The class action lawsuit accusing Hamburger King of misrepresenting the ads and the size of an in-store menu board is moving forward after a federal judge refused a second lawsuit.
The lawsuit filed in US District Court in Miami in March 2022 alleges Burger King used photos of the ads to deceive customers and on an in-store menu board that showed burger pate significantly larger than what was actually offered.
The ad Whopper and Big King Pate have largely doubled the meat that consumers received by 35%, the lawsuit alleges.
The photo began to appear in 2017, according to the lawsuit, which replaced a photo showing a small putty.
A spokesman for the Miami-based fast food chain said following the ruling: “The plaintiff’s claims are false. The flame beef pate depicted in the ad is the same pate used in millions of burgers serving guests across the United States.”
US District Judge Roy K. Altman said at this stage of the case it is necessary to assume that the plaintiff’s claims are true. Under that assumption, he said he agreed with the plaintiff’s claim that Burger King’s “highly capable of deceiving or misleading reasonable consumers when compared to other, similar advertisements.”
Altman rejected Burger King’s request to adopt the reasoning of two lawsuits filed in New York by the same law firm against Wendy’s and McDonald’s.
Similarly, these suits claimed that restaurants advertised their products in pictures that looked more appealing than what customers were offered, but the chain did not argue that using more meat than they serve in the store produced a “misleading impression of the size of the meal,” Altman pointed out.
Instead, these lawsuits alleged that the chain used the same amount of uncooked meat to create the ads. This is a “concession” in which a New York court found “fatal” in its lawsuit allegations.
Altman’s ruling “has the ability to deceive or mislead rational consumers” than the photos of other cases seem “more “definitive” than when they refused to dismiss the case in 2023, Prime Minister Anthony Russo, a Boca Raton-based Russo company, said.
In a 2023 ruling, Altman said he prefers to leave “the consumers themselves with resolve” if the case proceeds to ju-jury.
Russo said the company will then focus on certifying the lawsuit as a potential class claim that could attract tens of thousands of plaintiffs.
After that was done, the company must proceed to the discovery phase and prove that the customer was cheated, as the burger pate in the photo was larger than what Burger King offered, Russo said.
Ron Burtibise covers South Florida Sun Sentinel’s business and consumer issues. He can be contacted by telephone at 954-356-4071 or by email at rhurtibise@sunsentinel.com.
Original release: May 7, 2025 8am EDT
