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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of: 

Docket No. 9408 Intuit Inc., a corporation. 

RESPONDENT’S MOTION FOR DISCOVERY PURSUANT TO RULE 3.36 

Pursuant to Rule 3.36 of the Commission’s Rules of Practice, 16 C.F.R. § 3.36, 

Respondent Intuit Inc. respectfully moves for an order authorizing the issuance of subpoenas 

duces tecum to the Commissioners of the Federal Trade Commission and their staff and to the 

Secretary of the Federal Trade Commission and her staff. The subpoenas request a clearly 

defined, relevant set of documents. 

I. INTRODUCTION 

Intuit seeks information to support its defenses and that it simply cannot obtain without a 

subpoena. Indeed, Complaint Counsel suggested that Intuit should file a motion under Rule 3.36 

in order to obtain the information sought in the attached subpoenas, which are drafted to be 

narrowly tailored to the claims and Intuit’s affirmative defenses so as to minimize burden and 

expense. 

To begin, Intuit seeks information regarding the Commission’s interpretation and 

communications regarding two important sets of guidance documents issued by the Commission. 

First, Intuit seeks documents relating to the so-called “free” guides, which Complaint Counsel 

have asserted this claim is being brought to “vindicate.” Motion for Summary Decision at 31, 35 

(Aug. 22, 2022). The 50-year-old guides appear, on their face, to address buy one, get one free 

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offers, and other limited-term free promotions not at issue in this case, where there is a genuine 

bona fide free offer that approximately 14 million people use each year. And to Intuit’s 

knowledge, the free guides have never been used in an enforcement action, and in any event, are 

not—as Complaint Counsel contend—documents carrying the force of law. Intuit needs this 

discovery to assess whether the free guides are being stretched beyond their text, purpose, and 

intent. 

Second, Intuit seeks discovery regarding the Commission’s .com Guidelines. This is 

important because the Guidelines appear, on their face, to expressly support the manner of 

Intuit’s disclosures on the TurboTax website, including the inclusion of certain details behind a 

clearly labeled hyperlink. The Commission appears aware of this fact and has expressly cited the 

fact that the Guidelines are being cited by “some companies” to support their disclosure practice 

as a reason the Guidelines need to be updated.1

 To Intuit’s knowledge, it is the only such 

company in that position. The need for the discovery sought is obvious: if the Commission’s 

current view is that Intuit’s disclosures comport with the Guidelines—as they clearly do—and 

the Commission wishes to change the Guidelines because of that fact, Intuit’s advertising during 

the period the existing Guidelines were in effect can hardly be said to be deceptive. 

In addition, Intuit has included among its affirmative defenses that it has a right to 

adjudication before a neutral arbiter and that this right has been violated, and that the 

Commission’s procedures violate Intuit’s right to procedural due process. Intuit seeks discovery 

in support of these defenses. As one example of Intuit’s concerns, after the Commission had 

voted to issue the Complaint against Intuit and assumed the role of neutral arbiter under the FTC 

rules, the FTC Chair retweeted a press release on her personal Twitter account referring to 

1 See Federal Trade Commission, FTC Looks to Modernize Its Guidance on Preventing Digital 

Deception, (June 3, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/06/ftclooks-modernize-its-guidance-preventing-digital-deception. 

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Intuit’s advertisements as “deceptive” and similarly calling the TurboTax marketing campaign 

“deceptive.”2 As another example, Intuit understands that inaccurate information was shared 

with the Commissioners and that this inaccurate information may have impacted one or more 

Commissioner’s decision to bring this case and may have led to prejudgment of the matter. This 

inaccurate information includes false assertions that Intuit’s settlement with the Attorneys 

General of all 50 states and the District of Columbia was not enforceable by a court (it is), that 

Intuit would not agree to settle before tax day (it did), and that Intuit advertised its Free Edition 

product during the last four Super Bowls (it did not). There may very well be additional 

inaccurate information that has been shared. 

Ultimately, Intuit believes that it will prevail because its advertising was not deceptive to 

begin with and its settlement with the state Attorneys General removes any threat of deception in 

the future. However, Intuit must also ensure a level playing field and process so that the merits 

can be argued fairly. The discovery sought will help ensure that is the case. 

II. ARGUMENT 

A subpoena for the production of documents in the possession, custody, or control of the 

Commissioners or the Secretary is authorized where it is: (1) “reasonably expected to yield 

information relevant to . . . [a respondent’s] defenses”; (2) reasonable in scope; (3) specified with 

reasonable particularity; and (4) not reasonably obtainable by other means. See 16 C.F.R. 

§§ 3.31(c), 3.36(b), 3.37(a). Intuit’s proposed subpoenas satisfy these requirements. 

Respondent requests materials regarding: 

• “[A]ny votes or potential votes taken by the Commissioners related to Intuit”; 

• “[C]ommunications concerning Intuit,” including “any Twitter posts by Chair Lina Khan 

about Intuit,” “[a]ll documents sufficient to show who operates Chair Lina Khan’s 

2

 Woodman Decl., Ex. F. 

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Twitter account,” and documents and communications “concerning the speech Chair Lina 

Khan gave at an antitrust conference at Chicago Booth on April 22, 2022”; 

• “[T]he FTC’s consideration of whether to update its guidance document titled ‘.com 

Disclosures: How to Make Effective Disclosures in Digital Advertising”; 

• “[T]he FTC’s guidelines regarding the use of the word ‘free’ and similar representations 

in advertising”; 

• “[T]he ‘case summary’ on the docket sheet on ftc.gov for the above-captioned case”; 

• “[T]he FTC’s ability to obtain monetary relief,” and; 

• “[T]he treatment of Intuit’s Rule 2.31 motion.” 

A. The Discovery Is Relevant 

Intuit’s requested discovery is reasonably expected to yield relevant information. Much 

of the requested discovery would show that Intuit did not violate the FTC Act. Documents 

relating to the FTC’s .com Guidelines and Free Guide, and to its ability to obtain monetary relief, 

are relevant to assess Complaint Counsel’s arguments. Complaint Counsel thus far has refused 

to even look for requested materials relating to the FTC’s .com Guidelines and Free Guide, 

therefore, Intuit must seek them from the Commissioners themselves. See Woodman Decl. ¶¶ 6-

7. For example, materials relating to the FTC’s guidelines about digital advertising and use of 

the word “free” in advertising, and to its ability to obtain monetary relief, are relevant. 

Complaint Counsel argue that the FTC’s .com Guidelines and Free Guide support finding that 

Intuit’s ads were deceptive. See Motion for Summary Decision at 31, 35. Materials interpreting 

that guidance may undermine these arguments. Likewise, the Commission has effectively 

acknowledged that its .com Guidance supports Intuit’s theories and has sought to retract that 

guidance.3

 That too is relevant. Finally, the FTC reserved the right to seek monetary relief. 

3 See Federal Trade Commission, FTC Looks to Modernize Its Guidance on Preventing Digital 

Deception, (June 3, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/06/ftclooks-modernize-its-guidance-preventing-digital-deception. 

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Complaint at 26. Materials related to whether, and when, the FTC can obtain that relief are 

relevant. 

