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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of: 

Docket No. 9408 Intuit Inc., a corporation. 

RESPONDENT’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS 

Pursuant to Rule 3.38 of the Commission’s Rules of Practice, 16 C.F.R. §3.38, 

Respondent Intuit Inc. respectfully moves for an order compelling production of certain 

documents by a specific date, as well as an order compelling production of relevant materials 

that Complaint Counsel (“CC”) have refused to search for. Specifically, Intuit requests this 

Court compel production within two days from the date of the requested Order of (1) documents 

identified in Category J of CC’s Initial Disclosures and (2) documents and data underlying CC’s 

putative expert declarations. Intuit further requests this Court compel production by October 21, 

2022 of (3) materials responsive to Respondent’s Requests for Production of Documents that CC 

have agreed to produce along with (4) a privilege log. Finally, Intuit requests an order 

compelling CC to specify the materials and custodians that they will search in response to 

Intuit’s discovery requests, to search communications reflecting information from nonparties and 

with Commissioners and their staff, and to search for responsive documents saved outside of 

CC’s investigative file. Counsel for Respondent has conferred in good faith with CC hoping to 

resolve these disputes, but CC have not compromised. See Statement Regarding Meet and 

Confers. 

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I. INTRODUCTION 

For more than two decades, TurboTax has been the leader in online tax preparation. In 

the last decade, TurboTax has offered taxpayers a variety of options to prepare their taxes, 

including a free product, known as TurboTax Free Edition. TurboTax Free Edition is, as 

TurboTax discloses in its advertisements, completely free to everyone who qualifies. Currently, 

approximately 60 million tax returns qualify, and each year approximately 14 million tax returns 

are prepared for free using Free Edition. TurboTax’s advertisements disclosed that “TurboTax 

Free Edition is for simple U.S. returns only” and invited consumers to “See if you qualify at 

turbotax.com” (or similar disclosure language). Nonetheless, CC have pursued this case 

claiming that it is deceptive to refer to a product as “free”—even if the product is actually free 

for tens of millions of people, and even with the appropriate disclosures—unless the product is 

free for every person under all circumstances. Tellingly, when presented with this same theory, a 

federal district court observed, in denying CC’s motion for a preliminary injunction, that 

“nobody thinks” what CC argue reasonable consumers take away from the challenged ads. RX 

73 at 17:3-5. 

At issue is whether CC will be required to turn over discovery within a reasonable time 

and whether CC will provide basic relevant discovery. Intuit has from the outset of this 

proceeding asked CC for any evidence that either supports or refutes their assertions. Intuit’s 

requests encompass, for example, communications with consumers and the data underlying the 

survey commissioned by CC, which has already been presented to a federal court. To date, 

however, CC have not provided the requested documents and will not even say when they will 

do so. Intuit requests an order compelling CC to produce certain documents sought (and readily 

accessible to CC) within two days of this Court’s order, and for CC to produce the remaining 

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documents with an accompanying privilege log by October 21, 2022. Intuit further requests that 

CC search for and produce additional responsive documents in their possession. 

II. BACKGROUND 

On May 6, 2022, Intuit served its First Set of Requests for Production of Documents. 

That same day the matter was withdrawn from adjudication pursuant to Rule 3.26(c), and the 

case was stayed. More than three months later, the Commission returned this matter to 

adjudication and lifted the stay. Intuit immediately re-served its Requests for Production of 

Documents. Ex. A. 

That same day, Intuit sent a letter to CC hoping to resolve outstanding discovery issues. 

Ex. B. In particular, Intuit reiterated its previous requests that CC provide Category J of CC’s 

Initial Disclosures and the data underlying a March 2022 “TurboTax Perception Survey,” which 

CC had relied upon in its Preliminary Injunction motion. Category J is described as 

“Correspondence with and documents shared by individuals during the course of the 

Commission’s investigation, FTC File No. 1923119, including consumers sharing information 

about their experiences with Intuit.” Ex. C. 

After CC served their responses and objections to Intuit’s Requests for Production, Ex. D, 

Intuit sent CC a letter on September 16, 2022 requesting that they provide (a) a description of 

how CC intend to search for responsive documents; (b) a list of the individuals and central 

repositories that CC intend to search for responsive documents; and (c) the timetable on which 

CC intend to produce documents. Ex. E. CC did not respond. 

On September 26, 2022, CC provided its first and only production in response to Intuit’s 

RFPs. That production was comprised largely of screenshots of the TurboTax website. 

On September 27, 2022, the parties again conferred to discuss CC’s discovery responses 

and Initial Disclosures. When pressed about when CC would be producing documents in 

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response to Intuit’s requests, CC would not provide a date. When asked to identify the FTC 

employees whose files were being searched for responsive documents, CC identified categories 

of employees that would be included, but refused to say whether they were searching the files of 

key personnel, including Lois Greisman, who oversaw the investigation. CC further explained 

that they would not be searching internal communications among FTC employees. Woodman 

Decl. ¶9. 

On September 28, 2022, Intuit asked CC to confirm that they would produce Category J 

of CC’s Initial Disclosures and any documents related to Professor Novemsky’s surveys by 

Wednesday, October 5, and that CC would substantially complete its production of documents 

responsive to Intuit’s Requests for Production by Friday, October 14. CC not only disregarded 

Intuit’s proposed dates, but they also refused to provide any date for substantial completion. 

Intuit also asked CC to provide a full list of the individuals whose documents they intend to 

search for responsive documents, and to confirm whether CC would search (1) communications 

and other materials sent to and from the Commissioners or the Commissioners offices; (2) 

communications and other materials sent between FTC counsel or other FTC legal staff that 

reflect conversations with third parties; and (3) communications and other materials that 

otherwise reflect information from external sources that are not known to Intuit. In response, CC 

again refused. Exhibit F. 

On October 3, the parties yet again met and conferred regarding Intuit’s discovery 

requests and CC’s responses. CC confirmed that they would not search communications or other 

materials sent to and from the Commissioners or the Commissioners offices or communications 

reflecting information from third parties. Woodman Decl. ¶11. CC also stated that they would 

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not search documents beyond their investigative file relating to this proceeding. Woodman Decl. 

¶11. 

III. ARGUMENT 

Intuit seeks to ensure that it will receive materials critical to this case by a date that 

allows for a fair proceeding in accordance with the Court’s schedule. Under the Scheduling 

Order, “[t]he party responding to document requests must produce responsive documents on a 

rolling basis and will make a good-faith effort to produce them as expeditiously as possible.” 

Apr. 27, 2022 Order, Provision 7. And under Rule 3.31(d), “[t]he Administrative Law Judge 

may ... make any other order which justice requires ... to prevent undue delay in the proceeding.” 

Pursuant to that provision, the demands of this truncated proceeding, and Rule 3.38, this Court 

should compel CC to produce the documents sought by a date certain; to clarify the materials 

that are being searched; and to search additional documents relevant to this proceeding. 

A. Complaint Counsel Should Produce Requested Documents Within Two Days 

Of the Order And By October 21, 2022 

CC’s refusal to commit to a date certain to produce documents identified in their Initial 

Disclosures and responsive to Intuit’s Requests for Production is not a “good-faith effort” to 

produce documents “expeditiously.” Accordingly, it threatens Intuit’s ability to conduct 

meaningful discovery and prepare fully for the upcoming hearing. Part III proceedings leave the 

parties with only months to complete discovery and meet other prehearing deadlines. However, 

CC have only produced a single set of screenshots responsive to only three of Intuit’s requests. 

Forty-eight days have passed since Intuit re-served its discovery requests, and twenty-seven days 

have elapsed since CC served their responses and objections. Yet when pressed for information 

about when additional documents will be produced, CC will not commit to a schedule. 

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CC have had access to the materials sought for many months or even years. By contrast, 

Intuit will have little time to review any documents produced before the deadline for issuing 

additional discovery requests. CC’s delay in producing responsive discovery thus threatens to 

prejudice Intuit’s ability to develop its case, as the materials sought may be steppingstones to 

further discovery. Indeed, the deadline for issuing discovery requests is less than two weeks 

away (October 14), and the close of discovery is just over six weeks later (December 2). 

That prejudice is already manifest. Intuit has deposed a few of the ever-shifting 

consumers identified on CC’s initial disclosures without having received the communications 

between those consumers and the FTC or any other documents provided by those consumers. In 

other words, CC have the documents and can decide whether to use them or not, leaving Intuit in 

the dark. CC’s failure to provide documents related to those consumers inhibits Intuit’s ability to 

fully question those individuals about their experiences, and threatens to impose additional 

burdens on the parties if those deponents need to be re-noticed after CC belatedly produces those 

documents. 

CC’s delays are especially egregious for the two categories of documents that Intuit has 

been seeking since CC served their initial disclosures in April 2022. These documents— 

consisting of Category J of CC’s Initial Disclosures and documents related to the surveys the 

FTC sponsored—should be readily available to CC and easy to produce. There is no justification 

for CC’s five-month delay. CC’s failure to produce the survey documents is particularly serious 

because CC have already relied on the survey results in a dispositive motion, and there is no 

burden associated with CC producing the data relied upon as there are no possible privilege 

concerns. The only excuse that CC has offered is that they have other priorities more pressing 

than the production of these materials. 

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Intuit respectfully requests the Court compel CC to substantially complete producing 

documents in response to Intuit’s Requests for Production and provide an accompanying 

privilege log by Friday, October 21, 2022. Intuit further requests that the Court compel CC to 

produce Category J of CC’s Initial Disclosures and any documents related to Professor 

Novemsky’s surveys within two days following the issuance of the Court’s order. 

B. Complaint Counsel Should Specify The Materials They Are Searching To 

Identify Responsive Documents And Be Required To Search Additional 

Documents 

CC have also failed to respond to Intuit’s requests to provide the names of the FTC 

employees whose documents CC intend to search for responsive materials. When asked to 

provide that information, CC identified only a few general categories of employees whose 

materials would be searched, not specific employees. CC further stated they would only provide 

that information if Intuit provided a similar list, even though the parties had not yet discussed 

Intuit’s discovery responses—indeed, Intuit had not yet served its responses and objections, 

which were not due until October 3, 2022. In the course of the FTC’s investigation, Intuit 

provided such a list, so fairness alone compels CC to do the same. CC have provided no 

explanation for why they are unable or unwilling to provide such a list beyond their mistaken 

belief that the rules “don’t require it.” 

Moreover, CC have stated that they will limit their search to a single investigative file, 

and further exclude from that search internal communications among FTC employees, other than 

emails to and from testifying witnesses on CC’s team, pursuant to 16 C.F.R. §3.31(c)(2). Intuit 

thus understands that CC is refusing to search (1) communications and other materials sent to 

and from the Commissioners or the Commissioners’ offices; (2) communications and other 

materials sent between FTC counsel or other FTC legal staff that reflect conversations with third 

parties; and (3) communications and other materials that otherwise reflect information from 

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external sources that are not known to Intuit. Intuit also understands that CC will not search for 

responsive documents—regardless of whether they are required to be searched under Rule 

3.31—simply because those documents were not saved to an investigative file. Intuit requests 

that CC be compelled to search those internal communications and materials, as well as 

documents beyond the investigative file related to this proceeding. 

“Good cause” exists for CC to search these materials. 16 C.F.R. §3.31(c)(2). “Good 

cause” is satisfied where (1) the material is relevant, (2) the request is “reasonable in scope and 

stated with reasonable particularity,” and (3) the request seeks materials that are “not obtainable 

through other means.” In re 1-800 Contacts, Inc., 2016 FTC LEXIS 233, at *8-9 (Dec. 20, 

2016). Here, each of those elements is easily satisfied. See 74 Fed. Reg. 1804, 1812 (Jan. 13, 

2009) (interim final rule with request for comment) (“In the rare event that material excluded by 

[3.31(c)(2)] is not duplicative, privileged or work product, it should not be difficult for 

respondent to satisfy a good cause standard[.]”). 

First, communications with Commissioners and their staff may be relevant to Intuit’s 

affirmative defenses, including that (1) the Complaint is invalid because the Commission did not 

vote on the final Complaint and (2) prejudgment. Responsive communications capturing 

information provided by third parties but not otherwise available would likewise be relevant. 

Additionally, responsive documents stored outside of CC’s investigative file would plainly be 

relevant. As just one example, Request No. 7 sought “[a]ll DOCUMENTS relating to OR 

reflecting rules OR guides adopted, provided, OR administered by the FTC about how to 

ADVERTISEMENTS for ‘free’ merchandise or services.” Regardless of where those documents 

reside, they are central to the CC’s claim and Intuit’s defense. Second, Intuit’s requests are 

reasonable in scope and stated with particularity. Moreover, there is no basis for excluding 

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information obtained from nonparties from discovery simply because that information is 

captured in an email between FTC staff. Enforcing such a limitation would in essence allow CC 

to shield their entire investigatory file by simply sending information between each other. As 

courts have recognized in other contexts, agencies cannot withhold factual information contained 

in internal communications, even if the documents might otherwise be subject to the deliberative 

process privilege. See Prop. of the People, Inc. v. Off. of Mgmt. & Budget, 330 F. Supp. 3d 373, 

382-83 (D.D.C. 2018). Third, the information sought is not captured elsewhere and thus is not 

obtainable through any other means. Indeed, inherent in the request to search and produce 

additional communications is the limitation that the information is otherwise unavailable. CC 

should therefore be required to search both internal communications and documents beyond 

CC’s investigative file for responsive documents. 

CONCLUSION 

For the foregoing reasons, the Court should grant Intuit’s Motion. 

Dated: October 6, 2022 Respectfully submitted, 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

/s/ David Z. Gringer 

Jonathan E. Paikin David Z. Gringer 

Jennifer Milici Charles Bridge 

Derek A. Woodman Eleanor Davis 

Benjamin Chapin Phoebe Silos 

Reade Jacob 7 World Trade Center 

Jocelyn Berteaud 250 Greenwich St. 

Vinecia Perkins New York, NY 10007 

Andres Salinas Telephone: (212) 230-8800 

Spencer Todd Facsimile: (212) 230-8888 

Molly Dillaway David.Gringer@wilmerhale.com 

1875 Pennsylvania Ave NW Charles.Bridge@wilmerhale.com 

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Washington, DC 20006 

Telephone: (202) 663-6000 

Facsimile: (202) 663-6363 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Benjamin.Chapin@wilmerhale.com 

Reade.Jacob@wilmerhale.com 

Joss.Berteaud@wilmerhale.com 

Vinecia.Perkins@wilmerhale.com 

Andres.Salinas@wilmerhale.com 

Spencer.Todd@wilmerhale.com 

Molly.Dillaway@wilmerhale.com 

Katherine Mackey 

60 State Street 

Boston, MA 02109 

Telephone: (617) 526-6000 

Facsimile: (617) 526-5000 

Katherine.Mackey@wilmerhale.com 

Eleanor.Davis@wilmerhale.com 

Phoebe.Silos@wilmerhale.com 

Shelby Martin 

1225 Seventeenth Street 

Suite 2600 

Denver, CO 80202 

Telephone: (720) 274-3135 

Facsimile: (720) 274-3133 

Shelby.Martin@wilmerhale.com 

Attorneys for Respondent Intuit Inc. 

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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of: 

Docket No. 9408 Intuit Inc., a corporation. 

STATEMENT REGARDING MEET AND CONFERS PURSUANT TO 

16 C.F.R. § 3.22(g) AND ADDITIONAL PROVISION 4 OF THE SCHEDULING ORDER 

Pursuant to Rule 3.22(g) of the Commission’s Rules of Practice, 16 C.F.R. §3.22(g), and 

Additional Provision No. 4 of the April 27, 2022 Scheduling Order, as adopted in the September 

12, 2022 First Revised Scheduling Order, Respondent Intuit Inc. respectfully submits this 

Statement representing that Counsel for Respondent has conferred with Complaint Counsel in a 

good faith effort to resolve the issues raised by this motion and has been unable to reach such an 

agreement. 

Counsel for Respondent conferred with Complaint Counsel by teleconference three times 

and sent five unanswered letters to discuss Complaint Counsel’s initial disclosures, discovery 

responses, and production deficiencies. First, on September 8, 2022 at 10 a.m. ET, David 

Gringer, Jonathan Paikin, Jennifer Milici, and Derek Woodman for Respondent conferred with 

Roberto Anguizola, Rebecca Plett, and James Evans for Complaint Counsel. Next, on 

September 27, 2022 at 2 p.m. ET, Derek Woodman and Phoebe Silos for Respondent conferred 

with Roberto Anguizola and Rebecca Plett for Complaint Counsel. Finally, on October 3, 2022, 

at 3 p.m. ET, Derek Woodman and Eleanor Davis for Respondent conferred with James Evans 

and Rebecca Plett for Complaint Counsel. 

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In each of these meetings and in response to Intuit’s repeated correspondence efforts, 

Complaint Counsel have refused to commit to a definitive production date, neglected to identify 

the individuals whose documents Complaint Counsel intends search for responsive documents, 

and confirmed that they would not search for communications and other materials sent to and 

from the Commissioners or the Commissioners offices; communications and other materials sent 

between FTC counsel or other FTC legal staff that reflect conversations with third parties; 

communications and other materials that otherwise reflect information from external sources that 

are not known to Intuit, or documents beyond CC’s investigative file related to this proceeding. 

Therefore, Respondent respectfully moves this Court for an Order compelling production 

of documents and additional materials as set forth in Respondent’s accompanying motion. 

Dated: October 6, 2022 Respectfully submitted, 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

/s/ David Z. Gringer 

Jonathan E. Paikin David Z. Gringer 

Jennifer Milici Charles Bridge 

Derek A. Woodman Eleanor Davis 

Benjamin Chapin Phoebe Silos 

Reade Jacob 7 World Trade Center 

Jocelyn Berteaud 250 Greenwich St. 

Vinecia Perkins New York, NY 10007 

Andres Salinas Telephone: (212) 230-8800 

Spencer Todd Facsimile: (212) 230-8888 

Molly Dillaway David.Gringer@wilmerhale.com 

1875 Pennsylvania Ave NW Charles.Bridge@wilmerhale.com 

Washington, DC 20006 Eleanor.Davis@wilmerhale.com 

Telephone: (202) 663-6000 Phoebe.Silos@wilmerhale.com 

Facsimile: (202) 663-6363 

Jonathan.Paikin@wilmerhale.com Shelby Martin 

Jennifer.Milici@wilmerhale.com 1225 Seventeenth Street 

Derek.Woodman@wilmerhale.com Suite 2600 

Benjamin.Chapin@wilmerhale.com Denver, CO 80202 

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Reade.Jacob@wilmerhale.com 

Joss.Berteaud@wilmerhale.com 

Vinecia.Perkins@wilmerhale.com 

Andres.Salinas@wilmerhale.com 

Spencer.Todd@wilmerhale.com 

Molly.Dillaway@wilmerhale.com 

Katherine Mackey 

60 State Street 

Boston, MA 02109 

Telephone: (617) 526-6000 

Facsimile: (617) 526-5000 

Katherine.Mackey@wilmerhale.com 

Telephone: (720) 274-3135 

Facsimile: (720) 274-3133 

Shelby.Martin@wilmerhale.com 

Attorneys for Respondent Intuit Inc. 

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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of: 

Docket No. 9408 Intuit Inc., a corporation. 

[PROPOSED] ORDER ON RESPONDENT’S MOTION TO COMPEL 

Upon consideration of Respondent’s Motion to Compel Production of Documents: 

IT IS HEREBY ORDERED that Respondent’s Motion is GRANTED. 

IT IS FURTHER ORDERED that Complaint Counsel shall provide the documents identified in 

Category J of Complaint Counsel’s Initial Disclosures within two days from the date of this 

Order. 

IT IS FURTHER ORDERED that Complaint Counsel shall provide documents and data related 

to Professor Nathan Novemsky’s surveys conducted on behalf of the Federal Trade Commission 

within two days from the date of this Order. 

IT IS FURTHER ORDERED that Complaint Counsel shall provide documents responsive to 

Respondent’s First Set of Requests for the Production of Documents on a rolling basis, and 

substantially complete its document production on or before October 21, 2022. 

IT IS FURTHER ORDERED that Complaint Counsel shall provide a privilege log in compliance 

with Rule 3.38A on or before October 21, 2022. 

IT IS FURTHER ORDERED that Complaint Counsel shall identify in writing, within 2 days 

from the date of this Order, the custodians whose documents are being searched to respond to 

Respondent’s First Set of Requests for the Production of Documents. 

IT IS FURTHER ORDERED that Complaint Counsel, when responding to Intuit’s First Set of 

Requests for Production, shall be required to search (1) communications and other materials sent 

to and from the Commissioners or the Commissioners offices; (2) communications and other 

materials sent between FTC counsel or other FTC legal staff that reflect conversations with third 

parties; and (3) communications and other materials that otherwise reflect information from 

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IT IS FURTHER ORDERED that Complaint Counsel, when responding to Intuit’s First Set of 

Requests for Production, shall be required to search for documents within the Bureau of 

Consumer Protection’s and Bureau of Economics’ possession beyond the investigative file 

related to this proceeding. 

ORDERED: ___________________________ 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: ______________________ 
 

 

 

 

 

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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of: Docket No. 9408 

Intuit Inc., a corporation. 

DECLARATION OF DEREK WOODMAN IN SUPPORT OF 

INTUIT INC.’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS 

I, Derek Woodman, declare as follows: 

1. I am a counsel at Wilmer Cutler Pickering Hale and Dorr LLP. I represent 

Respondent Intuit Inc. in the above-captioned proceeding. 

2. I submit this declaration in support of Intuit’s Motion to Compel Production of 

Documents. 

3. A true and correct copy of Intuit’s First Set of Requests for Production of 

Documents, served on Complaint Counsel on August 19, 2022, is attached hereto as Exhibit A. 

4. A true and correct copy of a letter sent by David Gringer to Complaint Counsel on 

August 19, 2022, is attached hereto as Exhibit B. 

