Coleman et al v. Burger King Corporation

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 22-cv-20925-ALTMAN/Reid
WALTER COLEMAN, et al.,
Plaintiffs,
v.
BURGER KING CORPORATION,
Defendant.
_______________________________/
ORDER ON CLASS CERTIFICATION
Our Plaintiffs have brought this putative class action “against Defendant, Burger King
Corporation (‘BKC’), on behalf of themselves and all other similarly situated individuals who
purchased a Burger King menu item based on false and misleading advertising concerning the size
and/or the amount of ingredients contained in said menu item.” Second Amended Complaint
(“SAC”) [ECF No. 69] ¶ 1. Having allowed the Plaintiffs’ allegations to survive two motions to dismiss
(“MTDs”), see Coleman v. Burger King Corp., 2023 WL 5507730 (S.D. Fla. Aug. 25, 2023) (Altman, J.)
(“Coleman I”) [ECF No. 61]; Coleman v. Burger King Corp., 2025 WL 1294605 (S.D. Fla. May 5, 2025)
(Altman, J.) (“Coleman II”) [ECF No. 83], we turn now to the Plaintiffs’ Motion for Class Certification
(the “Motion”) [ECF No. 44]. BKC argues that class certification would be improper because the
Plaintiffs’ claims don’t turn on common questions of law and fact, aren’t typical of the absent class
members’ claims, and don’t satisfy the strictures of Rule 23(b)(3). See generally Memorandum in
Opposition to Class Certification (the “Response”) [ECF No. 48]. After careful review, we DENY
the Plaintiffs’ Motion.
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BACKGROUND
Relying on the Plaintiffs’ allegations that BKC materially overstates the size of its burgers in
its advertisements, the Motion asks us to certify three nationwide classes: (1) a Florida Deceptive and
Unfair Trade Practices Act (“FDUTPA”) class; (2) a breach-of-contract class under Florida common
law; and (3) an unjust-enrichment class under Florida common law. 1 See Motion at 8–9; see also SAC ¶
33 (“Burger King advertises its burgers as large burgers compared to competitors and containing
oversized meat patties and ingredients that overflow over the bun to make it appear that the burgers
are approximately 35% larger in size, and contain more than double the meat, than the actual burger.”).
Our Plaintiffs claim that “Burger King began to materially overstate the size of its burgers in its
advertisements in September 2017,” before which, they say, BKC advertised the Whopper “more
fairly.” Id. ¶ 8. The Plaintiffs each allege that they purchased a burger because of BKC’s advertising, and
they insist that they wouldn’t have bought those burgers if BKC had accurately portrayed the size of
its burgers. See, e.g., id. ¶ 32 (“Mr. Coleman purchased a Whopper and a Big King at a Burger King
store located in the state of Florida. Mr. Coleman expected the burgers that he purchased to be similar
in size to the pictures of the burgers in Burger King’s advertisements and on Burger King’s store menu
ordering board. However, the size of the burgers that Mr. Coleman received were much smaller than
1 The Plaintiffs didn’t ask us to certify a Florida-only class for 	their 	claims of negligent
misrepresentation, despite alleging a negligent-misrepresentation violation in their First and Second
Amended Complaints. See generally Motion. BKC argues that this omission means we shouldn’t certify
a negligent-misrepresentation class. See Response at 24 n.9 (“Plaintiffs’ [First Amended Complaint]
pleads a claim for negligent misrepresentation. Plaintiffs’ motion for class certification did not address
this claim. Accordingly, Plaintiffs apparently concede that the claim is not appropriate for class
treatment.”). The Plaintiffs didn’t respond to this argument. See generally Reply in Support of Class
Certification (the “Reply”) [ECF No. 51]. The Plaintiffs have thus forfeited any argument they could
have advanced in support of a negligent-misrepresentation class, so we won’t consider the potential
certification of that class here. See, e.g., Justice v. Rheem Mfg. Co., 318 F.R.D. 687, 692 n.2 (S.D. Fla. 2016)
(Dimitrouleas, J.) (“As Plaintiffs purportedly only seek to certify a damages class, Defendant argues
that Plaintiffs have waived their right to certify a declaratory or injunctive relief class. Plaintiffs have
not responded to this argument. The Court agrees with Defendant, and will analyze the class
certification motion as to only the FDUTPA and Unjust Enrichment claims.”).
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advertised and he was financially damaged as a result. If Mr. Coleman knew that said burgers were
much smaller than advertised, he would not have purchased the burgers.”). If we don’t certify their
proposed nationwide classes, the Plaintiffs ask us to certify “state classes under the laws for . . . Florida,
New York, Illinois, New Jersey, California, Connecticut, Massachusetts, Michigan, Kentucky,
Mississippi, Ohio, Pennsylvania, or Arizona.” Motion at 9.
After the Plaintiffs moved for class certification, BKC filed two MTDs, both of which we
have adjudicated. In adjudicating BKC’s First MTD [ECF No. 20], we agreed with BKC that Count I
of the Plaintiffs’ First Amended Complaint (“FAC”) [ECF No. 18] violated federal pleading standards
because the Plaintiffs tried to cram “fifty different state (and DC) consumer-protection statutes” into
one cause of action—so we dismissed Count I with leave to amend. Coleman I, at *2. On September
14, 2023, the Plaintiffs filed the SAC, which separated the FAC’s Count I into eleven separate state
consumer-protection claims. See SAC ¶¶ 70–224. BKC responded with its second MTD, which we
denied, reasoning that the Plaintiffs had sufficiently alleged that their experiences, as recounted in the
SAC, gave rise to potentially viable claims against BKC. See generally Coleman II.
On June 2, 2025, we held a status conference with the parties during which we noted that,
given our adjudication of the MTDs, “a lot has changed” since the Plaintiffs filed their class-
certification motion. Status Hearing Transcript [ECF No. 92] at 4. We therefore asked the Plaintiffs
whether, considering these changes, they wanted to re-brief their class-certification request. See ibid.
The Plaintiffs declined and insisted that “the class cert. motion is okay to rule on if we can.” Ibid. We’ll
therefore adjudicate the Motion as it stands today.2
T HE LAW
Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. See F ED . R. CIV .
2 During that same status hearing, the Plaintiffs also agreed to limit their proposed classes to
purchasers of the Whopper and the Big King only. See Status Hearing Transcript at 5.
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P. 23. “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must
affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
350 (2011). For a district court to certify a class, the proposed class “must meet each of the
requirements specified in Federal Rule of Civil Procedure 23(a)” and “at least one of the requirements
set forth in Rule 23(b).” Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004) (cleaned up). Plus,
“a district court must decide that a class is ascertainable before it may turn to the requirements of Rule
23(a).” Cherry v. Dometic Corp., 986 F.3d 1296, 1303 (11th Cir. 2021).
Rule 23(a) “ensures that the named plaintiffs are appropriate representatives of the class whose
claims they wish to litigate.” Dukes, 564 U.S. at 349. Under Rule 23(a), a district court may certify a
class only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there
are questions of law or fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the interests of the class.
F ED . R. CIV. P. 23(a)(1)–(4). These four requirements—commonly referred to as “numerosity,
commonality, typicality, and adequacy of representation”—are “designed to limit class claims to those
fairly encompassed by the named plaintiffs’ individual claims.” Valley Drug Co. v. Geneva Pharms., Inc.,
350 F.3d 1181, 1188 (11th Cir. 2003). A class “may only be certified if the trial court is satisfied, after
a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Sw. v.
Falcon, 457 U.S. 147, 161 (1982).
Before the court can certify a proposed class, the plaintiffs must also establish that the class
satisfies at least one of Rule 23(b)’s three requirements. See Little v. T-Mobile USA, Inc., 691 F.3d 1302,
1304 (11th Cir. 2012). Rule 23(b) sets forth three types of class actions. See F ED . R. CIV . P. 23(b)(1)–
(3). Our Plaintiffs seek class certification under Rule 23(b)(3), see Motion at 13, which allows a district
court to certify a class only if “the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a class action
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is superior to other available methods for fairly and efficiently adjudicating the controversy,” F ED . R.
CIV . P. 23(b)(3). “Although the trial court should not determine the merits of the plaintiffs’ claim at
the class certification stage, the trial court can and should consider the merits of the case to the degree
necessary to determine whether the requirements of Rule 23 will be satisfied.” Valley Drug Co., 350
F.3d at 1188 n.15 (citing Falcon, 457 U.S. at 160). And so, “sometimes it may be necessary for the court
to probe behind the pleadings before coming to rest on the certification question.” Falcon, 457 U.S. at
160.
“All else being equal, the presumption is against class certification because class actions are an
exception to our constitutional tradition of individual litigation. A district court that has doubts about
whether the requirements of Rule 23 have been met should refuse certification until they have been
met.” Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233–34 (11th Cir. 2016) (cleaned up).
