is too low, they may seek further review of that decision. Veterans may also seek

an increase in their disability rating and, thus, an increase in their monthly benefits, if

their service-related health problems worsen. Some veterans continue through this

process on their own, others use a veteran service organization, and still others use a for-

profit VA accredited agent or attorney.

Guardian is not an accredited agent of the VA. It assists veterans in applying for

disability compensation and for increases in compensation, and it charges five times the

monthly compensation increase that its clients receive as a fee for its services. Doc. 52-1

at 9, 19, 29. This is substantially higher than fees an accredited agent can charge.

Ms. Ford suffered several service-connected injuries and secondary service-

connected injuries because of her military service. Doc. 52 at ¶¶ 57–58. Before

contacting Guardian, she received a 60% VA disability impairment rating. Id. at ¶ 60. In

2022, she contacted Guardian about filing a claim for additional benefits. Id. at ¶¶ 61–64.

She signed a contract with Guardian. Id. at ¶ 65; Doc. 52-1 at 3–11. Guardian accessed

her medical and military records, coordinated a private medical exam, and drafted and

prepared her VA disability compensation claim with attachments. Doc. 52 at ¶¶ 66–69.

Guardian continued working with her in compiling her claim packet, submitting her

claim, and providing post-filing instructions for submitting additional materials. Id. at

¶¶ 69–81. She received a VA disability compensation increase of $360 per month, and

pursuant to her contract with Guardian, it billed her $1,880. Id. at ¶¶ 82–83; Doc. 52-2 at

3–4. She paid Guardian $1,880 over multiple monthly payments. Doc. 52 at ¶ 84. She

later worked with Guardian in a similar manner to file a second claim for increased

benefits due to a different medical condition. Id. at ¶¶ 89–98. She received a monthly

VA disability compensation increase of $300 a month, and pursuant to her contract with

Guardian, it billed her $1,690. Id. at ¶¶ 99–100; Doc. 52-2 at 5–6. She paid Guardian

$1,521 in one lump sum. Doc. 52 at ¶ 103.

Mr. Beard suffered from several service-connected injuries and secondary service-

connected injuries because of his military service. Id. at ¶¶ 111–12. Unlike Ms. Ford,

Mr. Beard had never filed a VA benefits claim before contacting Guardian around August

2022. Id. at ¶¶ 114–16. He signed a contract with Guardian. Id. at ¶ 120; Doc. 52-1 at

13–21. Guardian accessed his medical and military records, coordinated a private

medical exam, and drafted and prepared his VA disability compensation claim with

attachments. Doc. 52 at ¶¶ 121–25. Guardian continued working with him in compiling

his claim packet, submitting his claim, and providing post-filing instructions for

submitting additional materials. Id. at ¶¶ 125–32. He received VA disability

compensation of $4,278.80 per month, and pursuant to his contract with Guardian, it

billed him $21,360. Id. at ¶¶ 133–34; Doc. 52-2 at 8–9. He has paid Guardian over

$19,000 in monthly installments, and Guardian contends he still owes it money on the

contract. Doc. 52 at ¶ 135.

Mr. Otters suffered from several service-connected injuries and secondary service-

connected injuries because of his military service. Id. at ¶¶ 138–39. In 2023, he

contacted Guardian about filing a non-initial claim for additional benefits. Id. at ¶¶ 140–

42. He signed a contract with Guardian. Id. at ¶ 144; Doc. 52-1 at 23–31. Guardian

accessed his medical records and military records, coordinated a private medical exam,

and drafted and prepared his VA disability compensation claim with attachments. Doc.

52 at ¶¶ 145–48. Guardian continued working with him in compiling his claim packet,

submitting his claim, and providing post-filing instructions for submitting additional

materials. Id. at ¶¶ 149–53. He received a 90% disability rating and VA disability

compensation of $599.33 per month, and, pursuant to his contract with Guardian, it billed

him $2,990. Id. at ¶¶ 154, 157–58; Doc. 52-2 at 11–12. He paid Guardian $2,990 over

multiple monthly payments. Doc. 52 at ¶ 159.

II. The Plaintiffs’ Claims and Requested Classes

In 2023, Ms. Ford filed this putative class action, which was later consolidated

with cases filed by Mr. Beard and Mr. Otters. Docs. 1, 44. The plaintiffs allege that

Guardian acted as an agent in the preparation of their claims for veterans’ benefits in

violation of federal law, 38 U.S.C. § 5904. Doc. 52 at ¶¶ 35, 205.

In Counts I and II, the plaintiffs assert that Guardian’s actions of charging fees and

preparing claim packets without being accredited constitute per se unfair trade practices

prohibited by the North Carolina Unfair Trade Practices Act (“UDTPA”).1 Id. at ¶¶ 187–

289; Doc. 73 at 14–15. They contend that even if the actions are not per se unfair trade

practices, its actions still constitute unfair trade practices. Doc. 52 at ¶¶ 187–289; Doc.