5. A true and correct copy of Complaint Counsel’s Initial Disclosures, served on Intuit 

on April 21, 2022, is attached hereto as Exhibit C. 

6. On September 8, 2022, Intuit met and conferred with Complaint Counsel regarding 

the proposed scheduling order in this matter and in an effort to resolve the outstanding discovery 

disputes. During the meeting, Complaint Counsel agreed to narrow the set of consumer complaints 

identified in their initial disclosures (one of several issues concerning Complaint Counsel’s Initial 

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Disclosures that Intuit had raised), but did not address Intuit’s requests for Professor Novemsky’s 

data or the documents from Category J of Complaint Counsel’s Initial Disclosures. 

7. A true and correct copy of Complaint Counsel’s Responses and Objections to 

Intuit’s First Set of Requests for Production of Documents, served on Intuit on September 9, 2022, 

is attached hereto as Exhibit D. 

8. A true and correct copy of a letter sent by David Gringer to Complaint Counsel on 

September 16, 2022, is attached hereto as Exhibit E. 

9. On September 27, 2022, Intuit met and conferred with Complaint Counsel to 

discuss Complaint Counsel’s discovery responses and supplemental Initial Disclosures. When 

pressed about when Complaint Counsel would be producing documents in response to Intuit’s 

requests, Complaint Counsel indicated they were working to produce documents but declined to 

provide a definitive date. When asked to identify the FTC employees whose files were being 

searched for responsive documents, CC identified categories of employees that would be included, 

but refused to say whether they were searching the files of key personnel. Complaint Counsel 

further explained that they would not be searching internal communications among FTC 

employees, pursuant to 16 C.F.R. § 3.31(c)(2). 

10. A true and correct copy of email correspondence between Intuit and Complaint 

Counsel, with a final email dated September 30, 2022, is attached hereto as Exhibit F. 

11. On October 3, 2022, Intuit met and conferred with Complaint Counsel regarding 

Intuit’s discovery requests and Complaint Counsel’s responses. Complaint Counsel confirmed 

that they would not search communications or other materials sent to and from the Commissioners 

or the Commissioners offices or communications reflecting information from third parties. 

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Complaint Counsel also confirmed that they would not search documents beyond their 

investigative file relating to this proceeding. 

12. On April 21, 2022, a hearing was held before Hon. Charles Breyer in the Northern 

District of California on a motion for preliminary injunction that was filed by the FTC. A true and 

correct transcript of proceedings in FTC v. Intuit Inc., No. 22-01973-CRB (N.D. Cal Apr. 21, 

2022), is attached hereto as RX 73. 

I declare under penalty of perjury that the foregoing is true and correct. 

Executed on this 6th day of October, 2022, in Washington, D.C. 

By: /s/ Derek Woodman 

DEREK WOODMAN 

Wilmer Cutler Pickering 

Hale and Dorr LLP 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Derek.Woodman@wilmerhale.com 

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Exhibit A 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

Docket No. 9408 In the Matter of: 

Intuit Inc., a corporation. 

RESPONDENT INTUIT INC.’S FIRST SET OF REQUESTS FOR 

PRODUCTION OF DOCUMENTS 

Pursuant to Rule 3.37 of the Commission’s Rules of Practice, 16 C.F.R. § 3.37, 

Respondent Intuit Inc., by and through its attorneys, requests that Complaint Counsel respond to 

these Requests for Production within 21 days of service of this request. 

DEFINITIONS 

1. The term “ADVERTISEMENT” refers to any written OR verbal statement OR depiction 

that promotes the sale OR use of a consumer good OR service, OR is designed to increase 

consumer interest in a brand, good, OR service, in ANY form of media, including but not limited 

to, television, radio, print, online display, online search, AND social media 

2. The terms “AND” as well as “OR” shall be construed either disjunctively or conjunctively 

as necessary to bring within the scope of each request ANY responses that might otherwise be 

construed to be outside its scope, or in other words, to give each request its broadest possible 

meaning. 

3. The term “ANY” means “any and all.” 

4. The term “COMMUNICATION” means ANY transmission, exchange OR transfer of 

information (in the form of facts, ideas, inquiries, OR otherwise) by ANY means, including all 

written, electronic, telephonic, oral OR other inquiries, dialogues, discussions, conversations, 

1 
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 21 of 132 * PUBLIC *; 

interviews, correspondence, consultations, negotiations, agreements, understandings, meetings, 

letters, notes, telegrams, advertisements, computer mail, e-mail AND ANY other DOCUMENTS 

evidencing ANY verbal OR nonverbal interaction between PERSONS. 

5. The term “COMPLAINT” means the Part 3 Administrative Complaint filed by the Federal 

Trade Commission in the above-captioned proceeding. 

6. The term “CONCERNING” means referencing, regarding, relating to, alluding to, 

describing, evidencing, reflecting, constituting, documenting, discussing, referring to, mentioning, 

analyzing, refuting, or recording. 

7. The term “DOCUMENT” shall mean the original AND all non-identical copies AND 

drafts, regardless of origin OR location, of ANY writing AND ANY written, printed, typed, OR 

other graphic OR photographic matter of ANY kind OR description, in draft OR final form, 

including, but not limited to, correspondence, letters, telegrams, facsimiles, cables, telex messages, 

e-mail, memoranda, notes, interoffice AND interdepartmental COMMUNICATIONS, transcripts, 

minutes of conversations OR meetings, reports, studies, ANY audio OR video recordings, 

voicemail, contracts, calendar OR diary entries, pamphlets, handwritten notes, charts, tabulations, 

records of meetings, conferences, telephone OR other conversations OR COMMUNICATIONS, 

AND tapes OR slides, AND other data compilations from which information can be obtained OR 

translated, if necessary, by YOU through detection devices into reasonably usable form, AND all 

other records kept by electronic, photographic, OR mechanical means however denominated, 

which are in YOUR possession, custody, OR control, including electronically-stored information. 

If a DOCUMENT has been prepared in several copies, OR additional copies have been made, OR 

copies are not identical (OR, which by reason of subsequent modification of a copy by the addition 

of notations OR other modifications, are no longer identical), each non-identical copy is a separate 

2 
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DOCUMENT. 

8. The term “INTUIT” means Respondent Intuit Inc., its subsidiaries, divisions, departments, 

affiliates, each AND every other legal entity within its control, AND ANY officer, director, 

employee, agent, OR representative thereof. 

9. The term “PERSON” shall mean ANY natural person, corporate entity, partnership, 

association, limited liability company, joint venture, government entity, trust, religious order OR 

other entity. 

10. The term “PROCEEDING” means the above-captioned proceeding. 

11. The term “TURBOTAX” means the brand under which Intuit markets and sells 

TURBOTAX PRODUCTS. 

12. The term “TURBOTAX WEBSITE” means the website maintained by INTUIT at 

turbotax.intuit.com. 

13. The term “TURBOTAX FREE EDITION” means the commercial online tax preparation 

and filing software product marketed by INTUIT for taxpayers with simple tax returns. 

14. The term “TURBOTAX PRODUCTS” means ANY online tax preparation OR tax filing 

software product that INTUIT markets OR has marketed under the registered trademark 

TurboTax® (e.g., “TurboTax Free Edition,” “TurboTax Deluxe,” “TurboTax Deluxe Live,” 

“TurboTax Premier,” “TurboTax Premier Live,” “TurboTax Self-Employed,” and “TurboTax 

Self-Employed Live”). 

15. The terms “YOU” AND “YOUR” refer to the Federal Trade Commission (“FTC”) AND 

ANY current OR former Commissioners, employees, agents, representatives, assigns, OR ANY 

other PERSON acting OR purporting to act on behalf of OR under the direction, authorization, 

OR control of the FTC. 

3 
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GENERAL INSTRUCTIONS 

1. The following Requests seek production of the original OR a true AND legible copy of 

each AND every DOCUMENT in YOUR possession OR under YOUR control AND which is 

described below. Photocopies produced in lieu of original DOCUMENTS must be accompanied 

by an affidavit of the custodian of the record stating that the copies are true, correct, AND complete 

copies of the original DOCUMENTS. 

2. These Requests shall be deemed continuing in nature so as to require the supplemental 

production of all DOCUMENTS to the extent required by law. 

3. Each DOCUMENT requested herein is requested to be produced in its entirety without 

deletion OR excisions regardless of whether YOU consider the entire DOCUMENT to be relevant 

OR responsive to these Requests. 

4. If a DOCUMENT contains both privileged AND non-privileged information, portions of 

the DOCUMENT that are not privileged must be produced. If a DOCUMENT OR portion of a 

DOCUMENT is withheld from production on the grounds of privilege (e.g., attorney-client 

privilege) OR other protection, the DOCUMENT OR portion of the DOCUMENT may be 

withheld from production but must be identified on a privilege log which identifies the following: 

the DOCUMENT Bates number, the author, the date, all recipients, the basic nature of the 

DOCUMENT (e.g., letter, report, notes, etc.), a description of the document’s subject matter AND 

the grounds on which the privilege OR protection is asserted. 

5. To the extent responsive DOCUMENTS exist in an electronic format, please contact 

Respondent’s counsel to discuss the manner AND format in which the DOCUMENTS will be 

produced AND to facilitate the production of full AND complete copies in a usable format. 

6. The singular form of a word shall be interpreted as plural, and the plural form of a word 

4 
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shall be interpreted as singular, whenever appropriate, in order to bring within the scope of the 

Request for Production of Documents ANY DOCUMENTS that might otherwise be considered 

beyond its scope. 

7. None of the Definitions above OR Requests set forth below shall be construed as an 

admission relating to the existence of ANY evidence, to the relevance or admissibility of ANY 

evidence, OR to the truth or accuracy of ANY statement OR characterization in the Definitions 

OR a Request. 

REQUESTS FOR PRODUCTION 

Document Request No. 1 

All DOCUMENTS OR COMMUNICATIONS reviewed, consulted, considered, OR relied 

upon in drafting the COMPLAINT. 

Document Request No. 2 

All DOCUMENTS that contradict ANY allegation in the COMPLAINT. 

Document Request No. 3 

All DOCUMENTS reviewed OR consulted in the drafting of ANY interrogatory response 

in this PROCEEDING. 

Document Request No. 4 

All notes, recordings, logs, OR other DOCUMENTS relating to interviews conducted with 

nonparties regarding the allegations in this PROCEEDING, the subject matter of this 

PROCEEDING, INTUIT, OR the PROCEEDING itself. 

Document Request No. 5 

All DOCUMENTS produced in response to ANY subpoena issued in this PROCEEDING 

OR produced voluntarily by ANY nonparty that relates to the allegations in this PROCEEDING. 

5 
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Document Request No. 6 

All DOCUMENTS discussing, analyzing, OR reviewing advertisements for “free” 

merchandise OR services by INTUIT OR ANY other company. 

Document Request No. 7 

All DOCUMENTS relating to OR reflecting rules OR guides adopted, provided, OR 

administered by the FTC about how to evaluate ADVERTISEMENTS for “free” merchandise OR 

services. 

Document Request No. 8 

All DOCUMENTS relating to OR reflecting policy discussions involving the FTC about 

ADVERTISEMENTS for “free” merchandise OR services. 

Document Request No. 9 

All screenshots from the TURBOTAX WEBSITE captured using “SnagIt” OR ANY other 

screen capture software OR tool, whether referenced in the Second Declaration of Diana F. Shiller 

in the matter of FTC v. Intuit Inc., No. 3:22-cv-01973-CRB (N.D. Cal.), OR otherwise. 

Document Request No. 10 

All DOCUMENTS that support OR relate to the allegation in Paragraph 43 of the 

COMPLAINT that “the term ‘simple tax returns’ is not understood by many consumers.” 

Document Request No. 11 

All DOCUMENTS related to the “early testing” performed by Professor Nathan Novemsky 

and referenced in ¶ 9 of the Second Declaration of Nathan Novemsky in FTC v. Intuit Inc., No. 

3:22-cv-01973-CRB (N.D. Cal.). 

6 
 

 

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Document Request No. 12 

All DOCUMENTS consulted, relied upon, OR cited in drafting the First AND Second 

Declarations of Nathan Novemsky in FTC v. Intuit Inc., No. 3:22-cv-01973-CRB (N.D. Cal.). 

Document Request No. 13 

All DOCUMENTS relating to OR reflecting ANY votes taken by ANY current OR former 

Commissioners of the Federal Trade Commission regarding TURBOTAX. 

Document Request No. 14 

All COMMUNICATIONS OR documents reflecting COMMUNICATIONS between 

anyone at the Federal Trade Commission and ANY nonparty regarding the allegations in this 

PROCEEDING, the subject matter of this PROCEEDING, INTUIT, OR the PROCEEDING itself, 

including members of Congress, their staffs, the IRS, the media, customers, competitors, OR other 

government agencies. 

Dated: August 19, 2022 Respectfully submitted, 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

/s/ David Z. Gringer 

David Z. Gringer 

7 World Trade Center 

250 Greenwich St. 

New York, NY 10007 

Telephone: (212) 230-8800 

Facsimile: (212) 230-8888 

David.Gringer@wilmerhale.com 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

7 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 27 of 132 * PUBLIC *; 

Telephone: (202) 663-6000 

Facsimile: (202) 663-6363 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Attorneys for Respondent Intuit Inc. 

8 

PUBLIC
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 28 of 132 * PUBLIC *; 

CERTIFICATE OF SERVICE 

I certify that on August 19, 2022, I caused the foregoing document to be served via email 

to: 

Roberto Anguizola Frances Kern 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

Email: ranguizola@ftc.gov Email: fkern@ftc.gov 

Tel: (202) 326-3284 Tel: (202) 492-7942 

James Evans Rebecca Plett 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

Email: jevans1@ftc.gov Email: rplett@ftc.gov 

Tel: (202) 326-2026 Tel: (202) 326-3664 

Counsel Supporting the Complaint 

Dated: August 19, 2022 Respectfully submitted, 

/s/ Derek A. Woodman 

Derek A. Woodman 

Counsel for Intuit Inc. 

9 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 29 of 132 * PUBLIC *; 

Exhibit B 

PUBLIC
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WILMERHALE 

Wilmer Cutler Pickering Hale and Dorr LLP, 7 World Trade Center, 250 Greenwich Street, New York, New York 10007 

Beijing Berlin Boston Brussels Denver Frankfurt London Los Angeles New York Palo Alto San Francisco Washington 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 30 of 132 * PUBLIC *; 

August 19 David Gringer , 2022 

+1 212 230 8864 (t) 

+1 212 230 8888 (f) Frances L. Kern, Esq. david.gringer@wilmerhale.com 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Re: In the Matter of Intuit Inc., Docket No. 9408 

Complaint Counsel: 

Now that this matter has returned to adjudication, I write regarding five outstanding issues 

that have yet to be resolved, including aspects of Complaint Counsel’s initial disclosures that still 

do not conform to the requirements of Rule § 3.31(b) and that we expect to be corrected when 

initial disclosures are due under the new case schedule. They also raise serious issues regarding 

the veracity of Complaint Counsel’s representations to the Commissioners and to Judge Breyer 

about consumer complaints. 

First, we have discovered additional issues with the complaint-related spreadsheets and 

files that the FTC provided as part of their initial disclosures. The PDF files of consumer 

complaints, sent by Complaint Counsel on May 6, 2022, include four complaints from consumers 

that are not listed in the corresponding spreadsheet titled “Consumer Contact List--Sentinel.”1 In 

addition, the Consumer Contact List spreadsheet lists three individuals for whom there is no 

corresponding complaint text among the complaint PDFs provided on May 6.2 Without complete 

and accurate information concerning these complaints, we cannot possibly verify whether they are 

“relevant to the allegations of the Commission’s complaint,” nor can we respond to complainants’ 

substantive allegations or decide whether to obtain discoverable information from the 

complainants. 16 C.F.R. § 3.31(b). As noted in our April 28, 2022 letter, “initial disclosures 

should be ‘complete and detailed,’ and should ‘give the opposing party information as to the 

identification and location of persons with knowledge so that they can be contacted in connection 

with the litigation.’” Sender v. Mann, 225 F.R.D. 645, 640 (D. Colo. 2004).

3 At present, several 

of the consumer complaints identified by Complaint Counsel fail to meet this standard. 

Second, our initial outreach to the consumer declarants identified in Complaint Counsel’s

initial disclosures suggests that those consumers no longer wish to participate in this proceeding, 

or never intended to participate in the first place. WilmerHale attempted to contact seven 

1 These are complaints for , Sentinel Ref. No. 145978549; , Sentinel Ref. No. 

146236142; , Sentinel Ref. No. 145698927; and an individual without a listed name, Sentinel Ref. 

2 These entries are for , , and . 

No. 144770670. All of these complaints are contained in the PDF titled, “File95916655704.”

3 “Judicial decisions and precedents under the Federal Rules of Civil Procedure concerning discovery motions, though 

not controlling, provide helpful guidance for resolving discovery disputes in Commission proceedings.” In the Matter 

of Hoechst Marion Roussel, Inc., 2000 WL 33944049, at *2 (F.T.C. Oct. 17, 2000) (Chappell, J.); see also In the 

Matter of Traffic Jam Events, LLC, 2021 WL 3701656, at *4 n.5 (F.T.C. Aug. 9, 2021) (similar). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WILMER.HALE 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 31 of 132 * PUBLIC *; 

Frances L. Kern August 19, 2022 

Page 2 

declarants identified by the FTC by both phone and email. Four of those declarants never 

responded to WilmerHale’s outreach. And the three declarants we were able to contact all 

indicated their unwillingness to participate in the administrative proceeding. For example, 

stated that she was no longer interested in any of the subject matter of the FTC’s 

investigation. She also said that she was not even aware the FTC had identified her as a declarant 

in this investigation and had not heard from any member of the FTC or staff since 2019. She 

questioned why she was being contacted about this case now, considering her declaration was 

drafted for her in August 2019. The other consumer declarants expressed similar questions and 

concerns. Considering the lack of response from several declarants and the statements from others 

that they are unwilling to participate in this proceeding, it appears clear that Complaint Counsel 

did not contact the consumers before disclosing their declarations or otherwise obtain the 

consumers’ consent to use the declarations in this proceeding. Before relying on those 

declarations, Complaint Counsel must demonstrate that they have authorization from the 

declarants to use the outdated declarations in the adjudication. Without such authorization, the 

FTC should withdraw the declarations and cease their reliance on them. 

Third, we asked you in April to provide us with the data underlying Professor Novemsky’s

survey in order to assess the credibility of his proffered report. To date, Complaint Counsel have 

failed to do so. As you are undoubtedly aware, Intuit voluntarily provided the FTC with the data 

collected by Rebecca Kirk-Fair in both of her surveys well over a year ago. Per Commission Rules 

and common courtesy, Complaint Counsel must now reciprocate. After all, “discovery is a twoway street.” Scoma Chiropractic, P.A. v. Dental Equities, LLC, 2022 WL 1665446, at *2 (M.D. 

Fla. May 25, 2022).

4 

Fourth, we also asked you in April for the “J” category of documents from Complaint 

Counsel’s initial disclosures. Four months later, they remain unsent. We again request that you 

provide those documents promptly. 

Fifth, there are several deficiencies with Complaint Counsel’s initial disclosures identified 

in our April 28 letter that still must be addressed. For instance, Complaint Counsel has yet to 

correct the grossly overinclusive Appendix A, which improperly designates every person with 50 

or more emails produced to Complaint Counsel in response to its Civil Investigative Demands. 

Likewise, even after Complaint Counsel’s second bite at the apple, the Consumer Contact List--

Sentinel—which replaced Appendix B—still contains a number of individuals whose purported 

4 “Judicial decisions and precedents under the Federal Rules of Civil Procedure concerning discovery motions, though 

not controlling, provide helpful guidance for resolving discovery disputes in Commission proceedings.” In the Matter 

of Hoechst Marion Roussel, Inc., 2000 WL 33944049, at *2 (F.T.C. Oct. 17, 2000) (Chappell, J.); see also In the 

Matter of Traffic Jam Events, LLC, 2021 WL 3701656, at *4 n.5 (F.T.C. Aug. 9, 2021) (similar). 
 

 

 

 

 

 

 

 

 

WILMER.HALE 

-

-

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 32 of 132 * PUBLIC *; 

Frances L. Kern August 19, 2022 

Page 3 

grievances are wholly unrelated to the substance of the complaint filed by Complaint Counsel.5 

For the reasons stated in our previous letter, those shortcomings must be cured. 

We ask that Complaint Counsel address the concerns no later than the revised due date for 

initial disclosures. If Complaint Counsel is unwilling to do so, we request a telephonic meet and 

confer no later than an earlier date. 

Sincerely, 

/s/ David Z. Gringer 

cc: Roberto Anguizola, Esq., Federal Trade Commission 

Rebecca Plett, Esq., Federal Trade Commission 

James Evans, Esq., Federal Trade Commission 

Sentinel Ref. No. 104961507 (customer purchased TurboTax Deluxe because of the “best refund guaranteed”

promise; before mailing state return, customer checked FreeTaxUSA and discovered she would have received a larger 

refund; contacted Intuit for a refund; Intuit customer support clarified requirements for their Maximum Refund 

Guarantee and provided website/instructions to qualify for a refund). 

5 See, e.g., , Sentinel Ref. No. 97511115 (customer went to TurboTax website to begin free tax 

preparation, but never finished; later discovered recurring $25 fee; Intuit customer support clarified that customer had 

signed up for Quickbooks subscription; customer did not recall signing up for subscription, it was so canceled); 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 33 of 132 * PUBLIC *; 

Exhibit C 

PUBLIC
 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 34 of 132 * PUBLIC *; 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of: Docket No. 9408 

Intuit Inc., a corporation. 

COMPLAINT COUNSEL’S INITIAL DISCLOSURES 

Pursuant to Rule 3.31(b) of the Federal Trade Commission’s Rules of 

Practice, 16 C.F.R. § 3.31(b), Complaint Counsel hereby serves its Initial 

Disclosures on Respondent Intuit Inc. (“Respondent”). The information disclosed 

herein is based upon information reasonably available to Complaint Counsel. 