Intuit also has as an affirmative defense that one or more Commissioners prejudged the 

merits of this dispute. Developing that theory requires discovery that Intuit can only obtain from 

the Secretary or the Commissioners themselves. Cinderella Career and Finishing Schools, Inc. 

v. FTC held that Chairman Dixon could not participate in a proceeding because his public 

statements indicated he “prejudged” the case. 425 F.2d 583, 589-590, 592 (D.C. Cir. 1970). The 

court reasoned that Chairman Dixon was not impartial and his participation violated due process. 

Id. at 591-92; see also Antoniu v. SEC, 877 F.2d 721, 726 (8th Cir. 1989) (SEC Commissioner 

not neutral because of speech “adjudg[ing] the facts as well as the law of a particular case in 

advance of hearing it”). 

This is not an illusory or makeweight defense. After the case entered Part 3, the Chair 

has made public statements about the case that reasonably call into question her impartiality. As 

the Chair herself recently acknowledged in Congressional testimony, it is inappropriate for her to 

“comment[] on the merits” of a case while it is “currently pending in an administrative 

proceeding.”4 Yet the Chair has done so twice, both times indicating her view that it was 

important to stop Intuit’s supposed deception.5 

Further, Intuit believes that is likely because the Commissioners were given inaccurate 

information. Without discovery, Intuit cannot be certain of the basis for the Commissioners’ 

4 Lina Khan, Prepared Statement of the Federal Trade Commission Before the United States 

Senate Committee on the Judiciary Subcommittee on Antitrust, Competition Policy and 

Consumer Rights “Oversight of the Enforcement of the Antitrust Laws” at 6 (Sept. 20, 2022), 

https://www.ftc.gov/system/files/ftc_gov/pdf/P210100SenateAntitrustTestimony09202022.pdf. 

5

 Rolnik, Q&A With FTC Chair Lina Khan: “The Word ‘Efficiency’ Doesn’t Appear Anywhere 

in the Antitrust Statutes”, ProMarket (June 3, 2022), https://www.promarket.org/2022/06/03/qawith-ftc-chair-lina-khan-the-word-efficiency-doesnt-appear-anywhere-in-the-antitrust-statutes/; 

Woodman Decl., Ex. F. 

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decision to issue this Complaint and to return the matter to adjudication after a federal judge 

observed that “nobody thinks” Complaint Counsel’s theory of liability is correct. Woodman 

Decl. ¶ 10; RX 73 at 17:4-5. Considering this context, Intuit has a reasonable basis to be 

concerned about bias and prejudgment. It should be afforded discovery to confirm whether that 

is the case. 

B. The Discovery Is Reasonable In Scope, Stated With Particularity, And 

Cannot Be Otherwise Obtained 

The requested discovery is reasonable in scope and stated with particularity. 16 C.F.R. 

§ 3.36(b)(1), § 3.37(a). It is limited to discrete topics and specific types of materials to allow 

identification of readily accessible responsive materials. The requests are also narrowly tailored 

to support Respondent’s defenses and rebut the FTC’s allegations. Such targeted requests for 

relevant information fall squarely within the rule’s requirements, see In re Intel Corp., No. 9341, 

2010 WL 2544424, at *1 (F.T.C. June 9, 2010), and will impose a limited burden. 

Respondent cannot otherwise obtain the discovery. 16 C.F.R. § 3.36(b)(3). The 

documents are held by Commissioners, the Secretary, and their staff, including materials 

regarding Commissioner votes, control over Commissioners’ social media accounts, and 

Commissioners’ communications. For instance, in response to Intuit’s First Set of Requests for 

Admission, Complaint Counsel stated that they could not confirm whether Chair Khan sent the 

relevant tweet herself because they are prohibited from communicating with her under 16 CFR 

§ 4.7(b). See Woodman Decl. ¶ 5. Complaint Counsel reiterated their inability to provide 

information on these issues more broadly during September 12, 2022 and October 3, 2022 meet 

and confers, suggesting that Intuit file this Motion instead. Id. ¶¶ 8-9. Respondent has no other 

way to obtain these materials. 

III. CONCLUSION 

An order should issue authorizing the subpoenas attached as Exhibits A and B. 

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Dated: October 14, 2022 Respectfully submitted, 

By:/s/ David Z. Gringer 

DAVID Z. GRINGER 

Wilmer Cutler Pickering 

Hale and Dorr LLP 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

Telephone: (212) 230-8800 

David.Gringer@wilmerhale.com 

JONATHAN E. PAIKIN 

JENNIFER MILICI 

DEREK A. WOODMAN 

Wilmer Cutler Pickering 

Hale and Dorr LLP 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@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. 

DECLARATION OF DEREK WOODMAN IN SUPPORT OF 

RESPONDENT’S MOTION FOR DISCOVERY PURSUANT TO RULE 3.36 

I, Derek A. Woodman, declare as follows: 

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

respondent, Intuit Inc., in the above-captioned proceeding. 

2. I submit this declaration in support of Intuit’s Motion for Discovery Pursuant to 

Rule 3.36, filed herewith on October 14, 2022. 

3. Attached hereto as Exhibit A is a proposed subpoena directed to the 

Commissioners of the Federal Trade Commission. Respondent’s Motion for Discovery Pursuant 

to Rule 3.36 respectfully requests an order authorizing issuance of this subpoena to the 

Commissioners. 

4. Attached hereto as Exhibit B is a proposed subpoena directed to the Secretary of 

the Federal Trade Commission. Respondent’s Motion for Discovery Pursuant to Rule 3.36 

respectfully requests an order authorizing issuance of this subpoena to the Secretary. 

5. Attached hereto as Exhibit C is a true and correct copy of Complaint Counsel’s 

Responses and Objections to Intuit’s First Set of Requests for Admission, dated August 29, 

2022. Complaint Counsel stated that they could not confirm whether Chair Khan sent the 

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relevant tweet herself because they are prohibited from communicating with her under 16 CFR 

§ 4.7(b). See Response to Request for Admission No. 11. 

6. Attached hereto as Exhibit D is a true and correct copy of Complaint Counsel’s 

Responses and Objections to Intuit’s First Set of Requests for Production of Documents, dated 

September 9, 2022. Complaint Counsel refused to search for or produce documents relating to 

its free guide. See Response to Request for Production Nos. 7 & 8. 

7. Attached hereto as Exhibit E is a true and correct copy of Complaint Counsel’s 

Responses and Objections to Intuit’s Second Set of Requests for Production of Documents, dated 

October 7, 2022. Complaint Counsel refused to search for or produce any documents relating to 

the FTC’s consideration of whether to update its .com Disclosure guidelines. See Response to 

Request for Production No. 17. 

8. On September 12, 2022, counsel for Intuit met and conferred with Complaint 

Counsel to discuss their responses and objections to Intuit’s First Set of Requests for Admission. 

Complaint Counsel suggested that Intuit file a motion for discovery from the Commission and/or 

the Secretary under Rule 3.36. 

9. On October 3, 2022, counsel for Intuit met and conferred with Complaint Counsel 

to discuss their responses and objections to Intuit’s First Set of Interrogatories and First Set of 

Requests for Production of Documents. Complaint Counsel represented that they would not be 

able to access requested information relating to, among other topics, Commission votes 

concerning Intuit and this proceeding. Complaint Counsel suggested that Intuit file a motion for 

discovery from the Commission and/or the Secretary under Rule 3.36. 