ANALYSIS
The Plaintiffs’ three claims are all based on one overarching contention—that BKC customers
were deceived into purchasing BKC menu items “based on false and misleading advertising
concerning the size and/or the amount of ingredients contained in said menu item[s].” SAC ¶ 1. At
the MTD stage, the Plaintiffs benefited from our deferential standard of review. See Coleman II, at *7
(“We must accept the facts alleged in the Plaintiffs’ SAC as true and draw all reasonable inferences in
the Plaintiffs’ favor[.]” (cleaned up)); see also id. at *9 (“We explained that the Plaintiffs had ‘adequately
(if just barely)’ met Rule 9(b)’s heighted standard for fraud-based claims[.]” (quoting Coleman I, at *9));
id. at *11 (“This is another close call, but we think the Plaintiffs have barely stated a claim here.”). On
a motion for class certification, though, the Plaintiffs are no longer entitled to a “mere pleading
standard” and must “affirmatively demonstrate” their compliance with each element of Rule 23.
Dukes, 564 U.S at 350.
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BKC contends that the Plaintiffs have failed to satisfy both Rule 23(a)’s commonality and
typicality requirements and Rule 23(b)(3)’s predominance and superiority requirements. See generally
Response. We agree that the Plaintiffs haven’t carried their Rule 23 burden. Because the Plaintiffs
have plainly failed to show that common issues predominate in this case, we’ll start our analysis there.
I. 	Rule 23(b)(3)
Under Rule 23(b)(3), a party may proceed with a class action if “the court finds that the
questions of law or fact common to class members predominate over any questions affecting only
individual members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” F ED . R. CIV . P. 23(b)(3).
“Common issues of fact and law predominate if they have a direct impact on every class
member’s effort to establish liability and on every class member’s entitlement to injunctive and
monetary relief.” Klay, 382 F.3d at 1255 (cleaned up). A proposed class isn’t suitable for certification
if, “after adjudication of the classwide issues, plaintiffs must still introduce a great deal of
individualized proof or argue a number of individualized legal points to establish most or all of the
elements of their individual claims.” Ibid. Under Rule 23(b)(3), plaintiffs also bear the burden of
“establishing that damages are capable of measurement on a classwide basis.” Comcast Corp. v. Behrend,
569 U.S. 27, 35 (2013).
In assessing the Rule 23(b)(3) superiority requirement, a district court should consider:
(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.
F ED . R. CIV. P. 23(b)(3)(A)–(D). The predominance analysis “has a tremendous impact on the
superiority analysis” because “the more common issues predominate over individual issues, the more
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desirable a class action lawsuit will be as a vehicle for adjudicating the plaintiff’s claims.” Sacred Heart
Health Sys., Inc. v. Humana Mil. Healthcare Servs., Inc., 601 F.3d 1159, 1184 (11th Cir. 2010) (cleaned up).
a. 	Individual Questions of Law Predominate
When plaintiffs seek certification of a nationwide or multi-state class, they bear the burden of
demonstrating that “variations in state law” don’t threaten to “swamp any common issues and defeat
predominance.” Klay, 382 F.3d at 1261; see also Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 725
(11th Cir. 1987) (upholding district court denial of certification where “differing standards of liability
required by the laws of the various states would render class action treatment unmanageable”); see also
Sacred Heart, 601 F.3d at 1180 (“Undeniably, it falls to the plaintiff to demonstrate the homogeneity
of different states’ laws, or at least to show that any variation they contain is manageable.”). “In cases
implicating the law of all fifty states,” such as nationwide class actions, “the party seeking certification
must provide an extensive analysis of state law variations to reveal whether these pose insuperable
obstacles.” Sacred Heart, 601 F.3d at 1180. It’s our duty to determine “whether the plaintiffs have borne
their burden where a class will involve multiple jurisdictions and variations in state law.” Ibid. (cleaned
up); see also Townhouse Rest. of Oviedo, Inc. v. NuCO2, LLC, 2020 WL 5440581, at *6 (S.D. Fla. Sept. 9,
2020) (Rosenberg, J.) (“Plaintiffs’ failure to show the absence of conflicts among other states’ laws is
fatal to certifying a nationwide class.”). “[W]here the laws of fewer than all fifty states are at issue, it is
clear that more than a perfunctory analysis is required.” Sacred Heart, 601 F.3d at 1180. The Plaintiffs
have failed to meet this burden for any of their proposed classes.
i. 	The FDUTPA Class
The Plaintiffs seek certification of a nationwide FDUTPA class. See Motion at 9–10. They
argue that the application of FDUTPA to a nationwide class is appropriate because “Burger King’s
significant contacts to the state of Florida make application of Florida law constitutional, and Florida’s
‘most significant relationship’ test warrants the application of Florida law.” Motion at 14. We disagree.
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Courts in our Circuit have routinely held that we apply the consumer-protection laws of the
state in which the sale of the product occurred. See Karhu v. Vital Pharms., Inc., 2014 WL 815253, at
*10 (S.D. Fla. Mar. 3, 2014) (Cohn, J.), aff’d, 621 F. App’x 945 (11th Cir. 2015) (“[T]he Court concludes
that the state with the most significant relationship to each class member’s claim is the state where the
individual purchased [the item]. This conclusion is buttressed by the interest each state has in enforcing
its unfair trade practices laws for the well-being of its own consumers.” (citations omitted)); see also
Rebman v. Follett Higher Educ. Grp., Inc., 248 F.R.D. 624, 632 (M.D. Fla. 2008) (Antoon II, J.) (“[T]he
laws governing unfair and deceptive trade practices at the site of the sale would control. Because the
laws of different states regarding unfair trade practices would control depending on the state in which
the purchase at issue was made, [Plaintiffs] have not met their burden of establishing that common
questions of law would predominate as to a FDUTPA nationwide class.”). To each Plaintiff’s
consumer-protection claim, in other words, we must apply the consumer-protection law of the state
in which that Plaintiff purchased either a Whopper or a Big King.
And, as we’ve said, because the Plaintiffs are seeking to certify a nationwide class, they bear
the burden of “provid[ing] an extensive analysis of state law variations to reveal whether these pose
insuperable obstacles.” Sacred Heart, 601 F.3d at 1180. But the Plaintiffs’ Motion doesn’t provide us
with any analysis of potential state-law conflicts. They’ve thus utterly failed to meet their burden of
showing that common issues of law predominate in their proposed nationwide FDUTPA class.
In the alternative, the Plaintiffs ask us to certify classes “under Florida, New York, Illinois,
New 	Jersey, 	California, 	Connecticut, 	Massachusetts, 	Michigan, 	Kentucky, 	Mississippi, 	Ohio,
Pennsylvania, and Arizona law.” Motion at 16. Again, however, the Plaintiffs fail to show that, even
as to these states, common questions of law predominate. The burden on the Plaintiffs, “where the
laws of fewer than all fifty states are at issue,” is to provide “more than a perfunctory analysis.” Sacred
Heart, 601 F.3d at 1180. The Plaintiffs haven’t met that burden. Their “analysis” on this issue, in fact,
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is just one sentence long. “A trial on these common laws,” they assert in the most conclusory way,
“will be easily managed and a jury can easily be instructed on the variances in any law.” Motion at 16
(citation omitted). That’s it. No side-by-side comparison of what these variances might be, no citations
to any of the relevant statutes or the cases interpreting them, no discussion of the various laws’
elements, no explanation of how difficult it might be to instruct the jury on the “variance in any law.”
This isn’t even a perfunctory analysis—it’s no analysis at all. The Plaintiffs have therefore fallen well
short of their burden to certify their proposed consumer-protection classes.3
ii. 	The Breach-of-Contract Class
The Plaintiffs also ask us to certify a nationwide breach-of-contract class under Florida
common law on the theory that the “Defendant breached its sales contracts with Plaintiffs and
similarly situated customers who purchased an Overstated Menu Item.” SAC ¶ 228. We should apply
Florida common law, the Plaintiffs say, to the millions of people who have purchased BKC products
in all fifty states because (in their view) Burger King’s significant Florida contacts justify the nationwide
application of Florida law. See Motion at 14. But, as BKC observes, the Plaintiffs misstate Florida law.