73 at 14–15. The plaintiffs request two classes for the UDTPA claims: those who used

Guardian’s services to prepare initial claims and those who used Guardian’s services to

prepare non-initial claims. Doc. 52 at ¶¶ 187–289; Doc. 73 at 14–15. Specifically, they

propose the following classes:

(1) UDTPA Initial Claim Class: All veterans who paid

Veterans Guardian in connection with preparing an initial

claim for VA Disability Compensation under a contract in

substantially the same form as the Consulting Service

1 The plaintiffs contend that North Carolina law applies based on the choice of law provision

in their contracts with Guardian stating such. Doc. 52 at ¶¶ 177, 214; Doc. 52-1 at 11, 21, 31;

Doc. 73 at 7, 14.

Agreement attached as Exhibit A to the Consolidated

Complaint.

(2) UDTPA Non-Initial Claim Class: All veterans who paid

Veterans Guardian a fee in connection with preparing a non-

initial claim for VA Disability Compensation under a contract

in substantially the same form as the Consulting Service

Agreement attached as Exhibit A to the Consolidated

Complaint.

Doc. 70 at 1.

Under Count III, they assert that Guardian violated the North Carolina Debt

Collection Act (“NCDCA”) by sending invoices to collect its unlawful fees. They ask

that a class be certified of people who paid Guardian after being sent an invoice for its

services. Doc. 52 at ¶¶ 292–314; Doc. 73 at 16. Specifically, they propose the following

class:

(3) NCDCA Class: All veterans who paid money to Defendant

after being sent an email invoice from Veterans Guardian in

connection with a claim for VA Disability Compensation that

is in substantially the same email invoice attached as Exhibit B

to the Consolidated Complaint.

Doc. 100 at 17 (amending proposed class definition).

Guardian opposes certification of all three classes. Doc. 94. Each party filed

briefs with evidentiary support, Docs. 73, 94, 100, and the motion is ripe for decision.

III. Class Certification

“The class action is an exception to the usual rule that litigation is conducted by

and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S.

27, 33 (2013) (cleaned up). To qualify for the exception, the plaintiffs “must

affirmatively demonstrate their compliance” with Federal Rule of Civil Procedure 23.

1988 Tr. for Allen Child. Dated 8/8/88 v. Banner Life Ins. Co., 28 F.4th 513, 521 (4th Cir.

2022) (cleaned up). District courts must rigorously assess the proffered evidence, Wal-

Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011), but they have “wide discretion”

in evaluating whether the Rule 23 requirements have been met, in light of their

experience and expertise in managing complex litigation. Ward v. Dixie Nat’l Life Ins.

Co., 595 F.3d 164, 179 (4th Cir. 2010); see Carolina Youth Action Project v. Wilson, 60

F.4th 770, 780 (4th Cir. 2023); Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979)

(noting that district courts “have broad power and discretion vested in them” as to the

“certification and management of potentially cumbersome” class actions).

There are a number of requirements a plaintiff must meet to obtain class

certification. As a threshold requirement, the class representative must be a member of

the class she seeks to represent. The plaintiff must also meet the requirements of Rule

23(a): numerosity, commonality, typicality, and adequacy of representation. Finally, the

plaintiff must meet one set of requirements under Rule 23(b). Here, the plaintiffs proceed

under Rule 23(b)(3) for all three classes, so they must show that the class members are

readily identifiable and must meet the predominance and superiority requirements.

IV. The Proposed UDTPA Classes

A. Threshold Requirements

The proposed class representatives must be members of the proposed class. See

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997); see also Fed. R. Civ. P.

23(a). As noted supra, the proposed UDTPA classes consist of:

UDTPA Initial Claim Class: All veterans who paid Veterans

Guardian in connection with preparing an initial claim for VA

Disability Compensation under a contract in substantially the

same form as the Consulting Service Agreement attached as

Exhibit A to the Consolidated Complaint.

UDTPA Non-Initial Claim Class: All veterans who paid

Veterans Guardian a fee in connection with preparing a non-

initial claim for VA Disability Compensation under a contract

in substantially the same form as the Consulting Service

Agreement attached as Exhibit A to the Consolidated

Complaint.

Doc. 70 at 1.

During the relevant time, Mr. Beard retained Guardian to assist him in obtaining

VA disability compensation, signed a contract with Guardian, and paid for those services.

Doc. 73-9 at 3–4, 6. He is thus a member of the UDTPA initial claim class, and Guardian

does not contend otherwise. During the relevant time, Ms. Ford and Mr. Otters retained

Guardian to assist in increasing their disability compensation, signed contracts for those

services, and paid for those services. Doc. 73-8 at 3–4, 6, 8; Doc. 73-10 at 3–4, 6. Mr.

Beard, Ms. Ford, and Mr. Otters all made their first payments to Guardian within the

class period provided infra at pp. 24-25. See Doc. 73-8 at 3, 6, 8; Doc. 73-9 at 3, 6; Doc.

73-10 at 3, 6. They are thus members of the UDTPA non-initial claim class, and

Guardian does not contend otherwise.

Plaintiffs pursuing class certification under Rule 23(b)(3) must also demonstrate

that members of the class are readily identifiable or ascertainable. Peters v. Aetna Inc., 2

F.4th 199, 241–42 (4th Cir. 2021). To be readily identifiable, plaintiffs need not be able

to “identify every class member at the time of certification.” Krakauer v. Dish Network,

LLC (“Krakauer II”), 925 F.3d 643, 658 (4th Cir. 2019) (cleaned up). Rather, a class

need only be defined “in such a way as to ensure that there will be some administratively

feasible way for the court to determine whether a particular individual is a member at

some point.” Id. (cleaned up).

