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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the matter of: 

Intuit Inc., a corporation, 

Respondent. 

Docket No. 9408

COMPLAINT COUNSEL’S OPPOSITION TO INTUIT’S MOTION IN 

LIMINE TO EXCLUDE OR LIMIT COMPLAINT COUNSEL’S EVIDENCE OF 

CONSUMER COMPLAINTS1 

This case is about Respondent Intuit Inc.’s (“Intuit”) deceptive marketing of 

TurboTax as “free” when in truth TurboTax is not free for most American taxpayers. 

The Consumer Sentinel Network—a repository of consumer reports maintained by the 

Federal Trade Commission in the ordinary course of its consumer protection mission— 

has received information from hundreds of consumers that have complained about 

their experiences with TurboTax.2 See GX 502–03 (Sentinel Complaints received Jan. 1, 

2016 to Mar. 28, 2022)); GX 504 (Sentinel Complaints received Mar. 29, 2022 to Aug. 31, 

2022). Now, Intuit throws its weight behind a motion seeking to silence the individual 

consumers who took the time to report Intuit’s deception to the FTC, the Better Business 

Bureau, State Attorneys General and other members of the Consumer Sentinel 

Network. This consumer complaint data is relevant, material, and reliable in that it 

offers valuable insight straight from consumers and corroborates the allegations in the 

Complaint. Such consumer complaints are routinely admitted in FTC consumer 

protection cases and there is no reason to exclude them from the record in this case. 

1 Exhibits referenced herein were previously submitted to the Court and Intuit with 

Complaint Counsel’s Pretrial Brief and are not re-produced here for efficiency. The 

exhibits can be re-produced upon request. 

2 Sentinel receives reports submitted directly to the FTC by consumers, as well as 

reports submitted and shared by data contributors such as the Better Business Bureau. 

See ftc.gov/enforcement/consumer-sentinel-network (last visited Feb. 10, 2023). 

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As the Court is familiar with the standard on motions in limine, Complaint 

Counsel will simply refer the Court to § I of its Opposition to Intuit’s Motion In Limine 

to Exclude Outdate Advertisements, filed contemporaneously, for a restatement of the 

standard. Here, the consumer complaints in question are relevant, material, and 

reliable. And Intuit has failed to demonstrate that such evidence is prejudicial or clearly 

inadmissible on all potential grounds, or that preclusion of the evidence, at this stage in 

the proceedings, is necessary to ensure evenhanded and expeditious management of the 

hearing. Thus, Intuit’s motion in limine should be denied. 

I. Background 

Consumer narratives contained in reports submitted by consumers directly to 

the FTC, as well as reports submitted and shared by data contributors to Sentinel, such 

as the Better Business Bureau, offer valuable and relevant insight regarding the 

misimpression Intuit’s marketing of TurboTax as “free” left with consumers. 

No fewer than 228 complaints recorded in Sentinel between January 1, 2016 and 

March 28, 2022 go to the core of Count One of the Complaint. See Complaint Counsel’s 

Reply to Respondent Intuit Inc.’s Supplemental Response to the Statement of Material 

Facts As to Which There Is No Genuine Issue for Trial (filed Sep. 30, 2022) at p. 3 & 

Attachment A (summarizing GX 502-03); see also GX 504. Of the 228 complaints, 44 

were recorded between January 1, 2021, and March 28, 2022, and 26 were recorded 

between November 1, 2021, and March 28, 2022. Id. Of the 26 complaints referenced 

above: (a) 26 of 26 consumers indicated that they believed or TurboTax communicated 

that filing taxes with TurboTax would be free; (b) 22 of 26 consumers mentioned 

advertising about a free TurboTax option; and (c) 20 of 26 consumers indicated they 

were charged for or paid for TurboTax. Id. 