Under Florida law, breach-of-contract claims are governed by the law of the state in which the contract
was made. See Slam Dunk I, LLC v. Conn. Gen. Life Ins. Co., 853 F. App’x 451, 453 (11th Cir. 2021)
(“Florida follows the rule of lex loci contractus in determining which law applies to a breach-of-contract
claim. Under this theory, in the absence of a contractual provision specifying the governing law, a
contract . . . is governed by the law of the state in which the contract is made.” (cleaned up)); see also
Fioretti v. Mass. Gen. Life Ins. Co., 53 F.3d 1228, 1235 (11th Cir. 1995) (“When resolving conflict-of-
3 In Coleman II, we found that ten of the eleven states identified in Counts 1–11 of the SAC applied
the reasonable-consumer test to their consumer-protection laws. See Coleman II, at *4. But the Plaintiffs
declined the opportunity to amend their Motion to explain whether this commonality was sufficient
to establish that common questions of law predominate. See Status Hearing Transcript at 4. At any
rate, as we’ll discuss below, the Plaintiffs’ Motion suffers from other infirmities that prevent us from
certifying their requested classes.
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laws issues in contract actions, the Florida Supreme Court has unambiguously indicated its intent to
reject the more modern (and flexible) significant contacts analysis of the second Restatement of the
law of conflicts . . . choosing instead to adhere to the traditional rule of lex loci contractus.” (cleaned up)).
And there’s no dispute that, “[i]n the case of a consumer product, the place of contracting is generally
where the consumer purchased the product”—here, the state where each putative plaintiff purchased
his or burger. Karhu, 2014 WL 815253, at *7 (citing David v. Am. Suzuki Motor Corp., 629 F. Supp. 2d
1309, 1316 (S.D. Fla. 2009) (Gold, J.)). For the Plaintiffs’ nationwide breach-of-contract class,
therefore, the Plaintiffs bear the burden of “provid[ing] an extensive analysis of state law variations to
reveal whether these pose insuperable obstacles.” Sacred Heart, 601 F.3d at 1180.
Again, however, they’ve failed to meet that burden. The Plaintiffs don’t even pretend to
analyze the various states’ contract laws. See Motion 17–18. This lack of analysis is particularly
troubling here because this isn’t a case in which, for instance, the proposed class members all signed
the same form contract—the kind of case where, as we once observed, a “breach is a breach is a breach,
whether you are on the sunny shores of California or enjoying a sweet autumn breeze in New Jersey.”
Verbal v. Tiva Healthcare, Inc., 2021 WL 9527858, at *7 (S.D. Fla. Aug. 19, 2021) (Altman, J.). In our
case, to decide whether an individual Plaintiff entered into a contract with BKC based on the specific
menu-board images, we would need to analyze each state’s breach-of-contract laws. In Coleman I, we
found “that a reasonable person could have viewed Burger King’s in-store depictions of its menu items
as offers” under Florida law (thus allowing the Plaintiffs to survive two MTDs). Coleman I, at *7; see
also Coleman II, at *8 (“The Plaintiffs’ breach-of-contract claim remains viable because they allege that
the food they received didn’t resemble the images on Burger King’s store ordering board.” (cleaned
up)). But we made no such determination as to any other state’s laws—and the Plaintiffs have wholly
failed to address this issue.
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Alternatively, the Plaintiffs ask us to certify breach-of-contract sub-classes under the laws of
thirteen states. See Motion at 9. But, as with their proposed FDUTPA sub-classes, the Plaintiffs haven’t
performed even a perfunctory analysis of these states’ contract laws. Because the Plaintiffs haven’t
come close to meeting their burden of showing that we could easily manage the variations in the
relevant states’ contract laws, we deny their request to certify their proposed state sub-classes.
iii. 	The Unjust-Enrichment Class
Finally, the Plaintiffs seek certification of a nationwide unjust-enrichment class because (in
their view) “[i]t would be inequitable and unconscionable for Defendant to retain the profit, benefit,
and other compensation they obtained from the deceptive, misleading, unfair and unlawful conduct
alleged herein.” SAC ¶ 243. If we decline to certify a nationwide unjust-enrichment class, the Plaintiffs
request that we certify several state sub-classes. See Motion at 9. In support of their request for class
certification, the Plaintiffs claim that “Burger King deceived consumers nationwide through uniform
advertisements. Certification of a nationwide unjust enrichment class is entirely consistent with the
practice in this District, and is warranted when Burger King has unjustly profited from its decision to
falsely advertise the size of its burgers to consumers throughout the country.” Motion at 18–19.
Again, however, the Plaintiffs have failed to “demonstrate the homogeneity of different states’
laws, or at least to show that any variation they contain is manageable.” Sacred Heart, 601 F.3d at 1180.
All they say this time is that “nationwide unjust enrichment classes are easily suitable for certification
because there is general agreement among courts that the minor variations in the elements of unjust
enrichment under the laws of the various states are not material and do not create an actual conflict.”
Motion at 17 (citing In re Checking Acct. Overdraft Litig., 307 F.R.D. 630, 675 (S.D. Fla. 2015) (King, J.)).
But BKC counters that there are “sharp variations in the unjust enrichment laws of the states in which
the Plaintiffs reside,” citing cases from our Circuit in which courts have refused to certify unjust-
enrichment classes because of differences in the various states’ application of that cause of action.
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Response at 24 (first citing Petersen v. Am. Gen. Life Ins. Co., 2017 WL 11576347, at *3 (M.D. Fla. July
21, 2017) (Davis, J.); and then citing Carrera v. UPS Supply Chain Sols., Inc., 2012 WL 12860910, at *7
(S.D. Fla. Sept. 21, 2012) (Lenard, J.)). In Carrera, the court found that the “[p]laintiffs have failed to
meet their burden of showing sufficient uniformity in state [unjust-enrichment] law so as to satisfy
Rule 23(b)(3)’s predominance and superiority requirements”—even though the plaintiffs there had
“filed appendices surveying the law of unjust enrichment in forty-nine states plus the District of
Columbia.” 2012 WL 12860910, at *5.
Our Plaintiffs have done far less than that. Again, they haven’t cited a single state’s unjust-
enrichment cases, outlined the elements of any state’s unjust-enrichment cause of action, compared
(or contrasted) the differences between the various states’ unjust-enrichment laws, or explained how
we might overcome any such differences in our jury instructions. Because they’ve thus failed to carry
their burden of demonstrating that common questions of law predominate, we won’t certify their
proposed unjust-enrichment classes.
***
The Plaintiffs have failed to show that common questions of law predominate in any of their
nationwide classes, and they haven’t met their burden of demonstrating that common questions of
law would predominate if we allowed them to certify thirteen state sub-classes.4 Because the Motion
asks us to certify the proposed classes under Florida law, we could (at our discretion) excise the other
states from the proposed class definitions and proceed with Florida-only classes if we believed that
these classes would satisfy the other strictures of Rule 23. But, as we’ll discuss below, the Plaintiffs
have failed to show that common questions of fact predominate, that damages are calculable on a
4 In Reply, the Plaintiffs argue that “[t]his class action only arguably implicates differing state laws as
to Defendant’s affirmative defenses.” Reply at 11. But the Plaintiffs bear the burden of showing that
“variations in state law” don’t threaten to “swamp any common issues and defeat predominance.”
Klay, 382 F.3d at 1261. They haven’t done that and haven’t given us any reason to believe that the
variations between these laws is limited only to BKC’s affirmative defenses.
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class-wide basis, that they’ve met Rule 23(b)(3)’s superiority requirement, or that they’ve satisfied Rule
23(a)’s commonality requirement.5
b. 	Individual Questions of Fact Predominate
To establish that common questions of fact predominate, a plaintiff must show that “the issues
in the class action that are subject to generalized proof, and thus applicable to the class as a whole, [ ]
predominate over those issues that are subject only to individualized proof.” Rutstein v. Avis Rent-A-
Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir. 2000). Common issues do not predominate if, “as a
practical matter, the resolution of an overarching issue breaks down into an unmanageable variety of
individual legal and factual issues.” Babineau v. Fed. Express Corp., 576 F.3d 1183, 1191 (11th Cir. 2009)
(citation omitted).
The Plaintiffs tell us that that the predominant common questions are “[w]hether BKC’s
advertisements are misleading, and whether this was material to average consumers,” and they insist
that these common questions are “subject to common proof.” Motion at 18. But BKC believes that
common issues of fact don’t predominate—and it feels this way for several reasons. First, it says, the
Plaintiffs lack common evidence. See Response at 15 (“They do not identify any photo or group of
photos that the 19 Plaintiffs all saw [ ], nor do they present a shred of proof that any photo (much less
every photo) used a different beef patty than guests receive in Burger King restaurants—which no
photo did—or offer any surveys or other evidence demonstrating how they would go about proving
that any customer, all customers, or the average customer, has been misled.”). Second, it argues that the
Plaintiffs can’t prove causation for their FDUTPA claim. See id. at 17 (“FDUTPA’s causation and
damages requirements mean all putative class members must prove individually that they bought
hamburgers from Burger King because they saw a photo of the burger before they ordered it[.]”).
5 The Plaintiffs’ failure to meet several other elements of Rule 23 (as documented below) is sufficient
to dismiss all the Plaintiffs’ proposed classes—even if they had shown that common issues of law
predominate.
