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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the matter of: 

Intuit Inc., Docket No. 9408 a corporation, 

 Respondent. 

RESPONSE TO INTUIT INC.’S NOTICE OF SUPPLEMENTAL AUTHORITY 

Intuit Inc.’s (the “Respondent” or “Intuit”) Notice of Supplemental Authority (“Intuit’s 

Notice”) is improper and should not be considered because the case it cites could have been 

raised in Intuit’s principal briefing. Even if considered, the supplemental authority submitted by 

Intuit is inapposite and has no bearing on this proceeding. 

I. Intuit’s Supplemental Authority Should Not Be Considered As It Could Have Been

Raised In Intuit’s Reply

Intuit’s Notice is essentially an impermissible surreply and should be stricken as such.

The parties had an opportunity to file reply briefs. The deadline for filing post-trial concurrent 

reply briefs was June 20, 2023. Order On Post-Trial Filings at 1. Surreply briefs were neither 

contemplated by the Order On Post-Trial Filings, id., nor the rules, 16 C.F.R. §3.46(a). Generally, 

surreply briefs are “permitted only in circumstances where the parties wish to draw the 

Administrative Law Judge’s or the Commission’s attention to recent important developments or 

controlling authority that could not have been raised earlier in the party’s principal brief.” See 

generally, 16 C.F.R. §3.22(d) (emphasis added). Intuit’s Notice of Supplemental Authority does 

not meet this standard. First, the supplemental authority submitted by Intuit, McGinity v. Procter 

& Gamble Co., 69 F.4th 1093 (9th Cir. 2023), was filed on June 9, 2023—eleven days before 

Intuit’s post-trial reply brief was due. The opinion would have been immediately available 

online; it was also designated for publication and was expeditiously reported in the Federal 

Reporter. Not only could Intuit have included this case in its post-trial reply brief, but it had 

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ample opportunity to do so.1 Second, Intuit’s supplemental authority is not controlling authority 

in that it does not address claims brought under the FTC Act. Instead, it addresses the 

“reasonable consumer” standard applicable under California’s Unfair Competition Law, 

California’s False Advertising Law, and California’s Consumers Legal Remedies Act. 69 F.4th at 

1096–97. As explained more fully below, this standard, as applied in McGinity, is materially 

different from the standard that applies in consumer protection cases, like this one, brought under 

Section 5(a) of the FTC Act. As further explained below, Intuit’s supplemental authority is 

inapposite and in no way detracts from Professor Novemsky’s survey and his expert report and 

testimony in this case. 

II. Intuit’s Supplemental Authority is Inapposite and Does Not Detract from Professor 

Novemsky’s Survey and Expert Testimony in this Case 

Assuming, arguendo, that Intuit’s Notice is permissible, it does not support Intuit.

McGinity is inapposite. In applying the “reasonable consumer” standard under the applicable 

California statutes, the court in McGinity deviates materially from the standard that applies in 

FTC consumer protection cases, like this one, brought under Section 5(a) of the FTC Act. The 

table below identifies key differences between the California “reasonable consumer” standard as 

applied in McGinity and the standard that applies in this case brought under Section 5(a) of the 

FTC Act: 

FTC Act McGinity

“Liability may be imposed if at least a 

significant minority of reasonable consumers 

would be likely to take away the misleading 

claim.” Fanning v. FTC, 821 F.3d 164, 170-71 

(1st Cir. 2016) (quoting In re Telebrands 

Corp., 140 F.T.C. 278, 291 (2005), aff’d, sub 

“[T]he reasonable consumer standard requires 

a probability ‘that a significant portion of the 

general consuming public or of targeted 

consumers, acting reasonably in the 

circumstances, could be misled.’” 69 F.4th at 

1097 (emphasis added). 

1

 Intuit claims that its “counsel did not become aware” of the supplemental authority “until 

after filing its post-trial reply brief.” Intuit’s Notice at 1 n. 1. Beyond that, it offers no authority 

that permits its filing, and no explanation why it failed to cite an opinion that was published 

online eleven days before its post-trial reply brief was due. Moreover, McGinity affirmed a 

United States District Court order granting a motion to dismiss that relied on the same reasoning 

and was available on Westlaw in 2021—more than a year before Intuit’s post-trial reply brief was 

due. See McGinity v. Procter & Gamble Co., No. 4:20-cv-08164-YGR, 2021 WL 3886048 (N.D. 

Cal. Aug. 31 2021). Yet neither Intuit’s pre-trial nor post-trial briefing mentions it. 

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nom Telebrands Corp. v. FTC, 457 F.3d 354 

(4th Cir.2006)) (cleaned up) (emphasis 

added). 

“If a claim conveys more than one meaning, 

only one of which is misleading, a seller is 

liable for the misleading interpretation even if 

nonmisleading interpretations are possible.” 

Fanning, 821 F.3d at 170-71 (quoting 

Telebrands, 140 F.T.C. at 291) (cleaned up); 

see also Resort Car Rental Sys., Inc. v. FTC,

518 F.2d 962, 964 (9th Cir. 1975) 

(“Advertising capable of being interpreted in 

a misleading way should be construed against 

the advertiser.”); Deception Policy Statement, 

at 178 (“To be considered reasonable, the 

interpretation or reaction does not have to be 

the only one. When a seller’s representation 

conveys more than one meaning to reasonable 

consumers, one of which is false, the seller is 

liable for the misleading interpretation.”). 

