UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of: 

Intuit Inc., a corporation. 

Docket No. 9408 

RESPONDENT INTUIT INC.S PRETRIAL BRIEF

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TABLE OF CONTENTS 

Page 

INTRODUCTION ...........................................................................................................................1

BACKGROUND .............................................................................................................................5

A. TurboTax..................................................................................................................5

B. Intuits Use Of The Phrase Simple Returns .......................................................14

C. Intuits Advertising ................................................................................................16

1. Television Advertisements .........................................................................17

2. Display, Mobile, And Social-Media Advertisements ................................18

3. Paid Search Advertisements ......................................................................20

4. Email Advertisements ................................................................................22

5. Radio Advertisements ................................................................................23

D. Survey Evidence Shows That Reasonable Consumers Understand Not 

Every Consumer Is Qualified For Free Offerings..................................................23

E. Intuits Free Edition Business Strategy ..................................................................24

F. Consumer Reactions To The Challenged Ads .......................................................25

G. The State Attorneys General Consent Order And Intuits Free Marketing 

Going Forward .......................................................................................................26

H. Intuits Current Advertising ...................................................................................28

ARGUMENT .................................................................................................................................29

I. Complaint Counsels Allegations That Intuits Historical Marketing Practices 

Were Deceptive Are Wrong ...............................................................................................30

A. Intuits Advertising Did Not And Does Not Convey To Consumers That 

TurboTax Is Free Without Qualification ............................................................31

1. The Ads Do Not Contain The Express Claims Alleged ............................32

2. The Net Impression Of The Ads Do Not Support The Implied 

Claims ........................................................................................................34

a. Complaint Counsel Improperly Ignore The Ads Qualifying 

Language ........................................................................................34

b. Free-Offer Qualifications Were, And Are, Adequately 

Conveyed .......................................................................................39

c. Consumer Testing Confirms That The Challenged Ads Did 

Not Convey That All TurboTax Products Are Free.......................45

d. Intuit Has Never Intended To Convey That All TurboTax 

Products Are Free ..........................................................................47

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B. Reasonable Consumers Were Not Deceived By Intuits Advertising ...................49

1. Intuits Ads Were Not, And Are Not, Deceptive Door Openers ...............49

2. Reasonable Consumers Familiarity With the Industry And 

Skepticism Towards Free Claims Prevents Misimpressions .....................53

3. The Evidence Does Not Establish That Reasonable Consumers 

Were Deceived ...........................................................................................55

a. The Miniscule Number Of Complaints Are Not Evidence 

Of Widespread Deception ..............................................................56

i. Complaints That Should Be Stricken Because They 

Are Not Related To The Allegations .................................56

ii. Sentinel Network Complaints ............................................57

iii. Intuits Records Of Customer Complaints .........................58

iv. Consumer experiences .......................................................59

b. Intuits Internal Documents Do Not Show That Consumers 

Were Deceived ...............................................................................61

c. Novemskys Questionnaire Is Not Evidence That 

Consumers Were Deceived ............................................................62

d. Competent Survey Evidence Demonstrates That 

Consumers Were Not Deceived .....................................................68

C. Intuits Representations Were Not Material ..........................................................73

II. The Proposed Cease-And-Desist Order Is Unwarranted ...................................................74

A. Intuits Discontinued Historical Practices Do Not Create A Cognizable 

Danger Of Future Violations .................................................................................75

B. Future Deceptive Conduct Is Already Enjoined ....................................................77

C. Imposing Additional Restrictions Or Requirements On Intuits 

Advertising Would Harm Consumers ....................................................................82

III. The Statute Of Limitations And Laches Each Bar Consideration Of Outdated 

Advertisements ..................................................................................................................82

IV. This Proceeding Is Unconstitutional ..................................................................................84

A. Intuits Due-Process Rights Have Been Violated By The Reality Or 

Appearance Of Prejudgment ..................................................................................84

B. The FTCs Internal Administrative Process Violates The Due Process 

Clause .....................................................................................................................87

C. Congress Unconstitutionally Delegated Legislative Power To The FTC ..............88

D. The FTCs Structure Violates The Separation Of Powers .....................................89

CONCLUSION ..............................................................................................................................90 

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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Allen v. Williams, 

2022 WL 17551564 (D. Colo. Dec. 8, 2022)...........................................................................82 

Already, LLC v. Nike, Inc., 

568 U.S. 85 (2013) ...................................................................................................................78 

American Cyanamid Co. v. FTC, 

363 F.2d 757 (6th Cir. 1966) ...................................................................................................86 

American Home Products, Corp., 

98 F.T.C. 136 (1981)................................................................................................................35 

American Home Products, Corp. v. FTC, 

695 F.2d 681 (3d Cir. 1982).....................................................................................................81

Bell v. Publix Super Markets, Inc., 

982 F.3d 468 (7th Cir. 2020) ...................................................................................................37 

Benco Dental Supply Co., 

2019 WL 5419393 (F.T.C. Oct. 15, 2019).........................................................................74, 76 

Brown v. Federal Election Comm’n, 

386 F. Supp. 3d 16, 23 (D.D.C. 2019) .....................................................................................42 

Castagnola v. Hewlett-Packard Co., 

2012 WL 2159385 (N.D. Cal. June 13, 2012) .........................................................................41 

Cinderella Career & Finishing Schools, Inc. v. FTC, 

425 F.2d 583 (D.C. Cir. 1970) ...........................................................................................84, 86 

Collins v. Yellen, 

141 S. Ct. 1761 (2021) .............................................................................................................90 

Crowell v. Benson, 

285 U.S. 22 (1932) ...................................................................................................................88 

Danjaq LLC v. Sony Corp., 

263 F.3d 942 (9th Cir. 2001) ...................................................................................................83 

DelCostello v. International Brotherhood of Teamsters, 

462 U.S. 151 (1983) ...........................................................................................................82, 83 

Dohrmann v. Intuit Inc., 

823 F. App’x 482 (9th Cir. 2020) ............................................................................................44 

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Ebner v. Fresh, Inc., 

838 F.3d 958 (9th Cir. 2016) .............................................................................................38, 53 

Eckler v. Wal-Mart Stores, Inc., 

2012 WL 5382218 ...................................................................................................................32 

Encyclopaedia Britannica, Inc., 

87 F.T.C. 421 (1976)................................................................................................................52 

Estrella-Rosales v. Taco Bell Corp., 

2020 WL 1685617 (D.N.J. April 7, 2020) ...................................................................39, 42, 43 

Fast Food Workers Commission v. NLRB, 

31 F.4th 807 (D.C. Cir. 2022) ..................................................................................................84 

Free Enterprise Fund v. Public Co. Accounting Oversight Board, 

561 U.S. 477 (2010) ...........................................................................................................89, 90 

Freeman v. Time, Inc., 

68 F.3d 285 (9th Cir. 1995) ...............................................................................................40, 41 

FTC Statement on Deception, 103 F.T.C. 174 (1984) ........................................................... passim 

FTC v. Cement Institute, 

333 U.S. 683 (1948) ...........................................................................................................74, 81 

FTC v. Centro National Corp., 

2014 WL 7525697 (S.D. Fla. Dec. 10, 2014) ..........................................................................83 

F.T.C. v. Colgate-Palmolive, 

380 U.S. 374 (1965) .................................................................................................................74

FTC v. Cyberspace.Com LLC, 

453 F.3d 1196 (9th Cir. 2006) .................................................................................................41 

FTC v. DirecTV, Inc., 

2015 WL 9268119 (N.D. Cal. Dec. 21, 2015) .........................................................................83 

FTC v. DirecTV, Inc., 

2018 WL 3911196 (N.D. Cal. Aug. 16, 2018) ................................................................ passim

FTC v. E.M.A. Nationwide, Inc., 

767 F.3d 611 (6th Cir. 2014) ...................................................................................................52 

FTC v. Hang-Ups Art Enterprises, Inc., 

1995 WL 914179 (C.D. Cal. Sept. 27, 1995) ..........................................................................83 

FTC v. Merchandise Services Direct, LLC, 

2013 WL 4094394 (E.D. Wash. Aug. 13, 2013) .....................................................................75 

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FTC v. National Urological Grp., Inc., 

645 F. Supp. 2d 1167 (N.D. Ga. 2008) ....................................................................................56 

Grolier, Inc., 

99 F.T.C. 379 (1982)................................................................................................................52 

Gundy v. United States, 

139 S. Ct. 2116.........................................................................................................................88 

Hamdi v. Rumsfeld, 

542 U.S. 507 (2004) .................................................................................................................87 

Harris v. Las Vegas Sands L.L.C., 

2013 WL 5291142 (C.D. Cal. Aug. 16, 2013) .........................................................................51 

Hi-Tech Pharmaceuticals Inc. v. Dynamic Sports Nutrition, LLC, 

2021 WL 2185699 (N.D. Ga. May 28, 2021) ..........................................................................63 

Humphrey’s Executor v. United States, 

295 U.S. 602 (1935) .................................................................................................................89 

iMortgage Services, LLC v. Louisiana Real Estate Appraisers Board, 

2023 WL 2254528 (M.D. La. Feb. 27, 2023) ..........................................................................78 

In re Autozone, Inc., 

2016 WL 4208200 (N.D. Cal. Aug. 10, 2016) ..................................................................66, 67 

In re Firearm Cases, 

126 Cal. App. 4th 959 (2005) ..................................................................................................51 

Instant Media, Inc. v. Microsoft Corp., 

2007 WL 2318948 (N.D. Cal. Aug. 13, 2007) ........................................................................63 

Jarkesy v. SEC, 

34 F.4th 446 (5th Cir. 2022) ....................................................................................................88 

Mastercard, Inc., 

2022 WL 17975182 (F.T.C. Dec. 23, 2022) ............................................................................82 

Marksberry v. FCA US LLC, 

606 F. Supp. 3d 1075 (D. Kan. 2022) ....................................................................32, 38, 43, 53 

MHC Mutual Conversion Fund, L.P. v. Sandler O’Neill & Partners, L.P., 

761 F.3d 1109 (10th Cir. 2014) ...............................................................................................44 

Millennium Labs., Inc. v. Ameritox, Ltd., 

924 F. Supp. 2d 594 (D. Md. 2013) .........................................................................................65 

Moore v. Trader Joe’s Co., 

4 F.4th 874 (9th Cir. 2021) ......................................................................................................37 

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Morrison v. Olson, 

487 U.S. 654 (1988) .................................................................................................................89 

New Standard Pub. Co. v. FTC, 

194 F.2d 181 (4th Cir. 1952) ...................................................................................................76 

North Texas Specialty Physicians v. FTC, 

528 F.3d 346 (5th Cir. 2008) ...................................................................................................74 

Novartis Corp., 

127 F.T.C. 580, 667 (1999) .....................................................................................................73 

Oceanic Steam Navigation Co v. Stranahan, 

214 U.S. 320 (1909) .................................................................................................................88 

Panama Refining Co. v. Ryan, 

293 U.S. 388 (1935) .................................................................................................................88 

Platt v. Winnebago Industries, Inc., 

960 F.3d 1264 (10th Cir. 2020) ...............................................................................................43 

Reed v. United Transportation Union, 

488 U.S. 319 (1989) .................................................................................................................83 

Removatron International Corp. v. FTC, 

884 F.2d 1489 (1st Cir. 1989) ............................................................................................39, 80 

Resort Car Rental Systems, Inc. v. FTC, 

518 F.2d 962 (9th Cir. 1975) .............................................................................................51, 52 

Sara Lee Corp. v. Kayser-Roth Corp., 

81 F.3d 455 (4th Cir. 1996) .....................................................................................................66 

S.C. Johnson & Son, Inc. v. Clorox Co., 

241 F.3d 232 (2d Cir. 2001).....................................................................................................35 

SEC v. Murphy, 

626 F.2d 633 (9th Cir. 1980) ...................................................................................................78 

Seila Law v. CFPB, 

140 S.Ct. 2183 (2020) ..............................................................................................................89 

South Carolina State Board of Dentistry, 

2004 WL 1814165 (F.T.C. July 28, 2004) ...............................................................................77 

Southwest Sunsites, Inc. v. FTC, 

785 F.2d 1431 (9th Cir. 1986) .................................................................................................53 

Standard Oil Co. of California v. FTC, 

577 F.2d 653 (9th Cir. 1978) .............................................................................................74, 78 

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Starter Corp. v. Converse, Inc., 

170 F.3d 286 (2d Cir. 1999).....................................................................................................64 

Superior Consulting Services, Inc. v. Shaklee Corp., 

2021 WL 4438518 (11th Cir. Sept. 28, 2021) .........................................................................63 

Telebrands Corp., 

140 F.T.C. 278 (2005)............................................................................................30, 47, 58, 66

Thompson Medical Co., Inc., 

104 F.T.C. 648 (1984)..............................................................................................................32 

TRW, Inc. v. FTC, 

647 F.2d 942 (9th Cir. 1981) .............................................................................................77, 78 

United States v. Bayer Corp., 

2015 WL 5822595 (D.N.J. Sept. 24, 2015) .............................................................................56

United States v. Dentsply International, Inc., 

277 F. Supp. 2d 387 (D. Del. 2003) .........................................................................................67 

United States v.H & R Block, Inc., 

833 F. Supp. 2d 36 (D.D.C. 2011) ...........................................................................................48 

