A judge has rejected Starbucks’ efforts to put the kibosh on a lawsuit filed by two customers who claim that the coffee chain routinely underfills lattes.

U.S. District Judge Thelton Henderson in San Francisco said [PDF] that two Starbucks customers can pursue their lawsuit, and may seek damages from Starbucks in their proposed class action.

The lawsuit claims that although Starbucks advertises 12-ounce, 16-ounce, and 20-ounce serving sizes, the coffee company intentionally underfills its lattes by 25%.

The plaintiffs laid out examples like a requirement that Starbucks baristas use pitchers for heating milk with etched “fill to” lines that are too low, and that they are instructed to leave 1/4 inch of free space in drinks cups. They assert that foamed milk shouldn’t be counted toward the total volume of the latte, because the industry standard is to let the foam dissipate or measure it without foam.

Starbucks filed a motion to dismiss the lawsuit in April [PDF], saying that its drinks meet the expectations of “reasonable consumers,” and that the plaintiffs had failed to sufficiently plead injury in fact, because they hadn’t alleged that the particular lattes they bought were underfilled. But Henderson disagreed, saying that “even without Plaintiffs measuring their own lattes and finding them lacking, Plaintiffs have sufficiently alleged” standing.

“Plaintiffs’ three theories of underfilling are sufficient for Plaintiffs to establish standing because the allegations allow the Court to make the following reasonable inference: If all Starbucks lattes are made pursuant to a standardized recipe which results in the lattes being uniformly underfilled, and Plaintiffs allege that they purchased lattes, it is reasonable to conclude that – even without measuring – Plaintiffs’ lattes were underfilled,” Henderson wrote.

Having established their own individual standing, the plaintiffs may also allege claims of other class members based on transactions that the named plaintiffs weren’t involved in, he added.

“This is not a case where the alleged deception is simply implausible as a matter of law,” Henderson wrote. “The court finds it probable that a significant portion of the latte-consuming public could believe that a ‘Grande’ contains 16 ounces of fluid.”

The judge denied their request for injunctive relief, however, noting that a plaintiff seeking such a thing in federal court has to allege not only that they’ve suffered or that they’re “threatened with a concrete and particularized legal harm,” but also that there is “a sufficient likelihood that [s/he] will again be wronged in a similar way,” Henderson wrote.

“Plaintiffs allege that they were “induced” to purchase Starbucks lattes by Defendant’s misrepresentations and omissions… and had they known that the lattes were underfilled, they would not have purchased them on the same terms,” Henderson wrote. “Now they know.There is no danger that they will be misled in the future.”

Because plaintiffs can’t allege a threat of repeated injury, they can’t proceed on injunctive relief, Henderson says.

Starbucks is also facing a lawsuit regarding iced beverages allegedly containing too much ice.

“We were pleased with the court’s decision to limit the scope of the claims and believe that this lawsuit and the recently-filed similar actions are without merit,” a Starbucks spokesperson told Consumerist. “All of our handcrafted beverages are made in accordance with our customers’ preferences. If a customer is not satisfied with their beverage preparation, we will gladly remake it. We will be prepared to defend our case in court.”

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