The members of these putative classes are ascertainable. They can be identified

based on the “objective criteria,” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir.

2014), of whether they signed written contracts with Guardian during the relevant period

for either initial claims (for Class 1) or non-initial claims (for Class 2) of veterans’

disability compensation and whether they paid Guardian in connection with those

services. Guardian maintains records of its clients’ names, contact information, contracts,

claims, invoices, and payment amounts, Doc. 75-1; Doc. 75-2 at 237-38; Doc. 52-1; Doc.

55-3 at 23, so those qualifications for class membership can be readily determined

through common records Guardian itself maintains.

B. Rule 23(a) Requirements

1. Numerosity

There are thousands of members in each putative UDTPA class. Doc. 75-1.

Guardian does not dispute numerosity. Doc. 94 at 11 n.2.

Joinder of that many parties would be impracticable, raising the specter of many

lawsuits. As these proceedings show, there have already been three different lawsuits in

this court alone. Some class members would also be economically unmotivated to

litigate their claims or face challenges doing so because of their disabilities. Doc. 73-8 at

8; Doc. 73-9 at 6; Doc. 73-10 at 6. And judicial economy favors a class action over

joinder. See In re Zetia (Ezetimibe) Antitrust Litig., 7 F.4th 227, 235 (4th Cir. 2021).

The plaintiffs have satisfied the numerosity requirement.

2. Commonality

To satisfy the commonality requirement, there must be “questions of law or fact

common to the class.” Fed. R. Civ. P. 23(a)(2). To establish commonality, “the plaintiff

[must] demonstrate that the class members have suffered the same injury.” Wal-Mart,

564 U.S. at 349–50 (cleaned up). “Even a single common question will do,” id. at 359

(cleaned up), “but it must be of such a nature that its determination will resolve an issue

that is central to the validity of each one of the claims in one stroke.” EQT, 764 F.3d at

360 (cleaned up); see also Carolina Youth, 60 F.4th at 780 (“Commonality requires [that]

an entire set of claims depend upon a common contention that is capable of classwide

resolution.” (cleaned up)).

The plaintiffs identify several common legal and factual questions that will drive

the liability decision in the putative UDTPA classes. Doc. 73 at 19–20. 2 The key initial

question for all three requested classes requires statutory interpretation to determine

whether Guardian acts as an “agent” for the veterans who retain their services. Among

other key questions common to both UDTPA classes are: (1) whether Guardian is acting

2 “In a class action brought under Rule 23(b)(3), the commonality requirement of Rule

23(a)(2) is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that

questions common to the class predominate over other questions.” Lienhart v. Dryvit Sys., Inc.,

255 F.3d 138, 146 n.4 (4th Cir. 2001) (cleaned up); accord Thorn v. Jefferson-Pilot Life Ins.

Co., 445 F.3d 311, 319 (4th Cir. 2006). The common questions will be discussed in more

detail infra in connection with the predominance requirement.

in violation of the accreditation statute when it prepares and presents claim packets to the

VA in exchange for compensation as an unaccredited company; and (2) whether a

violation of the accreditation statute constitutes a per se violation of the UDTPA. The

plaintiffs have satisfied the commonality requirement for the UDTPA classes.

3. Typicality

Typicality requires that “the claims or defenses of the representative parties are

typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The typicality

requirement is met where the claims asserted by the named plaintiffs arise from the same

course of conduct and are based on the same legal theories as the claims of the unnamed

class members.” Tatum v. R.J. Reynolds Tobacco Co., 254 F.R.D. 59, 65 (M.D.N.C.

2008) (cleaned up). This requirement “goes to the heart of a representative parties’

ability to represent a class,” and the named plaintiff’s interest in prosecuting its case

“must simultaneously tend to advance the interests of the absent class members.” Deiter

v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006). The claims of the class

representative and the claims of the class need not “be perfectly identical or perfectly

aligned.” Id. at 467.

As to the typicality requirement, all the class members allege the same injury:

imposition of illegal fees by an unaccredited agent. The named plaintiffs each base their

claims on violations of the UDTPA through violation of the federal accreditation statute.

Doc. 52 at ¶¶ 188, 225; see Lienhart, 255 F.3d at 146 (“Typicality requires that the . . .

class representative . . . be part of the class and possess the same interest and suffer the

same injury as the class members.” (cleaned up)). Guardian followed consistent

procedures with each of its clients in contracting with them and filing claims. See Docs.

52-1, 61, 73-8, 73-9, 73-10, 123. For example, the parties’ joint stipulation states:

each VA Claim Packet produced as part of the sampled client files was sent

by Defendant to the respective client via email. Defendant confirms that the

produced VA Claim Packet was attached to Defendant's email to each client

stating that the VA claim is attached for the client’s review. Defendant

confirms this practice is standard for all Veterans Guardian clients during

the Class Period.

Doc. 61 at 1.