United States v. Lindberg Corp., 

882 F.2d 1158 (7th Cir. 1989) .................................................................................................83 

United States v. Ruby Co., 

588 F.2d 697 (9th Cir. 1978) ...................................................................................................83 

United States v. W. T. Grant Co., 

345 U.S. 629 (1953) ................................................................................................74,77, 78, 82 

University of Kansas v. Sinks, 

2008 WL 755065 (D. Kan. Mar. 19, 2008) .............................................................................67 

Washington v. Hyatt Hotels Corp., 

2020 WL 3058118 (N.D. Ill. June 9, 2020) .............................................................................51 

Williams v. Pennsylvania, 

579 U.S. 1 (2016) .....................................................................................................................87 

Winzler v. Toyota Motor Sales U.S.A., Inc., 

681 F.3d 1208 (10th Cir. 2012) ...............................................................................................82 

Withrow v. Larkin, 

421 U.S. 35 (1975) ...................................................................................................................87 

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Statutes 

5 U.S.C. 

 §1202(d) ...................................................................................................................................90 

 §7521(a) ...................................................................................................................................90 

15 U.S.C. 

 §41............................................................................................................................................89 

 §45(b) .................................................................................................................................74, 88 

 §53(b) .......................................................................................................................................88 

 §57b....................................................................................................................................81, 83 

 §6102(a)(3)(A) .........................................................................................................................52 

Cal. Civ. Code §1783 .....................................................................................................................83 

D.C. Code §28-3904 ......................................................................................................................83 

815 Ill. Comp. Stat. §505/2 ............................................................................................................51 

N.Y. C.P.L.R. §214(2) ...................................................................................................................83 

Regulations 

16 C.F.R. 

 §0.14...................................................................................................................................89, 90 

 §3.11.........................................................................................................................................75 

 §3.46...........................................................................................................................................5 

Other Authorities 

Code of Conduct for U.S. Judges Canon 3(A)(6) (2019) ..............................................................85 

FTC v. Intuit Inc., 

No. 22-cv-01973-CRB (N.D. Cal. Apr. 8, 2022) .....................................................................65 

FTC v. Libbey Inc., 

No. 1:02-cv-00060-RBW (D.D.C. Apr. 3, 2002) ....................................................................75 

FTC v. Kutzner, 

No. 8:16-cv-00999 (C.D. Cal. Aug. 14, 2017) ........................................................................68 

FTC v. LendingClub Corp., 

No. 3:18-cv-02454 (N.D. Cal. Feb. 27, 2020) .........................................................................68 

Statement in Regard to Clear and Conspicuous Disclosure in Television 

Advertising (Oct. 21, 1970) .....................................................................................................80 

U.S. Const. art. II, §1, cl. 1 ......................................................................................................89, 90 

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INTRODUCTION 

A majority of taxpayers who file their taxes online qualify to file their taxes at no cost 

using respondent Intuit Inc.s online tax-filing product, TurboTax Free Edition. Over the last six 

years, in fact, about 80 million returns have been filed for free with Free Edition. Consumers 

meaningfully benefit from TurboTaxs free offer, which has no strings attached and no hidden 

(or non-hidden) fees. Intuit offers this free product because it hopes to build long-term 

relationships so that when these consumers have more complex tax situations, they will return to 

use TurboTaxs paid products. Long-term relationships are built on trust, not on deceiving 

customers, and Intuit did nothing of the sort. To be clear: no one who has filed their taxes using 

TurboTax Free Edition has ever paid a penny to do so. 

TurboTax has become the overwhelming industry leader because, for more than three 

decades, it has built and maintained trust with its millions of customers. TurboTax needs to be 

trustworthy: reasonable consumers demand it or they would move quickly to a competitor's 

website and generate a large volume of complaints for regulators in the process. Additionally, 

TurboTax wants to be fair and accurate. Intuit has a long history and deep culture of integrity 

without compromise. This culture, which is one of Intuits primary values, is in harmony with 

its business interest in building long-term relationships with customers who return year after year 

at industry-leading rates because they have been treated well. 

Against this backdrop, Complaint Counsel have no evidence that any of the challenged 

ads were or are deceptive. Instead, after four years of investigating, they have imagined a case 

that rests almost entirely on their own beliefs about Intuits advertisements. But deception 

cannot be proven by Complaint Counsels subjective beliefs; it is the objective facts about the 

ads that matter. Moreover, this is not a case where the product being advertised is some kind of 

a sham; rather, TurboTax Free Edition is a legitimateand legitimately freeproduct that has 

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helped tens millions of people file their taxes at no cost whatsoever. Thus, it is unsurprising that 

Complaint Counsel fall well short of meeting their burden on each requisite element. 

Complaint Counsel try to argue that the challenged ads make the express claim that all 

TurboTax is free. They do not, which is why Complaint Counsel have conceded

repeatedlythat none of the challenged ads makes such an express claim. Complaint Counsel 

then pivot to argue that consumers must have been deceived because the ads imply that all 

TurboTax is free. That theory is likewise baseless and has already been viewed skeptically by a 

federal district judge when Complaint Counsel sought (but failed to obtain) a preliminary 

injunction last year. During oral argument, the judge observed that Complaint Counsels theory 

failed because nobody thinks TurboTax is free to everybody, RX73 at 17:4-5, and that the 

disclosure is right there; isnt it? ... it says TurboTax free edition, for simple tax returns only, 

id. at 40:3-6. The evidence has not improved for Complaint Counsel since that date. 

Moreover, Complaint Counsel present the ads in a misleading way, isolating snippets that 

do not include the clear qualifying language. Reasonable consumers, howeverlike the federal 

judge who denied the preliminary injunctioncan and do view the ads as a whole. This Court 

must do likewise, and when taken as a whole, the ads are not deceptive. 

The paucity of complaints, as measured against benchmark companies and Intuits 

competitors by Professor Peter Golder, a Professor of Marketing at Dartmouth Universitys Tuck 

School of Business, helpfully demonstrates an absence of deception. Complaint Counsel allege 

that Intuit engaged in an almost decade-long marketing campaign to create a false expectation 

among reasonable consumers that they could file for free, only to find out when their taxes were 

complete that they owed money. If that were true, Intuit and the FTC would have been overrun 

with complaints. In fact, there are strikingly few complaints from the tens of millions of 

consumers who have used TurboTax products. Particularly given the publicity that these 

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allegations have received, that is telling. Complaint Counsel try to excuse the lack of any 

significant number of complaints, but they ignore the most obvious explanation: The ads are not 

deceptive. 

Nor have Complaint Counsel adduced survey evidence that measures the causal impact of 

any of the allegedly deceptive ads against a control group or that measures anything of interest. 

Rather than perform a proper study, Complaint Counsels expert, Nathan Novemsky, posed 

questions to 607 people without showing even one of them a single one of the challenged ads (or 

the TurboTax website, where complete pricing and qualifications information is presented). 

Professor Novemsky, moreover, manipulated the body of survey respondents, excluding several 

groups (or allowing them to exclude themselves) who would likely not have reported any 

deception, while including those with preexisting biases against Intuit. The fact that this deeply 

flawed survey is the best one Complaint Counsel can offer, after four years of investigation, 

speaks volumes. Again, Complaint Counsel ignore the truth directly in front of them: the ads 

are not deceptive. 

It is not Intuits burden to prove anything, but substantial evidence demonstrates that 

consumers were not deceived. While Complaint Counsel did no copy testing of even a single 

challenged ad, Intuit did so (in the normal course of its business) and found that the percentage 

of consumers who believed that they could file for free using TurboTax was lower than the 

percentage who could file for free using Free Edition. 

There have also been (competent) surveys and analyses undertaken by Intuits experts 

that further belie any notion of deception. For example, MIT Professor Dr. John Hauser ran an 

experimental design survey which showed that including more detailed disclosures to TurboTax 

advertisements did not decrease the share of consumers who would use TurboTaxs free 

offerings. If, as Complaint Counsel claim, Intuits advertisements served as deceptive door 

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openers (luring customers in), one would expect substantially fewer consumers to choose to 

start their taxes with TurboTax after being presented with more detailed disclosures. Another 

expert, Bruce Deal, examined Intuits business data for Tax Year 2021 and concluded from his 

review of the data that 97.6% of individuals who created or accessed a TurboTax account were 

not even plausibly deceived because of their previous experience using TurboTax paid products, 

because they could file for free but chose not to do so, and several other reasons detailed below. 

At bottom, this is not a run-of-the-mill deceptive-advertising case, where the product 

being advertised is a sham. It is a legitimateand legitimately freeproduct that, as noted, has 

helped millions of people file their taxes at no cost whatsoever. As the Court will hear from 

Professor Golder, consumers are intimately familiar with free claims, which are not only made 

by all of Intuits main competitors, but by countless other companies in different industries too. 

No reasonable consumer believesas Complaint Counsel ultimately contendthat TurboTax is 

free for everyone. In this industry, the consumers are far more reasonable than Complaint 

Counsel credit, and they understand and are not deceived by the ads in question. Indeed, as 

Professor Golders study will show, Intuits ads meet or exceed those offered by benchmark 

companies on various key factors that the FTCs own Guidelines suggest are important for 

assessing the quality of advertisements. There is no case that upholds a theory of deception on 

facts anything close to these. One need only watch a few minutes of television to recognize that 

TurboTaxs ads meet or exceed those offered by scores of other businesses across the spectrum, 

none of whom are being dragged into court and certainly not on a record as thin as this one. 

And if all of that were not enough, the claim here is largely about historical conduct that 

could never be repeated because of Intuits consent order with the attorneys general of all 50 

states and the District of Columbia, which both assures that Intuits advertisements going 

forward will address any lingering concerns about Intuits free marketing and moots the claim. 

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As the Court will also see, Intuits ads have substantially improved over time and the ads postconsent order serve as an exemplar for the rest of the industry. Complaint Counsel thus seek a 

cease-and-desist order to bar conduct that is already foreclosedand that is thus unnecessary to 

prevent future deception. Accordingly, Complaint Counsel cannot demonstrate the requisite 

cognizable danger of future unlawful activity required to obtain injunctive relief. 

Complaint Counsels claim should be rejected, and this proceeding dismissed.1

BACKGROUND 

A. TurboTax 

TurboTax is a suite of online tax-preparation software and services. Among its product 

offerings is TurboTax Free Edition, which is truly free. GX161 (Maxson Dep. Tr.) at 279:18. 

Typically, between ten and fifteen million tax returns are filed for free using Free Edition each 

year. RX106. The New York Times, like many others, say[s] with confidence that TurboTax 

Free Edition is the most sophisticated, accurate, and straightforward tool for preparing ones 

taxes online. RX1497. 

The TurboTax website is both the store where consumers purchase TurboTax products 

(unless, of course, those products are free), as well as the hub where consumers use the software 

to prepare their taxes. Consumers must visit the website (or TurboTax mobile app) to use any 

TurboTax online product or service. GX439 (Ryan Decl.) ¶28. 

Visitors to the website can see information about all versions of the TurboTax software

commonly referred to as SKUs. Those include both Do-It-Yourself (DIY) and assisted offerings. 

1

 Complaint Counsel submitted 59 pages of pretrial proposed findings of fact as 

Appendix A to its pretrial brief. Neither the Commissions rules nor the scheduling order in this 

case call for (or even authorize) proposed findings at this stage. Intuit will submit its proposed 

findings of fact based on the evidence adduced at the hearing, in accordance with 16 C.F.R. 

§3.46(a). Complaint Counsels proposed findings, submitted before any evidence is taken, 

should be stricken. 

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For taxpayers with simple tax returns, TurboTax offers Free Edition. For those with more 

complex returns, Intuit offers three other DIY SKUs that cover different and increasingly 

complex tax situations: Deluxe, Premier, and Self Employed. TurboTaxs assisted SKUs, 

marketed under the brand TurboTax Live, likewise cover different tax situations, and offer 

assisted or full-service support from tax experts. 

Complaint Counsel admit that the TurboTax website contains detailed information about 

the tax situations covered by Free Edition. See Compl. Counsels Resps. & Objs. to Intuits 

SMF ¶¶40, 48-49, 53 (Sept. 8, 2022). References on the website to any free offer (like the one 

reproduced immediately below) include color-contrasted text stating that the offer was for 

simple tax returns only. See, e.g., RX1265. In previous years, that language was hyperlinked. 

More recently, Intuit has added language asking consumers to See if you qualify, with that 

language color-contrasted and hyperlinked. 

RX1500. When consumers click on that hyperlinked text, they are shown a pop-up (such as the 

one reproduced below from TY 2021) describing in more detail the tax situations that qualify for 

Free Edition and providing the definition of simple tax returns. 

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RX3; see also RX4; RX138; RX20; RX21; RX122; RX381; RX435; RX1289-1294 (pop-up 

screen for other tax years). 

Some consumers enter the TurboTax website after clicking on an ad for Free Edition. 

Doing so takes them to the Free Edition landing page (https://turbotax.intuit.com/personal-taxes/

online/free-edition.jsp). Like the homepage (and other webpages with references to free offers), 

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the Free Edition landing page (shown below) states in multiple places that Free Edition is 

available to qualifying taxpayers only and includes color-contrasted, hyperlinked text that, when 

clicked, shows a pop-up detailing Free Editions qualifications. See RX947. The Free Edition 

landing page also provides (and has always provided) further details concerning the tax forms 

and situations covered by Free Edition, product features, customer reviews, and links to help and 

support. See id.; RX1207; RX719; RX722; RX1209. 