10. 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 

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transcript of proceedings in FTC v. Intuit Inc., No. 22-01973-CRB (N.D. Cal Apr. 21, 2022), is 

attached hereto as RX 73. 

11. Attached hereto as Exhibit F is a true and correct copy of a March 29, 2022, 12:34 PM, 

tweet from Chair Khan’s personal twitter account (@linakhanFTC). 

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

Executed on this 14th day of October, 2022, in Washington, DC. 

By: /s/ Derek A. Woodman 

Derek A. Woodman 

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EXHIBIT A
PUBLIC

Subpoena for Production of Documentary Material

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Provided by the Secretary of the Federal Trade Commission, and 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b)(2010) 

1. TO 2. FROM 

Commissioners of the Federal Trade Commission

600 Pennsylvania Ave., NW UNITED STATES OF AMERICA 

Washington, DC 20580 FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and permit inspection and copying of designated books, documents (as defined in 

Rule 3.34(b)), or tangible things, at the date and time specified in Item 5, and at the request of Counsel listed in Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCTION 

Wilmer Cutler Pickering Hale and Dorr LLP

c/o David Gringer

7 World Trade Center, 250 Greenwich St.

New York, NY 10007

(212) 230-8000

6. SUBJECT OF PROCEEDING 

In the Matter of Intuit Inc.; Docket No. 9408

7. MATERIAL TO BE PRODUCED 

See attached Requests

INSTRUCTIONS AND NOTICES 

The delivery of this subpoena to you by any method prescribed by the 

Commission's Rules of Practice is legal service and may subject you 

to a penalty imposed by law for failure to comply. This subpoena 

does not require approval by OMB under the Paperwork Reduction 

Act of 1980. 

PETITION TO LIMIT OR QUASH 

The Commission's Rules of Practice require that any petition to limit 

or quash this subpoena be filed within the earlier of ten days after 

service thereof or the time for compliance therewith. The original and 

twelve copies of the petition must be filed with the Secretary of the 

Federal Trade Commission, and one copy should be sent to the 

Commission Counsel named in Item 9. 

4. MATERIAL WILL BE PRODUCED TO 

David Z. Gringer, Esq.

5. DATE AND TIME OF PRODUCTION 

TBD

8. ADMINISTRATIVE LAW JUDGE 

The Honorable D. Michael Chappell

Federal Trade Commission 

Washington, D.C. 20580 

9. COUNSEL AND PARTY ISSUING SUBPOENA 

Counsel for Respondent Intuit Inc.

David Z. Gringer

Wilmer Cutler Pickering Hale and Dorr LLP

7 World Trade Center, 250 Greenwich St.

New York, NY 10007

(212) 230-8000

DATE SIGNED 

10/14/2022

SIGNATURE OF COUNSEL ISSUING SUBPOENA 

/s/ David Z. Gringer

YOUR RIGHTS TO REGULATORY ENFORCEMENT 

FAIRNESS 

The FTC has a longstanding commitment to a fair regulatory 

enforcement environment. If you are a small business (under Small 

Business Administration standards), you have a right to contact the 

Small Business Administration's National Ombudsman at 1-888-

REGFAIR (1-888-734-3247) or www.sba.gov/ombudsman regarding the 

fairness of the compliance and enforcement activities of the agency. 

You should understand, however, that the National Ombudsman cannot 

change, stop, or delay a federal agency enforcement action. 

The FTC strictly forbids retaliatory acts by its employees, and you will 

not be penalized for expressing a concern about these activities. 

TRAVEL EXPENSES 

Use the enclosed travel voucher to claim compensation to which you are entitled as a witness for the Commission. The completed travel voucher and this 

subpoena should be presented to Commission Counsel for payment. If you are permanently or temporarily living somewhere other than the address on this 

subpoena and it would require excessive travel for you to appear, you must get prior approval from Commission Counsel. Witness travelers can contact the 

FTC travel office for guidance at (202) 326-3299 or travel@ftc.gov. PLEASE NOTE: Reimbursement for necessary transportation, lodging, and per diem 

expenses cannot exceed the maximum allowed for such expenses by an employee of the federal government. 

A copy of the Commission's Rules of Practice is available online at http://bit.ly/FTCsRulesofPractice. Paper copies are available upon request. 

FTC Form 70-E rev. 10/2020 
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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Docket No. 9408 In the Matter of: 

Intuit Inc., a corporation. 

RESPONDENT INTUIT INC.’S SUBPOENA DUCES TECUM ATTACHMENT TO 

THE FEDERAL TRADE COMMISSION 

Pursuant to Rules 3.34 and Rule 3.36 of the Federal Trade Commission’s Rules of 

Practice (16 C.F.R. §§ 3.34, 3.36), Respondent Intuit Inc., by and through its attorneys, requests 

that the Commissioners and their staff produce all documents, electronically stored information, 

and other materials in their possession, custody, or control that are responsive to the requests 

made below. 

DEFINITIONS 

1. 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. 

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

3. 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, 

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

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

evidencing ANY verbal OR nonverbal interaction between PERSONS. 

4. The term “COMPLAINT” means the Part 3 Administrative Complaint issued by the 

Federal Trade Commission in the above-captioned proceeding. 

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

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

analyzing, refuting, or recording. 

6. 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 

DOCUMENT. 

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7. 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. 

8. 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. 

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

10. The terms “YOU,” “YOUR,” and “COMMISSIONERS” refer to ANY current 

Commissioners of the Federal Trade Commission (“FTC”) AND ANY other PERSON acting OR 

purporting to act on behalf of OR under the direction, authorization, OR control of such 

COMMISSIONERS, including such COMMISSIONERS’ staff and advisors. 

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 

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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), including deliberative process 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 

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 concerning any votes or potential votes 

taken by the COMMISSIONERS related to INTUIT. To the extent deliberative process privilege 

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or any other privilege is asserted over any DOCUMENTS OR COMMUNICATIONS, a log 

consistent with General Instruction 4 is required. 

Document Request No. 2 

All DOCUMENTS OR COMMUNICATIONS concerning any Twitter posts by Chair Lina 

Khan about INTUIT, including posts from March 29, 2022. 

Document Request No. 3 

All DOCUMENTS sufficient to show who operates Chair Lina Khan’s Twitter account. 

Document Request No. 4 

All COMMUNICATIONS concerning INTUIT, including COMMUNICATIONS 

between Commissioners AND COMMUNICATIONS with nonparties. To the extent deliberative 

process privilege or any other privilege is asserted over any DOCUMENTS OR 

COMMUNICATIONS, a log consistent with General Instruction 4 is required. 

Document Request No. 5 

All DOCUMENTS OR COMMUNICATIONS related to the FTC’s consideration of 

whether to update its guidance document titled “.com Disclosures: How to Make Effective 

Disclosures in Digital Advertising,” which was announced via press release on June 3, 2022. To 

the extent deliberative process privilege or any other privilege is asserted over any DOCUMENTS 

OR COMMUNICATIONS, a log consistent with General Instruction 4 is required. 