The Claim Packet prepared for Mr. Beard is for an Initial Claim, and he can

adequately represent all members of the UDTPA Initial Claim Class. Doc. 73-9 at 4–6.

The Claim Packets prepared for Ms. Ford and Mr. Otters were for Non-Initial claims, and

they can adequately represent the UDTPA Non-Initial Claim Class. Doc. 73-8 at 3–4;

Doc. 73-10 at 3–4.

4. Adequacy of Representation

Rule 23(a) requires that the class representatives “fairly and adequately protect the

interests of the class.” Fed. R. Civ. P. 23(a)(4). The adequacy inquiry “serves to uncover

conflicts of interest between named parties and the class they seek to represent.”

Amchem, 521 U.S. at 625; accord Carolina Youth, 60 F.4th at 780. It also serves to assess

“competency and conflicts of class counsel.” Amchem, 521 U.S. at 626 n.20; accord Wal-

Mart, 564 U.S. at 349 n.5.

The plaintiffs have satisfied the adequacy requirement. Ms. Ford, Mr. Beard, and

Mr. Otters have been active participants in this litigation. Each has assisted counsel in

the litigation, provided declarations, and participated in depositions. Docs. 94-1, 94-2,

94-3; 73-8; 73-9; 73-10. They are motivated to pursue the case because each is directly

affected by the alleged illegal fees they paid Guardian. See Docs. 73-8; 73-9; 73-10.

Interim lead class counsel has adequately represented the class to date, complying with

court-imposed deadlines and filing appropriate motions. The Court has independently

reviewed the qualifications, experience, knowledge of the law, and resources of Plaintiffs’

Counsel. They have extensive experience in consumer class litigation actions. See Docs.

51; 43-1; 43-2. Plaintiffs’ Counsel’s qualifications will be discussed in more detail infra

at 26 when addressing appointment of class counsel.

Guardian asserts that the named plaintiffs are not adequate representatives because

their interests may conflict with the interests of some putative class members who, it

asserts, benefited from Guardian’s services and want to use those services. Doc. 94 at

26–27. The argument that some class members would like to use those services, even if

illegal, is not persuasive. See Laumann v. Nat’l Hockey League, 105 F. Supp. 3d 384, 404

(S.D.N.Y. 2015). “[I]t confuses the question of whether a common injury unites the class

with the distinct question of whether all class members agree about how best to respond

to the injury.” Id. at 400; see also Howell v. Advantage RN, LLC, No. 17-CV-883, 2018

WL 3437123, at *7 (S.D. Cal. July 17, 2018) (“[The named plaintiff’s] interest is in

determining whether Defendant is employing an unlawful policy . . . . [She] is therefore

an adequate representative.”). And the broad freedom to contract does not include

services that are illegal. See Bicycle Transit Auth., Inc. v. Bell, 314 N.C. 219, 228, 333

S.E.2d 299, 305 (1985). Any class member who does not want to participate in the class

or receive any benefits from the class can opt out.

C. Rule 23(b)(3) Requirements

Predominance “tests whether proposed classes are sufficiently cohesive to warrant

adjudication by representation.” Amchem, 521 U.S. at 623. “An individual question is

one where members of a proposed class will need to present evidence that varies from

member to member, while a common question is one . . . [that] is susceptible to

generalized, class-wide proof.” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453

(2016) (cleaned up). “[C]ommon issues of liability may still predominate even when

some individualized inquiry is required.” Ealy v. Pinkerton Gov’t Servs., Inc., 514 F.

App’x 299, 305 (4th Cir. 2013); see also Krakauer v. Dish Network L.L.C. (“Krakauer

I”), 311 F.R.D. 384, 399 (M.D.N.C. 2015) (“Predominance . . . does not require all issues

to be common.” (cleaned up)); Gunnells v. Healthplan Servs. Inc., 348 F.3d 417, 429 (4th

Cir. 2003) (“[T]he need for individualized proof of damages alone will not defeat class

certification.”). “Predominance applies to damages because the efficiencies of the class

action mechanism would be negated if questions of individual damage calculations

overwhelm questions common to the class,” but “this does not mean that damages must

be susceptible of measurement across the entire class for purposes of Rule 23(b)(3).” In

re Zetia, 7 F.4th at 237 (cleaned up).

The superiority requirement looks at whether the class action “would achieve

economies of time, effort, and expense, and promote uniformity of decision as to persons

similarly situated.” Amchem, 521 U.S. at 615 (cleaned up). Superiority reflects the

policy at the core of class actions, which were designed to overcome the problem that

“small recoveries do not provide the incentive for any individual to bring a solo action

prosecuting his or her rights.” Cal. Pub. Emps’ Ret. Sys. v. ANZ Sec., Inc., 582 U.S. 497,

513 (2017). Class actions address “this problem by aggregating the relatively paltry

potential recoveries into something worth someone’s (usually an attorney’s) labor.”

Amchem, 521 U.S. at 617 (cleaned up).

Rule 23(b)(3) provides a non-exclusive list of factors for courts to consider in

deciding whether a class action meets the predominance and superiority requirements:

(A) the class members’ interests in individually controlling the prosecution

or defense of separate actions; (B) the extent and nature of any litigation

concerning the controversy already begun by or against class members; (C)

the desirability or undesirability of concentrating the litigation of the claims

in the particular forum; and (D) the likely difficulties in managing a class

action.