RX1265.2

After the homepage or Free Edition landing page, the next TurboTax webpage consumers 

seebefore entering any personal information and often before creating an account or logging 

2

 The above is a screenshot of the image from the URL from which RX1265 originates, 

more accurately reflecting than the exhibit itself what consumers would have seen. There are no 

substantive differences. (The same is true of the next screenshot, from RX942.) 

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inis the TurboTax Products & Pricing page (https://turbotax.intuit.com/personal-taxes/online/). 

RX52 at 36. New consumers cannot begin their returns with TurboTax without encountering the 

detailed information on the Products & Pricing page, including (as shown immediately below) 

pricing and other information for the full suite of TurboTax SKUs: 

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RX942; see also RX944, RX210, RX138, RX122, RX381. As Complaint Counsel concede, the 

page includes disclosures about Free Editions qualifications in at least four locations using 

contrasted, hyperlinked text. Compl. Counsels Resps. & Objs. to Intuits SMF ¶46. 

The Products & Pricing webpage also includes a tool for visitors to evaluate what SKU 

best suits their tax situation. 

RX1532 (circle added). As a potential customer clicks on tiles, the software provides 

recommendations, which appear in the bottom panel of the Products & Pricing Page. RX10; 

RX11; RX12. For example, if a taxpayer indicates that she rents her home, has a job with W-2 

income, and has children or dependents, the tool recommends Free Edition, while clearly 

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disclosing that the free product is TurboTax Free Edition only, is For simple tax returns only, 

and inviting consumers to see if they qualify. RX10 (shown immediately below with the red 

circle added).3

See also RX944, RX210, RX138, RX122, RX381, RX122, RX1220, RX1221. Most consumers 

using the SKU selector receive a recommendation to start their taxes with Free Edition. See

RX290 at INTUIT-FFA-FTC-000144079; see also RX42 at 11. That is consistent with Intuits 

business priority of having consumers start in the lowest-price SKU for which they qualify. 

3

 The above is a screenshot of the image from the URL from which RX10 originates, 

more accurately reflecting what consumers would have seen, as it is in color. There are no 

substantive differences. RX9 and RX10 originate from the same URL; RX9 shows the webpage 

without tile selections; RX10 shows the webpage with tiles selected. 

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GX152 (Johnson IH Tr.) at 161:23-162:1; see also id. at 128:21-129:19, 162:9-19; RX334 at 

INTUIT-FTC-PART3-000608485, -608486. More generally, getting customers in the right 

SKU for them is critical for [Intuits] business success. GX146 (Ryan Dep. Tr.) at 125:6-11. 

These efforts have been successful. For TY 2015-2021, there were returns started 

in Free Edition, of which over 75%finished in Free Edition. RX820, RX821 at 

INTUIT-FTC-PART3-000608571, -608572; see also RX65; GX295 at INTUIT-FFA-FTC000003255863; RX37 at INTUIT-FFA-FTC-000316307. 

The TurboTax website also includes a page displaying all material limitations for Free 

Edition (shown in part below). 

 2015-2021, there were returns started 

in Free Edition, of which over 75%

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RX1501; see also RX6. Every other webpage referencing a free offer on the TurboTax website 

includes Important Details about Free Filing for Simple Tax Returns (shown below) without 

having to click a link. This sets out in detail the situations covered and not covered by Free 

Edition. 

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RX1500; see also RX5; RX7; RX9. 

Consumers who start in Free Edition but whose taxes require another product are alerted 

as soon as they enter information that reveals that fact. GX155 (Rubin Dep. Tr.) at 40:15-25; 

GX152 (Johnson IH Tr.) at 129:25-130:10; see also RX55 at 1. Obviously, Intuit cannot know 

the specific details of a consumers tax situation until that consumer provides that information. 

While the TurboTax software uses an interview model, consumers frequently take advantage of 

the opportunity to import data like W2 and 1099 forms from employers and financial institutions, 

further streamlining the process. 

B. Intuits Use Of The Phrase Simple Returns 

Since Free Editions launch in Tax Year 2006, Intuit has marketed Free Edition as 

available for consumers with simple tax returns and aligned Free Editions qualifications with 

the IRSs definition of that phrase. RX49 at 19. That alignment was driven by Intuits desire to 

easily communicate to customers which TurboTax product is right for their tax situations. Id.

at 20. Using the phrase simple tax returns let[s] consumers know that there are eligibility 

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requirements for using the TurboTax Free Edition, and that those eligibility requirements are 

tied to the complexity of their tax return. GX155 (Rubin Dep. Tr.) at 55:16-20. 

The IRS defines simple returns as those filed using the most basic form for an 

individual income-tax return, without any schedules. RX77 at INTUIT-FTC-PART3-

000599201; see also RX49 at 19-20. In contrast, more complicated tax returns are those 

requiring one or more  [s]chedules along with their Form 1040. RX1522. 

When Intuit first marketed Free Edition, the most basic IRS forms available were Forms 

1040EZ and 1040A. See RX49 at 20; RX23. Free Edition was thus initially made available to 

consumers who filed using either form, and Intuit communicated Free Editions qualifications by 

referencing simple tax returns or those specific forms. See, e.g., RX23, RX24, RX1280. 

Before Tax Year 2018, the IRS substantially overhauled its tax forms (including eliminating 

Forms 1040EZ and 1040A) in response to a 2017 tax-reform law. RX81. In response, Intuit 

updated Free Editions qualifications to continue to align with the IRSs definition of a simple 

tax return. See, e.g., RX3, RX4, RX20, RX21. 

Even beyond Intuit and the IRS, the phrase simple returns is ubiquitous in the taxpreparation field. Californias Franchise Tax Board, for example, uses the same terminology, 

with the same meaning. See RX79. Intuits major competitors likewise use the same 

terminology in defining the qualifications for their free offerings. See RX82 (TaxAct: simple 

federal return); RX83 (H&R Block: simple returns); RX97 (H&R Block: Simple returns); 

RX98 (TaxSlayer: simple return). 

Intuit at times has expanded the tax situations covered by Free Edition beyond simple tax 

returns, but it has never changed the definition of simple tax returns. In Tax Year 2020, for 

instance, Intuit expanded Free Editions qualifications to include individuals who claimed 

unemployment income, which requires an attached schedule. Intuit made that decision ( that decision ( 

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) in response to the unprecedented unemployment rates caused by 

the COVID-19 pandemic. See GX398 at INTUIT-FTC-PART3-000489251-252. The definition 

of what constituted a simple return, however, continued, as it does today to align with the IRS 

definition. 

C. Intuits Advertising 

To raise awareness about Free Edition and its other free tax-filing solutions, Intuit 

advertises these products. GX156 (Ryan IH Tr.) at 130:18-131:1. Intuits goal in doing so is to 

get qualifying consumers to file for free using Free Edition, in the hope that those consumers 

who require a paid tax-filing product in future years will buy an Intuit product because they had 

a good experience with Free Edition. GX149 (Crosby Dep. Tr.) at 118:2-7; GX146 (Ryan Dep. 

Tr.) at 124:20-125:4. As such, Intuit largely targets its free advertising at those likely to 

qualify GX688 at 

5-6, 9; GX146 (Ryan Dep. Tr.) at 124:23-125:4; GX149 (Crosby Dep. Tr.) at 119:4-9. 

TurboTax does not run ads saying that TurboTax is free. As shown below, the 

challenged ads instead expressly (1) state that they are for Free Edition or another specific free 

offer and (2) disclose that there are qualifications to use the free product or offer. See GX156 

(Ryan IH Tr.) at 130:18-131:1. Nearly all the challenged ads90% of all ads and 100% of 

television adsdid so by stating that the free product or offer was for simple returns. RX1018 

(Golder Rep.) ¶198. Many free ads also directed (and still today direct) consumers to the 

TurboTax website, including by stating that consumers can see if they qualify at the website. 

And many ads linked (and still today link) directly to the website, where consumers must go to 

use a TurboTax product and where more information about qualifications is clearly provided.4

4

 A complete list of the allegedly deceptive ads, including their qualifying language, is 

attached as Appendix A. 

) in response to the unpreceden

qualify GX688 at 

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Additional details concerning the disclosures made in the different categories of 

TurboTax ads challenged here are provided below. 

1. Television Advertisements 

All Tax Year 2014-2022 television advertisements for Free Edition or other free offers, 

examples of which are shown below, stated (1) the specific SKU and/or offer being advertised, 

(2) that the SKU and/or offer was available only for qualifying consumers with simple tax 

returns only (or similar disclosure language), and (3) that more information about those 

qualifications was available on the TurboTax website. See RX15; RX16; RX17; RX18; RX163; 

RX200; RX376; RX584; RX598; RX1103-1123; RX1449; RX1472; GX321; GX325; GX328-

331; GX344-351; GX669. 

RX699 (TY2021) (screenshot). 

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RX1445 (TY2022) (screenshot). 

 Some of these ads included voiceover disclosures. For example, Intuits Tax Year 2021 

Free Edition television ads audibly stated, TurboTax Free Edition is free, and encouraged 

consumers to see details at turbotax.com. See, e.g., RX376, 584, and 598. Another ad Intuit 

ran in Tax Year 2021 expressly stated that a TurboTax Live expert can do your simple tax 

return for you, for free, and that for a limited time, TurboTax is free for simple returns, even 

when an expert files for you. RX1121. 

2. Display, Mobile, And Social-Media Advertisements 

The challenged display and other online ads for Free Edition identify the specific product 

being offered and contained text stating that the product offer was available only for qualifying 

consumers with simple tax returns (or similar disclosure language). GX459, GX506, GX507, 

GX550, GX551, GX732-GX734, GX738, GX740. Clicking any of those ads immediately 

brought the consumer to the TurboTax website. 

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GX734. 

Intuit also published video advertisements for Free Edition and other free offers online, 

including on platforms like YouTube and TikTok (as shown below). These ads all identify the 

specific product being advertised, display some variation of text stating that the product was for 

simple U.S. returns only, and invite customers to see if they qualify at TurboTax.com. GX200, 

GX206, GX557-GX559, GX561, GX562, GX581, GX582, GX589-GX593, GX616, GX620, 

GX621, GX623-GX626, GX628, GX629. Clicking any of these ads immediately brings 

consumers to the TurboTax website. 

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RX1479 (screenshot). 

3. Paid Search Advertisements 

A third category of challenged ads were those that appeared on the results pages of search 

engines such as Google and Bing. See GX151 at 61:23-64:19, 125:10-130:6. All such paid 

search advertisements that were actually seen by consumers included a link and the phrase 

Simple Returns Only, or similar language, either in or immediately under the link. See, e.g., 

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GX178-GX180, GX193-GX195, GX496, RX1436, RX1438. More recent paid search ads also 

include [s]ee if you qualify today immediately under the link. See, e.g., RX1436-RX1439. 

And again, clicking on paid search ads immediately brought (and brings) the consumer to the 

TurboTax website. 

RX1525. The paid search advertisements of course, are accompanied by organic search results. 

In the example above, the first such result includes in the headline, Free Tax Filing with 

TurboTax Free EditionSee if you Qualify. The result then goes on to state: TurboTax Free 

Edition is absolutely free for qualifying taxpayers. Id. 

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4. Email Advertisements 

During the relevant years, Intuit marketed (as it still markets today) its Free Edition 

product to simple filerstypically previous TurboTax customersthrough email advertising 

campaigns. As with all other challenged ads, these included language reflecting Free Editions 

qualifications, and more recent ads also invited consumers to [s]ee if you qualify. See, e.g.,

RX1419-RX1424; RX1431-RX1435. Like other online ads, clicking any of the email ads 

immediately brought the consumer to the TurboTax website. 

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RX1433.5

5. Radio Advertisements 

In Tax Years 2020 and 2021, Intuit marketed its Free Edition product on radio. The two 

such ads for Tax Year 2020 challenged here stated audibly Free Edition product only. For 

simple U.S. returns. GX627; GX630 (emphasis added). They also audibly encouraged listeners 

to [s]ee details at TurboTax.com. GX627; GX630. The two challenged Tax Year 2021 radio 

ads included similar language, stating audibly TurboTax Free Edition is free, and TurboTax 

Free Edition is for simple U.S. returns only. See if you qualify at TurboTax.com. GX617; 

GX618 (emphases added). 

D. Survey Evidence Shows That Reasonable Consumers Understand Not Every 

Consumer Is Qualified For Free Offerings 

Reasonable consumers understand the simple tax return and related qualifying 

language. In Tax Year 2018, for example, Intuit tested seven different free headlines and found 

that all respondents considered the file your simple tax return language to be very easy or 

somewhat easy to understand. RX304. And another survey testing the clarity of the phrase 

simple returns revealed that participants appreciat[ed] TurboTax showing that right up at the 

very beginning of the process. GX155 (Rubin Dep. Tr.) at 58:5-11; see RX44 at INTUIT-FFAFTC-000117680. 

 further confirms that consumers 

understand Free Editions qualifications. RX379; GX460. 