Intuit took several depositions of consumers, including those that submitted 

Sentinel Complaints. Those depositions corroborate the Sentinel Complaints. Counsel 

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for Intuit deposed 16 consumers that complained about TurboTax.3 Of those deposed, 

11 consumers began using TurboTax because they thought or hoped that they could use 

it for free. GX 138 (Adamson Dep.) at 42: 7-16, 56:11-15 & 57:14-17; GX 125 (Beck Dep.) 

at 55:8-14; GX 128 (Benbrook Dep.) at 55:11-20; GX 124 (Bodi Dep.) at 31:23-33:14; GX 

139 (Derscha Dep.) at 76:1-21; GX 122 (DeRyke Dep.) at 15:25-16:9; GX 137 (DuKatz 

Dep.) at 27:9-28:5, 82:16-83:24); GX 142 (Keahiolalo Dep.) at 76:21-77:11; GX 123 (Lee 

Dep.) at 53:17-54:18; GX 135 (Phyfer Dep.) at 79:19-81:5, 88:24-90:2 & 104:4-105:7; GX 130 

(Tew Dep.) at 52:24-54:20. 

Nine consumers remembered Intuit’s free advertising. GX 125 (Beck Dep.) at 

22:3-23:10, 30:8-14 & 55:8-24; GX 128 (Benbrook Dep.) at 53:3-55:7; GX 139 (Derscha 

Dep.) at 58:15-59:19; 88:8-19; GX 137 (DuKatz Dep.) at 29:8-31:8 & 93:13-94:6; GX 142 

(Keahiolalo Dep.) at 25:16–24, 26:16-19, 32:19-33:6 & 42:11-16; GX 123 (Lee Dep.) at 

53:17-54:18; GX 135 (Phyfer Dep.) at 79:19-81:5; GX 141 (Robinson Dep.) at 40:13-41:6; 

GX 136 (Schulte Dep.) at 14:19-15:19). This included consumers noting how 

“ubiquitous” the free advertising was, GX 138 (Adamson Dep.) at 55:22-56:19, with one 

consumer testifying that the free advertising was “the key message that brought me to 

TurboTax in the first place.” GX 125 (Beck Dep.) at 55:8-15. 

At least ten consumer deponents did not understand Intuit’s eligibility criteria 

for Free Edition. GX 138 (Adamson Dep.) at 44:4-12 & 58:19-59:7; GX 131 (Bansal Dep.) 

at 15:15-21; GX 128 (Benbrook Dep.) at 27:22-28:3 & 31:1-15; GX 139 (Derscha Dep.) at 

47:20-48:3; GX 132 (Dougher Dep.) at 35:2-36:21; GX 137 (DuKatz Dep.) at 18:10-19:19, 

56:4-22 & 63:16-64:2; GX 142 (Keahiolalo Dep.) at 37:20-38:4; GX 135 (Phyfer Dep.) at 

66:7-67:5, 75:9-76:8 & 92:20-93:6; GX 141 (Robinson Dep.) at 41:21-42:3 & 58:4-59:5; GX 

136 (Schulte Dep.) at 70:4-18. 

3 Though Intuit only took 16 consumer depositions, Intuit issued deposition testimony 

subpoenas to 66 consumers. Six consumers did not appear for their depositions, and 

Intuit withdrew 42 subpoenas. Two depositions were canceled and never rescheduled. 

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II. Argument 

Intuit is mistaken when it argues the Sentinel complaints should be excluded 

from evidence in the upcoming trial. Intuit’s primary evidentiary objection is that the 

Sentinel complaints constitute hearsay. However, as Intuit recognizes, Mot. at 3, under 

the Commission Rules: “[e]vidence that constitutes hearsay may be admitted if it is 

relevant, material, and bears satisfactory indicia of reliability so that its use is fair.” 16 

C.F.R. §3.43(b). Even if the stricter prohibition against hearsay in the Federal Rules of 

Evidence applied in Part 3, the Sentinel complaints fall within a traditional exception to 

the hearsay rule and should not be excluded on that basis. Intuit’s remaining arguments 

concerning the Sentinel complaints go to the weight of the evidence and not to 

admissibility. Intuit will, of course, have an opportunity to make arguments about the 

weight this Court should give the Sentinel complaints during the upcoming trial. Those 

arguments should not be resolved on a motion in limine. 