Fed. R. Civ. P. 23(b)(3); accord Thorn, 445 F.3d at 319.

1. Predominance

Courts look to the elements of the cause of action to decide if common questions

of law and fact predominate. Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804,

809 (2011). The elements of a UDTPA claim are: “(1) [the] defendant committed an

unfair or deceptive act or practice, (2) the action in question was in or affecting

commerce, and (3) the act proximately caused injury to the plaintiff.” Nobel v. Foxmoor

Grp., LLC, 380 N.C. 116, 120, 868 S.E.2d 30, 33 (2022); accord Custer v. Dovenmuehle

Mortg., Inc., No. 24-CV-306, 2024 WL 4528187, at *4 (M.D.N.C. Oct. 18, 2024).

Here, there is one overarching common question of fact and law: whether

Guardian acts as an “agent.” There are two more overarching common questions of law:

(1) whether Guardian is acting in violation of the accreditation statute when it prepares

and presents claim packets to the VA in exchange for compensation as an unaccredited

company; and (2) whether a violation of the accreditation statute constitutes a per se

violation of the UDTPA. If the case goes to trial, whether the facts found by the jury

constitute an unfair trade practice will be a common question of law. See Fortson v.

Garrison Prop. & Cas. Ins. Co., No. 19-CV-294, 2022 WL 198782, at *2 (M.D.N.C. Jan.

13, 2022).

These questions can be answered with common evidence of Guardian’s processes

for filing clients’ claims (both initial and non-initial), working with clients, and billing

clients. The evidence tends to show that Guardian follows uniform procedures and uses

similar contracts with all its clients such that answers to these questions will be applicable

to all putative class members. Docs. 52-1, 61, 73-8, 73-9, 73-10, 123. The case also has

a common defense, because Guardian claims that it does not act as an agent for any

client. Doc. 75-2 at 38–39, 73–75; see e.g., Doc. 53 at ¶¶ 35, 121, 154.

Guardian identifies several individual issues that it contends defeat predominance.

First, it points to the common law definition of agency and the need for individual

determinations on agency. Doc. 94 at 13. But the plaintiffs’ evidence shows that

Guardian interacted with and worked for the putative class members in a uniform manner

throughout the relationships based on its standard practices. Docs. 123, 61, 73-8, 73-9,

73-10. Guardian stipulates as much. Doc. 61. And the plaintiffs’ theory is based on

these common practices, not on proof that will vary from individual to individual. The

standard practices bear on the central issues of the litigation: whether Guardian’s actions

of charging fees and preparing claim packets without being accredited constitutes a

UDTPA violation. See EQT, 764 F.3d at 366 (stating that common practices that bear on

the central issue in the litigation support a finding of predominance).

Second, Guardian asserts that individual questions exist about whether the UDTPA

applies to each putative class member. Doc. 94 at 16–17. It contends that North Carolina

law will not govern the damages determination for out-of-state class members and that it

is questionable such out of state class members can even assert a UDTPA claim. Id. at

17–19. Whether North Carolina law will apply is another common question. Should

Guardian prevail on its argument that North Carolina law will not apply across the board,

the Court can revisit whether to modify the class definition.3

Third, Guardian contends, relying on terms in the contracts with putative class

members, that questions about whether the voluntary payment doctrine bars individual

putative class members’ damages defeat commonality and predominance. Id. at 19–22.

“Under the North Carolina doctrine of voluntary payment, a payment cannot be

recovered if it is voluntarily made by a person with full knowledge of all facts relevant to

the payment.” Boydell v. Wells Fargo Bank, N.A., 12-CV-35, 2013 WL 5462255, at *1

(W.D.N.C. Sept. 30, 2013). The doctrine serves as an affirmative defense. Id. But

Guardian does not explain how the evidence might differ from class member to class

3 As the plaintiffs point out, the choice of law provision in the contracts at issue is broad.

Moreover, Guardian has relied on terms in the contracts in its defenses and yet it now is saying

the terms of the contract do not matter. At some point, Guardian will have to choose whether to

rely on the contract terms or not. Am. Bankers Ins. Grp., Inc. v. Long, 453 F.3d 623, 627 (4th

Cir. 2006) (“Equitable estoppel rests on a simple proposition: it is unfair for a party to rely on a

contract when it works to its advantage, and repudiate it when it works to its disadvantage.”)

(cleaned up).

member and, as already discussed, the contracts included the same language and the

interactions between Guardian and its clients followed the same standard practices.

Docs. 52-1, 73-8, 73-9, 73-10. It seems likely that this will also raise a common question

of fact or law, not a raft of individual issues.

Fourth, Guardian contends that calculating damages will require a complicated

economic analysis that will significantly differ for each class member. Doc. 94 at 22–24.

But that argument assumes the Court will reject the plaintiffs’ proposed method of

damage calculation, by which a class member’s damages would be the amount the class

member paid or was obligated to pay Guardian. That is a straightforward and simple

formula that is unlikely to raise many individual disputes. See Gunnells, 348 F.3d at 429;

Ward, 595 F.3d at 180 (affirming class certification despite some individual damages

inquiries when “the formula for damages was identical for all class members”). Whether

the plaintiffs’ method of calculating damages is appropriate is another common question.