5

 The compendium of TurboTax free ads in Appendix B of Complaint Counsels pretrial 

brief includes incorrect tax years for a number of email ads. Complaint Counsel identify one 

email ad as from Tax Year 2015, GX388, that was actually for Tax Year 2016. Other email ads 

with incorrectly identified tax years include GX377, which is for Tax Year 2018, and GX374, 

which is for Tax Year 2017. 

 further confirms that consumers 

; GX460. 

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 sought to reflect consumers long-term 

impressions of the TurboTax brand, as those impressions were created by any number of sources, 

including possible prior exposure to TurboTax advertisements. See RX1017 (Hauser Rep.) 

¶¶78-79. 

. RX379 at 36. 

, id. at 28which is lower than the 

percentage of the population that can file for free using TurboTax, RX95 at 2; RX1017 (Hauser 

Rep.) ¶79. 

 RX379 at 27. 

E. Intuits Free Edition Business Strategy 

TurboTax markets Free Edition so that tax filers with simple returns can have a free 

option. E.g., GX156 (Ryan IH Tr.) at 118:10-118:19. Marketing a free product to qualifying 

consumers has long been a pillar of TurboTaxs core business strategy. See RX286 at INTUITFFA-FTC-000275245. Intuit hopes that customers who use its free products will have positive 

experiences and therefore choose to use paid TurboTax offerings as their tax situations become 

more complex. RX54 at INTUIT-FTC-PART3-000602511; GX152 (Johnson IH Tr.) at 124:17-

23. As Greg Johnson, General Manager of Intuits Consumer Group from 2018 to 2022, 

explained, customers tend to go through cycles of various type of life events[] , and as we 

have relationships and they trust us, over time  they may need us for a service thats more 

advanced than their current simple tax filings. GX152 (Johnson IH Tr.) at 124:25-125:14; 

accord GX156 (Ryan IH Tr.) at 118:10-118:19; GX148 (Somers Dep. Tr.) at 88:19-25. A focus 

¶¶78-79. 

. RX379 at 36. 

, 

Rep.) ¶79. 

 RX379 at 27. 

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on long-term customer retention is particularly rational in the tax-preparation industry, where a 

largely fixed set of consumers, combined with very low marginal costs and [the] annual 

requirement to file taxes means Intuit and its competitors derive greater value from exceeding 

customer expectations and repeated patronage of their customers than from one-off transactions. 

RX1027 (Deal Rep.) ¶10(b). Deception is never part of the plan. GX146 (Ryan Dep. Tr.) at 

125:6-126:8. 

Consistent with those business objectives, Intuit invests considerable time and energy 

ensuring its advertisements are as clear and transparent as possible on qualifications because 

[Intuit] want[s] customers to have a great experience and want[s] them to  get into the right 

product. GX149 (Crosby Dep. Tr.) at 118:8-21; accord GX651 at 2. Intuits internal website 

design guidelines, for instance, mandate (and mandated throughout the time of the challenged 

ads) that the website provide Free Editions qualifications using language that is direct and 

clear and include a link to eligibility criteria so its easy to see if [consumers] qualify for Free 

Edition. RX62 at INTUIT-FFA-FTC-000490076. If Intuit or its executives believed that 

TurboTax advertisements were misleading consumers and not getting customers into the right 

SKU, it would stop [its advertising] immediately. GX146 (Ryan Dep. Tr.) at 125:6-11. This 

commitment to transparency makes economic sense, as the cost of losing a customer angry about 

feeling deceived exceeds the revenue gained from that one-time deception. RX704 at 7; RX1027 

(Deal Rep.) ¶63. 

F. Consumer Reactions To The Challenged Ads 

Complaint Counsel have identified (Pretrial Br. 25) 228 potentially relevant consumer 

complaints for Tax Years 2015-2021. That is an average of 38 complaints per yearfor a 

product used annually by tens of millions. The tens of thousands of reviews on the TurboTax 

website for both free and paid SKUs are similarly devoid of any significant number of 

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complaints (and almost none of those that do exist are tied to the ads), instead showing average 

ratings of 4.8 and 4.5 out of 5 stars for Free Edition and Deluxe, respectively, from October 2021 

through December 2022. See RX1018 (Golder Rep.) ¶44. Further, the number of complaints 

filed about TurboTax on the Better Business Bureau (BBB) website is significantly less than that 

of other benchmark companies and competitors. See id. ¶¶84-90, fig. 10. And only 0.05% of the 

records of interactions with Free Edition in Intuits customer relationship management (CRM) 

databases are even potentially related to Complaint Counsels allegations. RX1520 (Deal Suppl. 

Rep.) ¶6. 

Relatedly, TurboTax consistently retains roughly 80% of its customers each year, RX924 

at 96; RX704 at INTUIT-FTC-PART3-000607315, including an even higher percentage of its 

paying customers. RX704 at INTUIT-FTC-PART3-000607315. Intuit judges its success in part 

by customer satisfaction rates, ratings and retention rates and considers its superior retention 

rate a huge success. GX150 (Goode IH Tr.) at 120:17-121:12. Those retention rates would 

not be possible if the paying consumers had an expectation (from the challenged ads or 

otherwise) that they were going to be able to file for free and then could not. RX1018 (Golder 

Rep.) ¶47; RX1027 (Deal Rep.) ¶¶93-95. 

G. The State Attorneys General Consent Order And Intuits Free Marketing 

Going Forward 

In May 2022, Intuit entered into a consent order with the attorneys general of all 50 states 

and the District of Columbia (the Consent Order). RX399. Intuit did so in order to put these 

allegations behind it, and consistent with its longstanding commitment to improving its 

advertising. The order was entered as a final judgment in state court in Los Angeles on June 25, 

2022. Id. at INTUIT-FTC-PART3-000614004-000614030. Although Intuit did not (and does 

not) concede liability or wrongdoing, id. at INTUIT-FTC-PART3-000614005, it paid $141 

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million into a settlement fund, see id. at INTUIT-FTC-PART3-000614012. The order also 

imposes restrictions on Intuits free advertising, effective last August, including that: 

Intuit is prohibited from airing either the Free Free Free ads that were the focus 

of the FTCs investigation and complaint or any video ads that are substantially 

similar in their repetition of the word free. 

For Non-Space-Constrained ads for free tax-preparation products, Intuit must 

disclose, Clearly and Conspicuously, and in Close Proximity to the representation 

that the product is free: (1) the existence and category of material limitations on a 

consumers ability to use that free product; and (2) that not all taxpayers qualify 

for the free product. 

For Space-Constrained ads (other than Space-Constrained video ads), Intuit 

must disclose that eligibility requirements apply, and [i]f made online, Intuit 

must also (1) Clearly and Conspicuously include a hyperlink to a landing page or 

webpage on a TurboTax Website that Clearly and Conspicuously contains full 

disclosure of all material eligibility restrictions or (2) link by clicking on the 

Advertisement itself to a landing page or webpage on a TurboTax Website that 

Clearly and Conspicuously sets forth full disclosure of all material eligibility 

restrictions. 

In Space-Constrained video ads, for the next ten years, Intuit must visually 

disclose, Clearly and Conspicuously, and in Close Proximity to the representation 

that the product is free: (1) the existence and category of material limitations on a 

consumers ability to use that free product; and (2) that not all taxpayers qualify 

for the free product. Additionally, for the same period, in Space-Constrained 

video ads except those that are 8 seconds or shorter, Intuit must verbally 

disclose, Clearly and Conspicuously and in Close Proximity to the representation 

that the product is free, that not all taxpayers qualify. 

The TurboTax website must disclose (1) Clearly and Conspicuously and very 

near to the [free] representation all material limitations on a consumers ability to 

use that free product, including, but not limited to, eligibility criteria for that free 

product, or (2) through a hyperlink (i) that is very near to the representation, (ii) 

that indicates that there are material limitations on a consumers ability to use that 

free product, and (iii) that links to a landing page or webpage that Clearly and 

Conspicuously sets forth all material limitations on a consumers ability to use 

that free product, including, but not limited to, eligibility criteria for that free 

product. 

For any consumer who does not qualify to use Free Edition, Intuit must disclose 

the ineligibility to the consumer Clearly and Conspicuously  at the earliest 

point at which it is reasonably possible to determine that ineligibility. 

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Id. at INTUIT-FTC-PART3-000614010-000614011.6 

H. Intuits Current Advertising 

Since it was entered, Intuit has fully complied with the Consent Order and no concerns 

have been raised by the states regarding Intuits compliance. To the contrary, Intuits Tax Year 

2022 advertisements, which are currently in use, leave no doubt that the companys free offers 

are qualified. 

So far this Tax Year, Intuits television advertisements have marketed a free offer for 

TurboTax Live Assisted Basic. See, e.g., RX1445; RX1449. All of these ads include prominent 

text in the middle of the title card stating that the advertisement is for Intuit TurboTax Live 

Assisted Basic. They also include white text on a dark blue background stating, Simple 

returns only. See if you qualify at turbotax.com. Ends 3/31. Offer subject to change. All Tax 

Year 2022 television ads for the free TurboTax Live Assisted Basic offer also include a 

voiceover stating that the offer is available for a simple return and to See if you qualify at 

TurboTax.com. 

Intuits free TurboTax ads in other channels, such as display and TikTok, likewise 

include clear and conspicuous disclosures consistent with the Consent Order. For instance, 

display video ads for the free TurboTax Live Assisted Basic offer state the advertisement is for 

Intuit TurboTax Live Assisted Basic and Simple returns only. See if you qualify at 

turbotax.com. Ends 3/31. Offer subject to change. RX1454-RX1461; RX1462-RX1469; 

RX1470-RX1477. Online video ads with audible free claims likewise include a voiceover that 

refers to filing a simple return for free and invites consumers to see if you qualify at 

turbotax.com. RX1454-RX1457; RX1462-RX1465; RX1470-RX1473. Similarly, all Tax Year 

6

 Capitalized terms in quoted provisions of the Consent Order are defined therein. See

RX399 at INTUIT-FTC-PART3-000614005-000614008. 

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2022 TikTok ads include for the entire duration of the advertisement white text stating, Simple 

returns only. See if you qualify at turbotax.com. Ends 3/31. Offer subject to change. 

RX1478-RX1489. These ads also state that the advertisement is for Intuit TurboTax Live 

Assisted Basic, id., and include a title card that invites consumers to see if you qualify at 

turbotax.com in white text contrasted against a blue background, RX1479; RX1481; RX1482; 

RX1484; RX1487. And display ads for the free TurboTax Live Assisted Basic offer state in 

white font on a blue background, in a font size that matches other text in the ad, Simple tax 

returns only. See if you qualify. See, e.g., GX733; GX738; GX740. 

Intuits Tax Year 2022 Free Edition ads communicate Free Editions qualifications in a 

similar fashion. Online video advertisements state clearly at the top of the screen that the 

advertisement is for TurboTax Free Edition, and include white font on a blue background 

similar in size to the text in the rest of the advertisement stating, Simple tax returns only. See if 

you qualify. RX1421; RX1423. Free Edition display ads all show that the advertisement is for 

TurboTax Free Edition and state, in white font on a blue background sized to match other ad, 

that the offer applies to simple tax returns only. See, e.g., RX1419; RX1420; GX734. Further, 

Tax Year 2022 Free Edition paid search advertisements include the language See if you qualify 

today and Free for Simple Tax Returns Only With TurboTax Free Edition immediately under 

the link. See, e.g., RX1436-RX1439. Clicking any link again brings consumers directly to the 

TurboTax Free Edition landing page where detailed disclosures are readily available without 

having to click any links. And similar to other current ads, Tax Year 2022 Free Edition email 

advertisements state TurboTax Free Edition, for simple tax returns only. See if you qualify. 

See RX1431-RX1435. Clicking on those ads also brings you immediately to the TurboTax 

website. 

ARGUMENT 

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A practice is deceptive in violation of § 5(a) [of the FTC Act] only if: (1) there is a 

representation, omission, or practice; (2) that is likely to mislead consumers acting reasonably 

under the circumstances; and (3) the representation, omission, or practice is material. FTC v. 

DirecTV, Inc., 2018 WL 3911196, at *5 (N.D. Cal. Aug. 16, 2018) (quotation marks omitted). 

Applying this standard, Complaint Counsel cannot satisfy their burden of proving by a 

preponderance of the evidence that any of the challenged ads was deceptive, Telebrands Corp., 

140 F.T.C. 278, 426 (2005). In any event, the prospective relief Complaint Counsel seek is 

unwarranted, not least because the Consent Order means the conduct Complaint Counsel targets 

is already enjoined. And a host of threshold issues precludes any relief even apart from the 

merits, including mootness, laches, the statute of limitations, a host of constitutional infirmities 

in these proceedings. 

I. COMPLAINT COUNSELS ALLEGATIONS THAT INTUITS HISTORICAL MARKETING 

PRACTICES WERE DECEPTIVE ARE WRONG

The central premise of Complaint Counsels theorythat Intuits ads were deceptive 

because they conveyed to a reasonable consumer, either expressly or implicitly, that all 

TurboTax products can be used for freeis refuted by the evidence. 

As a threshold matter, it is critical to bear in mind that, contrary to Complaint Counsels 

assertion (Pretrial Br. 1), this is no textbook deceptive-advertising case. Complaint Counsel do 

not allegeand certainly cannot provethe hallmarks of such a case, such as systematically 

defective products or services or any failure to perform promised services. FTC Statement on 

Deception, 103 F.T.C. 174 175 (1984), appended to Cliffsdale Assoc., 103 F.T.C. 110 (1984). 

