Clearing the Smoke: Plaintiff Counsel’s Advertising Defeats Class Certification Attempt in the Northern District of Illinois

In Clark v. Blue Diamond Growers, No. 1:22-cv-01591, 2026 WL 483275 (N.D. Ill. Feb. 20, 2026), the Northern District of Illinois denied class certification, holding that the lead plaintiff was an inadequate class representative because she was subject to a unique proximate cause defense.

Plaintiff Margo Clark alleged that Blue Diamond Growers deceived Illinois consumers by marketing its almonds as “smokehouse” despite using artificial smoke flavor. Clark sought to certify a class of Illinois purchasers under the Illinois Consumer Fraud Act (“ICFA”). During discovery, however, it emerged that Clark had seen a Facebook advertisement from plaintiff’s counsel identifying the purported defect and inviting affected consumers to sign up. Id. at 2. Despite this knowledge, Clark continued purchasing the almonds for over a year. Id.

Under Rule 23(a)(4), a class may be certified only if the representative parties will “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In the Seventh Circuit—like most other Circuits—a named plaintiff may not be an adequate representative if she is subject to a defense that could not be sustained against other class members. CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 725 (7th Cir. 2011); see, e.g., Romberio v. UnumProvident Corp., 385 F. App’x 423, 431 (6th Cir. 2009) (collecting Second, Third, and Ninth Circuit cases); Golan v. Veritas Ent., LLC, 788 F.3d 814, 821 (8th Cir. 2015). The defense need not be dispositive—“[t]he presence of even an arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the class as well as bring into question the adequacy of the named plaintiff’s representation.” CE Design Ltd., 637 F.3d at 726.

Applying this framework, the court in Clark concluded that Blue Diamond had at least an arguable proximate cause defense unique to Clark where her deposition testimony indicated that she may have had knowledge of the alleged defect through litigation advertising but continued to purchase the product. Clark, 2026 WL 483275, at *2 (a plaintiff cannot establish proximate cause where she “knows the truth and as such, is not deceived”).

The court found Plaintiff counsel’s attempt to rehabilitate the claim insufficient at the class certification stage where it created “at best” a dispute of fact as to proximate cause Id. at *3. A unique defense need only be “arguable” to defeat adequacy, and where the weight of the evidence supported Blue Diamond’s position, “the defense is certainly arguable.” Id. Therefore, because adjudication of Clark’s claim would implicate a unique defense, the putative class failed under Rule 23(a)(4).