Even if the Court were to find the plaintiffs’ proposed method of calculating damages

inappropriate, that does not mean that Guardian’s complicated counter-proposal is the

only alternative. Actual damages need not be proven with mathematical certainty, Ridley

v. Wendel, 251 N.C. App. 452, 460, 795 S.E.2d 807, 814 (2016) (cleaned up), and there

are several uncomplicated class-wide possibilities for damage calculation that occur to

the Court. Any individual questions arising from the determination of damages can likely

be managed.

The plaintiffs have satisfied the predominance requirement.

2. Superiority

A class action is the superior method to resolve the plaintiffs’ UDTPA claims. The

type of injury the putative class members allegedly suffered is not a personal injury or

death of a loved one, where a plaintiff will ordinarily have “a substantial stake in making

individual decisions on whether and when to settle.” Amchem, 521 U.S. at 616. Here,

“the class members likely have little interest in controlling the litigation.” See Krakauer

I, 311 F.R.D. at 400.

Given the large number of class members, class-wide adjudication will be more

efficient. See Gunnells, 348 F.3d at 432–33; In re Warfarin Sodium Antitrust Litig., 391

F.3d 516, 534 (3d Cir. 2004). Adjudicating these claims in one forum will provide

flexibility, control, and consistency that would not exist with individual litigation. See

Fed. R. Civ. P. 23(b)(3)(C); Gunnells, 348 F.3d at 425, 433. And, as discussed supra, the

potential individual issues do not present great difficulties in managing the class. See

Fed. R. Civ. P. 23(b)(3)(D).

Absent a class action, each veteran who paid Guardian and wanted to challenge its

fees must bring an individual case or be joined in this action. These options are onerous,

inefficient, and a waste of court resources. A class action will allow finality for all

members of the UDTPA classes. Guardian also benefits, because without class

certification it faces the possibility of conflicting verdicts on what is essentially the same

issue.

Guardian does not raise any new superiority objections, instead contending that its

commonality and predominance objections on individual issues also show a lack of

superiority. Doc. 94 at 24–25. As already discussed, individual questions do not

predominate.

The Court has overseen many class actions. As these cases go, this one is pretty

simple. It has discrete dispositive common questions, and many of those questions are

likely to be resolved at summary judgment. If and when individual questions arise, it is

likely they can be managed fairly and efficiently.

The plaintiffs have satisfied the superiority requirement.

V. The Proposed NCDCA Class

A. Threshold Requirements

As noted supra, the proposed NCDCA class consists of:

NCDCA Class: All veterans who paid money to Defendant

after being sent an email invoice from Veterans Guardian in

connection with a claim for VA Disability Compensation that

is in substantially the same email invoice attached as Exhibit B

to the Consolidated Complaint.

Doc. 100 at 17 (amending proposed class definition).

During the relevant time, Ms. Ford, Mr. Beard, and Mr. Otters received invoices

demanding payment for Guardian’s services, and they each paid Guardian some of the

amount owed. Doc. 52-2; Doc. 73-8 at 6, 8; Doc. 73-9 at 6–7; Doc. 73-10 at 6–7.

Guardian sent Mr. Beard, Ms. Ford, and Mr. Otters at least one invoice during the class

period provided below. See Doc. 52-2. The plaintiffs are all members of the NCDCA

class, and Guardian does not contend otherwise.

The members of this putative class are ascertainable. They can be identified based

on the “objective criteria,” EQT, 764 F.3d at 358, of whether they were billed and then

paid at least a portion of the amount assed by Guardian for its services in on their claims

of VA disability compensation. Guardian maintains records of its clients’ names, contact

information, contracts, claims, invoices, and payment amounts, Doc. 75-1; Doc. 75-2 at

237-38; Doc. 52-1; Doc. 55-3 at 23, so those qualifications for class membership can be

readily determined through common records Guardian itself maintains.

Guardian contends that the original proposed NCDCA class includes members

who lack Article III standing, because putative class members who have not made any

payment lack a concrete injury. Doc. 94 at 28. But the plaintiffs have revised their

proposed NCDCA class definition to solve this potential problem, and the proposed class

now includes only those who have paid Guardian money. That change removes any

Article III standing concern. Doc. 100 at 17.

B. Rule 23(a) Requirements

1. Numerosity

There are thousands of members of the putative NCDCA class. Doc. 75-1.

Guardian does not dispute numerosity. Doc. 94 at 11 n.2.

Joinder of that many parties would be impracticable, raising the specter of many

lawsuits with individuals asserting different claims under different state or even federal

laws. Many class members would also be economically unmotivated to litigate their

claims or face challenges doing so because of their disabilities. Doc. 73-8 at 8; Doc. 73-9

at 6; Doc. 73-10 at 6. And judicial economy favors a class action over joinder. See In re

Zetia, 7 F.4th at 235.

The plaintiffs have satisfied the numerosity requirement.