Document Request No. 6 

All DOCUMENTS OR COMMUNICATIONS related to the FTC’s guidelines regarding 

the use of the word “free” and similar representations in advertising, see 16 CFR Part 251, and 

ALL DOCUMENTS OR COMMUNICATIONS concerning the application, relevance, and 

meaning of those guidelines, including, but not limited to, DOCUMENTS OR 

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COMMUNICATIONS relating to studies, research, expert reports, or other analyses of the use of 

the word “free” and similar representations in advertising. To the extent deliberative process 

privilege or any other privilege is asserted over any DOCUMENTS OR COMMUNICATIONS, a 

log consistent with General Instruction 4 is required. 

Document Request No. 7 

All DOCUMENTS OR COMMUNICATIONS related to the FTC’s ability to obtain 

monetary relief following the Supreme Court’s April 22, 2021 decision in AMG Capital 

Management, LLC v. Federal Trade Commission, No. 19-508, including any internal memoranda 

or other legal analyses. To the extent deliberative process privilege or any other privilege is 

asserted over any DOCUMENTS OR COMMUNICATIONS, a log consistent with General 

Instruction 4 is required. 

Document Request No. 8 

ANY DOCUMENTS OR COMMUNICATIONS CONCERNING the speech Chair Lina 

Khan gave at an antitrust conference at Chicago Booth on April 22, 2022, including ANY drafts 

of copies of that speech. 

Document Request No. 9 

ANY DOCUMENTS OR COMMUNICATIONS CONCERNING the treatment of 

Intuit’s Rule 2.31 motion. 

Dated: October 14, 2022 Respectfully submitted, 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

/s/ David Z. Gringer 

David Z. Gringer 

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Eleanor Davis 

7 World Trade Center 

250 Greenwich St. 

New York, NY 10007 

Telephone: (212) 230-8800 

Facsimile: (212) 230-8888 

David.Gringer@wilmerhale.com 

Eleanor.Davis@wilmerhale.com 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

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. 

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EXHIBIT B
PUBLIC

Subpoena for Production of Documentary Material

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 21 of 131 * PUBLIC *; 

Provided by the Secretary of the Federal Trade Commission, and 

Issued Pursuant to Commission Rule 3.34(b), 16 C.F.R. § 3.34(b)(2010) 

1. TO 

April Tabor

Secretary of the Federal Trade Commission

600 Pennsylvania Ave., NW

Washington, DC 20580

2. FROM 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

This subpoena requires you to produce and permit inspection and copying of designated books, documents (as defined in 

Rule 3.34(b)), or tangible things, at the date and time specified in Item 5, and at the request of Counsel listed in Item 9, in 

the proceeding described in Item 6. 

3. PLACE OF PRODUCTION 

Wilmer Cutler Pickering Hale and Dorr LLP

c/o David Gringer

7 World Trade Center, 250 Greenwich St.

New York, NY 10007

(212) 230-8000

6. SUBJECT OF PROCEEDING 

In the Matter of Intuit Inc.; Docket No. 9408

7. MATERIAL TO BE PRODUCED 

See attached Requests

INSTRUCTIONS AND NOTICES 

The delivery of this subpoena to you by any method prescribed by the 

Commission's Rules of Practice is legal service and may subject you 

to a penalty imposed by law for failure to comply. This subpoena 

does not require approval by OMB under the Paperwork Reduction 

Act of 1980. 

PETITION TO LIMIT OR QUASH 

The Commission's Rules of Practice require that any petition to limit 

or quash this subpoena be filed within the earlier of ten days after 

service thereof or the time for compliance therewith. The original and 

twelve copies of the petition must be filed with the Secretary of the 

Federal Trade Commission, and one copy should be sent to the 

Commission Counsel named in Item 9. 

4. MATERIAL WILL BE PRODUCED TO 

David Z. Gringer, Esq.

5. DATE AND TIME OF PRODUCTION 

TBD

8. ADMINISTRATIVE LAW JUDGE 

The Honorable D. Michael Chappell

Federal Trade Commission 

Washington, D.C. 20580 

9. COUNSEL AND PARTY ISSUING SUBPOENA 

Counsel for Respondent Intuit Inc.

David Z. Gringer

Wilmer Cutler Pickering Hale and Dorr LLP

7 World Trade Center, 250 Greenwich St.

New York, NY 10007

(212) 230-8000

DATE SIGNED 

10/14/2022

SIGNATURE OF COUNSEL ISSUING SUBPOENA 

/s/ David Z. Gringer

YOUR RIGHTS TO REGULATORY ENFORCEMENT 

FAIRNESS 

The FTC has a longstanding commitment to a fair regulatory 

enforcement environment. If you are a small business (under Small 

Business Administration standards), you have a right to contact the 

Small Business Administration's National Ombudsman at 1-888-

REGFAIR (1-888-734-3247) or www.sba.gov/ombudsman regarding the 

fairness of the compliance and enforcement activities of the agency. 

You should understand, however, that the National Ombudsman cannot 

change, stop, or delay a federal agency enforcement action. 

The FTC strictly forbids retaliatory acts by its employees, and you will 

not be penalized for expressing a concern about these activities. 

TRAVEL EXPENSES 

Use the enclosed travel voucher to claim compensation to which you are entitled as a witness for the Commission. The completed travel voucher and this 

subpoena should be presented to Commission Counsel for payment. If you are permanently or temporarily living somewhere other than the address on this 

subpoena and it would require excessive travel for you to appear, you must get prior approval from Commission Counsel. Witness travelers can contact the 

FTC travel office for guidance at (202) 326-3299 or travel@ftc.gov. PLEASE NOTE: Reimbursement for necessary transportation, lodging, and per diem 

expenses cannot exceed the maximum allowed for such expenses by an employee of the federal government. 

A copy of the Commission's Rules of Practice is available online at http://bit.ly/FTCsRulesofPractice. Paper copies are available upon request. 

FTC Form 70-E rev. 10/2020 
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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

Docket No. 9408 In the Matter of: 

Intuit Inc., a corporation. 

RESPONDENT INTUIT INC.’S SUBPOENA DUCES TECUM ATTACHMENT TO 

THE SECRETARY OF THE FEDERAL TRADE COMMISSION 

Pursuant to Rules 3.34 and Rule 3.36 of the Federal Trade Commission’s Rules of 

Practice (16 C.F.R. §§ 3.34, 3.36), Respondent Intuit Inc., by and through its attorneys, requests 

that the Secretary of the Federal Trade Commission, April Tabor, and her staff produce all 

documents, electronically stored information, and other materials in their possession, custody, or 

control that are responsive to the requests made below. 

DEFINITIONS 

1. 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. 

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

3. 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, 

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

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

evidencing ANY verbal OR nonverbal interaction between PERSONS. 

4. The term “COMPLAINT” means the Part 3 Administrative Complaint issued by the 

Federal Trade Commission in the above-captioned proceeding. 

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

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

analyzing, refuting, or recording. 

6. 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 

DOCUMENT. 

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7. 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. 

8. 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. 

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

10. The terms “YOU,” “YOUR,” and “COMMISSIONERS” refer to ANY current 

Commissioners of the Federal Trade Commission (“FTC”) AND ANY other PERSON acting OR 

purporting to act on behalf of OR under the direction, authorization, OR control of such 

COMMISSIONERS, including such COMMISSIONERS’ staff and advisors. 