Without waiving any privileges or prejudicing the ability to supplement these 

Initial Disclosures if additional information becomes available, Complaint 

Counsel makes the following disclosures: 

1. Individuals Likely to Have Discoverable Information 

Pursuant to Rule 3.31(b)(1), Complaint Counsel identifies the individuals 

listed in Appendix A as those who are likely to have discoverable information 

relevant to the allegations of the Complaint, the proposed relief, or the defenses of 

Respondent. In addition, Complaint Counsel also identifies the individuals listed in 

Appendix B as consumers who are likely to have discoverable information relevant 

to the allegations of the Complaint, the proposed relief, or the defenses of 

Respondent. 

1 
 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 35 of 132 * PUBLIC *; 

Complaint Counsel has provided the name and, where known, address and 

telephone number of each such individual. Because most of the information in 

Appendix A has been drawn from documents produced in the investigation, 

Appendix A has been marked “CONFIDENTIAL—FTC Docket No. 9408” pursuant 

to the protective order entered in this matter on March 30, 2022. 

Respondent presently knows the identities of its current and former 

employees, contractors, and other individuals who have performed work for 

Respondent, all of whom may have discoverable and relevant information. 

Appendix A identifies Respondent’s current and former employees and contractors 

and other individuals and entities who, based on Complaint Counsel’s present 

knowledge, are likely to have discoverable and relevant information. Appendix B 

identifies consumers of whom Complaint Counsel is aware who may have 

discoverable and relevant information, including consumers whose complaints were 

obtained by searching the Federal Trade Commission’s Consumer Sentinel database 

for complaints dated between January 1, 2019, and April 15, 2022, about “TurboTax” 

or “Turbo Tax” that contained the word “free.” 

Pursuant to Rule 3.31A, Complaint Counsel will disclose the identity of 

testifying expert(s), if any, at a later date in compliance with the Scheduling Order to 

be entered in this matter. 

2. Documents and Electronically Stored Information 

Pursuant to Rule 3.31(b)(2), Complaint Counsel provides the following 

description by category and location of “all documents and electronically stored 

information, including declarations, transcripts of investigational hearings, and 

2 
 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 36 of 132 * PUBLIC *; 

tangible things in the possession, custody, or control of the Commission” or 

Respondent that are “relevant to the allegations of the Commission’s complaint, to 

the proposed relief, or to the defenses of” Respondent and: 

1. Are not subject to the limitations in Rule 3.31(c)(2), 

2. Are not privileged, as defined in Rule 3.31(c)(4), 

3. Do not pertain to hearing preparation, as defined in Rule 3.31(c)(5), 

4. Do not pertain to experts, as defined in Rule 3.31A, or 

5. Cannot be obtained from another source that is “more convenient, less 

burdensome, or less expensive.” 

The categories and location of such documents are as follows: 

Description Location 

A Documents produced in response to Civil 

Investigative Demand (“CID”) issued to 

Intuit Inc. dated June 28, 2019 

FTC Constitution Center1 

(INTUIT-FFA-FTC000000001 to 000528208 and 

accompanying 

correspondence) 

B Documents produced in response to CID 

issued to Intuit Inc. dated May 18, 2020 

FTC Constitution Center 

(INTUIT-FFA-FTC000528209 to 000551349, 

and 000551357 to 

000551364, and 

accompanying 

correspondence) 

C Documents produced in response to CID 

issued to Google LLC dated September 19, 

2019 

FTC Constitution Center 

(folders labeled “Google 

2777350” and “Google 

2777400,” accompanying 

correspondence) 

1 “FTC Constitution Center” means documents are physically and electronically 

stored with the Federal Trade Commission, Division of Marketing Practices,

Constitution Center, 8th Floor, 400 Seventh St. SW, Washington, DC 20024. 

3 
 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 37 of 132 * PUBLIC *; 

D Transcripts of 8 investigational hearings 

taken of individuals and Intuit Inc. in 

response to CIDs issued to those 

individuals in their personal capacity and 

Intuit Inc. dated May 18 and July 20, 2020 

FTC Constitution Center 

(GX150–57) 

E Declarations of Michael Bordonaro and 

Heather Hillerman (with attached 

exhibits), submitted in lieu of appearing at 

investigational hearings, in response to 

CIDs issued to those individuals in their 

personal capacity dated May 18, and July 

20, 2020 

FTC Constitution Center 

F Communications, PowerPoint 

presentations, and white papers produced 

by Intuit, its counsel, or its consultants 

during the course of the Commission’s 

investigation, FTC File No. 1923119 

FTC Constitution Center 

G Documents and exhibits produced in 

Federal Trade Commission v. Intuit Inc., No. 

3:22-CV-1973 (N.D. Cal.) 

FTC Constitution Center 

(GX 001–116, 150–57, 200– 

319; documents and 

exhibits produced by Intuit) 

H Documents voluntarily produced by the 

Free File Alliance 

FTC Constitution Center 

(FFI.FTC 0001-0144, articles, 

and accompanying 

correspondence) 

I Consumer declarations FTC Constitution Center 

(12 separate .pdf files) 

J Correspondence with and documents 

shared by individuals during the course of 

the Commission’s investigation, FTC File 

No. 1923119, including consumers sharing 

information about their experiences with 

Intuit 

FTC Constitution Center 

K Consumer complaints obtained from the 

Better Business Bureau of Los Angeles and 

Silicon Valley 

FTC Constitution Center 

(594 separate Word, .pdf, 

zip, and Excel files) 

L Consumer complaints obtained from 

Consumer Sentinel 

FTC Constitution Center 

(File95632967968-1 through 

-8, and File95639793558) 

4 
 

 

 

 

 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 38 of 132 * PUBLIC *; 

M Publicly available documents collected or 

reviewed during the course of the 

Commission’s investigation, FTC File 

No. 1923119 but not otherwise produced 

in Federal Trade Commission v. Intuit Inc., 

3:22-CV-1973 (N.D. Cal.) 

FTC Constitution Center 

Respondent is already in possession of the categories of documents identified above 

by the following letters: A, B, D, F, G. 

Contemporaneously with service of these Initial Disclosures, Complaint 

Counsel produces the documents comprising the categories identified above by the 

following letters: C, E, H, I, K, L. 

Aside from the documents described above, Complaint Counsel is aware of 

no specific documents relevant to the claims, defenses, or relief in this matter. 

Complaint Counsel is without knowledge at this time as to the category and 

location of relevant documents in the possession, custody, or control of Respondent 

beyond those already produced to Complaint Counsel during its investigation. 

Complaint Counsel believes that Respondent is in the possession of additional 

documents relevant to the allegations of the Commission’s Complaint and 

anticipates that Respondent will provide this information as part of its initial 

disclosures. 

Dated: April 21, 2022 Respectfully submitted, 

s/ Frances L. Kern 

Roberto Anguizola 

Frances Kern 

Rebecca Plett 

James Evans 

Complaint Counsel 

5 
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 39 of 132 * PUBLIC *; 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Telephone: 202-492-7942 

Email: fkern@ftc.gov 

6 
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 40 of 132 * PUBLIC *; 

CERTIFICATE OF SERVICE 

This is to certify that on April 21, 2022, I caused Complaint Counsel’s 

Initial Disclosures, along with documents specified therein, to be served via 

secure electronic mail on: 

David Gringer 

250 Greenwich St. 

New York, NY 10007 

Telephone: (212) 230-8864 

Email: David.Gringer@wilmerhale.com 

Jennifer Milici 

1875 Pennsylvania Ave. NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Email: Jennifer.Milici@wilmerhale.com 

Jonathan E. Paikin 

1875 Pennsylvania Ave. NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Email: Jonathan.Paikin@wilmerhale.com 

Derek A. Woodman 

1875 Pennsylvania Ave. NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Email: Derek.Woodman@wilmerhale.com 

(at Wilmer Cutler Pickering Hale and Door LLP) 

Counsel for Respondent Intuit Inc. 

Dated: April 21, 2022 Respectfully submitted, 

s/ Frances L. Kern 

Frances Kern 

Counsel Supporting the Complaint 

7 

PUBLIC
 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 41 of 132 * PUBLIC *; 

Exhibit D 

PUBLIC
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 42 of 132 * PUBLIC *; 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

In the matter of: 

Intuit Inc., Docket No. 9408 a corporation, 

Respondent. 

COMPLAINT COUNSEL’S RESPONSES AND OBJECTIONS TO INTUIT’S 

FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS 

Complaint Counsel hereby makes the following Objections and Responses 

(“Responses”) to the Defendant Intuit Inc.’s (“Intuit’s”) First Set of Requests for 

Production of Documents (“Requests”). Complaint Counsel reserves its right to 

supplement, revise, modify, or otherwise change or amend these Responses and 

Objections based on any documents, tangible things, information, or evidence obtained 

through further investigation and discovery. 

GENERAL STATEMENTS 

1. By responding or agreeing to produce documents in response to these 

Requests, Complaint Counsel does not concede that such documents exist or are within 

the scope of discovery, relevant, material, or admissible in evidence. In particular, 

Complaint Counsel does not waive or intend to waive, but rather reserves and intends 

to reserve: (a) any objections to the relevance, materiality, privilege, or admissibility as 

evidence, for any purpose, of any documents provided in response to these Requests; 

(b) the right to object on any ground to the use of any documents provided in response 

to these Requests at any hearing; or (c) the right to object on any ground at any time to a 

demand for a further response. 

2. Intuit’s request does not specify a time, place, or manner for making the 

production. See 16 C.F.R. 3.37(a). Complaint Counsel is gathering and reviewing 

documents and information requested and expects to produce responsive documents 

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on a rolling basis. Complaint Counsel intends to produce such documents 

electronically, as outlined in the “BCP Production Requirements” attached hereto. 

3. Complaint Counsel’s Responses should not be construed to limit 

Complaint Counsel’s basis for any relief sought from Intuit in this action. 

4. Complaint Counsel’s Responses are based upon discovery it has received 

to date. Complaint Counsel notes that fact discovery is ongoing and will continue under 

the Scheduling Order. 

5. Complaint Counsel may be omitting from its Responses the identification 

of documents not yet known to Complaint Counsel. Complaint Counsel does not waive 

its right to rely upon or use at any hearing facts and documents that are not being 

produced or individually identified at this time. Complaint Counsel will identify for 

Intuit in advance of a hearing the documents Complaint Counsel plans to introduce as 

exhibits at a hearing, as set out by the Scheduling Order. 

6. Complaint Counsel’s Responses are based on a search of the documents in 

the possession, custody, or control of the Division of Marketing Practices (“Division”), 

the division of the Commission’s Bureau of Consumer Protection that investigated this 

matter and is handling the prosecution of this action. See 16 C.F.R. 3.31(c)(2). 

7. Complaint Counsel cannot respond to requests encompassing documents 

or information held by the Commissioners, the General Counsel, any Bureau or Office 

not involved in the matter, the office of Administrative Law Judges, or the Secretary in 

his or her capacity as custodian or recorder of any such information, or their respective 

staff. Intuit may seek such documents or information pursuant to 16 C.F.R. 3.36. 

8. Privileges held by the Commission (not Complaint Counsel) can only be 

waived by the Commission. 

General Objections 

1. Complaint Counsel objects to these Requests, and each instruction and 

definition therein, to the extent that they seek documents that are not discoverable 

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pursuant to the FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3, and 4, the Federal Rules of 

Civil Procedure, or otherwise exempt from disclosure by law, including, but not limited 

to, identification of documents or information protected from disclosure by the 

attorney-client privilege, the work product doctrine, the government deliberative 

process privilege, the law enforcement evidentiary or investigative file privilege, the 

common interest rule, the informant privilege, or any other applicable privilege of law. 

Complaint Counsel does not intend to waive any of the privileges asserted in this 

objection by any inadvertent reference to, or production of, protected documents or 

information that may occur, and reserves the right to seek the return of any such 

material inadvertently produced to Intuit. The documents and information for which 

Complaint Counsel asserts these privileges include but are not limited to: 

(a) communications and correspondence between the FTC and any law enforcement 

agency and any documents circulated between the FTC and law enforcement agencies; 

(b) documents and materials obtained from other law enforcement agencies under 

confidentiality agreements; (c) drafts of pleadings and declarations; (d) pre-decisional 

or deliberative FTC documents; (e) internal documents circulated among Commission 

staff; (f) memoranda from Commission staff to any of the Commissioners; 

(g) compilations or indices of FTC records; (h) communications and other 

correspondence between FTC attorneys and among FTC staff, except to the extent such 

staff have submitted declarations in this lawsuit and/or will be testifying witnesses and 

the correspondence or communication relate to the particular subject(s) addressed in 

their declaration and/or testimony; and (i) other notes and documents prepared for or 

in anticipation of litigation by Commission staff. 

2. Complaint Counsel objects to these Requests, and each instruction and 

definition therein, to the extent they are vague, ambiguous, overly broad, unduly 

burdensome, or duplicative of other Requests. 

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3. Complaint Counsel objects to these Requests, and each instruction and 

definition therein, to the extent that they seek documents that are outside the scope of 

discovery, not relevant to any party’s claim or defense, or are not proportional to the 

needs of the case. 

4. Complaint Counsel objects to these Requests, and to each instruction and 

definition therein, to the extent that they seek to impose on Complaint Counsel any 

obligations beyond those provided for in the FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3 

and 4, or the Federal Rules of Civil Procedure. 

5. Complaint Counsel objects to these Requests to the extent that they seek 

documents that are not within Complaint Counsel’s possession, custody, or control. 

Complaint Counsel does not consider documents to be in its possession, custody, or 

control if they are, inter alia, located in the offices of Intuit, or otherwise in the 

possession, custody, or control of Intuit or its employees or agents, and hence they will 

not be produced as part of Complaint Counsel’s Responses. 

6. Complaint Counsel objects to these Requests to the extent that they are not 

limited to requests for documents about Intuit’s business practices that are at issue in 

this matter. 

7. Complaint Counsel objects to these Requests to the extent that they seek 

information that Complaint Counsel has already provided to Intuit, including through 

Complaint Counsel’s federal court filings and administrative proceedings in this matter. 

8. Complaint Counsel objects to these Requests to the extent they seek 

documents that are already in the possession, custody, or control of Intuit, Intuit’s 

counsel, or that can be obtained from some other source, such as Intuit’s advertising 

agencies, that is more convenient to Intuit, less burdensome to Complaint Counsel, or 

less expensive for both parties. See 16 CFR 3.31(c)(2)(i). 

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9. Complaint Counsel objects to Intuit’s Requests to the extent that they 

require Complaint Counsel to analyze or organize factual evidence for Intuit, which 

Intuit can do equally itself. 

10. Complaint Counsel objects to Intuit’s Requests to the extent that they 

require Complaint Counsel to undertake legal research for Intuit, which Intuit can do 

equally itself. 

11. Each of the above-listed General Objections is incorporated by reference to 

each specific Response and objections set forth below. The specific Responses and 

objections set forth below are made without waiving any of the above-listed General 

Objections. 

Specific Responses and Objections 

1. Request for Production 1: All DOCUMENTS OR COMMUNICATIONS 

reviewed, consulted, considered, OR relied upon in drafting the COMPLAINT. 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. 

Complaint Counsel also objects to the Request to the extent it seeks documents or 

information that are outside of the scope of materials to be searched or produced by 

Complaint Counsel pursuant to the FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3 and 4. 

Complaint Counsel further objects to the extent the Request seeks documents that have 

been filed as exhibits, that are publicly available, that are in the possession, custody, or 

control of Intuit or Intuit’s counsel, or that Complaint Counsel has already provided to 

Intuit in this proceeding or the related federal court action. Complaint Counsel does not 

consider documents to be in its possession, custody, or control if they are, inter alia, 

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located in the offices of Intuit, or otherwise in the possession, custody, or control of 

Intuit or its employees or agents, and hence they will not be produced as part of 

Complaint Counsel’s Responses. Complaint Counsel also objects to the Request because 

it is premised on an inaccurate definition of the term “COMPLAINT.” Part 3 

administrative complaints are not “filed,” they are issued when an affirmative vote is 

taken by the Commission. Administrative proceedings such as this one commence 

“when an affirmative vote is taken by the Commission to issue a complaint.” 16 C.F.R. 

§ 3.11(a). Complaint Counsel will construe the request to relate to the administrative 

complaint in this matter that was issued by the Commission on March 28, 2022. 

Complaint Counsel further objects to the Request as overly broad, and unduly 

burdensome to the extent it requests “all documents or communications reviewed, 

consulted, considered, or relied upon.” 

So construing, subject to and without waiving the foregoing general and specific 

objections, Complaint Counsel will produce all nonprivileged documents supporting 

the allegations in the complaint. Additionally, Complaint Counsel directs Intuit to the 

exhibits and documents it filed in the related federal court action, see Docket No. 6, 

Exhibit Volumes 1-7. 

2. Request for Production 2: All DOCUMENTS that contradict ANY 

allegation in the COMPLAINT. 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

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scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3, and 4. 

Complaint Counsel further objects to the extent the Request seeks documents 

that have been filed as exhibits, that are publicly available, that are in the possession, 

custody, or control of Intuit or Intuit’s counsel, or that Complaint Counsel has already 

provided to Intuit in this proceeding or the related federal court action. Complaint 

Counsel does not consider documents to be in its possession, custody, or control if they 

are, inter alia, located in the offices of Intuit, or otherwise in the possession, custody, or 

control of Intuit or its employees or agents, and hence they will not be produced as part 

of Complaint Counsel’s Responses. Complaint Counsel also objects to the Request 

because it is premised on an inaccurate definition of the term “COMPLAINT.” Part 3 

administrative complaints are not “filed,” they are issued when an affirmative vote is 

taken by the Commission. Administrative proceedings such as this one commence 

“when an affirmative vote is taken by the Commission to issue a complaint.” 16 C.F.R. 

§ 3.11(a). Complaint Counsel will construe the request to relate to the administrative 

complaint in this matter that was issued by the Commission on March 28, 2022. 

Moreover, Complaint Counsel objects to the Request to the extent it requires 

Complaint Counsel to draw legal conclusions about whether documents contradict 

allegations in the complaint. Subject to and without waiving the foregoing general and 

specific objections, Complaint Counsel states that it is not aware of any such documents 

in its possession, custody or control. 

3. Request for Production 3: All DOCUMENTS reviewed OR consulted in 

the drafting of ANY interrogatory response. 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

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evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3, and 4. Complaint Counsel further objects to 

the extent the Request seeks documents that have been filed as exhibits, that are 

publicly available, that are in the possession, custody, or control of Intuit or Intuit’s 

counsel, or that Complaint Counsel has already provided to Intuit in this proceeding or 

the related federal court action. Complaint Counsel does not consider documents to be 

in its possession, custody, or control if they are, inter alia, located in the offices of Intuit, 

or otherwise in the possession, custody, or control of Intuit or its employees or agents, 

and hence they will not be produced as part of Complaint Counsel’s Responses. 

Complaint Counsel also objects to the Request as overbroad to the extent it seeks 

documents Complaint Counsel may have reviewed, but that were not relevant to the 

Interrogatory Responses or that Complaint Counsel did not rely on in drafting the 

Interrogatory Responses. Complaint Counsel will construe the Request to encompass 

documents relied upon in drafting Interrogatory Responses. So construing the Request, 

subject to and without waiving the foregoing general and specific objections, Complaint 

Counsel will produce responsive, non-privileged documents that have not already been 

produced or made available to Intuit, and as to which collection and production would 

not pose an undue burden. 

4. Request for Production 4: All notes, recordings, logs, OR other 

DOCUMENTS relating to interviews conducted with nonparties regarding the 

allegations in this PROCEEDING, the subject matter of this PROCEEDING, INTUIT, OR 

the PROCEEDING itself. 

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Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3, and 4. Complaint Counsel further objects to 

the extent the Request seeks documents that have been filed as exhibits, that are 

publicly available, that are in the possession, custody, or control of Intuit or Intuit’s 

counsel, or that Complaint Counsel has already provided to Intuit in this proceeding or 

the related federal court action. Complaint Counsel does not consider documents to be 

in its possession, custody, or control if they are, inter alia, located in the offices of Intuit, 

or otherwise in the possession, custody, or control of Intuit or its employees or agents, 

and hence they will not be produced as part of Complaint Counsel’s Responses. 

Complaint Counsel also objects to this Request to the extent it seeks documents that are 

outside the scope of discovery and/or not relevant to the claims or defenses in this 

matter. 

Complaint Counsel further objects to the Request because it is overbroad and 

unduly burdensome. The Request asks for documents relating to interviews conducted 

with third parties about Intuit, without limiting the scope to this matter. Complaint 

Counsel will construe the Request to encompass the documents related to the current 

proceeding. So construed, and subject to and without waiving the foregoing general 

and specific objections, Complaint Counsel will produce responsive, non-privileged 

documents that have not already been produced or made available to Intuit, and as to 

which collection and production would not pose an undue burden. 

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5. Request for Production 5: All DOCUMENTS produced in response to 

ANY subpoena issued in this PROCEEDING OR produced voluntarily by ANY 

nonparty that relates to the allegations in this PROCEEDING. 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. 

Complaint Counsel also objects to the Request to the extent it seeks documents or 

information that are outside of the scope of materials to be searched or produced by 

Complaint Counsel pursuant to the FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3 and 4. 

Complaint Counsel further objects to the extent the Request seeks documents that have 

been filed as exhibits, that are publicly available, that are in the possession, custody, or 

control of Intuit or Intuit’s counsel, or that Complaint Counsel has already provided to 

Intuit in this proceeding or the related federal court action. Complaint Counsel does not 

consider documents to be in its possession, custody, or control if they are, inter alia, 

located in the offices of Intuit, or otherwise in the possession, custody, or control of 

Intuit or its employees or agents, and hence they will not be produced as part of 

Complaint Counsel’s Responses. 