2. Commonality

The plaintiffs identify several common questions that will drive the liability

decision in the putative NCDCA class. Doc. 73 at 20, 23. Just as with the UDTPA

classes, the key initial question requires statutory interpretation to determine whether

Guardian acts as an “agent” and thus must be accredited. If Guardian is an agent, another

common question follows: whether invoicing and collecting fees that violate the

Accreditation Statute constitutes a violation of the NCDCA.4 The plaintiffs have

satisfied the commonality requirement for the NCDCA class.

3. Typicality

All the class members have the same injury: imposition of illegal fees by an

unaccredited agent. The named plaintiffs each base their claims on violations of the

NCDCA through violation of the federal accreditation statute. Doc. 52 at ¶ 303; see

Lienhart, 255 F.3d at 146. Guardian followed consistent procedures with each of its

clients in billing them for the services. See docs. 52-2, 61, 73-8, 73-9, 73-10, 123. Ms.

Ford, Mr. Beard, and Mr. Otters each received invoices in the same manner and paid

Guardian at least some amount of money, and they can adequately represent all members

of the NCDCA Class. Doc. 52-2; Doc. 73-8 at 6–9; Doc. 73-9 at 6–7; Doc. 73-10 at 6–7.

4. Adequacy of Representation

The plaintiffs and their lawyers are adequate to represent the putative NCDCA

class for the reasons discussed above. See discussion supra at 12–13.

4 For the reasons stated in note 2, the common questions will be discussed in more detail

infra in connection with the predominance requirement.

C. Rule 23(b)(3) Requirements

1. Predominance

“All NCDCA claims require: (1) a consumer; (2) that owes a debt; (3) to a debt

collector.” Onnipauper LLC v. Dunston, 290 N.C. App. 486, 490, 892 S.E.2d 487, 491

(2023). The plaintiff must then establish the three general requirements for a Chapter 75

claim: “(1) an unfair act (2) in or affecting commerce (3) proximately causing injury.”

Davis Lake Cmty. Ass’n v. Feldmann, 138 N.C. App. 292, 296, 530 S.E.2d 865, 868

(2000); see N.C. Gen. Stat. § 75-1.1.

Here, there are two overarching common questions of law: (1) whether Guardian

acts as an “agent,” and thus must be accredited to legally act for veterans, and (2) whether

the action of invoicing and collecting fees that violate the Accreditation Statute

constitutes a violation of the NCDCA.

The first question is the same question that must be asked and answered in

connection with the UDTPA claims and will be answered with common evidence. See

discussion infra. So too is the second question: the evidence tends to show that Guardian

follows uniform procedures and uses similar invoices with all its clients such that

answers to these questions will be applicable to all putative class members. Docs. 52-2,

73-8, 73-9, 73-10. If one veteran is a consumer that owes a debt to a debt collector, that

answer will be the same for other veterans in the class. The case also has a common

defense, because Guardian claims it does not act as an agent for any client. Doc. 75-2 at

38–39, 73–75; see e.g., Doc. 53 at ¶¶ 35, 121, 154. Plaintiffs’ request for statutory

damages under the NCDCA also supports predominance. Doc. 52 at ¶ 314; N.C. Gen.

Stat. § 75-56(b); Krakauer II, 925 F.3d at 658.

Guardian makes the same arguments against commonality and predominance for

the NCDCA claim as they do for the UDTPA claim. Those arguments are not persuasive

for the reasons outlined above.

The plaintiffs have satisfied the predominance requirement.

2. Superiority

The plaintiffs have satisfied the superiority requirement on the NCDCA class for

the same reasons discussed in connection with the UDTPA claim.

VI. Class Definitions

The plaintiffs’ proposed class definitions did not include class periods with

beginning and ending dates. See Doc. 70 at 1; Doc. 100 at 17. The Court issued a text

order directing the parties to meet and confer about appropriate modifications to the class

definitions to include dates clarifying the class period in consideration of the statute of

limitations. Text Order 11/21/2025.

The parties submitted amended class definitions agreeing on the language except

as to the class period end-date. The parties agree that the four-year statute of limitations

applies to both the NCDCA and UDTPA claims and thus to the claims asserted by all

three classes. Doc. 129 at 3; Doc. 130 at 2–3; see also N.C. Gen. Stat. § 75-16.2. Thus

they agree that the classes should include persons who made payments to Guardian on or

after August 23, 2019, four years before the filing of the first complaint by Mr. Otters.

Doc. 129 at 3; Doc. 130 at 2–3; see also Patterson v. Veterans Guardian VA Claim

Consulting, LLC, No. 23-CV-762, Doc. 1-1 at 2.

The parties disagree on the end date. The plaintiff suggests the date the Court

enters the order approving class notice. Doc. 129 at 2. Guardian suggests the date the

Court enters the order granting class certification. Doc. 130 at 3.

The class period end date will be the date the Court enters the order approving

class notice because that date will include a larger group of those allegedly harmed and

will make it less likely another lawsuit is filed. “Terminating a class period on the date of

class notice is a common approach.” Heredia v. Sunrise Senior Living, LLC, No. 18-CV-

1974, 2024 WL 6910417, at *1 (C.D. Cal Feb. 12, 2024) (collecting cases).