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Third, it contends that many proposed class members are subject to an arbitration clause and a class-
action waiver. See id. at 13–14. Fourth, it insists, the Plaintiffs cannot prove that every class member
relied on any advertisement in a way that would create a valid contract or to a degree that would render
BKC’s retention of a benefit unjust. See id. at 20 (“[P]roving which photo any particular plaintiff relied
upon to a degree sufficient to create a contract—or whether the circumstances of a class member’s
purchase would make BKC’s retention of a benefit from that class member ‘unjust’—would require
individual inquiry.”). Fifth, it argues that the Plaintiffs have failed to meet their evidentiary burden of
providing a class-wide damages methodology. See id. at 20 n.7. Because these issues affect each
substantive claim differently, we’ll analyze the Plaintiffs’ proposed Florida classes separately.
i. 	The FDUTPA Class
To assert a claim under FDUTPA, a plaintiff must show “(1) a deceptive act or unfair practice;
(2) causation; and (3) actual damages.” Figueredo v. Tropicale Foods, LLC, 2024 WL 1462404, at *2 (S.D.
Fla. Apr. 4, 2024) (Altman, J.) (quoting Carriuolo v. Gen. Motors Co., 823 F.3d 977, 985–86 (11th Cir.
2016)).
1. 	The Plaintiffs Lack Common Evidence
The Plaintiffs base their FDUTPA claim on their allegation that class members were served a
smaller burger than BKC had advertised. See Motion at 9 (“Specifically, Plaintiffs allege that Burger
King materially overstates the size and/or amount of the beef patties and toppings in nearly every
menu item in its current advertisements and store menu ordering boards.”). In saying so, they argue
that “[w]hether BKC’s advertisements are misleading, and whether this was material to average
consumers, are common questions subject to common proof.” Motion at 18. But “any competently
crafted class complaint literally raises common questions”—so what matters is “the capacity of a class-
wide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564
U.S at 349–50. Our Plaintiffs, in other words, must show that common questions—subject to
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generalized proof—predominate over individual inquires. See Avis, 211 F.3d at 1233 (“That common
questions of law or fact predominate over individualized questions means that the issues in the class
action that are subject to generalized proof, and thus applicable to the class as a whole, must
predominate over those issues that are subject only to individualized proof.” (cleaned up)). They’ve
failed to do that here. The only common evidence the Plaintiffs tell us they’ll introduce are “[t]he
photographs of the Menu Items in the advertisements at issue and photographs of the actual Menu
Items as served to customers.” Motion at 10. For two reasons, this evidence is insufficient.
First, BKC has shown that the proposed class members were exposed to a wide variety of
advertisements. In its Response, BKC contends that this “lawsuit puts hundreds of different menu
item photos at issue, taken of different hamburgers, at different times, from different angles, in
different phases of construction.” Response at 7; see also id. at 9 (“During discovery, BKC produced
to Plaintiffs over a thousand different advertisements disseminated during the putative class period,
using hundreds of different food photos.”). And BKC has supported this contention by submitting
an array of at least 34 different advertisements. See Exhibit A to Defendant’s Federal Rules of Evidence
Objection (“Exh. A to Evidence Obj.”) [ECF No. 54-1]. The number of different advertisements
BKC disseminated over the class period—coupled with the lack of common evidence about where
and when any specific advertisement was displayed (such that we could compare a given representation
to the burger the customers who saw that ad received)—strongly suggests that individual issues
predominate in this case.
Judges in our District have routinely found that FDUTPA-class certification is inappropriate
where (as here) the putative class members were exposed to a wide diversity of advertisements. As
Judge Middlebrooks of our Court has explained:
For multiples reasons, I find that individual issues predominate over common ones.
First, it appears that Defendant’s website displays trip insurance offers in many
different ways. In a declaration attached to Defendant’s Motion, an individual
employed by the trip insurance provider states that well over 1,000 different offers
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have been shown to Defendant’s US customers in the Offer Box in Defendant’s
booking path. The declaration also states that at any moment in time, about over 40
distinct offers are available to be displayed in the Offer Box on Defendant’s website
to US customers. The apparent variability in the offers that consumers see when
purchasing trip insurance demonstrates that individual issues predominate.
Donoff v. Delta Air Lines, Inc., 2020 WL 3268272, at *6 (S.D. Fla. Jan. 24, 2020) (Middlebrooks, J.)
(cleaned up)); see also Cohen v. Implant Innovations, 259 F.R.D. 617, 643 (S.D. Fla. 2008) (Lenard, J.)
(“[T]he issue of whether each putative class member actually received Defendant’s marketing materials
is an individual question of fact critical to each member’s claim that predominates over any common
issues of fact.”).
Indeed, when we look at cases in which district judges have certified FDUTPA classes, we see
that they did so because the class members were exposed to a single (which is to say “common”)
representation. See, e.g., Carriuolo, 823 F.3d at 986 (“Because every class member here purchased or
leased the same model vehicle with the same Monroney sticker attached, it does not matter that there may
have been differences among the class members’ subjective reliance.” (emphasis added)); Bowe v. Pub.
Storage, 318 F.R.D. 160, 181 (S.D. Fla. 2015) (Ungaro, J.) (“Public Storage made the same representations
to its customers via a standard presentation, and had the same text in its contracts and insurance
addenda; therefore the allegedly deceptive acts are the same as to each class member.” (emphasis
added)); Melton v. Century Arms, Inc., 2018 WL 6980713, at *10 (S.D. Fla. Dec. 6, 2018) (Louis, Mag. J.)
(“While Plaintiffs are correct in arguing that FDUTPA does not require a showing of reliance,
FDUTPA does require Plaintiffs to show uniformity in causation, meaning that Century’s allegedly
deceptive act uniformly caused the putative class members the harm alleged.”). We agree with Judge
Middlebrooks that the “apparent variability” in the advertisements our putative class members may
have seen indicates that individual issues predominate here.
We also disagree with the Plaintiffs’ assertion that, “[b]ased on the evidence, a jury can find
that BKC’s advertisements were uniform across all of BKC’s store menu ordering boards.” Reply at
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8. As support for this claim, the Plaintiffs offer a handful of photographs (actually, screenshots from
YouTube videos)—mainly of drive-through, menu-ordering boards in Arizona and California from
2021 to 2022. See Exhibits 2–11 to the Declaration of James Kelly [ECF Nos. 52-2–11]. But this
cherry-picked (and narrow) selection of photographs doesn’t establish that all (or even most) class
members were exposed to these same misrepresentations—in fact, these photos don’t even purport
to tell us what the putative class members in the other 48 states saw. And, as we’ve explained, BKC
has shown that, over the class period, consumers across the fifty states were exposed to many different
advertisements. See Exh. A to Evidence Obj. Without evidence that the proposed class members were
exposed to the same misrepresentations, the Plaintiffs cannot prove—with common evidence—that
all class members “suffered from the same injury.” Dukes, 564 U.S. at 350.6
Second, the Plaintiffs haven’t introduced (or described how they would go about introducing)
any class-wide evidence to show that BKC’s advertisements actually overstated the size of their burgers.
The Plaintiffs only tell us that they’ll introduce photographs of the Whoppers and Big Kings BKC
served to its customers (evidence that’s notably absent from the exhibits they’ve appended to their
Motion). But that’s not class-wide evidence. As BKC rightly observes, “every sandwich served to a
Burger King guest is hand-crafted in a restaurant before being wrapped, potentially placed in a bag,
6 The Plaintiffs try to justify their lack of common evidence by blaming the defense. “BKC,” they say,
“refuses to produce any documents or information such that Plaintiffs can show what photographs
were in place on the menu ordering boards at the various Burger King locations throughout the United
States. . . . Plaintiffs have requested a hearing in an effort to compel the production of among other
things, ‘information sufficient to show where and when the advertisements at issue were approved
and distributed to Burger King locations for placement, and when the advertisements were placed on
Burger King’s website.’” Reply at 6. But the Plaintiffs have had plenty of time to resolve any
outstanding discovery disputes with the Defendant. As recently as June 2, 2025, we held a status
conference, at which we asked the parties whether there was anything we could help them with—and
the Plaintiffs never mentioned that BKC was withholding (or had withheld) valuable documents. See
generally Status Hearing Transcript. Instead, the Plaintiffs raised the issue of their subpoenas for “third-
party delivery services.” See id. at 4. Since the Plaintiffs have no evidence that BKC has withheld the
photos of the menu-ordering boards—and given the Plaintiffs’ failure to seek court intervention on
any such non-production—we won’t allow the Plaintiffs to wriggle their way out of their obligation
to prove their case.