This case involves ads for an industry-leading product that is used by millions and millions of 

consumers each year to who file their taxes for free. The challenged ads are no different (and 

frankly far clearer) than most ads that run on television or elsewhere. And even though the 

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challenged ads for that product have run widely, for many years, there are almost no consumer 

complaints about it, and survey evidence shows consumers were in fact not deceived. 

As such, this case has few analogues in cases brought by the FTC, in Part 3 or elsewhere. 

Perhaps the only close one is FTC v. DirecTV, Inc. Like that case, this one involves a highinvolvement product, RX1017 (Hauser Rep.) ¶102i.e., a considered purchase typically 

made only after consumers go through [an extended] processthat is advertised through 

several different media, including television commercials, Internet banner ads, and the 

products website, DirecTV, 2018 WL 3911196, at *3. And here, as DirecTV, [t]he FTCs 

ambition in attempting to show that the multi-tiered marketing of a well-reviewed and widely 

used product was deceptive substantially exceed[s] the strength of its evidence, id. at *19. In 

that case, as here, the bulk of the Commissions case law has little application and risks deterring 

the marketing of a product consumers not only understand but benefit from greatly. As shown in 

the balance of this section, none of Complaint Counsels arguments has merit. 

A. Intuits Advertising Did Not And Does Not Convey To Consumers That 

TurboTax Is Free Without Qualification 

Complaint Counsel suggest that approximately 300 Intuit advertisementslisted in 

Appendix B of their pretrial briefeither expressly or implicitly conveyed false or misleading 

claims. But Complaint Counsel actually address only a handful of those ads in their brief, 

without explaining why those ads were chosen or how the ads they ignore might differ. 

Complaint Counsel do not argue, let alone establish, that those ads are representative of all free 

TurboTax ads, or of even the roughly 300 ads they list in Appendix B. And as to the handful of 

ads they address, Complaint Counsel often mischaracterize what is conveyed. Disregarding 

those mischaracterizations and focusing on the actual content of the ads makes clear that Intuit 

made no false or misleading claims. 

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1. The Ads Do Not Contain The Express Claims Alleged 

Express claims are those that directly state the representation at issue. See FTC 

Statement on Deception, 103 F.T.C. at 176. Complaint Counsel posit (Pretrial Br. 30-31) that the 

challenged ads expressly claim that consumers can file their taxes for free using TurboTax. 

But none of the ads makes this claim. Instead, as shown in Appendix B to Complaint Counsels 

pretrial brief, the ads make express claims such as TurboTax is FREE for simple tax returns 

only and TurboTax Free Edition is free (both of which are completely true and not even 

argued to be deceptive), or simply include the word freewhich is not even a claim about 

TurboTax or any TurboTax product, GX161 (Maxson Dep. Tr.) at 239:7-15. Indeed, when 

challenged, Complaint Counsel have conceded that there are no ads saying TurboTax is free. 

Id. at 71:19-20; see also Compl. Counsels Resps. & Objs. to Intuits SMF (Sept. 8, 2022) ¶17 

(conceding that Intuits Free Edition advertisements do not expressly contain the phrase all 

consumers can file their taxes for free with TurboTax). Those concessions doom Complaint 

Counsels express-claim theory, because [e]xpress claims are ones that directly state the 

representation at issue, i.e., where the message is stated unequivocally, Thompson Med. Co., 

104 F.T.C. 648, 788 (1984). 

Appendix B identifies one ad of more than 300 (a Tax Year 2021 television ad) that 

Complaint Counsel contend makes the express claim that TurboTax is free no matter how you 

want to file? But that selective quote ignores the rest of the adwhich is improper because 

courts, in assessing express claims, consider the entirety of the representations in an ad, not 

selective snippets, Eckler v. Wal-Mart Stores, Inc., 2012 WL 5382218, at *3 & n.4, *6 & n.9 

(S.D. Cal. Nov. 1, 2012); see also Marksberry v. FCA US LLC, 606 F. Supp. 3d 1075, 1082 (D. 

Kan. 2022) (Plaintiff contends that lifetime means lifetime. But Plaintiffs argument would 

require the Court (and consumers) to ignore other words in the warranty.). Indeed, Complaint 

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Counsels argument ignores the very next two sentences spoken after did you know TurboTax 

is free no matter how you want to file, namely I dont believe that. Its true, anyone with a 

simple tax return can get help from an expert for free. GX309 (emphasis added). Moreover, 

the ad ends by stating verbally, [f]or a limited time, TurboTax is free for simple returns, no 

matter how you file. Id. (emphasis added). Indeed, Complaint Counsels pretrial brief 

acknowledges (at 12) that this ad contained the repeated verbal statement that the offer was 

available only to [a]nyone with a simple tax return. The ad also stated, both at the beginning 

and the end, that the free offer was [f]or simple tax returns only, and invited consumers to 

[s]ee if you qualify at turbotax.com. Id. It is simply not true that this ad, considered in its 

entirety, expressly claimed that all TurboTax products are free. 

Complaint Counsel also cite (Pretrial Br. App. B 17) GX177, which does not include 

qualifying language similar to that in the ad just discussed. But Complaint Counsel offer no 

evidence that any consumer ever saw that adand as Cathleen Ryan, Intuits Vice President of 

Marketing, will testify at trial, Intuit did not develop GX177 or pay to have it run. In fact, the ad 

violates the express instructions provided to Intuits advertising agencies in Tax Year 2020. 

GX439 (Ryan Decl.) ¶26. 

Every other ad identified by Complaint Counsel between Tax Years 2014 and 2022 

contained at least one clear statement (in writing, orally, or both) that only a subset of consumers 

could use the advertised free offer and stated clearly that the ad was for the free product, not 

TurboTax. RX1018 (Golder Rep.) ¶99. These statements were frequently accompanied by a 

call to visit the TurboTax website for more qualifying detail. Id. ¶103. This consistent use of 

qualifying language confirms that none of the ads ever portrayed the entire suite of TurboTax 

software as free. 

Complaint Counsels express-claim theory must be rejected. 

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2. The Net Impression Of The Ads Do Not Support The Implied Claims 

Complaint Counsel fare no better with their implied-claims theory. There simply is no 

sound basis to conclude that Intuits ads implied to a reasonable consumer that all TurboTax 

products are free. 

Again, this case closely parallels DirecTV. There, the FTCs theory that Defendants 

advertisements were likely to mislead reasonable consumers,2018 WL 3911196, at *5, was 

rejected because the advertisement adequately disclose[d] the details that the FTC claim[ed] 

were omitted, and hence the net impression of the [challenged] advertisement on its face 

would not be likely to mislead a reasonable consumer, id. at *9. The same is true here. The ads 

Complaint Counsel challenges (except for GX177, which, again, Intuit did not create, supra

p.37) stated that TurboTax Free Edition is free (which it is), provided details about who qualifies, 

and directed consumers to the TurboTax website for additional information. And here too, 

Complaint Counsels argument depends on impermissibly ignoring portions of the ads in 

discerning what claims were made. Reasonable consumers do not ignore that information. As a 

result, the ads do not create the net impression contended by Complaint Counsel. 

a. Complaint Counsel Improperly Ignore The Ads Qualifying 

Language 

At its core, Complaint Counsels implied claim rests viewing each challenged ad not as a 

coherent whole, but rather as a series of discrete pieces. Again and again, Complaint Counsel 

focuses (e.g., Pretrial Br. 2-4, 30, 32) on the ads inclusion of the word free. But the 

advertised product is free. Complaint Counsel, by necessary implication, are arguing that the ads 

conveyed that other products not referenced in the ad are also free. They have not come close to 

satisfying their burden that this is so, and logic and the evidentiary record demonstrate that it is 

not so. 

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In part, Complaint Counsels theory fails because the claims an ad implicitly conveys are 

not determined through isolated examination of parts of an ad. Instead, courts must assess the 

net impression of the entire ad. DirecTV, 2018 WL 3911196, at *8. This assessment requires 

taking into account the entire document, the juxtaposition of various phrases in the document, 

the nature of the claim, and the nature of the transaction. FTC Statement on Deception, 103 

F.T.C. at 176 (emphasis added); accord S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 

238 (2d Cir. 2001) (courts must consider the advertisement in its entirety and not  engage in 

disputatious dissection) (omission in original); quotation marks omitted; emphasis added)). Put 

differently, [t]he entire mosaic should be viewed rather than each tile separately. Id. The FTC 

itself has specifically emphasized this principle, stating in the context of digital ads that [w]hen 

identifying the[] claims in an ad, the analysis should not focus only on individual phrases or 

statements, but should consider the ad as a whole, including the text, product name, and 

depictions. RX96 (.com Disclosures: How to Make Effective Disclosures in Digital 

Advertising (Mar. 2013)) at 5 (emphasis added); see also American Home Prods., 98 F.T.C. 136, 

374 (1981) (discerning implied claims by assessing the challenged ads in their entirety). 

In addition to asking this Court to ignore the qualifying language in Intuits ads, 

Complaint Counsel wrongly assert that Intuit has made many of its free claims without any 

qualification whatsoever. Pretrial Br. 38. The only support Complaint Counsel offer for this 

assertion about many of Intuits claims are two paid search ads from Tax Year 2019each of 

which did include qualifying language. See Compl. Counsels Pretrial Proposed Findings of Fact 

¶¶83, 84. Each specified that Over 50 Million Americans Can File With TurboTax® Free 

Edition, making clear not only that the free claim pertained to a specific product (Free 

Edition) but also that not everyone qualifies for that product. Complaint Counsels attempts to 

misrepresent the plain text of the ads should be disregarded. 

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The rest of the challenged ads, i.e., looking beyond the two Complaint Counsel cite in 

making claims about many of the 300, likewise included ample qualifying language. Each 

statedin oral or written format, or boththat the free offer was limited to a single product or 

offer (e.g., TurboTax Free Edition is free voiceovers) and available to a subset of consumers, 

namely, those with simple tax returns. See supra pp.20-27, 32-33; Appendix A. Thus, none of 

the ads Complaint Counsel claim is deceptive implied that TurboTax [including the paid 

versions thereof] is free. 

This is true even for ads that, by and large, repeated the word free several times. 

Simply say[ing] the word free in an ad for TurboTax Free Edition is not a claim that 

TurboTaxs paid offerings are free, in addition to the free product being advertised. GX161 

(Maxson Dep. Tr.) at 239:7-15. Again, these ads all included qualifying language, supra pp.20-

27, 32-33, making clear the parameters of the free offer, infra p.40-41. That is not apparent from 

reading Complaint Counsels pretrial brief, however, because those qualifications are once again 

entirely omitted from Complaint Counsels descriptions or paraphrasing of the ads. But again, 

reasonable consumers do not ignore such language, so the language defeats Complaint Counsels 

notion that the ads implied that all TurboTax products were free. 

The analysis does not change if the Court instead asks whether Intuit deceptively used the 

phrase simple tax returns to mislead people into believing that a free offer was free for them, 

specifically, when it was not. For one thing, Complaint Counsel claim (Pretrial Br. 38) that 

disclosure was too inscrutable to alter a reasonable consumers understanding of the ads. 

Moreover, it is irrelevant whether reasonable consumers understood the precise meaning of 

simple tax returns. What matters is that the phrase conveys, at the very least, that Free Edition 

is not appropriate for more complex tax returns. See, e.g., GX155 (Rubin IH Tr.) at 55:16-18 

(simple tax returns  let[s] consumers know that there are eligibility requirements for using 

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TurboTax Free Edition.). Multiple consumers confirmed an understand[ing] that some people 

do not have simple tax returns. GX136 (Schulte Dep. Tr.) 70:19-21; accord GX138 (Adamson 

Dep. Tr.) 69:15-70:2 (similar); GX135 (Phyfer Dep. Tr.) 66:10-12, 18-23 (similar). 

If a reasonable consumer does not know if she has a simple return, she does not leap to 

the conclusion that she does and thus can file for free. Rather, as Professor Golder will explain, 

she investigates furtherand the challenged ads made clear where she (and other consumers) 

could find the needed information, inviting them to see if [they] qualify or see details on the 

TurboTax website. RX1018 (Golder Rep.) ¶103; see supra pp.20-27, 32-33. That invitation is 

part of the ads overall message, and thus further undermines the idea that the ads implied that all 

TurboTax products are free, because reasonable consumers understand and follow such advice. 