Complaint Counsel further objects to the Request to the extent it encompasses 

documents outside the scope of discovery and/or irrelevant to this proceeding. 

Subject to and without waiving the foregoing general and specific objections, 

Complaint Counsel will produce responsive, non-privileged documents that have not 

already been produced or made available to Intuit, and as to which collection and 

production would not pose an undue burden. 

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6. Request for Production 6: All DOCUMENTS discussing, analyzing, OR 

reviewing advertisements for “free” merchandise OR services by INTUIT OR ANY 

other company. 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3, and 4. 

Complaint Counsel further objects to the extent the Request seeks documents 

that have been filed as exhibits, that are publicly available, that are in the possession, 

custody, or control of Intuit or Intuit’s counsel, or that Complaint Counsel has already 

provided to Intuit in this proceeding or the related federal court action. Complaint 

Counsel further objects to the Request to the extent it seeks documents or information 

outside the scope of discovery and/or not relevant to the claims or defenses in this 

matter. Complaint Counsel does not consider documents to be in its possession, 

custody, or control if they are, inter alia, located in the offices of Intuit, or otherwise in 

the possession, custody, or control of Intuit or its employees or agents, and hence they 

will not be produced as part of Complaint Counsel’s Responses. 

Complaint Counsel further objects to the Request as overbroad and unduly 

burdensome. The Request seeks documents not just for Intuit’s “free” advertising, but 

“free” advertising of any company at any time. To require Complaint Counsel to 

produce records related to “free” advertising claims across the agency and across time 

would be immensely burdensome, is outside the scope of discovery, and is unlikely to 

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lead to any relevant or admissible evidence. Thus, Complaint Counsel will construe the 

Request to encompass documents related to Intuit’s “free” advertising claims for 

TurboTax only. So construing the Request, subject to and without waiving the foregoing 

general and specific objections, Complaint Counsel will produce responsive, nonprivileged documents that have not already been produced or made available to Intuit, 

and as to which collection and production would not pose an undue burden. 

7. Request for Production 7: All DOCUMENTS relating to OR reflecting 

rules OR guides adopted, provided, OR administered by the FTC about how to evaluate 

ADVERTISEMENTS for “free” merchandise OR services. 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3, and 4. 

Complaint Counsel further objects to the extent the Request seeks documents 

that have been filed as exhibits, that are publicly available, that are in the possession, 

custody, or control of Intuit or Intuit’s counsel, or that Complaint Counsel has already 

provided to Intuit in this proceeding or the related federal court action. Complaint 

Counsel does not consider documents to be in its possession, custody, or control if they 

are, inter alia, located in the offices of Intuit, or otherwise in the possession, custody, or 

control of Intuit or its employees or agents, and hence they will not be produced as part 

of Complaint Counsel’s Responses. Complaint Counsel further objects to the Request to 

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the extent it seeks documents or information outside the scope of discovery and/or not 

relevant to the claims or defenses in this matter. 

Complaint Counsel further objects to the Request as overly broad and unduly 

burdensome. The Request is not limited in time, and includes documents “relating to” 

guides, which could encompass documents from many decades, from across the entire 

agency. To identify such documents would be incredibly burdensome. Subject to and 

without waiving the foregoing general and specific objections, Complaint Counsel 

points Intuit to the following documents: 

 Guide Concerning Use of the Word “Free” and Similar Representations, 

16 C.F.R. § 251.1 (1971), regulatory text and record available at 

https://www.ftc.gov/legal-library/browse/rules/guide-concerning-useword-free-similar-representations (superseding Guide Concerning Use of 

the Word “Free” and Similar Representations, 36 Fed. Reg. 21,517 (1953). 

 .com Disclosures: How to Make Effective Disclosures in Digital 

Advertising (Mar. 2013), available at 

https://www.ftc.gov/sites/default/files/attachments/press-releases/ftcstaff-revises-online-advertising-disclosureguidelines/130312dotcomdisclosures.pdf. 

 Enforcement Policy Statement in Regard to Clear and Conspicuous 

Disclosure in Television Advertising (Oct. 21, 1970), available at 

https://www.ftc.gov/legal-library/browse/commission-enforcementpolicy-statement-regarding-clear-conspicuous-disclosures-television. 

 FTC Statement on Deception, 103 F.T.C. 174 (1984) (appended to 

In re Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)), available at 

https://www.ftc.gov/legal-library/browse/ftc-policy-statementdeception. 

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8. Request for Production 8: All DOCUMENTS relating to OR reflecting 

policy discussions involving the FTC about ADVERTISEMENTS for “free” merchandise 

OR services. 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3 and 4. Complaint Counsel further objects to 

the Request to the extent it seeks documents or information outside the scope of 

discovery and/or not relevant to the claims or defenses in this matter. 

Complaint Counsel further objects to the extent the Request seeks documents 

that have been filed as exhibits, that are publicly available, that are in the possession, 

custody, or control of Intuit or Intuit’s counsel, or that Complaint Counsel has already 

provided to Intuit in this proceeding or the related federal court action. Complaint 

Counsel does not consider documents to be in its possession, custody, or control if they 

are, inter alia, located in the offices of Intuit, or otherwise in the possession, custody, or 

control of Intuit or its employees or agents, and hence they will not be produced as part 

of Complaint Counsel’s Responses. 

Complaint Counsel also objects to the Request as vague, as it is not clear what 

the scope of “involving the FTC” is. Complaint Counsel will construe the Request to 

encompass discussions the FTC actively participated in. Complaint Counsel further 

objects to this Request as overbroad and unduly burdensome, not proportional to the 

needs of the case, and unlikely to lead to admissible evidence. The Request seeks 

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documents about policy discussions from the FTC without any limits in scope as to 

time, offices within the FTC, or even the matter at hand involving Intuit. So construed, 

and subject to and without waiving the foregoing general and specific objections, 

Complaint Counsel directs Intuit to the following documents: 

 Guide Concerning Use of the Word “Free” and Similar Representations, 

16 C.F.R. § 251.1 (1971), regulatory text and record available at 

https://www.ftc.gov/legal-library/browse/rules/guide-concerning-useword-free-similar-representations (superseding Guide Concerning Use of 

the Word “Free” and Similar Representations, 36 Fed. Reg. 21,517 (1953). 

 .com Disclosures: How to Make Effective Disclosures in Digital 

Advertising (Mar. 2013), available at 

https://www.ftc.gov/sites/default/files/attachments/press-releases/ftcstaff-revises-online-advertising-disclosureguidelines/130312dotcomdisclosures.pdf. 

 Enforcement Policy Statement in Regard to Clear and Conspicuous 

Disclosure in Television Advertising (Oct. 21, 1970), available at 

https://www.ftc.gov/legal-library/browse/commission-enforcementpolicy-statement-regarding-clear-conspicuous-disclosures-television. 

 FTC Statement on Deception, 103 F.T.C. 174 (1984) (appended to 

In re Cliffdale Assocs., Inc., 103 F.T.C. 110 (1984)), available at 

https://www.ftc.gov/legal-library/browse/ftc-policy-statementdeception. 

9. Request for Production 9: All screenshots from the TURBOTAX WEBSITE 

captured using “SnagIt” OR ANY other screen capture software OR tool, whether 

referenced in the Second Declaration of Diana F. Shiller in the matter of FTC v. Intuit 

Inc., No. 3:22-cv-01973-CRB (N.D. Cal.), OR otherwise. 

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Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3, and 4. Complaint Counsel further objects to 

the extent the Request seeks documents that have been filed as exhibits, that are 

publicly available, that are in the possession, custody, or control of Intuit or Intuit’s 

counsel, or that Complaint Counsel has already provided to Intuit in this proceeding or 

the related federal court action. Complaint Counsel does not consider documents to be 

in its possession, custody, or control if they are, inter alia, located in the offices of Intuit, 

or otherwise in the possession, custody, or control of Intuit or its employees or agents, 

and hence they will not be produced as part of Complaint Counsel’s Responses. 

Complaint Counsel also objects to the Request as overbroad and unduly 

burdensome. The Request is not limited in scope to Complaint Counsel’s investigation 

of Intuit and could encompass captures of Intuit’s website by any FTC staff at any point 

in time, unrelated to the facts and allegations at issue in this matter. Therefore, 

Complaint Counsel will construe the Request to encompass captures obtained as part of 

Complaint Counsel’s investigation of and litigation against Intuit in this matter. So 

construing the Request, subject to and without waiving the foregoing general and 

specific objections, Complaint Counsel will produce responsive, non-privileged 

documents that have not already been produced or made available to Intuit, and as to 

which collection and production would not pose an undue burden. 

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10. Request for Production 10: All DOCUMENTS that support OR relate to 

the allegation in Paragraph 43 of the COMPLAINT that “the term ‘simple tax returns’ is 

not understood by many consumers.” 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3, and 4. Complaint Counsel further objects to 

the extent the Request seeks documents that have been filed as exhibits, that are 

publicly available, that are in the possession, custody, or control of Intuit or Intuit’s 

counsel, or that Complaint Counsel has already provided to Intuit in this proceeding or 

the related federal court action. Complaint Counsel does not consider documents to be 

in its possession, custody, or control if they are, inter alia, located in the offices of Intuit, 

or otherwise in the possession, custody, or control of Intuit or its employees or agents, 

and hence they will not be produced as part of Complaint Counsel’s Responses. 

Subject to and without waiving the foregoing general and specific objections, 

Complaint Counsel points Intuit to the following documents: 

 GX 302, ¶ 4.3 & 29-34 (Professor Nathan Novemsky finding that a “substantial 

portion of the taxpayers who are not eligible to use TurboTax Free Edition under 

Intuit’s criteria (and hence, do not have a ‘simple U.S. return,’ as Intuit uses the 

term) believe that their returns are ‘simple’ and therefore have the misimpression 

their returns meet TurboTax’s definition of a ‘simple U.S. return.’) 

17 
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 GX 313, ¶ 22. (Professor Nathan Novemsky finding that “even accounting for 

possible inflation of 10%, the TurboTax Perception Survey would still show 

significant number of consumers, approximately 45% of consumers in Group A 

and 18% of consumers in Group B, who did not have what Intuit considered a 

‘simple return’ having the misimpression that they did have a ‘simple return.’”) 

Subject to and without waiving the foregoing general and specific objections 

Subject to and without waiving the foregoing general and specific objections, Complaint 

Counsel will produce any additional responsive documents that have not already been 

produced or made available to Intuit, and as to which collection and production would 

not pose an undue burden. 

11. Request for Production 11: All DOCUMENTS related to the “early 

testing” performed by Professor Nathan Novemsky and referenced in ¶ 9 of the Second 

Declaration of Nathan Novemsky in FTC v. Intuit Inc., No. 3:22-cv-01973-CRB (N.D. 

Cal.). 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3 and 4. Complaint Counsel further objects to 

the extent the Request seeks documents that have been filed as exhibits, that are 

publicly available, that are in the possession, custody, or control of Intuit or Intuit’s 

counsel, or that Complaint Counsel has already provided to Intuit in this proceeding or 

the related federal court action. Complaint Counsel does not consider documents to be 

18 
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in its possession, custody, or control if they are, inter alia, located in the offices of Intuit, 

or otherwise in the possession, custody, or control of Intuit or its employees or agents, 

and hence they will not be produced as part of Complaint Counsel’s Responses. 

Subject to and without waiving the foregoing general and specific objections, 

Complaint Counsel will produce responsive, non-privileged documents that have not 

already been produced or made available to Intuit, and as to which collection and 

production would not pose an undue burden. 

12. Request for Production 12: All DOCUMENTS consulted, relied upon, OR 

cited in drafting the First AND Second Declarations of Nathan Novemsky in FTC v. 

Intuit Inc., No. 3:22-cv-01973-CRB (N.D. Cal.). 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3 and 4. Complaint Counsel further objects to 

the extent the Request seeks documents that have been filed as exhibits, that are 

publicly available, that are in the possession, custody, or control of Intuit or Intuit’s 

counsel, or that Complaint Counsel has already provided to Intuit in this proceeding or 

the related federal court action. Complaint Counsel does not consider documents to be 

in its possession, custody, or control if they are, inter alia, located in the offices of Intuit, 

or otherwise in the possession, custody, or control of Intuit or its employees or agents, 

and hence they will not be produced as part of Complaint Counsel’s Responses. 

Subject to and without waiver of the foregoing specific and general objections, 

the Complaint Counsel will produce non-privileged documents responsive to this 

Request. 

19 
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13. Request for Production 13: All DOCUMENTS relating to OR reflecting 

ANY votes taken by ANY current OR former Commissioners of the Federal Trade 

Commission regarding TURBOTAX. 

Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, and/or any other applicable privilege of law. 

Complaint Counsel also objects to the Request to the extent it seeks documents or 

information that are outside of the scope of materials to be searched or produced by 

Complaint Counsel pursuant to the FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3 and 4. 

Complaint Counsel further objects to the extent the Request seeks documents that are 

publicly available or that are in the possession, custody, or control of Intuit or Intuit’s 

counsel. Complaint Counsel does not consider documents to be in its possession, 

custody, or control if they are, inter alia, located in the offices of Intuit, or otherwise in 

the possession, custody, or control of Intuit or its employees or agents, and hence they 

will not be produced as part of Complaint Counsel’s Responses. Complaint Counsel 

further objects to the Request to the extent it seeks documents or information outside 

the scope of discovery and/or not relevant to the claims or defenses in this matter. 

Complaint Counsel further objects to the Request as overbroad and unduly 

burdensome to the extent it seeks documents relating to or reflecting Commissioner 

votes related to TurboTax without limiting the scope to only this matter. Complaint 

Counsel will construe the Request to encompass documents related to and reflecting 

Commissioner votes to approve the administrative complaint and related federal court 

complaint for a temporary restraining order and preliminary injunctive relief in this 

matter. Subject to and without waiver of the foregoing specific and general objections, 

the Complaint Counsel directs Intuit to the following documents: 

20 
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 Regarding the March 28, 2022 Commission Vote: 

o March 28, 2022 Administrative Part 3 Complaint, public redacted 

version available at 

https://www.ftc.gov/system/files/ftc_gov/pdf/D09408IntuitP3C 

omplaint.pdf. 

o March 29, 2022 FTC Press Release “FTC Sues Intuit for Its 

Deceptive TurboTax “free” Filing Campaign,” available at 

https://www.ftc.gov/news-events/news/pressreleases/2022/03/ftc-sues-intuit-its-deceptive-turbotax-free-filingcampaign. 

 Regarding the August 19, 2022 Commission Vote: 

o August 19, 2022 Commission Order Returning Matter to 

Adjudication and Setting a New Hearing Date, available at 

https://www.ftc.gov/system/files/ftc_gov/pdf/D09408%20Com 

mission%20Order%20Returning%20Matter%20to%20Adjudication 

%20and%20Setting%20New%20Hearing%20Date%20etc.%20-

%20August%2019%2C%202022.pdf. 

o August 23, 2022 FTC Press Release “FTC Lifts Stay on Intuit 

Administrative Proceeding,” available at 

https://www.ftc.gov/news-events/news/pressreleases/2022/08/ftc-lifts-stay-intuit-administrative-proceeding. 

14. Request for Production 14: All COMMUNICATIONS OR documents 

reflecting COMMUNICATIONS between anyone at the Federal Trade Commission and 

ANY nonparty regarding the allegations in this PROCEEDING, the subject matter of 

this PROCEEDING, INTUIT, OR the PROCEEDING itself, including members of 

Congress, their staffs, the IRS, the media, customers, competitors, OR other government 

agencies. 

21 
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Response: 

Complaint Counsel objects to the Request to the extent it seeks documents or 

information protected from discovery by the attorney-client privilege, the work product 

doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, the informant 

privilege, and/or any other applicable privilege of law. Complaint Counsel also objects 

to the Request to the extent it seeks documents or information that are outside of the 

scope of materials to be searched or produced by Complaint Counsel pursuant to the 

FTC’s Rules of Practice, 16 C.F.R. Parts 2, 3 and 4. Complaint Counsel further objects to 

the extent the Request seeks documents that have been filed as exhibits, that are 

publicly available, that are in the possession, custody, or control of Intuit or Intuit’s 

counsel, or that Complaint Counsel has already provided to Intuit in this proceeding or 

the related federal court action. Complaint Counsel does not consider documents to be 

in its possession, custody, or control if they are, inter alia, located in the offices of Intuit, 

or otherwise in the possession, custody, or control of Intuit or its employees or agents, 

and hence they will not be produced as part of Complaint Counsel’s Responses. 

Complaint Counsel further objects to the Request to the extent it seeks documents or 

information not outside the scope of discovery and/or relevant to the claims or 

defenses in this matter. 

Complaint Counsel further objects to the Request as overbroad and unduly 

burdensome, and not proportional to the needs of the case. The Request encompasses 

“anyone at the Federal Trade Commission,” covering hundreds of individuals. It also is 

not limited to this matter, but includes any communications about Intuit, regardless of 

the time of the communication or the subject of the communication. Complaint Counsel 

will construe the Request as encompassing communications or documents reflecting 

communications of Complaint Counsel and FTC staff assisting with this investigation 

where such communications are related to this proceeding or the allegations in this 

22 
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proceeding with nonparties. So construing the Request, subject to and without waiver 

of the foregoing specific and general objections, the Complaint Counsel will produce 

non-privileged documents responsive to this Request. 

Respectfully submitted, 

Dated: September 9, 2022 /s/ Rebecca Plett 

Roberto Anguizola, IL Bar No. 6270874 

Rebecca Plett, VA Bar No. 90988 

James Evans, VA Bar No. 83866 

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 

Counsel Supporting the Complaint

Federal Trade Commission 

23 
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CERTIFICATE OF SERVICE 

I hereby certify that on September 9, 2022, I caused the foregoing Complaint 

Counsel’s Responses and Objections to Intuit’s First Set of Requests for Production of 

Documents, and the BCP Production Requirements, to be served via email on: 

David Z. Gringer 

Phoebe Silos 

Charles Bridge

Eleanor Davis 

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

Eleanor.Davis@wilmerhale.com 

(212) 230-8800 

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 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

Vinecia Perkins 

Andres Salinas 

Spencer Todd

Jocelyn Berteaud

Benjamin Chapin

Margaret (Molly) Dillaway

Reade Jacob 

Wilmer Cutler Pickering Hale & Dorr LLP 

1875 Pennsylvania Avenue NW 

Washington, DC 20006

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Vinecia.Perkins@wilmerhale.com 

Andres.Salinas@wilmerhale.com 

Spencer.Todd@wilmerhale.com

Joss.Berteaud@wilmerhale.com 

Benjamin.Chapin@wilmerhale.com 

Molly.Dillaway@wilmerhale.com 

Reade.Jacob@wilmerhale.com 

(202) 663-6000 

Attorneys for Respondent, Intuit Inc. 

/s/ Rebecca Plett 

Rebecca Plett 

24 
 

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Exhibit E 

PUBLIC
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 67 of 132 * PUBLIC *; 

September 16, 2022 David Gringer 

+1 212 230 8800 (t) 

+1 212 230 8888 (f) Rebecca Plett, Esq. david.gringer@wilmerhale.com 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Re: In the Matter of Intuit Inc., Docket No. 9408 

Complaint Counsel: 

I write regarding your Responses and Objections to Respondent Intuit’s First Set of 

Requests for Production of Documents, dated September 9, 2022. For the reasons articulated 

below, some of the FTC’s responses and objections lack clarity and require further elucidation so 

that Intuit can better understand Complaint Counsel’s positions. We ask that you either 

supplement your Responses and Objections to address the concerns outlined below or otherwise 

respond in writing with the requested information by September 22, 2022. We are also available 

to meet and confer about these issues early next week. 

To start, many of your responses prompt the same questions. First, it is unclear what steps 

Complaint Counsel have taken (or plan to take) to search for responsive documents. In order to 

facilitate an efficient meet-and-confer process, please provide the following information for each 

Request for which you have agreed to produce materials: (a) a description of how you intend to 

search for responsive documents; (b) a list of the individuals and central repositories you intend to 

search for responsive documents and a description of how you plan to search; and (c) the timetable 

on which you intend to produce documents. 

Second, most of your responses include an objection “to the extent [the Request] seeks 

documents or information protected from discovery by the attorney-client privilege, the work 

product doctrine, the government deliberative process privilege, the law enforcement evidentiary 

or investigative file privilege, the common interest rule, the informant privilege, and/or any other 

applicable privilege of law.”1

 You also raise a substantively identical general objection. However, 

you have not articulated the basis for the assertion of any privilege, nor have you stated whether 

you intend to withhold any documents on the basis of one or more of these privileges. Intuit is 

entitled to sufficient information to allow it to assess the merit of your privilege assertions. This 

is particularly true with respect to any document you intend to withhold based on deliberative 

process privilege, as that privilege must be assessed as to “each document” and “is a qualified 

privilege which can be overcome by a sufficient showing of need,” which must be separately 

1

 The Response to RFP No. 12 includes substantially similar language, but omits “the 

deliberative process privilege, the law enforcement evidentiary or investigative file privilege, the 

common interest rule, [and] the informant privilege.” The Response to RFP No. 13 likewise 

includes similar language, but omits “the common interest rule, [and] the informant privilege.” 
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Rebecca Plett 

September 16, 2022 

Page 2 

assessed “[e]ach time the deliberative process privilege is asserted.” Moore v. Valder, 2001 WL 

37120629, at *2 (D.D.C. July 31, 2001) (citing Wolfe v. Dept. of Health and Human Services, 839 

F.2d 768, 884 (D.C. Cir. 1988) (en banc)); In re Sealed Case, 121 F.3d 729, 737-38 (D.C. Cir. 

1997)). Accordingly, we expect that you will promptly provide a privilege log for any document 

you withhold on the basis of a claim of privilege. Please confirm that is the case. 