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 

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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), including deliberative process 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 

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 concerning any votes or potential votes 

taken by the COMMISSIONERS related to INTUIT. To the extent deliberative process privilege 

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or any other privilege is asserted over any DOCUMENTS OR COMMUNICATIONS, a log 

consistent with General Instruction 4 is required. 

Document Request No. 2 

All DOCUMENTS OR COMMUNICATIONS CONCERNING the “case summary” on 

the docket sheet on ftc.gov for the above-captioned case. To the extent deliberative process 

privilege or any other privilege is asserted over any DOCUMENTS OR COMMUNICATIONS, a 

log consistent with General Instruction 4 is required. 

Document Request No. 3 

All COMMUNICATIONS concerning INTUIT, including COMMUNICATIONS 

between Commissioners AND COMMUNICATIONS with nonparties. To the extent deliberative 

process privilege or any other privilege is asserted over any DOCUMENTS OR 

COMMUNICATIONS, a log consistent with General Instruction 4 is required. 

Document Request No. 4 

All DOCUMENTS OR COMMUNICATIONS related to the treatment of Intuit’s Rule 

2.31 motion. 

Document Request No. 5 

All DOCUMENTS OR COMMUNICATIONS related to the FTC’s ability to obtain 

monetary relief following the Supreme Court’s April 22, 2021 decision in AMG Capital 

Management, LLC v. Federal Trade Commission, No. 19-508, including any internal memoranda 

or other legal analyses. To the extent deliberative process privilege or any other privilege is 

asserted over any DOCUMENTS OR COMMUNICATIONS, a log consistent with General 

Instruction 4 is required. 

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Dated: October 14, 2022 Respectfully submitted, 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

/s/ David Z. Gringer 

David Z. Gringer 

Eleanor Davis 

7 World Trade Center 

250 Greenwich St. 

New York, NY 10007 

Telephone: (212) 230-8800 

Facsimile: (212) 230-8888 

David.Gringer@wilmerhale.com 

Eleanor.Davis@wilmerhale.com 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

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. 

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EXHIBIT C
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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

In the matter of: 

Intuit Inc., Docket No. 9408 a corporation, 

Respondent. 

COMPLAINT COUNSEL’S OBJECTIONS AND RESPONSES TO 

RESPONDENT INTUIT INC.’S FIRST SET OF REQUESTS FOR

ADMISSION 

Intuit Request for Admission 1: Admit that the FTC Commissioners voted to 

approve the COMPLAINT no later than 4:56 PM ET on March 28, 2022. 

Response: Complaint Counsel object to Request for Admission 1 in that it 

is not relevant to the claims or defenses in this matter. Complaint Counsel further 

object in that Request for Admission 1 calls for privileged and non-public information 

regarding the time of the FTC Commissioners’ vote. The Commission’s privileges can 

only be waived by the Commission itself. Notwithstanding and without waiving these 

objections, Complaint Counsel partially admit that an affirmative vote was taken by the 

Commission to issue a complaint in this matter on March 28, 2022. The remainder of 

Request for Admission 1 is denied. Request for Admission 1 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). 

Intuit Request for Admission 2: Admit that the COMPLAINT was not sent to 

INTUIT until 11:21 AM ET on March 29, 2022. 

Response: Complaint Counsel object to Request for Admission 2 in that it 

is not relevant to the claims or defenses in this matter. Notwithstanding and without 

waiving this objection, Complaint Counsel admit that Joel Christie, Attorney, Office of 

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the Secretary, emailed a copy of the complaint in this matter to Counsel for Intuit Inc. at 

approximately 11:21 AM ET on March 29, 2022. Complaint Counsel lack information 

and knowledge sufficient to enable it to admit or deny whether the complaint in this 

matter was sent to Counsel for Intuit Inc. through other means before 11:21 AM ET on 

March 29, 2022. Complaint Counsel are informed and believe that the complaint in this 

matter was served on Respondent Intuit Inc. on March 31, 2022. 

Intuit Request for Admission 3: Admit that the FTC Commissioners voted to 

approve a version of the COMPLAINT on March 28, 2022, that was not the version of 

the COMPLAINT sent to INTUIT on March 29, 2022. 

Response: Complaint Counsel object to Request for Admission 3 in that it 

is not relevant to the claims or defenses in this matter. Complaint Counsel further 

object in that the term “version” is vague and ambiguous in this context. 

Notwithstanding and without waiving these objections, Request for Admission 3 is 

denied. The Commission took an affirmative vote to issue a complaint in this matter 

and a true and correct copy of the complaint was served on Intuit. A redacted public 

version of the complaint issued in this matter appears on the FTC website at: 

https://www.ftc.gov/legal-library/browse/cases-proceedings/1923119-intuit-incmatter-turbotax. Complaint Counsel are informed and believe that the complaint, 

including the non-public unredacted version of the complaint, in this matter was served 

on Respondent Intuit Inc. on March 31, 2022. 

Intuit Request for Admission 4: Admit that TURBOTAX FREE EDITION is free 

for those taxpayers who qualify. 

Response: Request for Admission 4 is denied based on the definition of 

“TURBOTAX FREE EDITION,” which misdescribes Intuit’s marketing of TurboTax. As 

alleged in the complaint in this matter, in its marketing and advertising Intuit 

represents that consumers can file their taxes for free using TurboTax. This 

representation is deceptive because in numerous instances Intuit did not permit 

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consumers to file their taxes for free using TurboTax. In some limited instances certain 

taxpayers were eligible for free filing using a version of TurboTax known as “TurboTax 

Free Edition” provided they qualified based on Intuit’s applicable eligibility criteria. 

Intuit Request for Admission 5: Admit that TURBOTAX FREE EDITION allows 

taxpayers whose returns use Form 1040 with no attached schedules to file their state 

and federal taxes for free. 

Response: Request for Admission 5 is denied based on the definition of 

“TURBOTAX FREE EDITION,” which misdescribes Intuit’s marketing of TurboTax. As 

alleged in the complaint in this matter, in its marketing and advertising Intuit 

represents that consumers can file their taxes for free using TurboTax. This 

representation is deceptive because in numerous instances Intuit did not permit 

consumers to file their taxes for free using TurboTax. In some limited instances certain 

taxpayers were eligible to file their state and federal tax returns for free using a version 

of TurboTax known as “TurboTax Free Edition” provided their returns used Form 1040 

with no attached schedules and they otherwise qualified based on Intuit’s applicable 

eligibility criteria. 

Intuit Request for Admission 6: Admit that INTUIT discloses all fees and 

charges associated with its TURBOTAX ONLINE PRODUCTS to consumers before 

consumers are prompted to pay on the TURBOTAX WEBSITE. 

Response: Complaint Counsel object to Request for Admission 6 because 

it is overbroad, and ambiguous and vague as to the time period covered by it. 

Notwithstanding and without waiving these objections, Complaint Counsel lack 

information and knowledge sufficient to enable it to admit or deny Request for 

Admission 6 because it would be impossible for Complaint Counsel to determine 

whether Intuit disclosed all fees and charges associated with TURBOTAX ONLINE 

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PRODUCTS in every instance where a consumer was prompted to pay on the 

TURBOTAX WEBSITE. 