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and perhaps transported from one place to another, leading to wide variations of what it may ‘look
like’ by the time the guest opens and consumes it.” Response at 7. No single photograph of a burger,
in other words, can represent the appearances of the burgers every other class member received. To
determine whether any single advertisement was misleading, then, we’d need to compare that
advertisement to the photographs of the burgers that were purchased by the class members who saw
that advertisement. That’s a highly individualized inquiry.
To understand just how individualized, we need only look at the two Eleventh Circuit cases
our Plaintiffs rely on—both of which involved a single misrepresentation and class-wide proof of the
misleading nature of that representation. See Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279 (11th Cir.
2011); Carriuolo, 823 F.3d. In Fitzpatrick, the plaintiffs showed that General Mills uniformly advertised
its product, Yo-Plus, as providing digestive-health benefits to consumers. See Fitzpatrick v. Gen. Mills,
Inc., 263 F.R.D. 687, 701 (S.D. Fla. 2010) (Huck, J.), vacated for unrelated reasons, 635 F.3d 1279 (11th
Cir. 2011).7 To answer the central question in the case—whether General Mills misrepresented Yo-
Plus’s digestive-health benefits—the Plaintiffs only needed two pieces of evidence: one, the
representation that Yo-Plus provided certain health benefits (“a common and conspicuous theme
found in every Yo–Plus advertisement that the Court has reviewed,”), id. at 700; and two, scientific
evidence that, when subjected to testing, Yo-Plus did not in fact produce the promised digestive-health
benefits, see id. at 697 (“[I]ntegral to the determination of whether General Mills’ statements are
deceptive under the FDUTPA is the scientifically complex question of whether Yo–Plus does, in fact,
work as advertised . . . . The evidence necessary to resolve this question is the same for each plaintiff
and therefore common to the class.”). As this summation of the Yo-Plus evidence makes plain, the
7 The Eleventh Circuit vacated the district court’s order because “the definition of the class it certified
was in conflict with [its] analysis.” Fitzpatrick, 635 F.3d at 1283. Even so, we’ll credit the district court’s
reasoning, which the Eleventh Circuit described as “sound and in accord with federal and state law.”
Ibid. That reasoning, the Circuit said, “is well within the parameters of Rule 23’s requirements for
certification of a class.” Ibid.
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plaintiffs in Fitzpatrick could rely on common, class-wide proof for both sides of their evidentiary
equation: They had class-wide proof for the defendant’s representation on the one hand (the promise
that Yo-Plus produced certain health benefits) and class-wide proof for the promise’s untruth on the
other (the scientific tests, which, according to the defendant, showed that the product didn’t produce
those health benefits).
Our Plaintiffs, by contrast, don’t have class-wide proof for either side of their evidentiary
equation: BKC, as we’ve said, has made many different promises about the appearances of its burgers
(i.e., the many visual depictions that appear on menu boards across the country), and the class members
have received burgers in an almost-infinite variety of shapes and sizes. Now, it may be that every single
one of those burgers was smaller than every single menu-board item Burger King has ever produced.
But that’s not the point at the class-certification stage. Here, unlike at trial, the question isn’t whether
the actual burgers the class members received were smaller than advertised—the question rather is
whether, as to each individual class member, the Plaintiffs can prove the relative smallness of the burgers
with a few pieces of common evidence that apply with equal force to everyone. As we’ve explained, they
can’t do that because each putative class member will have seen a particular photo and received a
specific burger. In some cases, the delta between the purported size and appearance of the advertised
burger and the actual burger an individual plaintiff received will be larger; in other cases, that delta may
be smaller; in a few cases, the delta may be so small as to justify a jury finding that there was no
misrepresentation at all. Cf. Coleman I, at *8 (“We’ll agree with Burger King (of course) that most
reasonable people would be unfazed by, say, a one-percent disparity between the amount of food they
were offered and the amount they ultimately received—just as (we would think) Burger King would
concede that a fifty-percent delta between what was promised and what was sold would probably vex
most reasonable consumers.”). The point, though, is that the jury will have to make this determination
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on a plaintiff-by-plaintiff basis—which, by definition, means that common questions of fact do not
predominate.
In Carriuolo, the plaintiffs (purchasers of 2014 Cadillac CTS cars) were all exposed to the same
misrepresentation—a safety sticker, affixed to all 2014 Cadillac CTS vehicles, which displayed the
various 5-star safety ratings the CTS had supposedly received. See Carriuolo, 823 F.3d at 981 (“As it
turns out, when these vehicles were sold, General Motors had provided—in the standardized
‘Monroney’ window stickers that appear on new vehicles—inaccurate safety information.”). And the
plaintiffs could prove that this representation was false with class-wide evidence because “NHTSA
had not assigned any safety ratings to the 2014 Cadillac CTS at the time of sale to class members.” Ibid.
(emphases added). Again, then, the Carriuolo Plaintiffs could establish their class claims with class-wide
proof on both sides of the evidentiary equation: the safety sticker that appeared on all CTS vehicles on
the one hand and a letter from NHTSA explaining that NHTSA had assigned the CTS no such safety
ratings on the other. Our Plaintiffs, in contrast, haven’t shown that they were exposed to a common
misrepresentation, and they’ve failed to describe any class-wide evidence with which they could prove
that each putative class member’s burger was smaller than it appeared on BKC’s ads.8
Ultimately, the “burden of proof rests on the party seeking class certification,” Brown, 817 F.3d
at 1233, and the Plaintiffs have failed to show that they can prove their class claims with common
evidence.
8 For what it’s worth, we reject BKC’s position that, to prevail on their FDUTPA claim, the Plaintiffs
must show actual reliance. See Response at 17 (“FDUTPA’s causation and damages requirements mean
all putative class members must prove individually that they bought hamburgers from Burger King
because they saw a photo of the burger before they ordered it and were reasonably misled by the
picture into ordering the burger or paying more for it than they would have otherwise.”). The Eleventh
Circuit has been clear that subjective reliance is not an element of a proper FDUTPA claim. See
Fitzpatrick, 635 F.3d at 1283 (“A party asserting a deceptive trade practice claim need not show actual
reliance on the representation or omission at issue.” (cleaned up)); see also Carriuolo, 823 F.3d at 985
(“[A] plaintiff asserting a FDUTPA claim need not show actual reliance on the representation or
omission at issue[.]” (cleaned up)).
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2. 	BKC’s Affirmative Defense Raises Individualized Issues
But there are separate predominance issues here. As BKC observes, one of its affirmative
defenses also cautions against a finding of predominance. See Response at 13 (“Although there are
many reasons why their motion fails for lack of any truly common legal issues of fact or law, the threat
that ‘binding arbitration contracts’ will ‘become a major force of the litigation, and dominate over any
ostensible common issues, suffices on its own to warrant denial of class certification.” (cleaned up)).
BKC has a loyalty rewards program called “Royal Perks.” Ibid. (“BKC offers a frequent guest reward
program called ‘Royal Perks,’ through which guests earn ‘Crowns’ for each dollar they spend at Burger
King restaurants and can redeem Crowns for free meal items.”); see also Answer [ECF No. 84] ¶ 3
(“Plaintiffs’ claims on behalf of themselves or some or all of the proposed class are barred, in whole
or in part, by the terms of BKC’s Royal Perks Program.”). When BKC customers enroll in that
program, they agree to an arbitration clause and a class-action waiver. Ibid. (“The terms of service
include a broad requirement for arbitration of disputes and a class action waiver.”). BKC tells us that
“[s]ome 17.8 million people in the United States are Royal Perks members” and that “no one can place
an order using the Burger King mobile application without joining Royal Perks and accepting the
Terms of Service.” Ibid. In fact, one of our named Plaintiffs, Anthony Scott, has already withdrawn from
this case because he’d previously agreed to this same arbitration clause and class-action waiver. See
ibid. (“Plaintiffs filed a voluntary dismissal of Plaintiff Anthony Scott, explaining that they took this
step because he ‘used the Burger King mobile application which contains a class action waiver and an
agreement to arbitrate all disputes.’” (quoting Declaration of James Kelly [ECF No. 42-1] ¶ 9).
We disagree with BKC’s argument that the arbitration clause and class-action waiver preclude a
finding of predominance. “That some of the class members[’] claims may be affected by arbitration
agreements does not make class certification inappropriate.” Rosen v. J.M. Auto, 270 F.R.D. 675, 683
(S.D. Fla. 2009) (Dimitrouleas, J.). Instead, in such circumstances, “it would be more appropriate to
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create a subclass rather than deny certification outright.”). Ibid.; see also Cardenas v. Toyota Motor Co.,
2021 WL 6926418, at *22 (S.D. Fla. Aug. 12, 2021) (Louis, Mag. J.) (“[E]ven if the arbitration is
ultimately problematic for claims administration purposes, I concur that those with arbitration
agreements could either be broken into a subclass or excluded.”).