I. Request Nos. 1 and 3 

RFP No. 1 requested “[a]ll DOCUMENTS OR COMMUNICATIONS reviewed, 

consulted, considered, OR relied upon in drafting the COMPLAINT,” and RFP No. 3 requested 

“[a]ll DOCUMENTS reviewed OR consulted in the drafting of ANY interrogatory response.” You 

object to both requests to the extent they seek documents protected by any privilege; that blanket 

objection is unclear for the reasons explained above. 

You also object to both requests as overly broad but did not adequately explain that 

assertion. As to RFP No. 1, you provide no explanation for this objection at all. And as to RFP 3, 

you claimed that the request is “overbroad to the extent it seeks documents Complaint Counsel 

may have reviewed, but that were not relevant to the Interrogatory Responses or that Complaint 

Counsel did not rely on in drafting the Interrogatory Responses.” But Intuit is entitled to the 

production of documents that “may be reasonably expected to yield information relevant to the 

allegations of the complaint, to the proposed relief, or to [its] defenses,” see 16 C.F.R. 

§§ 3.31(c)(1), 3.37(a). If a document was reviewed or consulted when drafting the Complaint or 

an interrogatory response, it seems likely that its production would lead to the discovery of relevant 

information, even if it was not ultimately relied on when drafting the response. 

Next, you object to RFP No. 1 as unduly burdensome, again without explanation. It is hard 

to understand how it would be unduly burdensome for you to identify and produce the documents 

that you reviewed, consulted, considered, or relied upon in drafting the complaint. Such 

documents presumably are already accessible and readily available to you, since you considered 

them only a short while ago. Nonetheless, if you still believe that searching for those documents 

would be unduly burdensome, please provide a particularized explanation of the specific burden 

that would be imposed by RFP No. 1. We are willing to consider a reasonable proposal to mitigate 

any such burden, if one actually exists. 

Finally, you object to RFP No. 1 because of the purportedly inaccurate definition of the 

term “COMPLAINT,” taking issue with whether the complaint was “filed” versus “issued.” These 

kinds of semantic games are inconsistent with good faith responses to discovery. In any event, the 

FTC’s own website expressly recognizes that “the FTC files a complaint under its administrative 

process.”2 If you are genuinely confused, “COMPLAINT” should be interpreted as, “The Part 3 

Administrative complaint issued against Intuit.” 

2

 FTC, Legal Library: Adjudicative Proceedings, https://www.ftc.gov/legal-library/browse/cases 

proceedings/adjudicative-proceedings. 
 

 

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Rebecca Plett 

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Page 3 

Thus, your willingness to produce “all nonprivileged documents supporting the allegations 

in the complaint” and “documents relied upon in drafting the Interrogatory Responses” is 

insufficient. These requests sought a broader universe of documents and, as explained above, you 

have not provided any justifiable basis for narrowing the requests. 

II. Request No. 2 

RFP No. 2 requested “[a]ll DOCUMENTS that contradict ANY allegation in the 

COMPLAINT.” You object that this Request required you “to draw legal conclusions about 

whether documents contradict allegations in the complaint.” But the term “contradict” is not a 

legal term, and whether a document contradicts or undermines a factual statement is itself a factual 

determination because it can be made “without significantly implicating [any] governing legal 

principles.” Otto v. City of Boca Raton, 41 F.4th 1271, 1283 (11th Cir. 2022) (citations and 

quotations omitted). 

You further represent that you are not aware of any documents that contradict any 

allegations in the complaint. However, it is not clear what, if anything, you did to reach that 

conclusion, particularly in light of your objection. Please provide us the efforts taken or that you 

will take to conduct a reasonable search for responsive documents. 

III. Request No. 4 

RFP No. 4 requested “[a]ll notes, recordings, logs, OR other DOCUMENTS relating to 

interviews conducted with nonparties regarding the allegations in this PROCEEDING, the subject 

matter of this PROCEEDING, INTUIT, OR the PROCEEDING itself.” You object to RFP No. 4 

as overbroad and state that you “will construe the Request to encompass the documents related to 

the current proceeding.” Please confirm that you will construe this request to encompass all 

documents “reasonably expected to yield information relevant” to this proceeding, 16 C.F.R. 

§ 3.31(c), rather than only documents prepared in the course of this proceeding. See, e.g., In re 1-

800 Contacts, Inc., 2016 WL 6609774, at *4 (F.T.C. Oct. 28, 2016) (“The showing of relevance 

required under Rule 3.36 is not whether Complaint Counsel has reviewed or relied upon the 

requested material. Rather ... [it] is whether the requested material may be reasonably expected 

to yield information relevant to the allegations of the complaint, to the proposed relief, or to the 

defenses of any respondent.”). It is possible, if not likely, that there are notes, recordings, logs, 

and other documents relating to interviews conducted before the start of this proceeding that are 

relevant to this proceeding, for example those that communicate consumer impressions regarding 

“free” advertisements. Because this Request encompasses those documents, they should be 

produced along with documents prepared with this specific proceeding in mind. 

IV. Request No. 5 

RFP No. 5 requested “[a]ll DOCUMENTS produced in response to ANY subpoena issued 

in this PROCEEDING OR produced voluntarily by ANY nonparty that relates to the allegations 

in this PROCEEDING.” You object to this Request to the extent “it seeks documents or 
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Rebecca Plett 

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Page 4 

information protected from discovery” by various privileges. But the request asks for documents 

produced by nonparties to which those privileges would not attach. For example, documents 

produced by nonparties to this proceeding, which Complaint Counsel do not represent, cannot be 

protected by the attorney-client privilege. Please confirm that you do not intend to withhold 

documents produced by nonparties as privileged. 

You further object to RFP No. 5 because it purportedly “encompasses documents outside 

the scope of discovery and/or irrelevant to this proceeding.” But the request itself is limited to 

documents produced by nonparties “that relate[] to the allegations in this proceeding.” Please 

clarify whether you intend to withhold any documents that “relate to the allegations in this 

proceeding” because you nonetheless believe they are “outside the scope of discovery and/or 

irrelevant.” If so, please identify the documents that you believe relate to the allegations in this 

proceeding that are outside the scope of discovery or irrelevant. 

V. Request No. 6 

RFP No. 6 requested “[a]ll DOCUMENTS discussing, analyzing, OR reviewing 

advertisements for ‘free’ merchandise OR services by INTUIT OR ANY other company.” You 

object to the request as overbroad and unduly burdensome, but you provide no explanation other 

than a conclusory assertion that “produc[ing] records related to ‘free’ advertising claims across the 

agency and across time would by immensely burdensome.” For instance, you provide no 

information as to how many claims related to “free” advertising the agency has handled or how 

many documents might exist with respect to those claims. Because the Commission’s analysis of 

“free” advertising claims, and the consistency of its evaluation with respect to Intuit, is a central 

issue in this case, we are entitled to responsive documents beyond those related to Intuit’s free 

advertising claims. To the extent you believe this request would impose an undue burden after 

assessing how many responsive documents are likely to exist, please provide a particularized 

explanation of the specific burden that would be imposed by RFP No. 6. We are willing to consider 

a reasonable proposal to mitigate any such burden. 

VI. Request Nos. 7 and 8 

RFP No. 7 requested “[a]ll DOCUMENTS relating to OR reflecting rules OR guides 

adopted, provided, OR administered by the FTC about how to ADVERTISEMENTS for ‘free’ 

merchandise or services.” RFP No. 8 requested “[a]ll DOCUMENTS relating to OR reflecting 

policy discussions involving the FTC about ADVERTISEMENTS for ‘free’ merchandise OR 

services.” The central claim in the Complaint is that Intuit’s “free” advertising is deceptive, and 

Complaint Counsel have asserted (albeit counterfactually) that this case is being brought to 

“vindicate” the Free Guides. Thus, contrary to your suggestion that the request may encompass 

“documents or information outside the scope of discovery and/or not relevant to the claims or 

defenses in this matter,” the documents sought are plainly relevant as they may rebut assertions 

being made by Complaint Counsel. 
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Rebecca Plett 

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Page 5 

You also object to these requests to the extent they are protected by various privileges, 

including the deliberative process privilege. It is not clear, however, why the qualified deliberative 

process privilege would prevent the production of these documents given their significance to this 

proceeding. Moreover, the deliberative process privilege applies only to documents that are “predecisional.” Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). Any 

documents discussing guides, rules, or policy after a policy decision has already been made would 

be post-decisional and not protected by the privilege. To the extent you claim that the deliberative 

process privilege justifies withholding any documents, you should identify those documents in a 

privilege log as outlined in the RFP instructions. 

You further object to these requests as overly broad and unduly burdensome. Again, you 

do not explain how or why searching for responsive documents would impose an undue burden, 

particularly given that the requested documents are directly related to the allegations in the 

Complaint. To the extent you believe the request is overbroad and unduly burdensome, you should 

explain your reasoning. We are willing to consider a reasonable proposal to mitigate any such 

burden. 

Finally, seemingly ignoring that RFP Nos. 7 and 8 also request all documents relating to 

FTC advertising guidance for free products and services or relating to policy discussions about 

these advertisements, you identify only four responsive documents. Those four documents are 

themselves either guidance or policy statements. You have not offered any justification for 

limiting your response to those four documents or explained what actions, if any, you took to 

search for responsive documents. Please provide that information so that Intuit may assess the 

sufficiency of Complaint Counsel’s response. 

VII. Request No. 9 

RFP No. 9 requested “[a]ll screenshots from the TURBOTAX WEBSITE captured using 

‘SnagIt’ OR ANY other screen capture software OR tool, whether referenced in the Second 

Declaration of Diana F. Shiller in the matter of FTC v. Intuit Inc., No. 3:22-cv-01973-CRB (N.D. 

Cal.), OR otherwise.” You object to RFP No. 9 as overbroad and unduly burdensome and propose 

limiting the request to “captures obtained as part of Complaint Counsel’s investigation of and 

litigation against Intuit in this matter.” To start, you do not explain when you consider Complaint 

Counsel’s investigation to have begun or what time period would be covered by the investigation 

and litigation. And you offer no explanation for why it would be unduly burdensome to identify 

and produce screen captures that are otherwise relevant to this matter even if they predate 

Complaint Counsel’s investigation and litigation against Intuit. Please clarify whether you will 

produce all screenshots in Complaint Counsel’s possession relevant to this proceeding, regardless 

of whether they were captured during the undefined investigation and litigation period. To the 

extent you maintain that searching for those documents would be unduly burdensome, we are 

willing to consider a reasonable proposal to mitigate any such burden. 
 

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Page 6 

VIII. Request Nos. 10 and 11 

RFP No. 10 requested “[a]ll DOCUMENTS that support OR relate to the allegation in 

Paragraph 43 of the COMPLAINT that ‘the term ‘simple tax returns’ is not understood by many 

consumers.’” And RFP No. 11 requested “[a]ll DOCUMENTS related to the ‘early testing’ 

performed by Professor Nathan Novemsky and referenced in ¶ 9 of the Second Declaration of 

Nathan Novemsky in FTC v. Intuit Inc., No. 3:22-cv-01973-CRB (N.D. Cal.).” 

Subject to your other objections, you agree to produce responsive, non-privileged 

documents “as to which collection and production would not pose an undue burden.” Again, you 

do not explain how or why searching for responsive documents would impose an undue burden, 

particularly given that the requested documents are directly related to the allegations in the 

Complaint. To the extent you believe these requests are unduly burdensome, please provide a 

particularized explanation of the burden that would be imposed by RFP Nos. 10 and 11. We are 

willing to consider a reasonable proposal to mitigate any such burden. 

IX. Request No. 13 

RFP No. 13 requested “All DOCUMENTS relating to OR reflecting ANY votes taken by 

ANY current OR former Commissioners of the Federal Trade Commission regarding 

TURBOTAX.” Your substantive response to that request consisted solely of identifying four 

publicly available webpages and is wholly deficient. At a minimum, Intuit has the right to 

understand what steps you took to search for responsive documents. As it stands, it is not clear 

whether Complaint Counsel performed any search. Moreover, your August 26, 2022 letter 

accusing Intuit of gaining access to non-public FTC information and/or documents suggests that 

there are responsive documents in Complaint Counsel’s possession, custody, or control related to 

or reflecting Commissioner votes related to TurboTax. If that is not the case, you should say so. 

You also object to this request because it seeks documents outside the scope of discovery 

or that are not relevant to this proceeding. But any documents responsive to the request would be 

relevant to Intuit’s Third Affirmative Defense that “[t]he Complaint is invalid because the 

Commission did not vote in favor of the final Complaint,” and to Intuit’s Sixth Affirmative 

Defense that “[t]hese administrative proceedings violate Intuit’s Fifth Amendment Due Process 

right to adjudication before a neutral arbiter because of prejudgment on the merits.” To the extent 

you nonetheless believe documents responsive to this Request are not relevant, please explain the 

justification for your position. 

X. Request No. 14 

RFP No. 14 requested “[a]ll COMMUNICATIONS OR documents reflecting 

COMMUNICATIONS between anyone at the Federal Trade Commission and ANY nonparty 

regarding the allegations in this PROCEEDING, the subject matter of this PROCEEDING, 

INTUIT, OR the PROCEEDING itself, including members of Congress, their staffs, the IRS, the 

media, customers, competitors, OR other government agencies.” For the same reasons articulated 

with respect to RFP No. 13, many of the objections to RFP No. 14 are unexplained and misplaced. 
PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 73 of 132 * PUBLIC *; 

Rebecca Plett 

September 16, 2022 

Page 7 

For example, you object that the request seeks irrelevant information, without articulating 

how communications about “the allegations in this PROCEEDING, the subject matter of this 

PROCEEDING, INTUIT, OR the PROCEEDING itself” would not be relevant. To the extent you 

believe documents responsive to this Request are not relevant, please explain the justification for 

your position. 

Similarly, it is unclear how any of the privileges listed in your response would apply to 

communications or documents reflecting communications between the FTC and non-parties. As 

a general matter, none of those privileges would apply to communications with nonparties. Please 

confirm that you do not intend to withhold communications with nonparties as privileged or, if the 

Complaint Counsel do intend to withhold documents on that basis, that all such records will be 

reflected on Complaint Counsel’s privilege log. 

You further object to RFP No. 14 as overbroad and unduly burdensome to the extent the 

request is “not limited to this matter, but includes any communications about Intuit, regardless of 

the time of the communication or the subject of the communication.” You state that you “will 

construe the Request as encompassing communications or documents reflecting communications 

of Complaint Counsel and FTC staff assisting with this investigation where such communications 

are related to this proceeding or the allegations in this proceeding with nonparties.” But you 

provide no explanation for why it would be unduly burdensome to identify, collect, and produce 

relevant documents from others at the FTC that have had responsive documents or 

communications. Indeed, it seems likely that FTC staff who are not currently assigned to “assist[] 

with this investigation” may have responsive documents in their possession, as the staffing on this 

matter has changed multiple times. For example, it is clear that the files of Fran Kern, Colin 

Hector, and Ian Barlow should be searched, even though they are not currently assisting with the 

investigation or litigation. We also understand that Tej Srimushnam had many communications 

with outside parties and those must be searched too. So should documents and communications 

possessed by Lois Greisman, Samuel Levine, and Will Maxson. It should be straightforward to 

identify others on the FTC staff who also would have had responsive communications. To the 

extent you nonetheless believe this request to be unduly burdensome, please explain the 

justification for your position. We are also willing to consider a reasonable proposal to mitigate 

any such burden. 

Sincerely, 

/s/ David Z. Gringer 

cc: Roberto Anguizola, Esq., Federal Trade Commission 

James Evans, Esq., Federal Trade Commission 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 74 of 132 * PUBLIC *; 

Exhibit F 

PUBLIC
        

             

     

           

                       

  

                         

                                            

                                                

                    

                             

                               

                                      

                           

                                   

                                          

   

                      

   

   

     

     

       

      

     

       

     

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 75 of 132 * PUBLIC *; 

Subject: RE: D09408 - Complaint Counsel's Responses and Objections to Interrogatories and Supplemental 

Initial Disclosures 

From: Anguizola, Roberto <ranguizola@ftc.gov>

Sent: Friday, September 30, 2022 5:17 PM

To: Woodman, Derek <Derek.Woodman@wilmerhale.com>

Cc: Plett, Rebecca <rplett@ftc.gov>; Evans, James <jevans1@ftc.gov>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

EXTERNAL SENDER

Derek,

We can discuss this in more detail during our upcoming meet and confer.

We can send you a list of FTC employees whose documents we are searching. Before we do that, I want assurances that

Intuit will reciprocate by providing a similar list. I don’t think anything in the Part 3 Rules requires such a list but we can

consider doing that if both sides agree to exchange similar lists.

Complaint Counsel intends to search and produce responsive non‐privileged documents in the possession, custody, or

control of the Division of Marketing Practices (“Division”), the division of the Commission’s Bureau of Consumer

Protection that investigated this matter and is handling the prosecution of this action. See 16 C.F.R. 3.31(c)(2). We don’t

intend to “search for materials generated and transmitted between complaint counsel and non‐testifying Commission

employees.” Id. We do intend to produce communications between Division staff and external sources to the extent

they are responsive and not privileged. For example, we have produced such documents and will continue to do so on a

rolling basis.

Have a wonderful weekend. We look forward to conferring on Monday.

Best regards,

Roberto Anguizola

Federal Trade Commission

FTC BCP/DMP, CC‐8602

Org 1144, Mailstop CC‐6316

600 Pennsylvania Ave., NW

Washington, DC 20580

Cell: (202) 256‐0452 (preferred)

Telephone: (202) 326‐3284

E‐mail: ranguizola@ftc.gov

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 76 of 132 * PUBLIC *; 

From: Woodman, Derek <Derek.Woodman@wilmerhale.com>

Sent: Friday, September 30, 2022 4:21 PM

To: Anguizola, Roberto <ranguizola@ftc.gov>

Cc: Plett, Rebecca <rplett@ftc.gov>; Evans, James <jevans1@ftc.gov>; Perkins, Vinecia

<Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd, Spencer L.

<Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

Roberto,

You did not respond to our request to provide the names of the FTC employees whose documents you are searching, or

to confirm whether you will be producing and/or logging (1) communications and other materials sent to and from the

Commissioners or the Commissioners offices; (2) communications and other materials sent between FTC counsel or

other FTC legal staff that reflect conversations with third parties; and (3) communications and other materials that

otherwise reflect information from external sources that are not known to Intuit.

Are you able to provide written answers to either of those questions before our call on Monday?

Best,

Derek

Derek A. Woodman | WilmerHale

+1 202 663 6980 (t)

From: Anguizola, Roberto <ranguizola@ftc.gov>

Sent: Thursday, September 29, 2022 1:07 PM

To: Woodman, Derek <Derek.Woodman@wilmerhale.com>

Cc: Plett, Rebecca <rplett@ftc.gov>; Evans, James <jevans1@ftc.gov>; Perkins, Vinecia

<Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd, Spencer L.

<Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

EXTERNAL SENDER

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 77 of 132 * PUBLIC *; 

Derek,

Thank you for your latest email. I am available to meet and confer at 3pm ET on Monday on the topics set forth in your

message.

As indicated during our last meet and confer, we don’t believe that exchanging prolix letters is a productive or efficient

way to resolve discovery disputes. Instead, engaging in problem solving dialogue during a telephone or Zoom meet and

confer has proven to be more efficient and productive in my experience. In this case, it has often led to a better

understanding of our respective positions and resulted in helpful compromise. We will continue to engage with you in

that manner. Nothing in the rules require us to engage in extensive letter writing before meeting and conferring. We

have no choice but to use our limited resources in a judicious and efficient manner. Engaging in over‐length letter

writing on an almost daily basis (as the defense team has done) is wasteful. It also detracts from our ongoing efforts to

produce responsive documents to Intuit in a timely manner.

Setting arbitrary deadlines of your own choosing is also not productive and you have no basis to hold us to the dates

below. As we indicated during our meet and confer, our team is working diligently to search, review, and produce

responsive documents in accordance with our discovery obligations. To the extent your message suggests otherwise, we

respectfully disagree.

Regards,

Roberto Anguizola

Federal Trade Commission

FTC BCP/DMP, CC‐8602

Org 1144, Mailstop CC‐6316

600 Pennsylvania Ave., NW

Washington, DC 20580

Cell: (202) 256‐0452 (preferred)

Telephone: (202) 326‐3284

E‐mail: ranguizola@ftc.gov

From: Woodman, Derek <Derek.Woodman@wilmerhale.com>

Sent: Wednesday, September 28, 2022 11:20 PM

To: Plett, Rebecca <rplett@ftc.gov>; Anguizola, Roberto <ranguizola@ftc.gov>; Evans, James <jevans1@ftc.gov>

Cc: Perkins, Vinecia <Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd,

Spencer L. <Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

Counsel,

We appreciate your willingness to meet and confer about your discovery responses. But given the compacted discovery

schedule in this proceeding, we think we should try to move those discussions ahead as quickly as possible. To that end,

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 78 of 132 * PUBLIC *; 

we are available to meet and confer this Friday. If there’s no time on Friday that works for you, we can also be available

at 3pm ET on Monday.

We also have responses to a few of the points discussed during our meet and confer yesterday:

 As a general matter, we reiterate our view that the most effective way to meet and confer is to exchange our

positions beforehand so that we can discuss them during our meeting. We have attempted to facilitate

productive and efficient conversations by providing letters stating our positions and responding to yours. To

date, you have largely ignored those letters, and during yesterday’s calls you stated that you do not intend to

respond to them going forward. We encourage you to reconsider that position so that we can streamline our

discussions and avoid unnecessarily long calls like our last two meet and confers. We do not consider your

position to allow for good faith meet and confers as the Part 3 rules require.