See GX124 (Bodi Dep. Tr.) at 15:20-16:8 (recognizing the TurboTax website clearly identified 

if you had a simple tax return); GX128 (Benbrook Dep. Tr.) at 28:16-29:10 (recognizing that 

clicking on a hyperlink on the TurboTax website would provide additional details about what 

qualifies as a simple return); GX137 (Dukatz Dep. Tr.) at 67:3-15 (similar). Online, the FTC 

recognizes that this type of research is the norm. Complaint ¶¶8-9, Docket No. 9372, 1-800-

Contacts, Inc. (Aug. 8, 2016). And of course, saying see if you qualify is itself qualifying 

language to the free claim, further demonstrating that Complaint Counsels theory that Intuit is 

making unqualified free claims is unfounded. As the Ninth Circuit recently explained, [t]o 

analyze whether  ambiguity could mislead a reasonable consumer, courts should consider[] 

other information readily available to the consumer that could easily resolve the alleged 

ambiguity. Moore v. Trader Joes Co., 4 F.4th 874, 882 (9th Cir. 2021). The Seventh Circuit 

has likewise recently st[oo]d by the general principle that deceptive advertising claims should 

take into account all the information available to consumers. Bell v. Publix Super Markets, Inc., 

982 F.3d 468, 477 (7th Cir. 2020). 

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Applying that principle, one court recently held that the mere fact that each 

advertisement [for a warranty] did not set forth all the details or requirements of the Warranty on 

the advertisement does not indicate deception, because [t]he advertisements informed 

consumers to review the Warranty for full details, and the full details were included in the 

warranty booklet. Marksberry, 606 F. Supp. 3d at 1083. Referring consumers to the TurboTax 

website for further information was even more reasonable than the reference to the warranty 

booklet in that case, moreover, because consumers seeing any of the challenged TurboTax ads 

had to visit the website to actually use Free Edition. In fact, even Complaint Counsels rebuttal 

expert, Dr. Yoeli, absorbed the overall message that the ads (including the qualifying language) 

conveyed, agreeing that if he was uncertain whether he qualified to file for free, he would click 

the link on the TurboTax website to find out. RX1396 at 160. 

Complaint Counsel argue, however, that the qualifying language in Intuits video and 

website ads was inadequate because the term simple tax returns is supposedly anything but 

simple and changes regularly. Pretrial Br. 43; see also id. at 40. This myopically focuses on 

only one piece of the qualifying language, but even on its terms is wrong. The definition does 

not change regularly; it has consistently aligned with the IRSs definition, and thus changed only 

when the IRS changed its entire form structure. And in any event, it is black-letter law that the 

reasonable consumer understands concepts that are commonplace in the [relevant] market, 

Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016). Simple tax returns is one such 

concept, see RX82; RX83; RX97; RX98; RX359 (competitor ads referencing simple returns). 

That is especially so when, as in the challenged ads, simple is used in its ordinary sense, i.e., to 

let folks know that [Free Editions] eligibility requirements are tied to the complexity of their 

tax return, GX155 (Rubin Dep. Tr.) at 55:12-20. Even Dr. Yoeli acknowledged that, based on 

the term simple tax returns only, he would probably not qualify for Free Edition because he 

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has somewhat complicated taxes. RX1396 (Yoeli Dep. Tr.) at 188:3-18, 195:21-196:15; see 

also RX1392 (Novemsky Dep. Tr.) at 48:6-19 ([F]or TurboTax I would say that you can view 

the requirements needed to qualify for a simple tax return on their Website.); RX1329 (When 

you sign up for a tax service like H&R Block or TurboTax, you can view the requirements 

needed to qualify for a simple tax return and details on what is included.). 

b. Free-Offer Qualifications Were, And Are, Adequately Conveyed 

The qualifying language in the challenged ads was sufficiently prominent to ensure that 

consumers would see (and in many cases, also hear) it. Removatron Intl Corp. v. FTC, 884 F.2d 

1489, 1497 (1st Cir. 1989). Indeed, the language was always presented in a manner that courts 

have consistently deemed adequate. 

For example, all television advertisements between Tax Years 2014 and 2021 identified 

in the title card the specific SKU or offer being advertised. All television ads also included 

qualifying language at the bottom of the screen, language presented (except in Tax Years 2015 

and 2017) in the closing seconds of the commercial, consistent with the norm of reasonable 

business practice in TV advertising. Estrella-Rosales v. Taco Bell Corp., 2020 WL 1685617 at 

*2 (D.N.J. April 7, 2020). As Professor Golder explained, placing disclosures at the bottom of 

the screen, where Intuits competitors and other comparable companies also place their 

disclosures, is standard in TV ads, and therefore consumers are conditioned to look for any 

disclosures in this location. Moving such a disclosure location would be out of step with 

industry norms and may reduce the likelihood that consumers would see the disclosure. 

RX1018 (Golder Rep.) ¶132. Tax Year 2020 and 2021 radio advertisements similarly included 

clear audio disclosures at the end identifying the free product and the qualifications. Supra p.27. 

And all other ads, whether display, paid search, or email, included written qualifying language 

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immediately next to the representation[], such that no reasonable reader could ignore it, 

Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995); supra pp.20-27, 32-33. 

A close examination of Intuits current ads shows that Complaint Counsels allegations of 

inadequate disclosure are even more untenable. To the contrary, Intuits free ads now not only 

feature the specific service the offer applies to, but also prominent text appears in contrasting 

color and font explaining that the offer is for [s]imple returns only, or other similar language, 

and encouraging the viewer to visit Turbotax.com to see if you qualify. Supra pp.32-33. 

Indeed, some of these adsincluding shorter ones on social media channels such as TikTok

present the qualifying language for the entire length of the ad. E.g., RX1480. 

A holistic analysis performed by Professor Golder confirms that the challenged ads do 

not hide the qualifying language. Instead, Professor Golder concluded that the ads contain 

disclosure and design elements that are both consistent with the FTC guidelines, marketing 

literature, and comparable to relevant benchmark companies and industry standards, to which the 

reasonable consumer is accustomed. See RX1018 (Golder Rep.) ¶¶127-137. In other words, 

Intuits ads do not stand out as unusual in any way from the ads that run on television all day 

long. 

Complaint Counsel posit (Pretrial Br. 39) that Intuits video-ad disclosures were 

inadequate because they were frequently in writing only and not read aloud. But there is no 

requirement that qualifying language be read aloud to prevent deception. As explained, 

moreover, see supra pp.21-24, 32-33, many Intuit video ads have included qualifying language 

in both text and audio, including express representations that the product being advertised is 

TurboTax Free Edition. See, e.g., RX376, 584, and 598. The inclusion of audio disclosures 

actually sets Intuits ads apart from most on television. See RX1521 at 8. 

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Complaint Counsel next assert (Pretrial Br. 39-40) that the qualifying language in Intuits 

video ads appeared in faint type and was disproportionately small and not readable. But that 

too is the subjective opinion of Complaint Counsels lawyers, not what the facts and evidence 

support and again, it is inconsistent with what consumers actually see. The testimony in the 

record is that the text is visible, not  disproportionately smaller than the language it 

qualified, GX161 (Maxson Dep. Tr.) at 217:1-2, and larger and statistically significantly 

different than those of benchmark companies, RX1018 (Golder Rep.) ¶132. This case is thus a 

far cry from the case Complaint Counsel cite, which involved an advertisement the perusal of 

which would reveal  no indication of the allegedly concealed product information. FTC v. 

Cyberspace.Com LLC, 453 F.3d 1196, 1201 (9th Cir. 2006) (emphasis added). In any event, 

disclosures are routinely deemed adequate even where their text is smaller than most of the text 

in the advertisement, DirecTV, 2018 WL 3911196, at *8; accord Freeman, 68 F.3d at 287; 

Castagnola v. Hewlett-Packard Co., 2012 WL 2159385, at *10 (N.D. Cal. June 13, 2012). And 

as shown in the exhibit reproduced immediately below, the disclosure that the challenged ads are 

for TurboTax Free Edition and not TurboTax could not be clearer; indeed, Complaint Counsel 

do not argue otherwise. 

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RX699 (TY2021) 

Complaint Counsel also say that the qualifying language in Intuits video ads appeared 

for just a few seconds. Pretrial Br. 40. But again, Complaint Counsel are making up a nonexistent requirement, this time that qualifying language appear for some (unspecified) minimum 

amount of time. No such requirement exists; advertising in which a disclosure appears only in 

the closing seconds of the commercial, has been held adequate as a matter of law and is indeed 

commonplace on television. Estrella-Rosales, 2020 WL 1685617, at *2. This is unsurprising, 

given that anyone familiar with television ads for consumer products knows that these 

disclaimers are often presented at the end of the ad. Id.; see also Brown v. Federal Election 

Commn, 386 F. Supp. 3d 16, 23 (D.D.C. 2019) (To comply with [its] disclaimer requirement, 

the FEC says, all Brown has to do is state [the relevant information] at the end of her ad.). The 

amount of time the qualifying language appeared here was particularly appropriate given the 

clarity and simplicity of the disclosures at issue, which took only a few seconds to communicate 

and digest. RX1018 (Golder Rep.) ¶¶105, 135. As noted, moreover, Intuits disclosures 

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appeared at the bottom of the screen and toward the end of ads, which is where and when 

consumers are conditioned to look for them because that is where they typically air. See 

RX1018 (Golder Rep.) ¶¶131-132. Finally, courts routinely hold that a disclosure is adequate if 

it put[s] consumers on notice that the complete details of the offer can be found elsewhere. 

Platt v. Winnebago Indus., Inc., 960 F.3d 1264, 1277 (10th Cir. 2020); accord Marksberry, 606 

F. Supp. 3d at 1083 ( the mere fact that each advertisement did not set forth all the details or 

requirements of the Warranty on the advertisement does not indicate deception because [t]he 

advertisements informed consumers to review the Warranty for full details, and the full details 

were included in the warranty booklet); Estrella-Rosales, 2020 WL 1685617, at *2 (a disclosure 

that a fast-food promotion was available [a]t participating locations for a limited time and that 

[p]rices may vary was consistent with the norm of reasonable business practice in 

television advertising and sufficient to put reasonable consumers on notice of the promotions 

restrictions). Intuits disclosures are far clearer and precise than prices may vary. 

As for the qualifying language on the TurboTax website, Complaint Counsel incorrectly 

claim (Pretrial Br. 42) that Intuits use of hyperlinks violates the FTCs .com Disclosures 

guidelines. These guidelines (like the so-called free guide that Complaint Counsel treat as 

gospel) do not constitute binding law and violation of the guidance publications do not establish 

a violation of the FTC Act. Order Denying Respt Mot. for Disc. Pursuant to Rule 3.36 at 4 

(Nov. 7, 2022). That aside, the guidelines state only that [d]isclosures that are an integral part 

of a claim or inseparable from it should not be communicated through a hyperlink. Pretrial Br. 

42. Here, the fact that Free Edition has qualificationswhich is the integral point because it 

makes clear that not all TurboTax products are freeis communicated by the hyperlinked text 

itself, including the see if you qualify or simple returns only language. Intuits use of 

hyperlinked disclosures is thus unlike the [s]ymbols or icons that the FTCs guidelines 

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disapprove, which by themselves are not likely to be effective because they do not provide 

sufficient clues about why a claim is qualified or the nature of the disclosure. RX96 at 12. 

(Indeed, Intuits hyperlinked disclosures resemble the examples of acceptable hyperlinked 

disclosures in the agencys guidelines. See id. at A-8.). Reasonable consumers, moreover, 

understand that they can click hyperlinks to learn more information, cf. Dohrmann v. Intuit Inc., 

823 F. Appx 482, 484 (9th Cir. 2020) (TurboTaxs website  provided sufficient notice to a 

reasonably prudent internet user because [t]he relevant warning language and hyperlink  

were conspicuous), and there is no reason offered beyond Complaint Counsels unsupported 

assertions to believe otherwise. 

Not only were the qualifications in Intuits ads sufficiently prominent and clear, more 

thorough disclosures would likely have been counterproductive. Articulating every detail of 

every possible tax situation in an advertisementespecially a short video advertisementin the 

way Complaint Counsel appear to envision, likely would have induced cognitive overload with 

consumers. RX1018 (Golder Rep.) ¶¶26, 125, 231; cf. MHC Mut. Conversion Fund, L.P. v. 

Sandler ONeill & Partners, L.P., 761 F.3d 1109, 1117 (10th Cir. 2014) ([r]equiring more 

extensive disclosure by securities issuers might do more to invite information overload than 

materially benefit the consumer). Even Complaint Counsels expert, Nathan Novemsky, opined 

that the disclosures Complaint Counsel would require could not be effectively communicated in 

a 30-second ad, RX1392 (Novemsky Dep. Tr.) at 316:19-20, and that such an ad is not a 

place to try to share lots of or complicated information with consumers because [t]hey cant 

 and wont process that, id. at 317:19-318:3. He further stated that a six-second TikTok ad 

would be even less appropriate for complicated information, because six seconds isnt very 

long to get something across in a way that consumers would actually meaningfully absorb it. 

Id. at 318:4-14. 

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Finally, as one Intuit executive has explained, it would have been a terrible idea to 

include much more detail in TurboTax TV ads about what tax forms were covered by Free 

Edition because people did not understand their tax situations in the context of specific forms, 

see GX155 (Rubin IH Tr.) at 209:7-210:7a problem exacerbated by the IRSs substantial 

changes to its forms a few years ago, see supra p.19. Another executive similarly explained that 

providing more details, like disclos[ing] whenever it uses the word free in any marketing 

communication that a majority of taxpayers do not qualify to use the free product, would have 

a very negative effect on the ability for simple tax filers to understand that they are able to file 

for free and, as a result, would reduce the overall usage of free filing tax products for simple tax 

returns. GX146 (Ryan Dep. Tr.) at 128:1-18 (emphasis added). 

c. Consumer Testing Confirms That The Challenged Ads Did Not 

Convey That All TurboTax Products Are Free 

If the ads themselves left any doubt about whether Intuits advertising falsely implied to 

any consumers that they could file for free with TurboTax, consumer testing dispels that doubt. 