Even so, while the presence of an affirmative defense doesn’t (standing alone) preclude a
finding of predominance, it can provide additional support for a defendant’s view that the case presents
mostly individualized questions. See, e.g., Brown, 817 F.3d at 1241 (“[I]ndividual affirmative defenses
can defeat predominance in some circumstances. For example, the affirmative defenses could apply
to the vast majority of class members and raise complex, individual questions. Or the affirmative
defenses could be coupled with several other individual questions.” (cleaned up)); see also Sacred Heart,
601 F.3d at 1183 (“[B]eyond the difficulty of managing the variation among the payment provisions
and other material terms, the trial court would be required to evaluate significant quantities of
individualized extrinsic evidence associated with Humana’s affirmative defenses. . . . Under these
circumstances, we have little difficulty concluding that the district court’s certification of this class was
an abuse of discretion.”). And that’s what we have here.
Not only might BKC’s affirmative defense apply to millions of putative class members, but
the Plaintiffs also claim that we can administer their proposed class, in part, by identifying potential
class members through the “Defendant’s online sales records.” Motion at 16. As BKC has explained,
however, every app purchase (presumably a large percentage of BKC’s “online sales records”) requires
the purchaser to opt into the arbitration clause and class-action waiver. See Response at 13
(“Importantly, no one can place an order using the Burger King mobile application without joining
Royal Perks and accepting the Terms of Service.”). The Plaintiffs don’t dispute this assertion. In other
words, were we to certify the Plaintiffs’ proposed class, a potentially significant percentage of the
putative class members may be precluded from pursuing their claims in this action. This affirmative
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defense thus presents yet another complicated, individualized issue that affects the claims of a large
proportion of putative class members—further evidence that common issues of fact do not
predominate here.
ii. 	The Breach-of-Contract Class
In Florida, “[t]o prevail in a breach of contract action, a plaintiff must prove: (1) a valid
contract existed; (2) a material breach of the contract; and (3) damages.” Deauville Hotel Mgmt., LLC v.
Ward, 219 So. 3d 949, 953 (Fla. 3d DCA 2017).
1. 	The Plaintiffs Lack Common Evidence
When we allowed the Plaintiffs’ breach-of-contract claim to survive BKC’s MTDs, we did so
because the Plaintiffs had alleged that they actually viewed the menu-board images, interpreted them
as offers, and received materially smaller burgers than they believed they had contracted for. See
Coleman I, at *7. (“And, since the Plaintiffs say that they relied on the information on those store menu
ordering boards, we’ll accept (for now) those ordering boards as offers.”); see also id. at *8 (“Ultimately,
the Plaintiffs allege that they purchased Burger King products on the expectation that those items
would resemble the images on Burger King’s store ordering board. They also allege that they received
items that were materially smaller than advertised[.]” (cleaned up)); Coleman II, *8 (“[O]ur Plaintiffs
continue to plausibly allege that the burgers they bought were materially smaller than the burgers they
saw advertised on the menu boards.” (emphases added)).
Now at the class-certification stage, however, the critical question becomes whether the
Plaintiffs can show that every class member entered a materially similar contract with BKC, such that
the Plaintiffs can deploy general proof to prove their case. See Klay, 382 F.3d at 1263 (“The sheer
number of contracts involved is one factor that makes us hesitant to conclude that common issues of
fact predominate; this is not a situation in which all plaintiffs signed the same form contract.”). For
three reasons, we find that the Plaintiffs haven’t met that burden. First, the Plaintiffs cannot prove with
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common evidence that each proposed class member saw the challenged advertisement and considered it
an offer. On the contrary, to establish that each class member saw a BKC advertisement, interpreted
it as an offer, and then relied on it in a material way, the Plaintiffs would have to call each class member
to swear to these facts. That’s the opposite of common proof. See Karhu v. Vital Pharms., Inc., 621 F.
App’x 945, 946 (11th Cir. 2015) (holding that the introduction of affidavits in a class action “would
require a series of mini-trials” and defeat the purpose of class certification). Second, once each class
member describes the advertisement he or she interpreted as an offer, the Plaintiffs would have to
find and introduce those specific advertisements—many of which (as we’ve discussed) will vary one from
the next depending on the state (and the year) in which the burger was purchased. Third, each customer
will then have to produce some individualized evidence (whether a photograph or a recollection) of the
burger he or she purchased. As we explained in denying BKC’s MTDs, this last piece of evidence is
critical to any assessment of the materiality of the contract term because a burger that’s only marginally
smaller than the advertised product won’t constitute a material breach. See Coleman I, at *8 (“We’ll
agree with Burger King (of course) that most reasonable people would be unfazed by, say, a one-
percent disparity between the amount of food they were offered and the amount they ultimately
received[.]”). On the other hand, a burger that’s fifty-percent (or more) smaller than the advertised
product probably would. See ibid. (“[A] fifty-percent delta between what was promised and what was
sold would probably vex most reasonable consumers[.]”). To determine whether any individual class
member’s burger was materially smaller than advertised, then, each class member will need to compare
the burger he or she saw advertised to the burger he or she got. Again, this highly individualized
inquiry would defeat the purpose of a class action.
2. 	BKC’s Affirmative Defenses May Preclude Much of the Class
As if that weren’t enough, BKC has also advanced two affirmative defenses that present
individualized issues. Again, while the presence of an affirmative defense cannot (standing alone)
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defeat 	predominance, 	“individual 	affirmative 	defenses 	can 	defeat 	predominance 	in 	some
circumstances.” Brown, 817 F.3d at 1241 (citations omitted). And this is one of those circumstances.
We’ve already discussed the first of these affirmative defenses, which asserts that all members
of BKC’s rewards program, “Royal Perks,” are subject to an arbitration clause and class-action waiver.
See Answer ¶ 3 (“Plaintiffs’ claims on behalf of themselves or some or all of the proposed class are
barred, in whole or in part, by the terms of BKC’s Royal Perks Program.”). For all the reasons we
highlighted when we discussed this affirmative defense in the context of the Plaintiffs’ proposed
FDUTPA class, see supra § I.b.i.2., this defense would require us to engage in highly individualized
inquiries: assessing, in each class member’s case, whether he or she in fact entered into a valid and
enforceable class-action waiver. Since this side exercise would be extremely time-consuming,
individualized, and laborious, the presence of this affirmative defense again militates against the
Plaintiffs’ class-certification request.
BKC’s second problematic affirmative defense, is that: “Plaintiffs’ breach of contract claims
on behalf of themselves or some or all of the proposed class are barred because Plaintiffs or proposed
class members did not properly notify BKC of the alleged breaches within a reasonable time after
Plaintiffs or proposed class members discovered or should have discovered the alleged breaches, as
required under applicable state law.” Answer ¶ 8. Under Florida Law, “where a party fails to declare a
breach of contract, and continues to perform under the contract after learning of the breach, it may
be deemed to have acquiesced in an alteration of the terms of the contract, thereby barring its
enforcement.” Sacred Heart, 601 F.3d at 1181 (quoting Acosta v. Dist. Bd. of Trs. of Miami–Dade Cmty.
Coll., 905 So. 2d 226, 229 (Fla. Dist. Ct. App. 2005) (cleaned up)). So even if we assume that every class
member based his or her purchasing decision on the size and appearance of the burger he (or she)
saw on the menu boards, we must still ask each class member whether, having come all that way for
a burger, he (or she) acquiesced to the “altered” contract terms and ate the burger without complaint.
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We have no idea how many class members fit this description—the parties obviously have no idea—
but we don’t think we’re going out on a limb when we say that this affirmative defense very likely
affects an enormous percentage of the claims. To resolve this affirmative defense, after all, we’ll need
to ask all class members individualized questions about what they did with the allegedly smaller burgers
when they received them. See Sacred Heart, 601 F.3d at 1183 (“[B]eyond the difficulty of managing the
variation among the payment provisions and other material terms, the trial court would be required
to evaluate significant quantities of individualized extrinsic evidence associated with Humana’s
affirmative defenses. . . . Under these circumstances, we have little difficulty concluding that the district
court’s certification of this class was an abuse of discretion.”). And that, in turn, means that our
putative class claims implicate yet another individualized question.
***
For all these reasons, we decline to certify the Plaintiffs’ proposed breach-of-contract class.
iii. 	The Unjust-Enrichment Class
In Florida, “the essential elements of a claim for unjust enrichment are: (1) a benefit conferred
upon a defendant by the plaintiff, (2) the defendant’s appreciation of the benefit, and (3) the
defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for
him to retain it without paying the value thereof.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274
(11th Cir. 2009) (cleaned up). It’s well established that “common questions will rarely, if ever,
predominate an unjust enrichment claim, the resolution of which turns on individualized facts,”
because “before it can grant relief on this equitable claim, a court must examine the particular
circumstances of an individual case and assure itself that, without a remedy, inequity would result or
persist.” Simmons v. Ford Motor Co., 592 F. Supp. 3d 1262, 1296 (S.D. Fla. 2022) (Ruiz, J.) (quoting Vega,
563 F.3d at 1267). Because of the “individualized equities attendant to each class member, courts,
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including the Eleventh Circuit, have found unjust enrichment claims inappropriate for class action
treatment.” Ibid. (quoting Vega, 563 F.3d at 1267).