 During yesterday’s meet and confer, when asked when you would be producing documents in response to

Intuit’s requests, you indicated that you were working to produce documents but would not provide a definitive

date. That is not tenable. To date, Complaint Counsel have only produced a single set of documents responsive

to only 3 of Intuit’s 14 requests. Forty days have passed since Intuit served its discovery requests, and 19 days

have elapsed since Complaint Counsel served its responses and objections. Given the truncated nature of this

proceeding, the relative paucity of documents that Complaint Counsel need to review and produce, and the

fundamental unfairness associated with the fact that you have had access to the materials Intuit is seeking for

years while Intuit will have it for only a short time before the evidentiary hearing, it is not reasonable for Intuit

to wait several months to receive documents responsive to its requests. That is especially true for the

documents that Intuit has been requesting since Complaint Counsel’s initial disclosures in April and that should

be readily available to Complaint Counsel and easy to produce. Those documents include Category J of

Complaint Counsel’s initial disclosures and documents related to Professor Novemsky’s surveys. Your failure to

produce Professor Novemsky’s documentation is particularly serious because you have relied on Professor

Novemsky’s survey results in a dispositive motion but refused to produce much of the underlying data. There is

no burden associated with your doing so, Professor Novemsky should have these materials and there is no

possible privilege or FTC rule preventing their immediate disclosure. Producing this material should not require

any “reprioritizing” of Intuit’s other requests.

o Please confirm that Complaint Counsel will provide the documents included in Category J of Complaint

Counsel’s initial disclosures and any documents related to Professor Novemsky’s surveys by Wednesday,

October 5.

o Please also confirm that Complaint Counsel will substantially complete its production of documents

responsive to Intuit’s First Set of Requests for Production by Friday, October 14.

o If necessary, Intuit is prepared to seek relief to ensure that it receives responsive documents under a

reasonable time frame in light of the other deadlines in this case.

o You have suggested that some of the delay in your production is due to a purported need to redact

documents reflecting another target of the FTC’s investigations. You proposed that Intuit agree to

receive these materials on an outside attorneys’ eyes only basis. Intuit does not agree. Moreover, we

are skeptical that it is appropriate to redact this information. Among other reasons, it may reveal the

basis for a selective prosecution defense, or other investigative improprieties that warrant relief.

 We also discussed the documents that you intend to search when responding to Intuit’s Requests for

Production. We appreciate that you provided us with a summary of the types of people whose documents you

intend to search. However, we are entitled to a full list of the individuals whose documents you intend search

for responsive documents. Please provide us with this list by Friday, September 30 at 5 p.m. ET. To be clear,

that list should include at minimum everyone at the FTC who has ever worked on this case or any related

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 79 of 132 * PUBLIC *; 

investigations, including but not limited to Lois Greisman, Will Maxon, all of you, Tej Srimushnam, Colin Hector,

and Ian Barlow.

 You also indicated that pursuant to 16 C.F.R. § 3.31(c)(2), you would not search or produce internal emails

between team members, other than emails to and from testifying witnesses on your team. To be clear, Intuit

believes that given its affirmative defenses and the serious concerns it has about the fairness of this proceeding,

there is sufficient “good cause” for Intuit to obtain these materials. However, at present, Intuit is seeking only

that you search and produce (or if withheld on privilege grounds, list on a privilege log) (1) communications and

other materials sent to and from the Commissioners or the Commissioners offices; (2) communications and

other materials sent between FTC counsel or other FTC legal staff that reflect conversations with third parties;

and (3) communications and other materials that otherwise reflect information from external sources that are

not known to Intuit.

We ask that you provide written responses to these specific points prior to any meet and confer, and no later than

Friday, September 30 at 5pm ET. We are also available to discuss these issues further at our upcoming meet and confer.

Finally, we would also like to memorialize a couple of the issues discussed yesterday:

 In response to Intuit’s concerns about the timeliness of Complaint Counsel’s productions, and recognizing that it

is often necessary to serve additional discovery requests after receiving initial discovery responses, you stated

that you would not object to the timeliness of discovery requests we serve after October 14, 2022.

 You stated that you will send us a draft of proposed stipulations for us to consider by next Friday, October

7. Because the stipulations were in part meant to address your objections and responses to Intuit’s Requests for

Admission, you recognized that the deadline for a motion to compel related to those Requests would be timely

if filed after the parties discussions broke down.

Best,

Derek

Derek A. Woodman | WilmerHale

+1 202 663 6980 (t)

From: Plett, Rebecca <rplett@ftc.gov>

Sent: Wednesday, September 28, 2022 12:24 PM

To: Woodman, Derek <Derek.Woodman@wilmerhale.com>; Anguizola, Roberto <ranguizola@ftc.gov>; Evans, James

<jevans1@ftc.gov>

Cc: Perkins, Vinecia <Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd,

Spencer L. <Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

EXTERNAL SENDER

Derek,

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 80 of 132 * PUBLIC *; 

Thank you for taking the time to meet with us yesterday regarding Complaint Counsel’s initial disclosures. We are

available early next week to meet and confer about Complaint Counsel’s interrogatory responses and objections and

responses and objections to Intuit’s requests for production. We are generally free after 3:00 pm ET on Monday,

between 12:30‐1:30 ET on Tuesday, and between 11:00‐2:00 ET on Wednesday. Let us know if any of those times work

for you.

Best,

Rebecca

From: Woodman, Derek <Derek.Woodman@wilmerhale.com>

Sent: Thursday, September 22, 2022 5:17 PM

To: Plett, Rebecca <rplett@ftc.gov>; Anguizola, Roberto <ranguizola@ftc.gov>; Evans, James <jevans1@ftc.gov>

Cc: Perkins, Vinecia <Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd,

Spencer L. <Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

Rebecca,

We are available at 2 p.m. ET on Tuesday to meet and confer. I’ll send an invite.

Best,

Derek

Derek A. Woodman | WilmerHale

+1 202 663 6980 (t)

From: Plett, Rebecca <rplett@ftc.gov>

Sent: Thursday, September 22, 2022 11:46 AM

To: Woodman, Derek <Derek.Woodman@wilmerhale.com>; Anguizola, Roberto <ranguizola@ftc.gov>; Evans, James

<jevans1@ftc.gov>

Cc: Perkins, Vinecia <Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd,

Spencer L. <Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

EXTERNAL SENDER

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 81 of 132 * PUBLIC *; 

Derek,

We are available to meet and confer early next week. Tuesday afternoon at 2:00 pm ET works best for us, but we’re

pretty free all afternoon that day.

Thanks,

Rebecca

From: Woodman, Derek <Derek.Woodman@wilmerhale.com>

Sent: Wednesday, September 21, 2022 7:47 PM

To: Plett, Rebecca <rplett@ftc.gov>; Anguizola, Roberto <ranguizola@ftc.gov>; Evans, James <jevans1@ftc.gov>

Cc: Perkins, Vinecia <Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd,

Spencer L. <Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

Counsel,

Please find attached correspondence concerning the consumer complaints identified in Complaint Counsel’s revised and

supplemental initial disclosures.

Best,

Derek

Derek A. Woodman | WilmerHale

+1 202 663 6980 (t)

From: Plett, Rebecca <rplett@ftc.gov>

Sent: Monday, September 19, 2022 5:18 PM

To: Woodman, Derek <Derek.Woodman@wilmerhale.com>; Anguizola, Roberto <ranguizola@ftc.gov>; Evans, James

<jevans1@ftc.gov>

Cc: Perkins, Vinecia <Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd,

Spencer L. <Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

EXTERNAL SENDER

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 82 of 132 * PUBLIC *; 

Derek,

Thank you for reaching out to clarify. The Supplemental Consumer Sentinel Contact List and Supplemental Category L

Sentinel Complaints are intended to supplement, not replace, last week’s Consumer Sentinel Contact List and Category L

Sentinel Complaints. These are complaints received after the end date of complaints from our previous lists.

We are providing this information on “individual[s] likely to have discoverable information relevant to the allegations of

the Commission’s complaint,” because we are required to. Rule 3.31.

Thanks,

Rebecca

From: Woodman, Derek <Derek.Woodman@wilmerhale.com>

Sent: Monday, September 19, 2022 5:11 PM

To: Plett, Rebecca <rplett@ftc.gov>; Anguizola, Roberto <ranguizola@ftc.gov>; Evans, James <jevans1@ftc.gov>

Cc: Perkins, Vinecia <Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd,

Spencer L. <Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>; Milici, Jennifer

<Jennifer.Milici@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Gringer, David

<David.Gringer@wilmerhale.com>

Subject: RE: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial

Disclosures

Counsel,

Please clarify whether the Supplemental Consumer Sentinel Contact List and Supplemental Category L Sentinel

Complaints are intended to replace the contact list and consumer complaints identified last week in Complaint Counsel’s

revised initial disclosures, or if these consumers and complaints are being added to that set. As stated last week, we

believe that many of the consumers and complaints already identified in Complaint Counsel’s disclosures should be

removed, and expanding that list would impose additional burdens on the parties.

Best,

Derek

Derek A. Woodman | WilmerHale

+1 202 663 6980 (t)

From: Plett, Rebecca <rplett@ftc.gov>

Sent: Monday, September 19, 2022 3:23 PM

To: Gringer, David <David.Gringer@wilmerhale.com>; Paikin, Jonathan <Jonathan.Paikin@wilmerhale.com>; Woodman,

Derek <Derek.Woodman@wilmerhale.com>; Milici, Jennifer <Jennifer.Milici@wilmerhale.com>

Cc: Anguizola, Roberto <ranguizola@ftc.gov>; Evans, James <jevans1@ftc.gov>; Perkins, Vinecia

<Vinecia.Perkins@wilmerhale.com>; Salinas, Andres C. <Andres.Salinas@wilmerhale.com>; Todd, Spencer L.

<Spencer.Todd@wilmerhale.com>; Berteaud, Joss <Joss.Berteaud@wilmerhale.com>; Chapin, Benjamin

<Benjamin.Chapin@wilmerhale.com>; Dillaway, Molly <Molly.Dillaway@wilmerhale.com>; Jacob, Reade

<Reade.Jacob@wilmerhale.com>; Mackey, Katherine <Katherine.Mackey@wilmerhale.com>; Martin, Shelby L.

<Shelby.Martin@wilmerhale.com>; Silos, Phoebe <Phoebe.Silos@wilmerhale.com>; Bridge, Charles

<Charles.Bridge@wilmerhale.com>; Davis, Eleanor <Eleanor.Davis@wilmerhale.com>

Subject: D09408 ‐ Complaint Counsel's Responses and Objections to Interrogatories and Supplemental Initial Disclosures

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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 83 of 132 * PUBLIC *; 

EXTERNAL SENDER

Counsel,

You will shortly receive via Accellion Complaint Counsel’s Responses and Objections to Intuit’s First Set of

Interrogatories. The transmission will also include a Supplemental Consumer Sentinel Contact List and Supplemental

Category L Sentinel Complaints of our initial disclosures.

The PDF of Supplemental Category L is password protected. The password is: L5yP$bT49

Sincerely,

Rebecca Plett (she/her) | Attorney | Federal Trade Commission

Bureau of Consumer Protection | Division of Marketing Practices

CC‐8505 | Org 1144 | Mail Stop CC‐6316

600 Pennsylvania Avenue, NW

Washington, DC 20580

Tel: (202) 326‐3664

rplett@ftc.gov

9
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 84 of 132 * PUBLIC *; PUBLIC

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 85 of 132 * PUBLIC *; 

Pages 1 - 47 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

Before The Honorable Charles R. Breyer, Judge 

FEDERAL TRADE COMMISSION, ) 

) 

Plaintiff, )

 ) 

 VS. ) NO. C 22-01973 CRB

 ) 

INTUIT, INC., )

 ) 

Defendant. ) 

) 

 San Francisco, California 

 Thursday, April 21, 2022 

TRANSCRIPT OF PROCEEDINGS 

APPEARANCES: 

For Plaintiff: 

FEDERAL TRADE COMMISSION 

Bureau of Consumer Protection, 

Division of Marketing Practices, CC 8602 

Org Code 1144, Mailstop CC-5201 

600 Pennsylvania Avenue, NW 

Washington, D.C. 20580 

BY: ROBERTO ANGUIZOLA, ATTORNEY AT LAW 

JAMES E. EVANS, ATTORNEY AT LAW 

For Defendant: 

WILMER, CUTLER, PICKERING, HALE 

& DORR LLP 

1875 Pennsylvania Ave., NW 

Washington, D.C. 20006 

BY: SETH P. WAXMAN, ATTORNEY AT LAW 

JONATHAN E. PAIKIN, ATTORNEY AT LAW 

(APPEARANCES CONTINUED ON THE FOLLOWING PAGE) 

REPORTED BY: Marla F. Knox, CSR No. 14421, RPR, CRR, RMR 

 United States District Court - Official Reporter 
 

 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 86 of 132 * PUBLIC *; 

APPEARANCES: (CONT'D) 

For the Defendant: 

WILMER, CUTLER, PICKERING, HALE 

& DORR LLP 

7 World Trade Center 

250 Greenwich Street 

New York, New York 10007 

BY: DAVID Z. GRINGER, ATTORNEY AT LAW 

WILMER, CUTLER, PICKERING, HALE 

& DORR LLP 

2600 El Camino Real - Suite 400 

Palo Alto, California 94306 

BY: SONAL N. MEHTA, ATTORNEY AT LAW 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 87 of 132 * PUBLIC *; 

Thursday - April 21, 2022 10:25 a.m. 

P R O C E E D I N G S 

---000---

THE CLERK: Court is now in session. The Honorable 

Charles R. Breyer is presiding. You may be seated. 

Our court reporter can't be in two places at once. 

THE COURT: She can't? 

THE CLERK: She is appearing by phone. She went from 

Zoom to phone. 

THE COURT: Apparently we don't have an in-person 

court reporter, but we have a remote court reporter. We will 

see how remote it is in a minute. 

But I would appreciate if the parties, when they address 

the Court or each other, identify themselves and so we will 

have a record of it. 

Why are all the lights out in this courtroom? What is 

going on? 

THE CLERK: I think it's for effect because it was a 

little too bright. 

THE COURT: I like a little sunshine. Sunshine in the 

judicial process, isn't that -- doesn't that just make 

everyone's day? 

THE CLERK: Okay, let me call the case, Judge. 

THE COURT: Apparently I'm like an airline. Masks are 

optional, so I leave it up to you. Except if you are not 
 

 

 

 

 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 88 of 132 * PUBLIC *; 

vaccinated, please wear a mask. 

THE CLERK: Calling civil action C22-1973 Federal 

Trade Commission versus Intuit, Inc. 

Counsel, please state your appearances in the microphone 

for the Court. Thank you. 

MR. ANGUIZOLA: Good morning, Your Honor, I am Roberto 

Anguizola on behalf of the Federal Trade Commission, and with 

me is co-counsel James Evans. 

THE COURT: Good morning. 

MR. WAXMAN: Good morning, Your Honor, I'm Seth Waxman 

representing Intuit. And with me at counsel table are my 

colleagues Sonal Mehta, David Gringer and Jonathan Paikin. 

THE COURT: Good morning. And Counsel can remain 

seated unless you want to come up to the podium. Not 

necessary. But make sure your remarks are before a microphone. 

So this matter is on based upon the FTC's request for 

injunctive relief, and it was initially filed -- well, I don't 

have the date of its filing -- but about two weeks ago; is that 

correct? 

MR. ANGUIZOLA: March 28th, Your Honor. 

THE COURT: March 28th. And it was assigned at that 

time to Judge Davila that related to this Court. 

And the question -- the initial question was when to 

conduct the hearing on the proposed injunctive relief. 

The hearing I think was scheduled -- originally scheduled 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 89 of 132 * PUBLIC *; 

for April 18th; is that right or am I off on that? 

MR. ANGUIZOLA: It was originally scheduled for 

March -- no, April 14th. 

THE COURT: April 14th. 

THE CLERK: Counsel, please don't forget to state your 

name. 

THE COURT: Yeah, state your name. 

And if my memory services me correctly, it's like 

April 15th is when taxes are due or was there some extension to 

April 18th? I couldn't quite figure out what day tax day is. 

It will live in infamy. What day is tax day? 

MR. ANGUIZOLA: Your Honor, this is Roberto Anguizola. 

And tax day this year was Monday April 18th. 

THE COURT: Oh, so it was the IRS, Internal Revenue 

Service, they gave you a weekend to collect your assets. Yes. 

MR. WAXMAN: I think it was -- this is Seth Waxman 

speaking. I think it was the confluence of tax day and Good 

Friday. 

THE COURT: Ah, okay. 

MR. WAXMAN: That led --

THE COURT: There you go. Sorry. Exactly. Yeah, I'm 

sure that's correct. I'm sure that's correct. So that's fine. 

But anyway you know, it was the 18th. 

You know, the way it hit me was actually in Mr. Waxman's 

brief was, you got to have an emergency of some weight in order 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 90 of 132 * PUBLIC *; PUBLIC

PROCEEDINGS 

to invoke the injunctive powers of the Court and not 

basically -- an injunction is not to disrupt a satisfactory 

status quo. 

In other words, I can understand that an injunctive relief 

can be given to stop a particular harm when the particular harm 

is a serious particular harm that is about to occur. 

But the way I looked at it -- and you can correct me --

the FTC can correct me if I'm wrong -- was that this is a harm 

that was, quote, known -- a potential harm -- I'm not passing 

judgment on the merits of whether it is a harm or not -- but it 

was a -- it was known to the FTC for a considerable period of 

time, and they didn't seek injunctive relief until shortly 

before tax day. 

And after all, I mean, we know what the case is about. 

The case is about filing for taxes. 

So it is a particular -- it is a particular remedy geared 

to a particular time of the year that is of significance here. 

And so when I got it, I looked at it and thought why wait? 

What was the -- what was the reason for waiting? 

Because the problem is if we wait on something like this, 

first of all, if there is harm, much of it is accrued. 

And secondly, it becomes in and of itself entirely 

disruptive to a company that is operating a particular way. 

Third, it probably minimizes -- has a minimal impact on 

damages if there are damages because it is -- you wait so late. 
 

 

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PROCEEDINGS 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 91 of 132 * PUBLIC *; 

So, the FTC did respond and their response was -- well, 

let's see, how should I put it? How about this: They were 

simply out lawyered in this case. They were out lawyered in 

that they waited, waited for responses and they weren't 

forthcoming; and ultimately there were -- they were unable to 

arrive at a disposition. And so time elapsed -- time passed 

and here we are. 

And it really wasn't their fault because they operated in 

good faith trying to achieve a result. They thought they were 

going to achieve a result or didn't -- I don't know -- and --

and time passes, which, of course, happens. I understand that. 

And it is not -- it is not the sort of thing where I would 

say that, you know, somebody is operating in good faith and 

somebody is operating in bad faith. 

I don't know that I need to get into that because the fact 

of the matter is regardless of whose fault it was, here we are. 

Here we are. 

And -- and the request for emergency relief is -- it is 

basically mooted, notwithstanding the merits of the situation. 

Now, I haven't heard from you. And I'm quite sure the FTC 

wants to respond to this, so I will, of course, listen. But 

I'm giving you my impression after reading hundreds of pages of 

argument on this subject. 

So, go ahead. Come on up, if you would like. 

MR. ANGUIZOLA: Good morning again. Again, 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 92 of 132 * PUBLIC *; PUBLIC

PROCEEDINGS 

Your Honor, Roberto Anguizola, for the record, on behalf of the 

U.S. FTC. 

THE COURT: Right. 

MR. ANGUIZOLA: And here we are. The reason why it 

was appropriate for an emergency before tax day -- and I don't 

want to spend a lot of time on that because here we are after 

tax day -- can be found in -- before I get into this, I want to 

address a housekeeping matter, which is that a lot of the 

material -- I think a lot of the material is under seal here, 

and I think it is difficult for me to address your very 

specific questions about the timing and whether this matters 

without referring to that material. 

And I don't know whether there is anybody in the courtroom 

that should not be hearing this information. So that's a 

question that I pose to Intuit's Counsel. 

THE COURT: Well, I don't want a secret hearing. I 

mean, this is a public proceeding. 

MR. ANGUIZOLA: Okay. 

THE COURT: You know, just -- and really, all I do 

generally seal is personal identification information, privacy 

concerns and so forth. 

In terms of overall strategy and so forth, I'm not so 

inclined to -- to somehow burden a party with trying to make an 

argument when, in fact, the argument is based on under seal 

documents. I doubt if Intuit has a problem with that. 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 93 of 132 * PUBLIC *; PUBLIC

PROCEEDINGS 

MR. WAXMAN: Your Honor, Seth Waxman for Intuit. 

THE COURT: Yes. 

MR. WAXMAN: I don't see -- if we are talking about 

the issues of exigency, nothing has been filed addressed under 

seal. Some confidential business documents have been filed 

under seal. And, of course, Your Honor received a sealed 

filing yesterday. 

But, on the question of what the exigency is or isn't, I 

just can't imagine any confidential company information being 

relevant. 

THE COURT: Well, okay. Give your free-wheeling 

argument and let me hear it. 

MR. ANGUIZOLA: Okay. With your permission, I will, 

Your Honor. 

So our case was filed March 28th. And that's important 

because if you -- if the Court looks at Government Exhibit 298, 

at Intuit FFA-FTC 105770, it -- it's a chart that maps out 

Intuit's season and when most -- most consumers purchase 

products -- tax preparation products from Intuit. 

And the biggest point -- the peak of the season is the two 

weeks prior to the tax day. 

And so, you mentioned earlier that we got out lawyered and 

maybe we got snookered by the company and its lawyers, but it 

became clear to us that Intuit wanted to delay this case until 

after tax day. That became clear to us --
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 94 of 132 * PUBLIC *; PUBLIC

PROCEEDINGS 

THE COURT: When did that become clear to you? 

MR. ANGUIZOLA: It became clear to us around March. 

THE COURT: Well, become clear to me -- if it's true, 

if they did -- and I'm not commenting on whether they did or 

not -- it would occur to me much earlier than that, I would 

think that knowing that April 15th or 18th is tax day, knowing 

that -- and after all, the FTC does have a calendar. We know 

that -- I would think that if I was in defense strategy here 

having embarked upon a particular marketing plan that was set 

well in advance of tax day, that maybe they don't want any 

disruption in their marketing plan because it is geared to the 

generation of income given that they know that most people, 

myself included, file around April 15th. 