A. The Sentinel Complaints are Relevant, Material, and Bear Satisfactory

Indicia of Reliability 

The Sentinel complaints are relevant, material, and reliable and are admissible in 

Part 3 even if they constitute hearsay. 16 C.F.R. §3.43(b). The Sentinel complaints are 

unquestionably relevant and material. As explained above, no fewer than 228 

complaints recorded in Sentinel between January 1, 2016, and March 28, 2022, go to the 

core of Count One of the Complaint. See supra Part I. Courts have found consumer 

complaints submitted to the FTC to be reliable and trustworthy because they “were sent 

independently to the FTC from unrelated members of the public,” “reported roughly 

similar experiences,” and “the declarants had no motive to lie to the FTC.” FTC v. Figgie 

Int’l, Inc., 994 F.2d 595, 608 (9th Cir. 1993). There is no reason to doubt the reliability of 

the Sentinel complaints pertaining to TurboTax. Moreover, the complaints are 

consistent with Intuit’s “free” TurboTax advertising itself, the investigation conducted 

by FTC Investigator Diana Shiller, GX 342 (Shiller Dec.), the results of a consumer 

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survey conducted by Professor Novemsky, GX 303 (Novemsky Expert Report) at ¶¶ 8, 

69 & Figure 1, the FTC’s testifying expert, and Intuit’s own internal research and 

documents, see, e.g., GX 460, p. 28; GX 340 at CC-00006857, GX 51 at CC-00000552-53; 

GX 411 at CC-00007561. Moreover, the depositions taken and documents produced in 

response to Intuit subpoenas to complaining consumers were consistent with the 

Sentinel complaints. See supra Part I at pp. 2-3. 

B. The Residual Exception to the Hearsay Rule Applies to the Sentinel

Complaints 

Even if the stricter Federal Rules of Evidence applied in Part 3, the Sentinel 

complaints are admissible under the residual exception to the hearsay rule, FRE 807. 

Under FRE 807, the Court may admit any out-of-court statement that: (1) has 

circumstantial guarantees of trustworthiness; (2) is offered as evidence of a material 

fact; (3) is more probative on the point for which it is offered than any other evidence 

that can be procured through reasonable efforts; and (4) best serves the general 

purposes of the Federal Rules of Evidence and the interests of justice. The proponent of 

the evidence must also notify the opposing party of its intent to offer the evidence, 

which the FTC has done here. 

Courts routinely admit consumer complaints under the residual exception. See 

FTC v. Figgie Int’l, Inc., 994 F.2d 595, 608 (9th Cir. 1993) (upholding trial court’s holding 

that consumer complaint letters were admissible under the residual hearsay rule); 4 FTC 

v. AMG Services, Inc., No. 2:12-cv-00536, 2014 U.S. Dist. LEXIS 10240 at *44-47 (D. Nev. 

January 28, 2014) (written complaints, transcripts and recordings by employees and 

consumers admissible under FRE 807); FTC v. Instant Response Systems, 2015 U.S. Dist. 

LEXIS 49060 at *13-14 (E.D.N.Y. April 14, 2015) (elderly consumers’ caretakers’ 

declarations and complaints to BBBs satisfied Rule 807 and were admitted in evidence); 

FTC v. Ewing, No. 2:07-cv-479, 2014 WL 5489210, at *2–3 (D. Nev. Oct. 29, 2014) 

4 Figgie addressed Rule 807’s predecessor, Rule 803(24). 

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(granting FTC motion in limine to admit 162 consumer complaints and three consumer 

declarations under FRE 807); FTC v. Direct Benefits Group, No. 6:11-cv-1186, 2012 U.S. 

Dist. LEXIS 162696 at *5-6 (November 14, 2012) (same); FTC v. Magazine Solutions, LLC, 

No. 7-692, 2009 U.S. Dist. LEXIS 20629 at *1-2 (W.D. Pa. Mar. 16, 2009) (same), affirmed 

432 Fed. Appx. 155 (3d Cir. 2011); FTC v. Cyberspace.com, LLC, No. CV-00-01806, 2002 

U.S. Dist. LEXIS 25565, at *13, n.5 (W.D. Wash. July 10, 2002) (consumer e-mails and 

complaint letter admissible), affirmed 453 F.3d 1196 (9th Cir. 2006). 