In our case, the Plaintiffs’ unjust-enrichment and breach-of-contract claims trigger the very
same individualized inquiries because “the facts necessary to support the two types of claims are
almost identical.” Klay, 382 F.3d at 1267. Indeed, the Plaintiffs’ unjust-enrichment claim would require
even more individualized inquiries because we’d need to examine “the particular circumstances” of each
claim to determine whether, “without a remedy, inequity would result or persist.” Vega, 563 F.3d at
1267. And, on this point, the record suggests that the circumstances of each class member vary greatly.
For example, the Plaintiffs’ interrogatory responses identify at least one named Plaintiff as a repeat
BKC customer. See Exhibit A to the Declaration of Jeffrey Jacobson (“Jacobson Decl.”) [ECF No.
49-4] at 22–23 (“Plaintiff does not recall the specific dates of purchases but states that she has
purchased Whoppers from Burger King approximately one dozen times over the course of the past
few years.”). How could it be unjust for BKC to retain the benefit it received (cash) from customers
who repeatedly frequented their establishments—and who thus knew exactly what they were buying?
And what about customers who ate their burgers? How would it be unjust for BKC to retain the
payment it received from customers who got what they bargained for—a quick, cheap meal? Because
these questions strike at the core of the Plaintiffs’ unjust-enrichment claim, we refuse to certify an
unjust-enrichment class.
c. 	Damages
Under Rule 23(b)(3), plaintiffs bear the burden of “establishing that damages are capable of
measurement on a classwide basis” Comcast Corp., 569 U.S. at 35. The general rule in the Eleventh
Circuit is that the “presence of individualized damages issues does not prevent a finding that the
common issues in the case predominate.” Herrera v. JFK Med. Ctr. Ltd. P’ship, 648 F. App’x 930, 936
(11th Cir. 2016) (citing Allapattah Servs., Inc., 333 F.3d at 1261 (cleaned up)). But this rule is subject to
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several exceptions. “For example, individual damages defeat predominance if computing them ‘will
be so complex, fact-specific, and difficult that the burden on the court system would be simply
intolerable.’ Furthermore, individual damages defeat predominance when they are accompanied by
‘significant individualized questions going to liability.’” Brown, 817 F.3d at 1240 (quoting Klay, 382 F.3d
at 1260); see also Simmons, 592 F. Supp. 3d at 1295 (“[A] plaintiff must actually demonstrate, through
evidentiary proof, that class-wide damages are capable of measurement, not simply assert that it is so.”
(cleaned up)). Both exceptions apply here.
The Plaintiffs have proposed the following damages calculation:
The simple calculation of the benefit of the bargain damages is the approximate price
paid by consumers for the Menu Items, which is the value, less the percentage of the
value by which the jury finds that the Menu Items were overstated. For example, if the
jury finds that BKC materially overstated a Menu Item in its advertisements by 35%,
damages for said Menu Item can be fairly measured at 35% of the approximate price
that class members paid for the Menu Item.
Motion at 19. To help us along, the Plaintiffs tell us that “[t]he price that BKC charges for the Menu
Items are publicly available on its website or mobile ordering application” and that “[h]istorical pricing
information 	from 	BKC’s 	website 	is 	available 	through 	the 	Internet 	Archive, 	located 	at
https://archive.org/.” Id. at 19–20.
Three problems with this. First, a cursory review of BKC’s public website shows that the prices
of BKC’s menu items vary by location. See Burger King’s Website, https://www.bk.com/.9 As to each
class member, then, we’d have to determine where he or she bought the burger before we can accurately
calculate damages. Second, the proposed class stretches from “April 1, 2018 to the final disposition of
this action”—a period of more than seven years, during which BKC’s prices undoubtedly waxed and
9 We may take judicial notice of BKC’s website under Rule 201 of the Federal Rules of Evidence “on
[our] own,” but we must “take judicial notice if a party requests it and the court is supplied with the
necessary information.” Lodge v. Kondaur Cap. Corp., 750 F.3d 1263, 1273 (11th Cir. 2014) (citing F ED.
R. EVID . 201(c)). Here, the Plaintiffs have directed us to BKC’s “publicly available website” in support
of their claim that damages can be calculated on a class-wide basis, Motion at 19—so we’ve reviewed
the website for that purpose.
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waned. Motion at 9. Again, as to each class member, we’d have to confirm exactly when he or she
bought the burger and determine what the price of the burger was at that particular location and on
that particular day before we could compute his or her damages. And the Plaintiffs’ suggestion that we
could simplify all this by using the “Internet Archive” is absurd. Id. at 20. For one thing, there’s no
evidence that any such prior, relevant, iterations of BKC’s website even exist on the Internet Archive.
For another, even if we could find every previous iteration of BKC’s website, the Plaintiffs have made
no attempt to show that sifting through thousands of archived webpages for pricing information is
even possible—much less feasible. For yet another, even if we could easily manipulate the Internet
Archive to determine what the price of a given burger was on a specific date, we’d still need every class
member to tell us when and where he or she bought a burger so that we could hunt for all those dates
and locations in the archive—an arduous, time-consuming, and especially individualized set of tasks.
Third, the Plaintiffs haven’t explained how a jury could find that any specific menu item (once received
by the consumer) was “overstated by 35%”—or by any other percentage. As we’ve highlighted
elsewhere, the only burger-size evidence the Plaintiffs have adduced over months of protracted
discovery are cherry-picked photos they’ve plucked from the internet. See Complaint at 3, 6.
Depending on many different factors—including the angle at which the photo was taken, the
positioning of the patty within the bun, the extent to which the burger is tucked into the sandwich
bag, and the amount of lettuce, tomato, and onion on the burger—these photos show burgers that
appear quite different one from the other. So, whereas we might say that one burger looks like it might
be thirty-percent smaller than a given advertisement, some other burger might look only five-percent
smaller—and so on. The Plaintiffs’ lack of common, class-wide evidence thus makes it impossible for
the fact-finder to calculate the Plaintiffs’ alleged damages by the application of a consistent
“overstatement percentage.”
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Alternatively, the Plaintiffs suggest that we calculate their damages as “a percentage of the
approximate price that BKC charges consumers for an additional beef patty,” reasoning that, “if the
jury finds that the advertisement for the particular Menu Item overstated the beef patty by 50%, then
the damages would be 50% of the cost to the consumer of adding another beef patty to the Menu
Item.” Id. at 20. But this method just combines the problems of the first two. For one thing, again,
there’s no such thing as a standard burger price from 2018 to the present. Every class member will
still have to tell us where and on what day he or she bought the burger before we can compute the
price of an extra patty. For another, there’s no such thing as a common “overstatement percentage.”
To determine whether—and by how much—each patty was smaller than the advertised burger, each
class member would need to compare the specific burger he or she received to the specific
advertisement he or she saw. That’s tremendously unwieldy.
This 	extremely 	individualized 	damages 	analysis—when 	combined 	with 	the 	other
individualized issues we’ve identified already—prevents us from concluding that the Plaintiffs have
“establish[ed] that damages are capable of measurement on a classwide basis.” Comcast Corp., 569 U.S.
at 35.
d. 	Superiority
For all the reasons we’ve outlined—and a few more we’ll discuss below—the Plaintiffs’
proposed classes also don’t satisfy Rule 23(b)(3)’s superiority requirement. See F ED . R. CIV . P. 23(b)
(“One or more members of a class may sue or be sued as representative parties on behalf of all
members only if: . . . the court finds that . . . that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.”). In assessing whether the proposed class action
would be “superior to other available methods,” Sacred Heart, 601 F.3d at 1169 (citing F ED . R. C IV . P.
23(b)(3)), we must consider the four factors enumerated in Rule 23(b)(3)(A)–(D):
(A) the class members’ interests in individually controlling the prosecution or
defense of separate actions; (B) the extent and nature of any litigation concerning
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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.
F ED . R. CIV . P. 23(b)(3)(A)–(D). Of course, “the lack of predominance belies any suggestion that a
fair administration of the class claims could save the resources of both the court and the parties.”