That's when we owe the government some money. Much rather 

have the money in my pocket than Uncle Sam's pocket. 

So I --

MR. ANGUIZOLA: Yes, Your Honor --

THE COURT: I mean, really, it seems to me it is sort 

of a -- somewhat naive, if I may use that word without the 

pejorative effect, to think that of course they want to run it 

out. 

Their strategy, whether legal or not legal or whether 

appropriate or inappropriate -- and I'm not passing judgment on 

that -- it is their strategy. And they want to keep it in 

effect without a disruption. And so I think that was obvious 
 

 

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pre-March, wasn't it? 

And by the way, you had conversations with them before 

that time. So, I don't know what those conversations were, but 

my guess is that that they didn't -- they didn't bring about 

the changes that you thought appropriate in your duty as a 

member of the FTC staff in a timely manner and that unfolded. 

But it was somewhat predictable given that there is an 

inertia of a company to try to change things at a particular 

time when their income, their revenues, depend upon a plan. 

MR. ANGUIZOLA: And that's correct. And that's --

obviously our position and hope was that the TRO hearing would 

happen well in advance of -- with enough advance to prevent the 

greatest harm, which is the two weeks prior to tax day. 

I want to address where we are now, which is --

THE COURT: Okay. 

MR. ANGUIZOLA: -- after tax day. 

THE COURT: Yeah. 

MR. ANGUIZOLA: If you turn to that same document, 

Intuit 10577 at Government Exhibit 298, there is still harm to 

be had. 

So between now and the automatic extension date for --

for -- filing an -- a late tax return, which consumers can do 

between now and October, Intuit as of tax year 2019 generated 

$35 million of revenue from consumers in that category. 

And so even though we can agree to disagree on how naive 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 96 of 132 * PUBLIC *; PUBLIC

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we were and the timing and whether the Defense Counsel out 

lawyered us, there is still harm occurring now. 

And we filed a third declaration of FTC investigator Diana 

Shiller -- it is Government Exhibit 319 at docket 57-3 -- which 

demonstrates that the advertising at issue, the deceptive free 

claims that are at the core of this case, are still being made 

by Intuit as part of their post-season strategy. 

So, yes, we -- we wish that we could have prevented the 

harm that would have happened at the peak, but there is still a 

lot of harm that can be prevented now. 

THE COURT: Okay. So let's move on. Let's move on to 

your argument. Tell me -- let's assume that, you know, bygones 

be bygones, and there are certain changes -- it is a clean 

slate. 

You come in -- let's say you just discovered this. Who 

cares. You come in and you say, you know, Judge, between 

April 15th and October 15th, if that's the date, you know, this 

tool, this method, is going to be disseminated to prospective 

filers; and we feel -- the FTC feels that the representations 

or the method by which filers are advised as to the mechanics 

of how the system works is unfair -- is unfair, inappropriate. 

And it is inappropriate in the following way: It entices 

or encourages or represents to a taxpayer that he or she will 

have paid free service when, in fact, the reality is they will 

not or the reality is that they will be so deeply involved in 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 97 of 132 * PUBLIC *; PUBLIC

PROCEEDINGS 

the filing system that they will at that point elect to pay 

compensation to Intuit as distinct from disassociating itself 

from the website. 

I think those are the arguments that I sort of got --

MR. ANGUIZOLA: And that's correct. And that 

behavior, despite the fact that Intuit has knowledge of this 

action and very well knows that the FTC's concerns with it and 

should know the illegality of it, the deception that is 

happening, they -- the very next day after tax day -- if you 

look at Shiller declaration. It is on the docket 57-3 at 

paragraph 14 -- she has an image of a blog published by 

TurboTax. "Did you miss the tax deadline?" 

And then there is a representation "you can start for 

free." And when you click that, if you go to paragraph 15, you 

land on the TurboTax website. And there is the free claims, 

"free, zero, zero, zero." 

The truth of the matter is -- and we have laid this out in 

our matter -- two-thirds of American consumers are ineligible 

to file for free using TurboTax. And that's deception. 

Intuit's answer is: Well, we tell them "simple returns 

only" or something of that ilk. 

And we have conducted a survey to determine is that a good 

disclaimer. And we have consulted with Professor Novemsky from 

Yale University at GX -- Government Exhibit 302. 

His survey shows that 55 percent of consumers that have 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 98 of 132 * PUBLIC *; PUBLIC

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not -- have not used TurboTax in the past -- he refers to that 

as group A -- 55 percent of those people think that they have a 

simple tax return even though they would -- based on the 

questions in the survey they would be ineligible. 

So the majority of consumers or at least a significant 

minority, which is the standard, go in and don't understand 

that disclaimer. And that disclaimer contradicts the -- the 

very claim even if it was understood. 

It is also confusing because we have laid out how -- the 

disclaimer itself -- Intuit's definition of what "simple tax 

return" means changes from year to year to year. 

So I -- shortly after filing this case, I received an 

e-mail from a consumer saying "Yes, I got snookered this year 

because last year I had unemployment benefits and last year a 

simple return under Intuit's definition would include 

unemployment." And he was able to file for free. 

This year, simple return means something else, and it is 

not included. So this year he went in; entered all the data; 

wasted his time and ended -- faced with a decision, "Do I now 

start all over or do I pay and stop wasting my time?" 

And the harm that happens is you create -- they are 

creating a marketplace where the consumers don't -- you know, 

they think it is a dishonest marketplace, and this is 

ultimately what we are trying to avoid here. 

So the conduct is ongoing. And now they have -- they have 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 99 of 132 * PUBLIC *; PUBLIC

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had a chance to correct it and they haven't. 

THE COURT: Well, is your quarrel -- I'm trying to 

figure out exactly what your quarrel is with. 

Are you saying they shouldn't say "simple" because 

"simple" is one of those terms that means -- it is in the eye 

of the beholder; that something is either simple. Something to 

one person may seem simple, to the other person may be 

complicated. And therefore, it is not a defining term that 

would give guidance to a person to understand that he or she 

would not be required to pay a fee for the services that are 

rendered. 

It is just not -- it is not exact enough. And, in fact, 

it is misleading in that -- in that it just has too many things 

in the common parlance of its understanding that would pull 

people in and that's why it's deceptive. 

MR. ANGUIZOLA: Well, it begins with the use of the 

word "free." Simple return is a --

THE COURT: Well, free -- listen, I have no problem 

with the word "free." My problem is with the word "simple." 

I mean, free is free. Free means no paying. Do not pay 

and don't have to pay. That's what free means. It doesn't 

mean anything else. It doesn't mean sort of free. Pay a 

dollar, $10, $20. Free is free. 

But that's not -- is that the deception? Are you saying 

it is really not free? It is not free in the sense that they 
 

 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 100 of 132 * PUBLIC *; 

charge? And, therefore, it is not free. 

MR. ANGUIZOLA: It is not free --

THE COURT: But they come back and they say: Look, we 

didn't say our system is free to everybody. We said it's free 

if the return is a simple return. That's what we said. 

Now, so the deception, I think, at one level has to be 

with the term "simple" and not "free," I think. 

Have I got it wrong? Tell me I got it wrong. 

MR. ANGUIZOLA: I don't think --

THE COURT: What? 

MR. ANGUIZOLA: I don't think you have it exactly, 

right. The deception --

THE COURT: Okay. 

MR. ANGUIZOLA: -- begins with the word "free," and 

then there are different variations of their ad. 

So the question is: Is there some language that modifies 

the claim free and -- in other words, a disclaimer? And is 

that disclaimer clear and conspicuous? 

So the Novemsky survey went to the question of whether the 

disclaimer "simple return" is clear. It is not clear. People 

don't understand what that means, and it is a -- and it is a 

moving goalpost because Intuit changes it all the time. 

THE COURT: I understand that argument. 

MR. ANGUIZOLA: It is also not --

THE COURT: Why am I wrong in saying the confusion 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 101 of 132 * PUBLIC *; 

arises out of the term "simple?" It doesn't arise out of the 

term "free." 

Free gets you there. Free gets you in the door. But 

there is a disclaimer. They don't say it is free to everybody, 

and nobody thinks it is free to everybody. 

MR. ANGUIZOLA: The survey data shows otherwise, 

Your Honor, but you are not completely wrong for all of the 

ads. 

THE COURT: Well, okay. That is virtue. 

MR. ANGUIZOLA: But what -- part of the issue deals 

with conspicuousness. So if we turn back to the television ads 

that they have now pulled -- conveniently pulled at the end of 

the season when they knew that they were going to get sued --

and you can call that shrewd and good lawyering -- but that's 

what they did. 

In those ads simple return is a blurry microprint at the 

end of the ad at the bottom. Sometimes they have a voiceover. 

They say 30, 40 times or however many times. And so in that 

instance it is not conspicuous. 

They get closer -- even if they were able to argue that in 

some of the space constrained ads or in some of the internet 

ads, that they get closer to simple returns -- return -- the 

simple return disclaimer being conspicuous, it is not clear. 

And that's where the Novemsky survey illustrates that it is not 

a good disclaimer because people don't understand what they 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 102 of 132 * PUBLIC *; PUBLIC

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mean. 

So there are two problems. One, in a lot of the ads, the 

ads that started the case, it is not conspicuous at all. 

So the consumer will just take in the promise that it is 

going to be free without ever seeing the disclaimer. 

And then the second problem is even when consumers can see 

and comprehend that there is a disclaimer, they don't 

understand what that means. And it contradicts the central 

claim, which is that is free. 

So there is -- there are those two distinctions, and there 

is -- it is a moving target. There's different kinds of ads, 

but even the current ads that they are running have a problem 

because that disclaimer is just not clear. It is not 

understood. 

THE COURT: All right. Well, let me hear from 

Mr. Waxman, unless you just want to submit it? 

MR. WAXMAN: Your Honor, Seth Waxman for Intuit. I 

mean, I -- no, I don't want to, of course, just submit it. 

I do want to address the merits and particularly this 

issue of the confusion involving "simple" on a going forward 

basis, but I think I need to say a few things in response to 

misrepresentations that were made before. 

This notion that we have tried to snooker the FTC is so 

utterly false, and the paper trail -- there is an exhaustive 

paper trail that will demonstrate some of which is already in 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 103 of 132 * PUBLIC *; PUBLIC

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the record. 

This investigation was begun in a very public way three 

tax seasons ago. Every single time there was a request for 

production of documents, witnesses, et cetera, we have provided 

them with alacrity. 

We have attempted to, over the course of those years, make 

changes -- the screen that you were just shown is from the 2019 

tax year. We have made any number of changes to the ads that 

they claim were deceptive in an effort to satisfy them. 

We have asked them -- in fact, literally, quote, begged 

the FTC since they filed its -- sent its draft complaint to us 

almost a year ago to explain to us what it is -- on what basis 

they believe these ads are deceptive. 

These are ads that say very prominently -- you can see in 

the screen you just saw on the very first line -- "for simple 

returns only" which is hyperlinked. When you click on that 

hyperlink, it tells you exactly who qualifies and who doesn't. 

It then says -- right after "for simple returns only", 

quote, "see if you qualify at turbotax .com." 

And when you go to turbotax .com, you get a screen, which 

was also displayed by Mr. Evans, that has the tile of things 

saying: "Tell us about you." Do you --

THE COURT: Why don't you walk me through this? Walk 

me through this in terms of a current -- I mean, current as of 

today, a year or so --
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 104 of 132 * PUBLIC *; PUBLIC

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MR. WAXMAN: Yeah. 

THE COURT: Here is -- let's -- let's talk about what 

we are going to talk about. I'm not concerned about the past, 

though I think it is entirely appropriate for you to respond. 

For the record and so forth --

MR. WAXMAN: I understand. There is one more thing I 

do want to say. 

THE COURT: Go ahead because I don't want to cut you 

off. 

MR. WAXMAN: We have asked them over and over and over 

again in the past year to tell us what is still objectionable 

about the changed ads, none of which are running. 

They have told us repeatedly: "We are not going to get 

into that with you." 

We went to them in November and said, look, let's get an 

agreement on some -- what it is that you want so we can do this 

before tax season. 

We are a consumer product company. We don't want to be on 

the wrong side of the government. We rely on repeat business. 

If there is something that is confusing to a significant 

part of the population, we want to conclude it; and we were 

told repeatedly "We are not willing to discuss that." 

"We are not willing to discuss that." 

The very first time we heard anything was about two weeks 

before the hearing before the complaint was filed when we met 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 105 of 132 * PUBLIC *; PUBLIC

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first with the Career Chief and then with the Chair of the 

Commission who told us what it is that she still found 

objectionable. 

And that very day we wrote to her and said: Look, we will 

pull all of the television, video, Facebook, online ads; okay. 

And in response to that a few days later we got this lawsuit. 

Now, this lawsuit is a request not that Your Honor decide 

the merits of whether what we are doing on a going forward 

basis is -- does or doesn't violate the FTC Act. 

They have noticed this under Section 5 for a hearing in 

September. The FTC is going to decide that issue. 

They filed a complaint with you seeking only the following 

relief: A temporary restraining order and a preliminary 

injunction pending the September hearing to prevent us from 

running the ads which had already stopped. 

They now have, not in any pleading, a new exigency, which 

as it turns out that some people missed the filing deadline and 

they have to file by October. 

And so their request here today is that you enter a 14-day 

temporary restraining order and then have some hearing on a 

preliminary injunction based on a showing that utterly does not 

exist. 

I mean, as Your Honor stated at the outset, preliminary 

injunctive relief is -- as the Supreme Court has explained, is 

extraordinary and a drastic remedy. And what is extraordinary 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 106 of 132 * PUBLIC *; 

about this case is how completely insubstantial the 

Government's papers are. 

They have attached -- we have some testimony today from my 

colleague about somebody who supposedly called him to say he 

was snookered. We have a complaint, a temporary restraining 

order, and a reply brief that doesn't attach or reference a 

single consumer declaration. 

They have represented that of the tens of millions of 

people who use TurboTax, both the free edition and the various 

paid editions, they have received 23 complaints about the 

advertisements. 

We don't have those complaints. We don't know whether a 

single one of those complaints has to do with some 

misconception about whether you could or couldn't file for 

free. 

The only thing they have produced -- although we have 

declarations and declarations and declarations saying that they 

had to spend years talking with experts and consultants about 

surveys -- what we have is some gossamer survey that was done 

the week before -- start to finish the week before they filed 

their complaint that purports to test whether people who see 

the ads, which are not running anymore, believe that everyone 

can file for free. 

And yet, the survey did not show any one of the challenged 

ads to anybody. It just asked people: If you were told that 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 107 of 132 * PUBLIC *; PUBLIC

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it's free if you file a simple return, do you think your return 

is simple? 

And so that survey says nothing whatsoever about the 

challenge in this case, which is that our ads were deceptive. 

It doesn't say anything about the ads at all because not 

one person was shown any of these ads. And that is the sum and 

substance of the Government's representations here. 

And it requires not only a denial of the TRO and the 

preliminary injunction but dismissal because that is the only 

relief that is requested. 

Now, the Government --

THE COURT: Are you then -- let me try to posit a bit. 

Are you saying that those ads that have been pulled, if that's 

the right word, discontinued, in light of FTC concerns and 

discussion and so forth, is that as to that category of ads, 

they will not be disseminated, published, going forward? 

So there really isn't the -- the prospect of a, quote, 

continued -- merits aside -- a continuing harm? 

So this -- you are saying this motion has to fail for a 

variety of reasons but one of which is there isn't an ad out 

there that we are publishing that is the subject of a complaint 

by the FTC. 

We don't even know exactly what they are talking about. 

They haven't viewed -- criticized or put into the record a 

present ad that would be susceptible of that interpretation. 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 108 of 132 * PUBLIC *; PUBLIC

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And secondly, there is no consumer evidence, if I can use 

that term, to show that there is a deception or a confusion as 

it relates to that particular ad. Is that a fair summary? 

MR. WAXMAN: Yes. Yes, it is even better than that 

because although they have no evidence whatsoever that the --

that the television, video and online ads -- that we have 

represented will not ever run again. We aren't even 

planning -- we have undertaken not to run any television or 

video or online ads until next tax season, which would be after 

the FTC conducts its Section 5 hearing and makes a ruling. 

THE COURT: So then what is the -- what is your 

response to the -- to the question: Between now and 

October 15th, how then is Intuit or TurboTax, whatever you want 

to call yourselves, how are you presenting the product to the 

public effective on April 18th to December -- to October? How 

is it being shown to the public? 

MR. ANGUIZOLA: Right. So it is shown to the public 

on our website. And Your Honor can -- we have invited 

Your Honor on paper and now orally to go to www.turbotax.com, 

which is what the previous ad said you should do to see if you 

qualify, and you can see for yourself that it makes lavishly, 

promiscuously clear that it has four different editions. 

There is a free edition, which 14 million people use each 

year, totally for free; and that the free edition is for simple 

returns only, which is a hyperlinked statement. And when you 
 

 

 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 109 of 132 * PUBLIC *; PUBLIC

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go to the hyperlink, it will give you the list of eligibility 

for filing for free. 

And it then says: To see if you qualify, go to 

turbotax.com. And when you go to turbotax .com, you will 

see -- Mr. Evans put it up on the page -- a display of tiles 

that says tell me about -- tell us about yourself to decide 

which edition you should use. 

And if you click on, for example, "I sold stocks. I have 

a rental property. I have childcare expenses. I -- I have 

donated more than $300 in charitable contributions," it 

automatically tells you that you cannot use the free edition. 

You have to use either basic or one of the other higher-grade 

things. 

And so, leaving aside the complete absence of proof -- the 

complaint in this case addressed three or four TV ads. 

The very first time that we were told in a meeting with 

Chair Lina Khan what it was that the Commission still thought 

was misleading, that very day we undertook to pull the ads, and 

the ads have been pulled since then. 

They are now saying: Well, we ran into court asking for a 

TRO and a PI because tax day was coming. They now say: Well, 

some people, some very small percentage of people, missed the 

deadline and they are on extension. 

And it's true that none of the ads that are in our 

complaint are running anymore, but you can still -- and you can 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 110 of 132 * PUBLIC *; PUBLIC

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look at the latest declaration from their paralegal -- if you 

Google "online free tax" --

THE COURT: Isn't my answer to it: Okay, I'm going to 

allow you to amend your complaint. Go amend your complaint and 

gear it towards -- I'm not granting the TRO. I'm not granting 

the preliminary injunction. Times have changed. 

We are now talking about those people who are going to 

take advantage of the April 18th to October 15th extension. 

If -- if you feel that there are deceptive ads out there 

now, put them in your amended complaint and then we will talk 

about it. They will either be there or they won't. 

I mean, I don't, like, to know really what to do in the 

sense that I'm not going to do what they want to do basically 

because I think it is moot. And I'm not passing any judgment 

on the merits. But it is moot. 

I mean, I don't think it is appropriate for a Court to 

say: Well, it is moot. But let me tell you how I really feel. 

I like to do that but --

(Laughter) 

THE COURT: -- I'm not supposed to. I'm not supposed 

to do that, so I'm not going to do that. 

But I think that because they are talking about, one, a 

serious matter. I don't treat this as not a serious matter. 

Two, that people should have an opportunity to come to court, 

the Government included if, in fact, they feel that they have a 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 111 of 132 * PUBLIC *; 

basis for it. So I ask you, Mr. Waxman, what is wrong with 

that? 

MR. WAXMAN: I think if Your Honor were to dismiss the 

complaint and deny the relief and give them the opportunity, 

which they have in any event to file a new complaint; and they 

can file a complaint with a TRO that not only says that these, 

you know, Google and Bing hits are misleading but actually 

adduce a modicum of evidence that would allow Your Honor to --

THE COURT: They have to. 

MR. WAXMAN: Yeah. 

THE COURT: I mean, whether --

MR. WAXMAN: So --

THE COURT: It is not Sunday school. You know, I 

mean, they have to follow the rules. So let me ask -- this is 

fabulous to have in-live, person-to-person argument in the 

courtroom -- but I want to ask the FTC. 

So, what is wrong with that? In other words, I simply 

dismiss -- I deny your request for injunctive relief. I 

dismiss with leave to amend. I think I dismiss with leave to 

amend. I don't think I simply -- I don't know how else you get 

to a leave to amend unless it is dismissed. Give me your 

views. Come on up. We will chance it. 

MR. ANGUIZOLA: This is Roberto Anguizola. They are 

mischaracterizing the complaint. So --

THE COURT: Okay. 
 

 

 

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MR. ANGUIZOLA: The complaint -- they would like the 

Court to believe that the complaint was only about television 

ads. And it is correct. We highlighted the television ads 

because at the time that the complaint was filed the television 

ads were ongoing, and the television ads were particularly 

egregious. 

But from the very get-go, if you look at paragraph 30 of 

the complaint -- I believe it is docket 1 -- it says: Intuit 

has employed ads including via television, YouTube and other 

social media marketing the premium version of TurboTax 

including but not limited to those in the absolute zero and 

free, free, free campaigns. They have pulled the free, free, 

free campaigns. 

We were looking at ads beyond television. It's in black 

and white in paragraph 30. We were looking at ads beyond those 

particular television campaigns. 

Then if we turn to paragraph 126, reads: The FTC has 

reasons to believe that Defendant is violating or is about to 

violate laws enforced by the Commission. 

And 126(c) says: Intuit has continued engaging in many of 

the challenged acts and practices even after learning it was 

the subject of Government investigations; and (d), during the 

pendency of the FTC's investigation, Intuit has continued its 

deceptive free advertising which is ongoing. 

Then, Count One -- again, none of -- that all envisions a 
 

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situation where there is harm at the time a complaint is filed 

and there is harm beyond television and there is harm that --

there is a belief that it is going to keep going on. 

Then Count One is not limited to television. I'm not 

going to read it, but it -- it deals with -- it is broader than 

television. 

