A class-action lawsuit accusing Burger King of misrepresenting the size of its Whopper sandwiches in advertisements and in-store menu boards is moving forward after a federal judge declined, for a second time, to dismiss the case.

The lawsuit, filed in U.S. District Court in Miami in March 2022, alleges that Burger King deceived customers by using photos in its ads and on in-store menu boards showing burger patties substantially larger than what were actually served.

Whopper and Big King patties in the ads were 35% larger and double the meat that consumers received, the lawsuit alleges.

The photos began appearing in 2017, the lawsuit says, replacing photos that showed smaller patties.

A spokesperson for the Miami-based fast food chain said following the ruling, “The plaintiffs’ claims are false. The flame-grilled beef patties portrayed in our advertising are the same patties used in the millions of burgers we serve to guests across the U.S.”

U.S. District Judge Roy K. Altman said that at this stage of the case, he was required to assume that the plaintiffs’ claims were true. Under that assumption, he said he agreed with the plaintiffs’ assertion that Burger King’s “advertisements — when compared to other, similar advertisements — have a greater capacity to deceive or mislead reasonable consumers.”

Altman rejected Burger King’s request that he adopt the reasoning of two suits filed in New York by the same law firm against Wendy’s and McDonald’s that were ultimately dismissed by a judge who found them “unreasonable and inadequately pleaded.”

While those suits similarly claimed that the restaurants advertised their products with pictures that looked more appealing than what customers were served, they failed to claim that the chains created a “misleading impression 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.

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