A class-action complaint accusing Burger King of misrepresenting the size of its Lateral sandwiches in advertising and in-store menu board is moving ahead after a national prosecutor declined, for a second day, to dismiss the case.
The petition, filed in U. S. District Court in Miami in March 2022, alleges that Burger King deceived customers by using pictures in its advertising and on in-store list board showing burger patties considerably larger than what were really served.
Lateral and Great King sandwiches in the advertisements were 35 % larger and double the foods that consumers received, the complaint alleges.
The images began appearing in 2017, the complaint says, replacing photographs that showed smaller burgers.
A spokeswoman for the Miami-based fast food chain said following the ruling, “The plaintiffs ’ claims are false. The flame-grilled meat burgers portrayed in our marketing are the same burgers used in the thousands of sandwiches we serve to visitors across the U. S. ”
U. S. District Judge Roy K. Altman said that at this stage of the case, he was required to believe that the defendants ’ claims were true. Under that notion, he said he agreed with the plaintiffs ’ assertion that Burger King’s “advertisements — when compared to another, similar ads — have a greater potential to deceive or fool fair customers. ”
Altman rejected Burger King’s demand that he follow the logic of two fits filed in New York by the same rules strong against Wendy’s and McDonald’s that were eventually dismissed by a prosecutor who found them “unreasonable and weakly pleaded. ”
While those meets also claimed that the eateries advertised their items with photos that looked more interesting than what consumers were served, they failed to say that the chains created a “misleading idea about the size of their meals ” by using more meat in their ads than they serve in their stores, Altman pointed out.
Those suits instead claimed that the chains created the ads using an identical amount of uncooked meat — a “concession ” that the New York court found “fatal” to the lawsuits ’ claims.
Altman’s ruling that the Burger King photos had “a greater capacity to deceive or mislead reasonable consumers ” than the photos in the other cases seemed more “definitive” than when he ruled against dismissing the case in 2023, said the lead plaintiffs attorney, Anthony Russo of the Boca Raton-based Russo Firm.
In the 2023 ruling, Altman said he favored leaving that “determination to the consumers themselves ” if the case proceeds to a jury.
Russo said the firm will next focus on certifying their case as a class-action claim, which could potentially attract tens of thousands of new plaintiffs.
After that takes place, the firm will proceed to the discovery phase, where it must prove its assertion that customers were deceived because the burger patties in the photos were larger than what Burger King served, Russo said.
___
© 2025 South Florida Sun Sentinel.
Distributed by Tribune Content Agency, LLC.