To begin, 

GX460 at CC-00009559, CC-00009563. Given that, it defies logic to say (as Complaint 

Counsel do (Pretrial Br. 22)) that ads with qualifying languagei.e., the ads that actually ran

wrongly implied to any meaningful number of consumers that they could file for free. 

Complaint Counsel argue, however, that another Intuit test, from Tax Year 2018 (the 

TY18 Test), see GX340, shows that Intuits ads implied that consumers ineligible for Free 

Edition could still file for free with TurboTax. Pretrial Br. 22. The TY18 Test shows no such 

thing. For one, the test showed viewers draft ads that lacked the qualifying language found in 

the ads that actually ran. GX340 at 43. Moreover, the test measured neither viewers assessment 

of their own ability to file for free nor the effectiveness of the ads qualifying language; it 

To begin, 

GX460 at CC-00009559, CC-00009563. Given that, it

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examined how certain draft ads performed in [c]ommunicating the key message of an ad in an 

emotional way and positioning Intuits CPA on demand feature as new and different. Id. at 2. 

Indeed, the primary focus of this research was an ad that did not concern Free Edition. GX146 

(Ryan Dep. Tr.) at 96. 

In arguing otherwise, Complaint Counsel point (Pretrial Br. 11) to the statement in the 

test results that [a]ds communicate the parent brand, TurboTax well, however, only about ~5% 

take away the sub brand (TurboTax Free, TurboTax Live), GX340 at 7. This statement merely 

reflected unaided responses to a specific, open-ended question: Which brand do you think this 

ad was for? Id. at 14. Understandably, most consumers would consider the relevant brand to be 

TurboTax. TurboTax Free Edition is a specific SKU, which respondents were not asked to 

identify. 

Complaint Counsel also quote (Pretrial Br. 11, 22) language from the TY18 Test about 

consumers supposed belief that they can file [their] taxes for free, GX340 at 15. But that 

language says nothing about whether respondents believed they could file for free using 

TurboTax Free Edition (or, indeed, using TurboTax at all). And even if it did, the population of 

survey respondents skewed heavily toward consumers who would, in fact, qualify for Free 

Edition. GX340 at 3; GX159 (Ryan Dep. Tr.) at 120:8-17. 

Lastly, Intuits testing shows that the percentage of consumers who believed they could 

file for free with TurboTax almost exactly matched the percentage who could in fact file for free. 

These results have been repeated on numerous occasions. For example, 

RX592 at INTUIT-FTC-PART3-

000602669. 

 Id. at INTUIT-FTC-PART3-000602703. 

ions. For example, 

RX592 at INTUIT-FTC-PART3-

000602669. 

 at INTUIT-FTC-PART3-000602703. 

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qualified to use Free Edition but rationally chose to use a paid TurboTax product to maximize 

their refund. RX1027 (Deal Rep.) ¶¶112-115 (describing population of 

who qualified to use Free Edition but rationally 

chose to use a paid product to gain access to optional credits and deductions). This close match 

between expectation and reality is a strong indication that Intuits ads did not imply the false 

message Complaint Counsel claim. 

d. Intuit Has Never Intended To Convey That All TurboTax Products 

Are Free 

As the Commission has recognized, an advertisers intent is powerful evidence of the 

claim that in fact was conveyed to consumers. Telebrands, 140 F.T.C. at 304. Intuits intent 

in marketing its free offers, consistent with its broader business incentives, was to convey that 

those offers were free for qualifying consumers. As one executive has testified, the intent  of 

advertising the TurboTax Free Edition is to make sure that we are communicating that for those 

customers who have simple tax returns,  there is a free option with the TurboTax Free Edition 

for those who qualify. RX149 (Crosby Dep. Tr.) at 84:6-12; accord; RX156 (Ryan IH Tr.) at 

110:16-20, 130:18-131:1. Intuit wanted to convey this message because, as explained, it hoped 

that consumers with simple tax returns would have a good experience filing for free with Free 

Edition, and thus would use an Intuit paid product if in future years they had more complex tax 

situations. See supra pp.28-29. 

This long-term strategy aligns with Intuits economic incentives in the competitive taxpreparation industry. First, companies in that industry are unusually reliant on repeat customers, 

given the relatively fixed population of tax filers. RX1027 (Deal Rep.) ¶26. Second, consumers 

have many choices when it comes to tax preparation, as well as the ability to change tax-prep 

on of 

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providers easily. Id. ¶¶51, 53. In fact, many providers make it easy for a consumer to import 

data from a previous years return submitted using a different provider. Id. ¶53. Intuits 

competitors even advertise this feature in trying to lure Intuits customers. See RX899 (March 4, 

2022 H&R Block Ad); RX1027 (Deal Rep.) ¶53. Accordingly, [h]aving millions of short-term, 

dissatisfied customers who became victims of a bait and switch program like Complaint 

Counsel theorize would eliminate future revenue streams from the deceived customers, would 

spread negative perceptions of Intuit, and would not be economically rational. RX1027 (Deal 

Rep.) ¶11. Intuit thus conveys that there are qualifications to use Free Edition precisely because 

it wants customers satisfied with their experience and com[ing] back year after year. GX155 

(Rubin IH Tr.) at 213:7-9. If customers were not aware of Free Editions qualifications and 

attempted to use it, they would be upset and they wouldnt want to come back year after year. 

Id. at 213:12-15. Put differently, because Intuits reputation is critical for [Intuits] business 

success, it would stop immediately any conduct that it believed endangered that reputation or 

created consumer pain points. GX146 (Ryan Dep. Tr.) at 125:6-126:8; see also United States v. 

H & R Block, Inc., 833 F. Supp. 2d 36, 75 (D.D.C. 2011) (noting the importance of reputation 

and brand in driving consumer behavior in purchasing [Digital Do It Yourself] products). 

Intuits intent to advertise only Free Editionand not the paid TurboTax productsas 

free is confirmed by its efforts to improve its free ads over the years. In Tax Year 2019, for 

example, Free Edition television ads were changed to emphasize the name Free Edition. 

GX692. And in Tax Year 2021, a voiceover was added telling consumers to see details at 

TurboTax.com. GX711. It is also shown by Intuits continued expansion of the features 

available in the Free Edition product. GX640 at INTUIT-FTC-PART3-000485805. These 

improvements and others further undermine Complaint Counsels claim that any of the 

challenged ads was deceptive. Cf. DirecTV, 2018 WL 3911196, at *18 (DIRECTVs  

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following through on a number of improvements does not support a finding that the company 

violated the FTC Act. If anything, this evidence further underscores how this case is very unlike 

the straightforward deception cases upon which the FTC purports to rely.). 

B. Reasonable Consumers Were Not Deceived By Intuits Advertising 

1. Intuits Ads Were Not, And Are Not, Deceptive Door Openers 

Complaint Counsel concede (Pretrial Br. 44) that consumers without simple tax returns 

learned that was true prior to purchasing a paid version of TurboTax. Indeed, the evidence 

makes plain that reasonable consumers are made aware of this information far in advance of the 

point of purchaseif not from the qualifying language in Intuits ads then from the disclosures 

they necessarily encountered on the TurboTax website before they began preparing their taxes, 

see supra pp.20-27, 32-33; see also Order Directing Further Proceedings and Specifying Facts 

Without Substantial Controversy ¶7 (Jan. 31, 2023). Complaint Counsel resist this fact, 

contending that the evidence show[s] that it takes nearly [a] quarter of an hour and pages of data 

entry to reach the hard stop related to student loan interest deductions. Pretrial Br. 5 n.12 

(citing GX240). But the cited exhibit actually shows that it takes less than one minuteand no

data entryto encounter a simple tax returns disclosure and a dropdown menu providing 

details about the scope of Free Edition and the meaning of hyperlink. GX240. These facts 

strongly cut against (if not foreclose) any finding of deception. 

Complaint Counsel note, however, that when the first contact between a seller and a 

buyer occurs through a deceptive practice, the law may be violated even if the truth is 

subsequently made known to the purchaser. Pretrial Br. 44 (citing FTC Statement on 

Deception, 103 F.T.C. at 180 & n.37). Complaint Counsel embrace such a deceptive door 

opener theory, claiming that the ubiquitous disclosures on the TurboTax website are effectively 

irrelevant because Intuits other ads lure consumers to the website by falsely conveying that 

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consumers can file for free, and that alone is enough for liability. See Pretrial Br. 5, 8, 10, 44. 

That claim is both factually and legally infirm on these facts and ignores how reasonable 

consumers act in this industry. 

a. As a factual matter the ads did not, as explained, convey that consumers ineligible 

for Free Edition can file for free with TurboTax. See supra pp.36-50. 

Moreover, a Disclosure Efficacy Survey conducted by Dr. Hauser indicates that Intuits 

ads did not serve as door openers. Dr. Hauser tested an ad that did not repeat the word free 

and that included even more conspicuous and comprehensive written and verbal disclosures than 

the challenged ads, to determine whether those revisions affected both respondents 

consideration of Vertax (the surveys disguised TurboTax brand) and their ultimate product 

selection. RX1017 (Hauser Rep.) ¶90, Appx C-1-6. If Intuits ads served as door openers, 

respondents who saw that revised ad would be substantially less likely to consider starting their 

taxes with Vertax than respondents who saw the challenged ads. Id. ¶91. But as Dr. Hauser 

explains, the survey results show that the ad revisions led to no statistically significant difference 

in respondents willingness to start their taxes using Vertax. Id. That is the exact opposite of 

what should happen if Complaint Counsels claims were true. 

b. Even if Complaint Counsels allegations were supported by the evidence, their 

deceptive door opener theory would fail legally. Complaint Counsel rely on the FTCs 

statement that when the first contact between a seller and a buyer occurs through a deceptive 

practice, the law may be violated even if the truth is subsequently made known to the purchaser. 

Pretrial Br. 44 (emphasis added) (citing FTC Statement on Deception, 103 F.T.C. at 180 & n.37). 

But as the word may reflects, the door opener theory does not always apply. And relevant 

authorities and logic show it does not apply here. 

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To start, the Commission itself has explained that, far from being per se inadequate, 

point-of-sale disclosures (and again, the TurboTax website disclosures occur far in advance of 

the point of sale) can be sufficient, depending on the circumstances, FTC Statement on 

Deception, 103 F.T.C. at 180 n.37. And the circumstances here make Intuits disclosures 

sufficient, as it is simply not possible to set out in space-constrained formats elaborate details 

about which tax forms are and are not covered by which TurboTax products. RX1018 (Golder 

Rep.) ¶¶114-115. No other companies and even the IRS and state taxation authorities can fit 

every qualifying detail in their advertisements. At least Intuit tries, unlike many others. 

Ultimately, authorities confirm the adequacy of point-of-sale disclosures in the online context. 

See Washington v. Hyatt Hotels Corp., 2020 WL 3058118, at *5 (N.D. Ill. June 9, 2020) 

(dismissing a deceptive-advertising claim where resort fees were disclosed during the onlinebooking process rather than in ads); Harris v. Las Vegas Sands L.L.C., 2013 WL 5291142, at *2, 

*5-6 (C.D. Cal. Aug. 16, 2013) (similar). Intuits disclosures occur far earlier.7

This cases overlap with DirecTV likewise (though independently) shows that the door 

opener theory is inapposite. DirecTV held that theory inapplicable there because (1) nothing 

in [the challenged ads] contradict[ed] the true terms of DIRECTVs provision of services and 

(2) for a complex product like subscription satellite television services, a reasonable consumer 

would understand the limitations of how information is presented in a space-constrained ad. 

2018 WL 3911196, at *15. Both points apply equally here. 

Complaint Counsels cited cases (Pretrial Br. 44) only confirm that the theory is 

misplaced here. In Resort Car Rental Systems, Inc. v. FTC, 518 F.2d 962 (9th Cir. 1975), a 

7

 The Illinois and California consumer-protection laws at issue in the cases just cited are 

interpreted in step with the FTC Act. See 815 Ill. Comp. Stat. §505/2; In re Firearm Cases, 126 

Cal. App. 4th 959, 980 (2005). 

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rental-car company misleadingly advertised that its rentals cost a Dollar-A-Day, only to reveal 

the true price once consumers visited a brick-and-mortar facility, id. at 964. Unlike there, where 

the product advertised was not available at the advertised price for anyone, here the product 

advertised as free is free for millions of people. And unlike in Resort Car, where consumers 

learned the products true cost only after traveling to a physical location to rent a car, here 

consumers enjoy detailed information right at their fingertips (and accessible in seconds). In 

fact, it is impossible for consumers to avoid that information because they must visit the 

TurboTax website to use Free Edition or any other TurboTax product. Two of Complaint 

Counsels remaining casesGrolier, Inc., 99 F.T.C. 379 (1982), and Encyclopedia Britannica, 

Inc., 87 F.T.C. 421 (1976)are similarly far afield, involving door-to-door salesmen who used 

deception to gain entrance into prospects homes, id. at 496; Grolier, 99 F.T.C. at 379. 

Finally, FTC v. E.M.A. Nationwide, Inc., 767 F.3d 611 (6th Cir. 2014), a telemarketing case, is 

also irrelevant. Telemarketing involves person-to-person interaction and hence a capacity for 

coercion not present in the online context. That is why Congress has instructed the FTC to issue 

rules preventing telephone calls which the reasonable consumer would consider coercive, 15 

U.S.C. §6102(a)(3)(A). Even Complaint Counsel do not allege coercion here. 