Resolving “ambiguity” in meaning of 

messaging on package labeling in favor of the 

advertiser. 69 F.4th at 1097–98. 

Moreover, nothing in the McGinity opinion diminishes Professor Novemsky’s work in 

this case, including the results of the perception survey. The Ninth Circuit’s critique of the survey 

in McGinity is cabined to flaws in “the particular survey” at issue in that case. 69 F.4th at 1100. 

In fact, the court makes clear that “consumer surveys may well be relevant and helpful in other 

cases,” such as this one. See id. 

Unlike the Intuit case which involves a pervasive multi-modal, multi-year advertising and 

marketing campaign with an unambiguous “free” claim, McGinity involved an allegedly 

misleading product label for shampoo and conditioner in which there was “some ambiguity as to 

what ‘Nature Fusion’ means.” 69 F.4th at 1095–96, 1098. Thus, the survey in McGinity was 

attempting to measure a more ambiguous and discrete claim allegedly occurring on product 

packaging at the point of sale—grocery stores. Id. at 1096. For this reason, comparing the survey 

in McGinity to the survey in this case is not informative. 

Additionally, if anything, McGinity confirms the reliability of Professor Novemsky’s 

survey, which does not suffer from any of the flaws identified regarding the McGinity survey. 

The primary flaw in the McGinity survey was the failure to show survey respondents disclosures 

that appeared on the back label of the product, which the Court determined meant that the survey 

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did “not adequately address the primary question in this case.” Id. at 1099–100. By contrast, 

Professor Novemsky’s perception survey measures both the primary messaging in Intuit’s free 

TurboTax campaign and Intuit’s disclosures, including the “simple tax returns only” language 

Intuit often used. (See, e.g., FF-538, RFF-323).2 Unlike the McGinity survey which didn’t 

“address the primary question” in the case, Professor Novemsky’s perception survey goes to the 

crux of the issue: whether consumers ineligible for the TurboTax free offer had the 

misimpression they could file for free using TurboTax based on Intuit’s advertising. (See FF-480, 

FF-504—FF-505). Intuit’s untimely attempt to submit inapposite supplemental authority cannot 

change that. 

Dated: July 5, 2023 

Respectfully submitted, 

/s/ Rebecca Plett 

Roberto Anguizola, IL Bar No. 6270874

Rebecca Plett, VA Bar No. 90988 

James Evans, VA Bar No. 83866 

Sara Tonnesen, MD Bar No. 1312190241 

Federal Trade Commission 

600 Pennsylvania Ave., NW, CC-6316 

Washington, DC 20580 

(202) 326-3284 / ranguizola@ftc.gov 

(202) 326-3664 / rplett@ftc.gov 

(202) 326-2026 / james.evans@ftc.gov 

(202) 326-2879 / stonnesen@ftc.gov 

Counsel Supporting the Complaint 

Federal Trade Commission

2

 References to the existing post-trial filings are abbreviated as follows: 

FF – Complaint Counsel’s Proposed Findings of Fact 

RFF – Complaint Counsel’s Reply to Intuit’s Proposed Findings of Fact 

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CERTIFICATE OF SERVICE 

I hereby certify that on July 5, 2023, I electronically filed the foregoing Response to Intuit Inc.’s 

Notice of Supplemental Authority electronically using the FTC’s E-Filing system, and I caused 

the foregoing document to be sent via email to:

April Tabor 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

Secretary of the Commission 

Clerk of the Court

Hon. D. Michael Chappell 

Chief Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Suite H-110 

Washington, DC 20580 

Administrative Law Judge 

I further certify that on July 5, 2023, I caused the foregoing document to be served via 

email on: 

David Z. Gringer 

Phoebe Silos 

Charles Bridge 

Wilmer Cutler Pickering Hale & Dorr LLP 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

David.Gringer@wilmerhale.com 

Phoebe.Silos@wilmerhale.com 

Charles.Bridge@wilmerhale.com 

(212) 230-8800 

Howard M. Shapiro 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

Vinecia Perkins 

Andres Salinas 

Jocelyn Berteaud 

Benjamin Chapin 

Margaret (Molly) Dillaway 

Reade Jacob 

Wilmer Cutler Pickering Hale & Dorr LLP 

2100 Pennsylvania Avenue NW 

Washington, DC 20037 

Howard.Shapiro@wilmerhale.com 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Vinecia.Perkins@wilmerhale.com 

Andres.Salinas@wilmerhale.com 

Joss.Berteaud@wilmerhale.com 

Benjamin.Chapin@wilmerhale.com 

Molly.Dillaway@wilmerhale.com 

Reade.Jacob@wilmerhale.com 

(202) 663-6000 

Shelby Martin 

Wilmer Cutler Pickering Hale & Dorr LLP 

1225 Seventeenth Street, Suite 2600 

Denver, CO 80202 

Shelby.Martin@wilmerhale.com 

(720) 274-3135 

Katherine Mackey 

Wilmer Cutler Pickering Hale & Dorr LLP 

60 State Street 

Boston, MA 02109 

Katherine.Mackey@wilmerhale.com 

(617) 526-6000 

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Jonathan D. Leibowitz 

6313 Kenhowe Drive 

Bethesda, MD 20817 

jondleibowitz@gmail.com 

(202) 577-5342 

Attorneys for Respondent, Intuit Inc. /s/ Rebecca Plett 

Rebecca Plett 

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