The Court will certify the following classes:

(1) UDTPA Initial Claim Class: All veterans who made their

first payment to Veterans Guardian in connection with an initial

claim for VA Disability Compensation under a consulting

contract substantially similar to Exhibit A to the Consolidated

Complaint between August 23, 2019, and the date of this

Court’s order approving class notice.

(2) UDTPA Non-Initial Claim Class: All veterans who made

their first payment to Veterans Guardian in connection with a

non-initial claim for VA Disability Compensation under a

consulting contract substantially similar to Exhibit A to the

Consolidated Complaint between August 23, 2019, and the

date of this Court’s order approving class notice.

(3) NCDCA Class: All veterans who, between August 23,

2019, and the date of this Court’s order approving class notice,

were sent an invoice by Veterans Guardian in connection with

a claim for VA Disability Compensation in substantially the

same form as Exhibit B to the Consolidated Complaint and

who made a payment to Veterans Guardian.

VII. Appointment of Class Representatives and Class Counsel

The plaintiffs move to be appointed as class representatives, and they move for

appointment of the interim lead class counsel as class counsel. Doc. 70 at 2. As stated

supra at 8, 12–13, Mr. Beard is an adequate representative of the UDTPA initial claim

class, and Ms. Ford and Mr. Otters are adequate representatives of the UDTPA non-initial

claim class. And, as stated supra at 22, all three plaintiffs are adequate representatives of

the NCDCA class. Mr. Beard will be appointed class representative of the UDTPA initial

claim class, Ms. Ford and Mr. Otters will be appointed class representatives of the

UDTPA non-initial claim class, and all three plaintiffs will be appointed representatives

of the NCDCA class.

Plaintiffs’ interim lead class counsel, attorneys with Varnell & Warwick P.A. and

Berger Montague PC, are adequate representatives of the classes and are capable of

proceeding as class counsel. Mr. Otters and his individual counsel make no argument to

the contrary. Guardian makes no argument to the contrary. Plaintiffs’ interim lead class

counsel have extensive experience in consumer class actions, Doc. 51 at 3; Doc. 43-1 at

42-43, Doc. 43-2 at 4–8, and several among them have served as class counsel in other

cases in federal courts. See Doc. 43-1 at 42-43, Doc. 43-2 at 4, 7–8. The Court will

appoint Plaintiffs’ interim lead class counsel as class counsel for all three classes.

VIII. Conclusion

In its discretion, the Court will certify the three classes with the added class period

dates. Mr. Beard Ms. Ford, and Mr. Otters have met the threshold requirements. All

three classes are sufficiently numerous, and there are common questions likely to be

dispositive. The plaintiffs’ claims are typical of those of the class members, and they and

their counsel are adequate representatives. In all three classes, common questions

predominate, and a class action is the superior method of adjudication. Mr. Beard will be

appointed class representative of the UDTPA initial claim class, Ms. Ford and Mr. Otters

will be appointed class representatives of the UDTPA non-initial claim class, and all three

plaintiffs will be appointed representatives of the NCDCA class. Plaintiffs’ interim lead

class counsel will be appointed as class counsel for all three classes.

It is ORDERED that:

1. The plaintiffs’ motion for class certification, Doc. 70, is GRANTED.

2. The following classes are CERTIFIED:

a. UDTPA Initial Claim Class: All veterans who made

their first payment to Veterans Guardian in connection

with an initial claim for VA Disability Compensation

under a consulting contract substantially similar to

Exhibit A to the Consolidated Complaint between

August 23, 2019, and the date of this Court’s order

approving class notice.

b. UDTPA Non-Initial Claim Class: All veterans who

made their first payment to Veterans Guardian in

connection with a non-initial claim for VA Disability

Compensation under a consulting contract substantially

similar to Exhibit A to the Consolidated Complaint

between August 23, 2019, and the date of this Court’s

order approving class notice.

c. NCDCA Class: All veterans who, between August 23,

2019, and the date of this Court’s order approving class

notice, were sent an invoice by Veterans Guardian in

connection with a claim for VA Disability

Compensation in substantially the same form as Exhibit

B to the Consolidated Complaint and who made a

payment to Veterans Guardian.

3. Eric Beard is APPOINTED class representative of the initial UDTPA claim

class.

4. Jennifer Ford and Brian Otters are APPOINTED class representatives of

the non-initial UDTPA claim class.

5. Jennifer Ford, Eric Beard, and Brian Otters are APPOINTED class

representatives of the NCDCA class.

6. Plaintiffs’ interim lead class counsel, Christopher J. Brochu, Brian W.

Warwick, Janet R. Varnell, Pamela G. Levinson, and Varnell & Warwick

P.A. and Jeff Osterwise, Shanon J. Carson, Radha Nagamani Raghavan, and

Berger Montague PC are APPOINTED as class counsel for all three

classes.

7. The parties SHALL meet and confer about an appropriate class notice, any

needed modifications to the trial schedule, and any other logistical or

housekeeping matters raised as a result of this Order. No later than January

15, 2026, the parties SHALL file a Joint Submission on Class Notice and

Trial containing their joint proposal or, if they do not agree in full, dueling

proposals with short briefs directed to items of disagreement.

This the 30th day of December, 2025.

_ bog.

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