Sacred Heart, 601 F.3d at 1184 (cleaned up). The Plaintiffs have likely satisfied the first three of these
factors: (1) the absent class members will have little incentive to pursue their own claims given how
small each consumer’s damages are likely to be, see F ED . R. CIV . P. 23(b)(3)(A); (2) we’re not aware of
any related case by or against the class members, see F ED . R. CIV . P. 23(b)(3)(B); and (3) our Court
seems like an effective forum for these claims, see F ED . R. CIV . P. 23(b)(3)(C). Even so, the Plaintiffs
fall well short on the final factor—“the likely difficulties in managing a class action.” F ED . R. CIV . P.
23(b)(3)(D).
On this final factor, the Plaintiffs say very little: “Finally,” they write, “there are no significant
or unusual difficulties in managing this case. BKC’s liability can be proven by its uniform
advertisements and photographs of the actual Menu Items served to customers, which are common
to the entire class.” Motion at 21. In BKC’s view, however, the proposed class isn’t administratively
feasible. See Response at 25 (“[A]dministrative feasibility of determining class membership must be
considered as part of the superiority analysis.” (citing Cherry, 986 F.3d at 1304)).10 And we agree that
the Plaintiffs’ proposed class would create an administrative nightmare.
The proposed class involves millions of consumers, stretching back to 2018—very few of
whom are likely to have retained proof of (or even remember) their fast-food purchases. The Plaintiffs
insist that we can identify class members by reviewing the “Defendant’s online sales records, third-
10 BKC misstates Cherry’s holding. In Cherry, the Eleventh Circuit held that “administrative feasibility
is not a requirement for certification under Rule 23,” but added that, “[i]f a district court reaches Rule
23(b), and the action involves a proposed Rule 23(b)(3) class, it may consider administrative feasibility
as part of the manageability criterion of Rule 23(b)(3)(D).” Cherry, 986 F.3d at 1304 (emphasis added).
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party delivery service data, and potential class members’ affidavits.” Motion at 22. All three of these
proposed methods suffer from serious flaws. First, BKC’s online sales records likely reflect only a
small portion of BKC’s overall sales, see Response at 25 (“[S]uch purchases account for only a small
fraction of the total”), and online purchasers who used BKC’s mobile application may well be
precluded from joining this action, see Response at 13 (“[N]o one can place an order using the Burger
King mobile application without joining Royal Perks and accepting the [arbitration clause and class
action waiver].”). Second, when a consumer buys a food item from a third-party delivery service, that
consumer must expect some amount of variability in the appearance of the food when it’s delivered—
either because of the lapse of time, because it was sandwiched between other food items, or because
it was jostled in transit. That high degree of variability thus renders the claims of these consumers
particularly inappropriate for class certification—both because their burgers will differ from the
burgers of other third-party-delivery consumers and (it goes without saying) because they’ll differ from
the burgers their fellow class members bought inside BKC stores. Worse, customers who used third-
party-delivery services weren’t exposed to BKC’s menu boards. That’s a big problem because the
Plaintiffs’ alleged reliance on the “offers” BKC made to in-store customers through its in-store menu
boards is the only aspect of the Plaintiffs’ breach-of-contract claim that survived BKC’s first MTD. See
Coleman I, at *8 (“Ultimately, the Plaintiffs allege that they purchased Burger King products on the
expectation that those items would resemble the images on Burger King’s store ordering board. They also
allege that they received items that were materially smaller than advertised, and that they wouldn’t
have purchased those items had they known their true size. That’s enough for now.” (cleaned up &
emphasis added)); see also ibid. (“[W]e’ll preclude the Plaintiffs from arguing that Burger King’s TV and
online ads constituted actionable offers.”). Third, the Plaintiffs’ suggestion that class members self-
identify via affidavits would result in a series of “mini-trials, defeating the purpose of class-action
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treatment.” Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 685 (S.D. Fla. 2014) (Bloom, J.) (cleaned
up).11 As the Eleventh Circuit has explained:
The potential problems with self-identification-based ascertainment are intertwined.
On the one hand, allowing class members to self-identify without affording defendants
the opportunity to challenge class membership provides inadequate procedural
protection to defendants and implicates their due process rights. On the other hand,
protecting defendants’ due-process rights by allowing them to challenge each
claimant’s class membership is administratively infeasible, because it requires a series
of mini-trials just to evaluate the threshold issue of which persons are class members.
Karhu, 621 F. App’x at 948–49 (cleaned up). We won’t, in sum, build a class that requires thousands
or even millions of class members to self-identify via affidavit.
The Plaintiffs, in short, have failed to satisfy the superiority requirement of Rule 23(b)(3).
II. 	Rule 23(a) – Commonality
Although this finding—that the Plaintiffs have failed to satisfy Rule 23(b)(3)—is sufficient for
us to deny the Plaintiffs’ class-certification request, in the interest of completeness, we’ll also explain
why they haven’t met their burden under Rule 23(a).12
Rule 23(a)(2) requires that “there [be] questions of law or fact common to the class.” F ED . R.
CIV . P. 23(a)(2). A plaintiff must show that the class members “have suffered from the same injury”
and that “[t]heir claims must depend on a common contention.” Dukes, 564 U.S. at 350. “That
11 Trying to distinguish Randolph, the Plaintiffs say that, “[i]n Randolph, there were at least nine different
Crisco oils on the market, only four of which were the subject of that case. Beyond that, even among
those four oils, the allegedly deceptive label being challenged was not placed on all four oils uniformly
throughout the class period.” Reply at 12 (cleaned up). But that misses the point. As the Eleventh
Circuit explained in Karhu, allowing a significant proportion of class members to self-identify via
affidavits would implicate serious due-process concerns stemming from the defendant’s inability to
challenge each identification in open court. 621 F. App’x at 948–49. We also disagree with the
Plaintiffs that “there is no indication that a consumer would not recall the specific BKC menu item
that was purchased or the approximate time frame,” ibid.—a claim belied by the Plaintiffs’ own
interrogatory responses, see, e.g., Exhibit A to the Jacobson Decl. at 22–23 (“Plaintiff does not recall
the specific dates of purchases but states that she has purchased Whoppers from Burger King
approximately one dozen times over the course of the past few years.”).
12 Still, because the Plaintiffs haven’t made a sufficient showing of commonality, we needn’t reach the
parties’ arguments on the remaining elements of Rule 23(a).
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common contention, moreover, must be of such a nature that it is capable of classwide resolution—
which means that determination of its truth or falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.” Ibid.
The Plaintiffs try to identify several such common questions. See Motion at 12 (“Commonality
is met here by common questions of law and fact, including: Whether BKC’s advertisements for the
Menu Items are materially misleading; Whether the beef patties that BKC uses in its advertisements
are materially larger than the beef patties that are actually served to customers; Whether BKC’s
advertisements display a materially greater amount of ingredients than are actually served to customers;
Whether the average customer was likely to be misled by Burger King’s advertisements for the Menu
Items; Whether Burger King was unjustly enriched by the advertisements for the Menu Items; and
Whether Plaintiffs and the class have sustained damages and/or are entitled to restitution as a result
of Burger King’s advertisements for the Menu Items.”). As we’ve said, however, “[w]hat matters to
class certification is not the raising of common ‘questions’—even in droves—but rather, the capacity
of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.”
Dukes 564 U.S. at 350 (cleaned up).
For all the reasons we described in our analysis above, see supra § I.a.–b., the Plaintiffs have
failed to show that the common questions they’ve raised can be resolved through class-wide
evidence—so they haven’t satisfied Rule 23(a)’s commonality requirement. See Vega, 564 F.3d at 1272
(“Vega has not shown commonality under a breach of contract theory because he has not alleged in
his complaint the existence of a common contract under which T–Mobile employed all class members.
As such, he could not utilize identical evidence on behalf of every member of the class to prove offer,
acceptance, consideration, or the essential terms.”); see also Ohio State Troopers Ass’n, Inc., 2021 WL
4427772, at *2 (11th Cir. 2021) (“Appellants offered no common evidence capable of showing a
uniform classwide defect at the time of sale. Appellants thus haven’t met their burden under Rule
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23(a)(2) of demonstrating that there are questions of fact or law common to the class that have the
capacity to ‘generate common answers’ and are ‘capable of ‘classwide resolution.’” (quoting Dukes,
564 U.S. at 350).
While the predominance inquiry is “far more demanding than Rule 23(a)’s commonality
requirement,” Vega, 564 F.3d at 1270, the Plaintiffs’ inability to resolve the key issues in this case
through the use of class-wide evidence is fatal to both, see Dukes, 564 U.S. at 350 (“[C]ommon
contention[s] [ ] must be of such a nature that [they are] capable of classwide resolution.”)
***
After a careful review of the parties’ filings, the record, and the governing law, we ORDER
and ADJUDGE that the Plaintiffs’ Motion for Class Certification [ECF No. 44] is DENIED.
DONE AND ORDERED in the Southern District of Florida on November 25, 2025.
__________________________________
ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
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