It deals with instances in connection with advertising, 

marketing, promotion, offering for sale or sale of online tax 

preparation products or services including through the means 

described in paragraphs 16 through 126. 

That is beyond television. The paragraphs 16 through 126 

deal with the website. They deal with social media. They do 

deal with television. 

So what they did was take out a subsegment of it, and now 

they would like the Court to believe that our complaint doesn't 

cover the ongoing conduct. 

$35 million of revenue between now and October maybe is a 

drop in the bucket for Intuit, but in my career at the FTC, 

most of my cases involve harm that is far less than that. And 

it still merits --

THE COURT: Your argument is your complaint is 

adequate in that regard and that there is no necessity of 

amending your complaint because it stands for and accuses 

Intuit of engaging in deceptive practices, which are ongoing. 

MR. ANGUIZOLA: Correct. 
 

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THE COURT: And there is a real harm because of the 

existence of post-April filers. 

I don't think that they missed the deadline. I have 

been -- my tax accountant says: No, you are not missing a 

deadline. You are taking advantage of a different date. 

So it is not that. It is another way -- assuming one 

qualifies, it is another way of collecting revenue under the 

law. So you are saying that is ongoing -- your complaint is 

adequate. 

MR. ANGUIZOLA: That's correct. 

THE COURT: What about Mr. Waxman's point, you know, 

you don't have anyone complaining here basically? What are you 

talking about? You know, is this just a theory that people 

don't understand it because if they didn't understand it, you 

know, why -- how many clients do you have in roughly in the 

last year? How many people? 

MR. ANGUIZOLA: So in the last tax season 14 million 

people filed for free. 

THE COURT: No. But the whole thing. 

MR. ANGUIZOLA: The whole thing is -- free is the 

biggest category. 

THE COURT: Yeah. 

MR. ANGUIZOLA: But I don't know, maybe 40, 50 million 

people use it. 

THE COURT: Out of there -- out of there, there would 
 

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be a substantial number of people who have -- if it is true --

have a level of dissatisfaction with the way the product is 

being presented to them. 

And Mr. Waxman's point, as I understand it, is it's not 

there and that's a pretty good indication, isn't it, that it is 

not -- that it is not deceptive? 

People come in, after all, and they look at cans of food 

on Safeway counters which say "all natural," and they say wait, 

a minute the propellant that takes out -- that's not all 

natural. I mean, they say: What are you supposed to assume, 

that, like, Old Faithful is propelling the material out? 

And I get those. I get: Is all butter all butter? Is 

all natural all natural? What does that mean? I never quite 

got it. 

But I think the saying is that people aren't shy about 

grievances that they have if they feel they have been deceived 

and especially within the context of where they are paying 

money and required by law to pay money. 

So if they think that they have been hoodwinked, where are 

those declarations? 

MR. ANGUIZOLA: A couple things on that. He has 

misstated the evidence. So we decided to proceed more 

efficiently here and conduct a survey rather than rely on 

consumer declarations. 

And according to the survey, 52.7 percent of people in 
 

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group A, they mistakenly think that they can file for --

TurboTax for free. 

So those -- there is a significant minority -- I would say 

majority -- but the standard is significant minority that are 

under the misimpression they can file for free even though the 

people that were surveyed would not have been eligible for 

that. 

And when they are asked what was the source of that 

belief, 46 percent stated they received that belief based on 

TurboTax advertisements; and 46.9 received that misimpression 

from the TurboTax website. And if we combine the source of 

the -- the ads and the website causing the confusion, it goes 

up to 72.3 percent. 

And these are people that are ineligible and they are 

saying: Why am I confused? Because I either saw an ad or I 

went to the website. 

And Professor Novemsky explains why he didn't do a 

traditional copy-test in this case. And the reason for that 

is: First, he thought it was appropriate to do a perception 

survey because the ads have been running for so long and 

have -- and the deception has been so pervasive that he wanted 

to know am I dealing with a pool of people where a traditional 

copy-test which is designed to just test particular claims in a 

particular ad -- is the pool of people so confused, through no 

fault of their own and they are identifying Intuit, TurboTax, 
 

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as the source of that confusion -- is that group so confused 

that we can't do a traditional copy-test? 

And that's why they didn't do that and they went with this 

perception survey, which is powerful in and of itself. 

Defendants didn't copy-test or if they did copy-test, they 

didn't provide it to the FTC and haven't provided it to the 

Court. 

And the reason for that, I suspect, that they probably did 

a perception survey -- they have no -- they can do that through 

a consulting expert -- and decided that a copy-test was not 

appropriate. So you don't have copy tests from either side. 

And to go -- in terms of the consumer complaints, we have 

the declaration of Diana Shiller, which is at docket 12-655, 

where she summarizes the consumer complaints; and there is many 

more than what they -- what they describe. 

As of March 28, 2022, the FTC had received 571 consumer 

complaints about free TurboTax. 

From January 1, 2021 to March 28, 2022, the FTC received 

152 complaints. 

She summarizes the 57 complaints that have been filed from 

November 1, 2021 to March 28, 2022; 55 of the 57 consumers 

thought that they could file for free; 23 of the 57 consumers 

mentioned they saw advertising indicating that their tax filing 

would be free; and 54 to 57 consumers paid TurboTax when they 

thought their filing -- even though they initially went there 
 

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because they thought the filing was going to be for free. 

Traditionally the consumer complaints that we receive are 

the tip of the iceberg. 

I have done cases with zero consumer complaints. You 

don't need consumer complaints, but there is a lot of them and 

we did a survey instead. 

The ads covered by the current complaint are ongoing as of 

a couple days ago and --

THE COURT: Can you run me through one of these ads --

MR. ANGUIZOLA: Sure. 

THE COURT: -- on my computer here or whatever it is 

called? 

MR. ANGUIZOLA: Sure. 

THE COURT: It is nice to talk about it. 

MR. ANGUIZOLA: Yeah. 

THE COURT: It is also nice to see it, so --

MR. ANGUIZOLA: You just go to --

THE COURT: Here we go, www.turbotax .com. 

MR. ANGUIZOLA: And one thing that is missing is this 

is a deceptive door opener case. And so what that means is 

there are ads disseminated all over the internet, all over 

social media. They have stopped television. But up until the 

eve of the filing of this case television and even after that, 

they could not --

THE COURT: Well, I watched the Super Bowl. I think 
 

 

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there were some ads in there. 

MR. ANGUIZOLA: And they had ads -- they had an ad 

that violated -- that covered --

THE COURT: I have no comment on --

MR. ANGUIZOLA: -- during the Academy Awards. 

THE COURT: -- what happened with the Super Bowl. 

The 49ers should have been in that. I mean, that was the 

violation in the Super Bowl. 

MR. ANGUIZOLA: So if you turn to paragraph 6 of the 

Shiller declaration, docket 57-3, there is an example of a 

Google ad. File an extension for free. Free tax filing. 

THE COURT: Okay. 

MR. ANGUIZOLA: So that's on the screen. That's one 

example. That's ongoing. That one is April 19th. That's the 

same day that she filed her declaration. 

MR. WAXMAN: I'm sorry. What paragraph is that? 

MR. ANGUIZOLA: Paragraph6, docket 57-3. 

If we turn to paragraph 8, there is a TurboTax banner ad 

in the Milwaukee Journal Sentinel. That was as of April 14th. 

That one is before the deadline. 

If we go to paragraph 10 and then scroll down, scroll down 

further, there is an example of a Facebook ad. Then 

paragraph --

MR. WAXMAN: Excuse me. That is not an ad that is 

running and you know it. 
 

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MR. ANGUIZOLA: That is an ad from the Facebook --

MR. WAXMAN: -- library. 

MR. ANGUIZOLA: Right. 

THE COURT: I'm sorry. What is the distinction? 

I'm --

MR. WAXMAN: It is an ad from the past that has been 

documented. 

THE COURT: Oh, okay. No, no, I get it. 

MR. WAXMAN: -- in a library of prior publications. 

MR. ANGUIZOLA: I think Facebook pulled the ads from 

the past. It has the recent ones. But even if they are not on 

Facebook, they are on Google. They are on Apple News. 

THE COURT: Well, what I'm asking you for is this, if 

you can show me an ad that was running as of April 18th or 

19th; and I can look at it and I can understand what you are 

complaining about. That's all I need to see. 

MR. ANGUIZOLA: So paragraph 9 is an April 18th --

THE COURT: Now, looking at this one -- looking at 

this one as an example it says -- so maybe I am taking the air 

out of Mr. Waxman's presentation -- but it says "TurboTax free 

edition, for simple tax returns only*" 

That's what it is. Okay, and it's your position that 

that's not explanatory enough that that's -- that's an 

inadequate disclosure. 

MR. ANGUIZOLA: That's correct. 
 

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THE COURT: That's an inadequate disclosure. If I'm 

there, I see this ad and I say: Oh, boy, free, great. So then 

I see TurboTax free edition. That is fabulous. For simple tax 

returns only. Oh, I say: What does that mean? I don't 

understand what that means. 

What then do I do as a consumer? What is my 

responsibility as a consumer to do anything with respect to 

this ad, which tells me that it is limited to simple tax 

returns? 

MR. ANGUIZOLA: The problem is that the consumers --

the survey results don't show that the consumers don't know 

that what means. They think they know what it means, and they 

think their returns are simple even when they are not simple by 

Intuit's definition. 

And so if you -- they are making a zero or free claim --

if you scroll down, James, I think one of the things that is 

missing and that is more prominent on the screen if you look at 

the language underneath the file date to file, it says free 

in -- that's more prominent. 

It is zero, zero, zero, which is the same as free; and the 

only disclaimer is "for simple tax returns only" and consumers 

believe that their returns are simple even when they are not. 

THE COURT: So your statement is the disclaimer is 

meaningless? 

MR. ANGUIZOLA: Exactly. 
 

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THE COURT: So you can put anything in that 

disclaimer, like "just kidding" or "it only works if you are a 

lifelong Libertarian." Whatever it says you think the 

disclaimer is irrelevant to the infraction; that is, the wrong 

that has been committed. 

So your suggestion to me -- I can stop -- Judge, just 

stop. Once they say "free, free, free," they are on the hook. 

Doesn't make any difference what we say underneath. 

MR. ANGUIZOLA: There may be instances that --

THE COURT: When you say "simple tax return," which I 

always thought the problem is that people don't understand what 

"simple" means. Simple to one person isn't simple to another. 

That is the deception; that people will think that 

"simple" means something which it doesn't mean which it -- like 

somebody says: Oh, well, I have a -- I have some interest. I 

have a government loan or I have got unemployment benefits or 

dat, dat, dat. Nothing is simpler than that. 

And they say: Oh, no, no, no, we think that is simple but 

it is not actually simple. 

So the term "simple" doesn't -- doesn't appropriately 

elucidate, appropriately encompass the disclaimer that ought to 

be considered by the consumer when the consumer gets on this 

website. That's the FTC's --

MR. ANGUIZOLA: That's absolutely correct. 

THE COURT: Well, then I think I can try to figure it 
 

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out from that point. 

MR. ANGUIZOLA: And we lay out the FTC black letter 

law on disclaimers, when they are appropriate. 

If the disclaimer -- first of all, Intuit came into it 

backward. They looked at the .com disclosure guide and found 

instances where the FTC says "for certain disclaimers you can 

use a hyperlink." 

What they didn't -- what they omitted, and they omitted to 

file this with the Court, were the first ten pages of the guide 

that talk about instances where the disclaimer -- the 

information that is being disclaimed is so central to the claim 

such as where you have cost information that you can't --

THE COURT: So the disclaimer you would actually 

entertain, it would be a disclaimer in this ad which would say 

"TurboTax free edition but probably not for you." 

MR. ANGUIZOLA: That would be one -- there is -- and 

our order doesn't --

THE COURT: I mean, that would certainly be fair. 

MR. ANGUIZOLA: Our proposed order is not 

prescriptive. They can certainly come up with a different way 

to do it, but this is from the part of the guides on . com 

disclosures that they omitted. 

Disclosures that are an integral part of a claim or 

inseparable from it should not be communicated through a 

hyperlink. Instead, they should be placed on the same page and 
 

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immediately next to the claim and be sufficiently prominent so 

that the claim and the disclosure are read at the same time. 

THE COURT: Why isn't that this? I mean, it is right 

there; isn't it? I mean, it is right under the word "free, 

free, free" or "zero, zero, zero," it says "TurboTax free 

edition, for simple tax returns only." 

MR. ANGUIZOLA: We go back to simple tax --

THE COURT: I understand that. They are saying the 

disclosure is inadequate. 

MR. ANGUIZOLA: That's correct. 

THE COURT: It should say "but not for you." Okay. I 

got it. I understand. It seems like we are rewriting the 

issues of disclosure. 

MR. ANGUIZOLA: Your Honor, if I may, Your Honor, 

first of all --

THE COURT: I will return to you. 

MR. ANGUIZOLA: I had one more --

THE COURT: Well, then go right ahead and then I will 

give it to Mr. Waxman. We have plenty of time. 

MR. ANGUIZOLA: At paragraph 15, this is the latest 

ad, and that one is squarely dealing with the people that 

missed tax day. 

And Your Honor more correctly described it as you get an 

automatic extension, so it is not that you are in violation but 

there is that group of people. And this conduct from now until 
 

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October is going to generate $35 million of revenue. 

And this is a problem. When they click on "start for 

free," then you can turn to paragraph 15, and you get right 

back to a free claim and an inadequate disclaimer that doesn't 

do its job. 

THE COURT: The disclaimer in the one you just showed 

me is a hyperlink which says "simple tax refund only." 

MR. ANGUIZOLA: Right. And hyperlinking is not 

recommended for essential claims involving costs. 

THE COURT: No. The irony is in this case, of course, 

I have already ruled that the hyperlink for the arbitration 

clause was inadequate. 

And the Circuit in its wisdom reversed me. And then, of 

course, Intuit came in and said: Oh, by the way, we don't want 

arbitration. But that's not this case. 

MR. WAXMAN: You wouldn't know it isn't this case 

since 60 paragraphs of this complaint are complaining about the 

IRS free file program, which the FTC well knows both Intuit and 

H&R Block withdrew from following the 2019 tax year. But 

nonetheless, we are subjected to pages and pages of allegations 

about it. 

But let's look at the examples that he just gave. And, 

Your Honor, I think net-net the best thing to do is for you to 

just follow those links. 

Let's look at them in reverse order. The one that he 
 

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identified on paragraph 15, it has: Did you miss the deadline? 

And it says, you know -- the very next page. 

THE COURT: Put it up on the board here so I can see 

it, please. Thank you. Okay. 

MR. WAXMAN: I don't think I can stay at the mic 

and -- so here is one that -- this is actually one that is 

still running. It is on a blog. It is not a video ad or 

anything. 

It says: Did you miss the deadline? And then right 

underneath it -- if you just scroll up the page, Mr. Evans --

it says: I clicked on -- no, down, I'm sorry -- I clicked on 

the affiant, the start for free button and it directed me to 

the page following, which is on the next page. 

And this I think is important because this is exactly what 

happens. It says: Let's find the right tax solution for you. 

And if you click on "I donated $300 or more," you will see 

that it tells you right off the bat you can't use for free. 

If you click on "I own a home" or "I have rental income" 

or "I sold stocks" or "I am self-employed," it tells you just 

by clicking on the information -- the tabs that they are asking 

for -- which product is available or not available. 

If we go back to the ad that my friend was referencing, I 

think it was paragraph -- I think it was paragraph 9, yes, 9 

where Your Honor pointed out that in the ad -- or this is an 

e-mail -- it says TurboTax free edition for simple tax returns 
 

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only, asterisk. 

Now, my friend and the affiant didn't bother to display 

for Your Honor the rest of the page which has the asterisk. 

And the asterisk says -- I guess I have lost this already on my 

telephone -- the asterisk says --

THE COURT: Well, can you do it? 

MR. WAXMAN: Yeah. "Simple" --

THE COURT: Give it to somebody under --

MR. WAXMAN: Not under 70. 

THE COURT: Okay. 

(Laughter) 

MR. WAXMAN: The asterisk at the bottom of the page 

says "a simple tax return is form 1040 only." 

"Situations covered in TurboTax free edition, TurboTax 

live basic and TurboTax live full service basic are the 

following: W2 income, limited interest and dividend income 

reported on a 1099 INT, claiming the standard deduction, earned 

income credit, child tax credits, and student loan interest 

deduction." 

Those are the instances, the asterisk, that explains to 

you what a simple tax return is. 

Now, on this notion that -- it is difficult to unscramble 

all this. Professor Novemsky's one-week survey which showed 

nobody any of these ads, either the ones that are now in 

response to a Google search request or the TV video ads, 
 

 

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purports to answer the question whether people are confused 

when they see the ads about whether they can or can't file for 

free. 

And what Professor Novemsky basically said is: I'm not 

going to show anybody the ads. I'm just going to collect a 

bunch of people who say they have never used the TurboTax 

product and just ask them the question: Do you think you file 

a simple tax return; so just like you and I were sitting in a 

cafe on Market Street and just asked everybody who walked by. 

The question is whether these ads are deceptive. The word 

that Your Honor pointed to -- the only thing that could be 

deceptive is some understanding about what "simple" means. 

Now, "simple" is how the California Franchise Tax Board 

describes its free filing surveys for simple returns only. And 

we have that in the record in this case. 

It is also exactly the same terminology that Intuit's 

commercial competitors -- H&R Block, TaxSlayer and TaxEdge --

all use the term "for simple returns only." 

And in the outset of this investigation three years ago, 

we changed it to say "simple returns only." We hyperlinked it. 

If you go to any of these websites and you follow the 

Google hit and you click on the TurboTax file for free thing, 

you will see pop up what I just read you. This is available 

only for the following types of categories. 

We added the words "visit turbotax .com to see if you 
 

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qualify;" and if you click on that hyperlink, it gives you this 

menu of things where you can say -- you know, if you click "I 

own a home" or if you click "I made more than $300 in 

charitable contributions" or "I sold stocks" or "I had rental 

income," you don't qualify. 

I mean, this isn't a case in which they are entitled to 

extraordinary preliminary injunctive relief pending a hearing 

that they themselves have set in which they just say "this is 

confusing." 

You need -- in order to have a drastic or extraordinary 

remedy of preliminary injunctive relief pending their merits 

hearing, you not only need evidence. They need to carry their 

burden that the evidence shows that they are likely to succeed 

on the merits. And they have nothing. 

I just want to correct two things. My friend said: Oh, 

well, there were 571 complaints. That is a typo and they well 

know that. It was 57 total of which 23 related to the ads. 

But we don't know what people -- why they were complaining 

about the ads; 571 is just the typo. Otherwise, the numbers 

don't add up. 

Second of all, they say: Well, you know, Professor 

Novemsky didn't really think that he could properly do a 

copy-test by which they mean how people the ads that they are 

claiming are irretrievably deceptive to a reasonable person. 

And they say we didn't do that either. I don't know what they 
 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 130 of 132 * PUBLIC *; 

are talking about. 

We provided them long before they filed the lawsuit a 

survey and report done by a woman named -- I forget her first 

name but her last name is Kirk Fair, who the FTC routinely uses 

as its own expert in these cases, who did a copy-test result 

(sic) and reported that people were not confused. The level of 

confusion was minuscule. 

And this notion that oh, well, we couldn't do it because 

so many people have some preconception about what a simple tax 

return is -- I mean, it is just ridiculous. 

THE COURT: Thank you. Anything further? 

MR. ANGUIZOLA: If you go to the website and you look 

at the information after that asterisk, it is not clear and 

conspicuous. It is in mouse print. And a consumer that 

scrolls through is not going to see that especially in light of 

the more prominent free claim that happens above. 

I think also a consumer is not necessarily going to go 

through the little cards and know to pick those when there is a 

big prominent claim that says "free" and they can click on an 

orange button that says "file for free." 

There is no typo. There is -- there were different date 

ranges that the investigator provided in the declaration. 

So the 571 consumer complaints deal with a different date 

range then the 57. 

THE COURT: Thank you. Submitted. Thank you. 
 

 

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_________________________________________ 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 131 of 132 * PUBLIC *; 

MR. ANGUIZOLA: Thank you, Your Honor. 

MR. WAXMAN: Thank you. 

(Proceedings adjourned at 11:38 a.m.) 

---oOo--- 

CERTIFICATE OF REPORTER

 I certify that the foregoing is a correct transcript 

from the record of proceedings in the above-entitled matter. 

DATE: Wednesday, April 27, 2022 

Marla F. Knox, CSR No. 14421, RPR, CRR, RMR 

 United States District Court - Official Reporter 
 

 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/6/2022 | Document No. 605781 | PAGE Page 132 of 132 * PUBLIC *; 

CERTIFICATE OF SERVICE 

I hereby certify that on October 6, 2022, I caused the foregoing document to be filed 

electronically using the FTC’s E-Filing system, which will send notification of such filing to: 

April Tabor The Honorable D. Michael Chappell 

Office of the Secretary 600 Pennsylvania Ave., NW, Rm. H-110 

Federal Trade Commission Washington, DC 20580 

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

I further certify that on October 6, 2022, I caused the foregoing document to be served via 

email to: 

Roberto Anguizola Rebecca Plett 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

Email: ranguizola@ftc.gov Email: rplett@ftc.gov 

Tel: (202) 326-3284 Tel: (202) 326-3664 

James Evans 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: jevans1@ftc.gov 

Tel: (202) 326-2026 

Counsel Supporting the Complaint 

April Tabor The Honorable D. Michael Chappell 

Office of the Secretary Administrative Law Judge 

Federal Trade Commission 600 Pennsylvania Ave., NW, Rm. H-110 

600 Pennsylvania Avenue, NW Washington, DC 20580 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

Dated: October 6, 2022 Respectfully submitted, 

/s/ Molly Dillaway 

MOLLY DILLAWAY 

Counsel for Intuit Inc