Intuit Request for Admission 7: Admit that ANY ADVERTISEMENT that 

complies with the AG SETTLEMENT would not be false, misleading, OR deceptive. 

Response: Complaint Counsel object to Request for Admission 7 in that it 

is irrelevant to the claims and defenses in this matter. Notwithstanding and without 

waiving this objection, Request for Admission 7 is denied. The states’ Assurance of 

Voluntary Compliance (“AVC”) allows, among other things, for “Space-Constrained 

Advertisements” in which Intuit need only disclose that “eligibility requirements 

apply” and provide a hyperlink to more fulsome disclosures. Injunctive Relief § III.B. 

This contradicts the black letter law principles articulated in the .com Disclosures, at 10, 

among other FTC sources. The AVC also allows for visual-only disclosures in “SpaceConstrained Video Advertisements,” allowing the audio portion to disclose only “that 

not all taxpayers qualify”—and not even that in a video of 8 seconds or less. Plus this 

entire provision sunsets after ten years. Injunctive Relief § III.C. This contradicts the 

black letter law principles articulated in the Deception Policy Statement, at 180, and the 

TV Ad Policy Statement, among other FTC sources. The AVC defines “SpaceConstrained Advertisements” as any “that has space, time, format, size, or technological 

restrictions that limit Intuit from being able to make the disclosures required by this 

Assurance.” Definitions § J. The AVC allows hyperlinks to disclosures on Intuit’s 

website, without specifying that information integral to the claim cannot be hidden 

behind a hyperlink. Injunctive Relief § III.D. Finally, the AVC provides monetary relief 

only for “Covered Consumer[s]” harmed from 2016 to 2018. Definitions § I. If the 

Commission enters the proposed Order, it can then seek “the refund of money” and 

other relief for additional consumers harmed by Intuit’s “dishonest or fraudulent” 

conduct. 15 U.S.C. § 57b(a) & (b). The AVC provisions are inadequate, allow ongoing 

deception and harm, and in so doing, undermine consumer welfare. They allow Intuit 

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to continue marketing in much the same way it has been, other than by running “Free, 

free, free, free” ads, which were notoriously egregious and hence, are specifically 

barred. The AVC would allow Intuit to continue using the deceptive and ever-changing 

phrase “simple tax returns” as a purported disclaimer. 

Intuit Request for Admission 8: Admit that ANY ADVERTISEMENT that 

complies with the AG SETTLEMENT would not violate Section 5(a) of the Federal 

Trade Commission Act. 

Response: Complaint Counsel object to Request for Admission 8 in that it 

is irrelevant to the claims and defenses in this matter. Notwithstanding and without 

waiving this objection, Request for Admission 8 is denied. The states’ Assurance of 

Voluntary Compliance (“AVC”), among other things, allows for “Space-Constrained 

Advertisements” in which Intuit need only disclose that “eligibility requirements 

apply” and provide a hyperlink to more fulsome disclosures. Injunctive Relief § III.B. 

This contradicts the black letter law principles articulated in the .com Disclosures, at 10, 

among other FTC sources. The AVC also allows for visual-only disclosures in “SpaceConstrained Video Advertisements,” allowing the audio portion to disclose only “that 

not all taxpayers qualify”—and not even that in a video of 8 seconds or less. Plus this 

entire provision sunsets after ten years. Injunctive Relief § III.C. This contradicts the 

black letter law principles articulated in the Deception Policy Statement, at 180, and the 

TV Ad Policy Statement, among other FTC sources. The AVC defines “SpaceConstrained Advertisements” as any “that has space, time, format, size, or technological 

restrictions that limit Intuit from being able to make the disclosures required by this 

Assurance.” Definitions § J. The AVC allows hyperlinks to disclosures on Intuit’s 

website, without specifying that information integral to the claim cannot be hidden 

behind a hyperlink. Injunctive Relief § III.D. Finally, the AVC only provides monetary 

relief for “Covered Consumer[s]” harmed from 2016 to 2018. Definitions § I. If the 

Commission enters the proposed Order, it can then seek “the refund of money” and 

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other relief for additional consumers harmed by Intuit’s “dishonest or fraudulent” 

conduct. 15 U.S.C. § 57b(a) & (b). The AVC provisions are inadequate, allow ongoing 

deception and harm, and in so doing, undermine consumer welfare. They allow Intuit 

to continue marketing in much the same way it has been, other than by running “Free, 

free, free, free” ads, which were notoriously egregious and hence, are specifically 

barred. The AVC would allow Intuit to continue using the deceptive and ever-changing 

phrase “simple tax returns” as a purported disclaimer. 

Intuit Request for Admission 9: ADMIT that the injunctive relief provided in 

the AG SETTLEMENT is based substantially on terms proposed by the FTC, and 

provided to INTUIT, in November 2021. 

Response: Complaint Counsel object to Request for Admission 9 in that it 

is irrelevant to the claims and defenses in this matter and seeks inadmissible evidence 

pertaining to compromise offers and negotiations barred by Federal Rule of Evidence 

408. Notwithstanding and without waiving these objections, Request for Admission 9 

is denied. 

Intuit Request for Admission 10: ADMIT that the FTC lacks authority to obtain 

monetary relief under Section 13(b) of the Federal Trade Commission Act. 

Response: Complaint Counsel object to Request for Admission 10 in that 

it is irrelevant to the claims and defenses in this administrative proceeding. 

Notwithstanding and without waiving its objection, Complaint Counsel admit that the 

FTC presently lacks authority to obtain monetary relief under Section 13(b) of the 

Federal Trade Commission Act. Complaint Counsel reserve the right to seek monetary 

relief under Section 13(b) of the Federal Trade Commission should Congress revise 

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Section 13(b) to expressly authorize restitution and disgorgement or otherwise grant the 

FTC further remedial authority. 

The FTC has authority to obtain monetary relief under Section 19 of the Federal 

Trade Commission Act. As indicated in the complaint in this matter: 

[T]he Commission has reason to believe that, if the facts are found as alleged 

in the Complaint, it may be necessary and appropriate for the Commission 

to seek relief to redress injury to consumers, or other persons, partnerships 

or corporations. Such relief could be in the form of restitution for past, 

present, and future consumers and such other types of relief as are set forth 

in Section 19(b) of the Federal Trade Commission Act. The Commission will 

determine whether to apply to a court for such relief on the basis of the 

adjudicative proceedings in this matter and such other factors as are 

relevant to consider the necessity and appropriateness of such action. 

Complaint, Notice, at p. 26. 

Intuit Request for Admission 11: ADMIT that on March 29, 2022, FTC Chair 

Lina Khan retweeted a tweet thread from the @FTC account announcing the filing of 

this lawsuit and stating, among other things, that “Intuit engaged in a years-long 

marketing campaign centered on the promise of ‘free services’,” and that Intuit 

“mislead[s] consumers into believing that they can file their taxes for free with 

TurboTax.” 