The numerous complaints that Intuit’s customers submitted to the FTC, or 

Sentinel contributors such the State Attorneys General and the BBBs, are reliable 

because they were sent by unrelated members of the public, who reported similar 

experiences, at different times. See Figgie, 994 F.2d 595 at 608 (“The fact that [the 

complaints] all reported roughly similar experiences suggests their truthfulness.”); see 

also Barker v. Morris, 761 F.2d 1400, 1402 (9th Cir. 1985) (independent corroboration of a 

statement by others is a sign of reliability or trustworthiness); Flow Control Industries, 

Inc. v. AMHI, Inc., 278 F. Supp. 2d 1193, 1197-98 (W.D. Wash. 2003) (communications 

found trustworthy where they were made independently by unrelated consumers who 

had similar experience and “no identifiable motive to lie”). As the trial judge found in 

FTC v. Ewing, an FTC enforcement case: “[T]he complaints have circumstantial 

guarantees of trustworthiness that are equivalent to the hearsay exceptions. The 

complaints were made independently by numerous unrelated consumers to different 

sources, and they report ‘roughly similar experiences’ regarding [defendants’ 

marketing].’” Ewing, 2014 WL 5489210, at *2. 

Intuit’s customers had no apparent motive to lie about their similar experiences; 

rather, the contents of their complaints show their sincerity.5 Figgie, 994 F.2d at 608; 

5 Moreover, the Sentinel complaints are consistent with Intuit’s own internal research 

and documents. E.g. GX 460, p. 28; GX 340 at CC-00006857; GX 51 at CC-00000552-53; 

GX 411 at CC-00007561. 

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United States v. Murillo, 288 F.3d 1126, 1138 (9th Cir. 2002) (when statement is made by a 

person with “no motive or incentive to lie,” this weighs in favor of finding it 

trustworthy). Consumers tended to simply report their experience with TurboTax and 

their inability to use it for free or to request a refund. There is therefore little risk that 

the Sentinel complaints were “the product of faulty perception, memory or meaning, 

the dangers against which the hearsay rule seeks to guard.” Figgie, 994 F.2d at 608 

(quoting 4 Weinstein & Berger; Evidence at 803-375). 

III. Conclusion 

For the foregoing reasons, the FTC respectfully requests that the Court deny 

Intuit’s motion in limine. 

Respectfully submitted, 

Dated: February 24, 2023 /s/ Roberto Anguizola 

Roberto Anguizola, IL Bar No. 6270874 

Rebecca Plett, VA Bar No. 90988 

James Evans, VA Bar No. 83866 

Sara Tonnesen, MD Bar No. 1312190241 

Federal Trade Commission 

600 Pennsylvania Ave., NW, CC-6316 

Washington, DC 20580

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

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

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

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

Counsel Supporting the Complaint

Federal Trade Commission 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 24, 2023, I electronically filed the foregoing 

Complaint Counsel’s Opposition to Intuit’s Motion In Limine to Exclude or Limit 

Complaint Counsel’s Evidence of Consumer Complaints electronically using the 

FTC’s E-Filing system, and I caused the foregoing document to be sent via email to: 

April Tabor

Office of the Secretary

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Suite CC-5610 

Washington, DC 20580

ElectronicFilings@ftc.gov 

Secretary of the Commission 

Hon. D. Michael Chappell

Chief Administrative Law Judge

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Suite H-110 

Washington, DC 20580 

Administrative Law Judge 

I further certify that on February 24, 2023, I caused the foregoing document to be 

served via email on: 

David Z. Gringer 

Phoebe Silos 

Charles Bridge

Wilmer Cutler Pickering Hale & Dorr LLP 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

David.Gringer@wilmerhale.com

Phoebe.Silos@wilmerhale.com 

Charles.Bridge@wilmerhale.com

(212) 230-8800 

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/ Roberto Anguizola 

Complaint Counsel 

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