Response: Complaint Counsel object to Request for Admission 11 in that 

it is irrelevant to the claims and defenses in this matter. Notwithstanding and without 

waiving this objection, Complaint Counsel lack information and knowledge sufficient 

to enable it to admit or deny Request for Admission 11. A Twitter account with the 

handle @linakhanFTC retweeted a tweet thread from the @FTC account announcing the 

filing of this lawsuit and stating, among other things, that “Intuit engaged in a yearslong marketing campaign centered on the promise of ‘free services’,” and that Intuit 

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Public 

“mislead[s] consumers into believing that they can file their taxes for free with 

TurboTax.” However, it is unclear whether FTC Chair Lina Khan was personally 

responsible for retweeting that particular tweet thread. Complaint Counsel is 

prohibited from inquiring further pursuant to 16 C.F.R. § 4.7(b). 

Respectfully submitted, 

Dated: August 29, 2022 

Roberto Anguizola, IL Bar No. 6270874 

James Evans, VA Bar No. 83866 

Rebecca Plett, VA Bar No. 90988 

Federal Trade Commission 

600 Pennsylvania Ave., NW, CC-6316 

Washington, DC 20580

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

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

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

Counsel Supporting the Complaint

Federal Trade Commission 

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~°Ff';} 

Public 

DECLARATION OF ROBERTO ANGUIZOLA 

e Commission and Complaint Counsel in I am an attorney at the Federal Trad

lf of the Bureau of declaration for and on beha this action. I am authorized to make this 

Consumer Protection. 

unsel’s Objections and Responses to I have read the foregoing Complaint Co

ts for Admission and I am familiar with the Respondent Intuit Inc.’s First Set of Reques

quests for admission are true and correct to contents thereof. The responses to these re

the best of my knowledge, information, and belief. 

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the 

statements made in this declaration are true and correct. 

uizola g Roberto An

Executed on: August 29, 2022 

laint Counsel p Com

9 
Public 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 29, 2022, I caused the foregoing document to be 

served via email on: 

David Z. Gringer 

Wilmer Cutler Pickering Hale & Dorr

LLP 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

David.Gringer@wilmerhale.com

(212) 230-8800 

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 

(202) 663-6000 

Attorneys for Respondent, Intuit Inc. 

Roberto Anguizola 

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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.’) 

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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 

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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. 

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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: 

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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. 

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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 

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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 

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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 

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EXHIBIT E
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 65 of 131 * PUBLIC *; 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

PUBLIC

In the matter of: 

Intuit Inc., Docket No. 9408 a corporation, 

Respondent. 

COMPLAINT COUNSEL’S RESPONSES AND OBJECTIONS TO INTUIT’S 

SECOND 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”) Second 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” previously provided 

to Intuit. 

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. 

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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 

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. 

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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. 

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 

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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). 

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 

15. Request for Production 15: All DOCUMENTS OR COMMUNICATIONS 

related to the FTC or FTC staff’s assessment of the viability of Counts I-VIII in the 

SECOND PROPOSED COMPLAINT. 

Response: 

Complaint Counsel objects to the Request because it seeks documents or 

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

doctrine, and the government deliberative process privilege, and to the extent it seeks 

documents protected by 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 also objects to 

the Request as overly broad and unduly burdensome because it refers to “the FTC” and 

“FTC staff,” presumably encompassing all FTC employees, and because Intuit’s 

definition of the term “document” incorporates Intuit’s definition of the term “you” 

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which encompasses not just Complaint Counsel, but every employee at the FTC, 

including Commissioners. Complaint Counsel further objects to the Request because it 

seeks information not relevant to any party’s claim or defense. On the basis of these 

objections, Complaint Counsel will not be producing documents responsive to this 

Request. 

16. Request for Production 16: All DOCUMENTS OR COMMUNICATIONS 

supporting, relied upon by, OR consulted in drafting the Declaration of Diana F. Shiller 

dated May 6, 2022 (GX 342 in the PROCEEDING) (the “Shiller Declaration”), including, 

but not limited to, ALL DOCUMENTS OR COMMUNICATIONS supporting, relied 

upon by, OR consulted in drafting Paragraphs 43, 47, 53, 72, 95-103, 114-115, 117-123, 

127, 129, 131, 135, 137, 142, 148, 152, 156-173, 175-176, 179, 181-182, 184, AND 186-208 of 

the Shiller Declaration. 

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, 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 

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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 

overly broad and unduly burdensome because Intuit’s definition of the term 

“document” incorporates Intuit’s definition of the term “you” which encompasses not 

just Complaint Counsel, but every employee at the FTC, including Commissioners. 

Subject to and without waiving the foregoing objections, Complaint Counsel 

directs Intuit to the following documents already produced to Intuit in this matter: 

 GX 59, GX 200, 202-206, 208-283, 285-89, 299-300, 307-310, 317-318, 320-341, 

344-351 

 Complaint Counsel also points Intuit to the following documents 

previously produced to Intuit (all Bates numbers prefixed F01-TUT-): 

00071083 00067351 00067351 00067351 

00067360 00067361 00067364 00077279 

00068121-25 00077334-35 00071135-36 00068083-82 

00068087 00068074 00067377 00067379 

00067383 00077299 00077301 00077388 

00068081 00071138 00077354 00068079 

00077266 00077418 00077339 00077328 

00069745 00069749 00069743 00068094 

00068408-09 00068408-39 00068202-04 00069770-71 

00067413 00067423 00067427 00077305 

00071049-65 00078405-13 00071265-70 00071159-67 

00078296 00071232 00071156 00071233 

00071260 00071217 00071246 00071263 

00071228 00071230 00071259 00071222 

00078350 00067429 00067439 00078420 

Complaint Counsel will produce additional responsive, non-privileged 

documents that have not already been produced or made available to Intuit. 

17. Request for Production 17: All DOCUMENTS OR COMMUNICATIONS 

related to the FTC’s consideration of whether to update its guidance document titled 

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“.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” which 

was announced via press release on June 3, 2022. 

Response: 

Complaint Counsel objects to the Request because it seeks documents or 

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

doctrine, and the government deliberative process privilege, and to the extent it seeks 

documents protected by 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. Complaint 

Counsel also objects to the Request as overly broad and unduly burdensome because 

Intuit’s definition of the term “document” incorporates Intuit’s definition of the term 

“you” which encompasses not just Complaint Counsel, but every employee at the FTC, 

including Commissioners. Complaint Counsel further objects to the Request because it 

seeks information not relevant to any party’s claim or defense because Complaint 

Counsel relies only on publicly available guidance that currently exists. As written, this 

Request is not reasonably expected to yield information relevant to the allegations of 

the complaint, to the proposed relief, or to any valid defenses. The information is not 

reasonably calculated to lead to the discovery of admissible evidence. Therefore, 

Complaint Counsel will not be producing documents responsive to this Request. 

18. Request for Production 18: All DOCUMENTS OR COMMUNICATIONS 

related to the FTC’s guidelines regarding the use of the word “free” and similar 

representations in advertising, see 16 CFR Part 251, including those concerning the 

application, relevance, and meaning of those guidelines, including, but not limited to, 

DOCUMENTS OR COMMUNICATIONS relating to studies, research, expert reports, or 

other analyses of the use of the word “free” and similar representations in advertising. 

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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 are publicly available to Intuit. 

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

unduly burdensome. The Request asks for documents relating to the FTC’s guidelines 

concerning the use of the word “free,” without limiting the scope to this matter, or even 

to any time period or division of the FTC. Complaint Counsel also objects to the 

Request as overly broad and unduly burdensome because Intuit’s definition of the term 

“document” incorporates Intuit’s definition of the term “you” which encompasses not 

just Complaint Counsel, but every employee at the FTC, including Commissioners. 

As written, this Request is not reasonably expected to yield information relevant 

to the allegations of the complaint, to the proposed relief, or to any valid defenses. The 

information is not reasonably calculated to lead to the discovery of admissible evidence. 

Therefore, Complaint Counsel will not be producing documents responsive to this 

Request. 

19. Request for Production 19: All DOCUMENTS OR COMMUNICATIONS 

related to the FTC’s decision to return the above-captioned action to adjudication on 

August 19, 2022. 

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Response: 

Complaint Counsel objects to the Request because it seeks documents or 

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

doctrine, and the government deliberative process privilege, and to the extent it seeks 

documents protected by any other applicable privilege of law. Complaint Counsel also 

objects to the Request because 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 in the possession, custody, or control of 

Intuit or Intuit’s counsel. Complaint Counsel also objects to the Request as overly broad 

and unduly burdensome because Intuit’s definition of the term “document” 

incorporates Intuit’s definition of the term “you” which encompasses not just 

Complaint Counsel, but every employee at the FTC, including Commissioners. 

This Request is not reasonably expected to yield information relevant to the 

allegations of the complaint, to the proposed relief, or to any valid defenses. The 

information is not reasonably calculated to lead to the discovery of admissible evidence. 

Therefore, Complaint Counsel will not be producing documents responsive to this 

Request. 

20. Request for Production 20: All DOCUMENTS OR COMMUNICATIONS 

related to the request the FTC informed INTUIT it received, via a letter to counsel dated 

March 15, 2022, from the Senate Committee on Homeland Security and Governmental 

Affairs, Permanent Subcommittee on Investigations for a staff briefing regarding the 

FTC’s investigation into INTUIT, including all DOCUMENTS OR 

COMMUNICATIONS shared with the Subcommittee by the FTC OR vice versa. 

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 

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doctrine, the government deliberative process privilege, the law enforcement 

evidentiary or investigative file privilege, the common interest rule, 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 also objects to the Request as overly broad 

and unduly burdensome because Intuit’s definition of the term “document” 

incorporates Intuit’s definition of the term “you” which encompasses not just 

Complaint Counsel, but every employee at the FTC, including Commissioners. 

This Request is not reasonably expected to yield information relevant to the 

allegations of the complaint, to the proposed relief, or to any valid defenses. The 

information is not reasonably calculated to lead to the discovery of admissible evidence. 

Therefore, Complaint Counsel will not be producing documents responsive to this 

Request. 

21. Request for Production 21: All DOCUMENTS OR COMMUNICATIONS 

related to whether the COMPLAINT voted on by the Commissioners on March 28, 

2022, was the same COMPLAINT served on Intuit’s counsel on March 29, 2022, 

including copies of both the March 28, 2022 COMPLAINT and the March 29, 2022 

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, 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 because the Request is not relevant to the 

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claims or defenses in this matter. 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 also objects to the 

Request as overly broad and unduly burdensome because Intuit’s definition of the term 

“document” incorporates Intuit’s definition of the term “you” which encompasses not 

just Complaint Counsel, but every employee at the FTC, including Commissioners. 

This Request is not reasonably expected to yield information relevant to the 

allegations of the complaint, to the proposed relief, or to any valid defenses. The 

information is not reasonably calculated to lead to the discovery of admissible evidence. 

Therefore, Complaint Counsel will not be producing documents responsive to this 

Request. 

22. Request for Production 22: All DOCUMENTS OR COMMUNICATIONS 

supporting YOUR statement in YOUR response to INTUIT’s Request for Admission 5 

that “Intuit represents that consumers can file their taxes for free using 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 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 

also objects to the Request as overly broad and unduly burdensome because Intuit’s 

definition of the term “you” encompasses not just Complaint Counsel, but every 

employee at the FTC, including Commissioners. 

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, 

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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 believe that the advertisements speak for themselves, and point 

Intuit to Complaint Counsel’s Responses to Intuit’s Interrogatories 1 and 2. 

Complaint Counsel will identify and/or produce any additional 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. 

23. Request for Production 23: All DOCUMENTS OR COMMUNICATIONS 

supporting YOUR statement in YOUR response to INTUIT’s Requests for Admission 7 

& 8 that INTUIT’s “free” TV ads were “notoriously egregious.” 

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, or the law enforcement 

evidentiary or investigative file privilege, the common interest 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 

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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 overly broad and unduly burdensome because Intuit’s 

definition of the term “you” encompasses not just Complaint Counsel, but every 

employee at the FTC, including Commissioners. 

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

Complaint Counsel believes the ads, and the wide dissemination of the ads, are 

evidence of their egregious nature. Complaint Counsel directs Intuit to the documents 

identified in response to Request for Production 22 and Intuit’s Interrogatories 1-2. 

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

Complaint Counsel will produce any additional non-privileged documents responsive 

to this request. 

Dated: October 7, 2022 

Respectfully submitted, 

/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 

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CERTIFICATE OF SERVICE 

I hereby certify that on October 7, 2022, I caused the foregoing Complaint 

Counsel’s Responses and Objections to Intuit’s Second Set of Requests for Production of 

Documents, 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 

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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 123 of 131 * PUBLIC *; 

PROCEEDINGS 

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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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 124 of 131 * PUBLIC *; 

PROCEEDINGS 

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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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 125 of 131 * PUBLIC *; 

PROCEEDINGS 

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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PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 126 of 131 * PUBLIC *; 

PROCEEDINGS 

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. 
 47 

 

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_________________________________________ 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 127 of 131 * PUBLIC *; 

PROCEEDINGS 

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 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 128 of 131 * PUBLIC *; PUBLIC

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 130 of 131 * PUBLIC *; 

 

 

 

 

 

 

 

PUBLIC 

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 FOR DISCOVERY PURSUANT 

TO RULE 3.36 

Upon consideration of Respondent’s Motion for Discovery Pursuant to Rule 3.36: 

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

IT IS FURTHER ORDERED that Respondent Intuit Inc. is authorized to issue the subpoenas 

attached as Exhibits A and B to the Declaration of Derek A. Woodman in support of the Motion. 

ORDERED: ___________________________ 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: ______________________ 

1 
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 10/14/2022 | Document No. 605867 | PAGE Page 131 of 131 * PUBLIC *; 

 

 

 

 

PUBLIC 

CERTIFICATE OF SERVICE 

I hereby certify that on October 14, 2022, I filed the foregoing document 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 14, 2022, I caused the foregoing document to be served 

via email to: 

Roberto Anguizola 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: ranguizola@ftc.gov 

Tel: (202) 326-3284 

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 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

Dated: October 14, 2022 

Rebecca Plett 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: rplett@ftc.gov 

Tel: (202) 326-3664 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Rm. H-110 

Washington, DC 20580 

Respectfully submitted, 

/s/ Derek A. Woodman 

DEREK A. WOODMAN 

Counsel for Intuit Inc.