The analogies Complaint Counsel proffer are even more strained than their cited case 

law. Visiting the TurboTax websitean activity that takes mere seconds and is required to use a 

TurboTax productis not remotely like spending four hours constructing an IKEA wardrobe. 

Pretrial Br. 25 (citing GX137). Nor can visiting the TurboTax website reasonably be compared 

to fully booking a vacation, buying a plane ticket, and flying all the way across the 

country. Id. (citing GX137). To the contrary, we are talking anywhere from just a few seconds 

to a matter of minutes, RX1027 (Deal Rep.) ¶82, with consumers notified that they are not 

qualified for a Free Offer as soon as information indicating as much is entered, supra p.18. 

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The Commissions order denying Complaint Counsels summary-decision motion 

suggested in dicta (at 13) that limiting the deceptive door opener theory to physical, in-person 

sales would leav[e] a huge enforcement gap with respect to misleading representations in 

modern commerce. But no such limitation is necessary to rule for Intuit; this Court need only 

address the facts and circumstances of this case, as the Commissions own Deception Statement

requires, 103 F.T.C. at 180 & n.37. And the facts here reveal that the door-opener concept 

simply makes no sense. Indeed, Complaint Counsel do not point to consumers, let alone a 

significant minority of such consumers, who were deceptively induced to the TurboTax website. 

Even the few complaining customers they can muster cite other reasons for visiting the website 

including ease of use, reputation, and product familiarity. See, e.g., GX137 (DuKatz Dep. Tr.) at 

28:17-29:3 (ease of use); GX130 (Tew Dep. Tr.) at 15:10-16:3 (familiarity, ease of use); GX136 

(Schulte Dep. Tr.) 25:25-26:14 (same). 

2. Reasonable Consumers Familiarity With the Industry And Skepticism 

Towards Free Claims Prevents Misimpressions 

To prevail here, Complaint Counsel must prove that Intuits advertising was deceptive to 

not just any consumers, but to consumers acting reasonably in the context of the online taxpreparation market. Southwest Sunsites, Inc. v. FTC, 785 F.2d 1431, 1436 (9th Cir. 1986). They 

cannot do so. 

A reasonable consumer understands concepts that are commonplace in the [relevant] 

market, Ebner, 838 F.3d at 965, and is clearly more sophisticated than Complaint Counsels 

theory of deception would allow. For example, consumers in the automobile industry understand 

that [a] warranty, even a lifetime warranty, often has requirements associated with it. 

Marksberry, 606 F. Supp. 3d at 1081. In the context here (online tax preparation), reasonable 

consumers view ads, including the challenged ads, against the backdrop of their prior 

experiences and expectations with free online products and services, and with taxes more 

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generally. As Professor Golder explained in his report, consumers familiarity with, and 

accompanying skepticism about, free offers means that consumers will likely expect and attend 

to restrictions on Intuits free offer, reducing the chance that any reasonable consumer not 

eligible for the free offer would be deceived by Intuits advertising into believing that TurboTax 

was free for her. See RX1018 (Golder Rep.) ¶¶174-175. One reason for consumers skepticism 

of any free offer is their understanding that for-profit companies cannot offer all their products 

for free. See RX1236. Consumer testimony confirms that consumers apply that understanding, 

and resulting skepticism, to TurboTaxs qualified free claims. See, e.g., GX123 (Lee Dep. Tr.) at 

14:12-15:6; GX135 (Phyfer Dep. Tr.) at 37:17-20; GX137 (DuKatz Dep. Tr.) at 26:23-24:20; 

GX124 (Bodi Dep. Tr.) at 14:7-18; GX125 (Beck Dep. Tr.) at 20:12-17, 43:17-44:4; GX138 

(Adamson Dep. Tr.) at 22:21-23:3; GX139 (Derscha Dep. Tr.) at 22:11-23-22; GX130 (Tew 

Dep. Tr.) at 20:11-16. Intuits business documents confirm the same. RX595 at 17; RX379 at 

28; see also infra pp.72-74. 

Complaint Counsel argue (Pretrial Br. 35) that reasonable consumers expect a company 

like Intuit to provide TurboTax for free to all consumers simply because there are other online 

products and servicessuch as social-media platforms and streaming services like YouTube and 

Spotifythat they contend are routinely offered to consumers completely free of charge. But 

Complaint Counsel offer no evidence (just their own say-so) that consumers expect all products 

or services offered by the company to be 100% free. These examples, moreover, confirm that 

consumers are familiar with (and thus would expect) free offers to have certain restrictions while 

being accompanied by paid options. Spotify, for example, offers a free version of its product 

that requires consumers to view ads, alongside a paid version that is ad-free. See RX410, 

RX802. Google similarly offers a basic free version of its mail service alongside a paid version 

that includes more features. RX1505. TurboTax likewise offers a basic product for free (if 

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consumers have simple returns), and charges for assisting with more complex returns. Again, 

Intuits advertising and practices are standard and well understood by reasonable consumers. It 

is seemingly only Complaint Counsel that feel differently. 

Complaint Counsel fare no better with their reference to Cash App Taxes (Pretrial Br. 

35), a purported competitor of TurboTaxs that offers free online tax-preparation services that 

Complaint Counsel say are available to all consumers. As an initial matter, Cash App Taxes 

engages in very little marketing and is used by few consumers, RX45 at INTUIT-FTCPART3-000484795, making it unlikely that most reasonable consumers would draw any 

conclusion about TurboTax based on Cash App Taxes. Moreover, Complaint Counsel are flat 

out wrong that Cash App Taxes is free to all consumers. Consumers cannot use Cash App 

Taxes if their tax returns require them to file certain federal forms or schedules (such as Schedule 

J, Schedule K-1, or Form 1116, all of which are supported by various TurboTax products). 

RX1503; see also RX1504. Given all this, reasonable consumers would not infer that TurboTax 

is free for everyone even if they were among the few aware of Cash App Taxes. 

What Complaint Counsels argument proves is that a reasonable consumer might, 

however, look to other industry participants. If that happened, Complaint Counsels argument 

would fall apart because those better-known participants use the same complexity-based business 

model as TurboTax. 

3. The Evidence Does Not Establish That Reasonable Consumers Were 

Deceived 

Complaint Counsel fails entirely to meet their burden of proving deception. To the extent 

the ads themselves are viewed as potential evidence of deception, the fact that the claims implied 

in those ads were that Intuits free offers were qualified, supra pp.38-51, defeats an inference of 

deception. And because it is not reasonably clear from the face of the advertisement that 

reasonable consumers take away the alleged implied false message, Complaint Counsel must 

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produce sufficient extrinsic evidence to prove deception. United States v. Bayer Corp., 2015 WL 

5822595, at *11 (D.N.J. Sept. 24, 2015); accord FTC v. National Urological Grp., Inc., 645 F. 

Supp. 2d 1167, 1193 (N.D. Ga. 2008), affd 356 Fed. Appx. 358 (11th Cir. 2009). Far from 

aiding Complaint Counsels case, the available evidence refutes any notion that consumers were 

deceived. 

a. The Miniscule Number Of Complaints Are Not Evidence Of 

Widespread Deception 

Complaint Counsel contend (Pretrial Br. 23-27) that a few hundred consumer complaints 

(out of millions of customers) and testimony from a handful of consumers provide evidence of 

widespread deception. That is incorrect. 

i. Complaints That Should Be Stricken Because They Are Not 

Related To The Allegations 

To begin with, this Court excluded [e]vidence of consumer complaints that are unrelated 

to the alleged deceptive acts and practicesincluding, without limitation, complaints regarding 

the amount of the complainants tax refund, delays in receiving tax refunds, the purported 

deletion of TurboTax customer accounts, issues accessing data on adjusted gross income, issues 

importing tax data into paid products, rideshare and other non-income-related discounts, and 

TurboTax Canada. Order on Motions In Limine, at 7 (Mar. 7, 2023). Many of the complaints 

on Complaint Counsels exhibit list fall into that category and thus are excluded. 

For example, Complaint Counsel continue to rely on 24 complaints from its Sentinel 

Network that were submitted by individuals who never even started (let alone finished) their 

taxes using any TurboTax product. Appx B to Respt Mot. In Lim. To Exclude Consumer 

Compls. (Feb. 10, 2023). Other complainants whose deposition testimony Complaint Counsel 

cite (Pretrial Br. 23-25), meanwhile, testified that their complaints were not associated with 

TurboTaxs online products. GX134 (Hobson Dep. Tr.) at 10:19-24, 14:9-14; GX130 (Tew Dep. 

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Tr.) at 37:15-19; 38:16-39:9; GX137 (DuKatz Dep. Tr.) at 74:14-75:2; GX136 (Schulte Dep. Tr.) 

at 19:11-18; GX125 (Beck. Dep. Tr.) at 59:18-60:13. And still others had nothing to do with 

TurboTaxs advertising. RX344 (Parvez Decl.); GX138 (Adamson Dep. Tr.) at 40:11-41:2; 

GX125 (Beck Dep. Tr.) at 26:13-28:15, 29:1-30:7; GX128 (Benbrook Dep. Tr.) at 16:23-17:4, 

28:4-12, 28:21-29:1; GX136 (Schulte Dep. Tr.) at 35:25-36:20; 72:8-73. Complaint Counsel 

note (Pretrial Br. 47-48) that these consumers testified that the cost of the tax filing services was 

important to them or remembered Intuits free advertising. True or not, that is irrelevant to 

the issue here, which is whether any of the challenged ads was deceptive. Complaint Counsel 

are also wrong to present these deponents as somehow representative of reasonable consumers as 

a whole; they are not. They are from the miniscule set of consumer complaints flagged by 

Complaint Counsel and their testimony revealed them to be anything but reasonable in their 

expectations and recollections of using TurboTax. 

ii. Sentinel Network Complaints 

Complaint Counsel next cite (Pretrial Br. 25) 228 complaints from its Sentinel Network. 

Those complaints warrant no weight. Complaint Counsel and their investigator Diana Shiller 

made no effort to verify or otherwise substantiate these complaints. Indeed, Ms. Shiller 

confirmed that she attempted to contact only twelve complainants, and ultimately spoke to only 

two. See RX278-280; RX1390 (Shiller Dep. Tr.) at 115:16-116:5; see also GX161 (Maxson 

Dep. Tr.) at 353:14-354:13. Many of the complaints, moreover, are demonstrably inaccurate, do 

not reflect consumers actual experiences, and do not otherwise indicate that the complainants 

were deceived by Intuit advertising. See RX344 (Parvez Decl.); Appx N to Respt Mot. In Lim.

To Exclude Consumer Compls. (Feb. 10, 2023). And the biased coding methodology that 

Complaint Counsel and Ms. Shiller used to identify and categorize the complaints is terribly 

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flawed. RX1394 (Golder Dep. Tr.) at 54:3-11. Independent coders found a dramatic 

overstatement of relevance in their results. 

The context in which the complaints were created confirms that they should be given no 

weight. Dozens of the complaints expressly mention ProPublica reporting or litigation against 

Intuit (including this litigation) as the impetus for the complaint, Appx G to Respt Mot. In Lim.

To Exclude Consumer Compls. (Feb. 10, 2023), and fifty others are from consumers whose 

claims Intuit has already resolved as part of a mass-arbitration settlement in 2022, id. at Appx C. 

As reflected in the complaints themselves, that context makes it likely that the complaints are 

simply parroting reporting, rather than describing consumers actual experiences. 

Complaint Counsel have not offered any explanation for how these demonstrably 

unreliable complaints constitute any meaningful evidence that consumers were likely to be 

deceived. And even if all 228 were relevant and reliable, they represent only 0.0003% of the 

86.4 million TurboTax customers who completed at least one return over that same time period 

(Tax Years 2015-2021). Cf. RX1018 (Golder Rep.) ¶68. Under no circumstances can such a 

tiny percentage constitute a significant minority of consumers. See Telebrands, 140 F.T.C. at 

325 n.47 (For this claim, the 3.9% net difference is not statistically significant. Thus, this result 

indicates nothing about consumer perception of this particular claim.). 

iii. Intuits Records Of Customer Complaints 

Complaint Counsel then point (Pretrial Br. 26-27) to consumer complaints (from Intuits 

internal tracking system) about the pricing of various TurboTax products, and claim those show 

deception. But even putting aside that most of these are excluded under this Courts order on 

Intuits motion in limine, these complaints encompass a variety of topics unrelated to consumers 

expectations about the ads challenged. See GX411 at 9. And while some consumers complained 

that they would like to pay less, that is not evidence of deception. Complaint Counsel also refer 

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in passing to consumer complaints from Intuits internal tracking system related to changes in the 

Free Edition qualifications for Tax Year 2018. Pretrial Br. 27. As explained, see supra p.19, 

Intuit made those changes, in response to tax-law changes, to continue to align with the IRSs 

definition of a simple tax return, see RX81. The fact that some consumers expressed frustration 

with these changes, and with the resulting fact that certain tax situations previously covered by 

Free Edition no longer were, is not evidence of deception; to the contrary, it shows consumers 

were cognizant of the changes and were unhappy with them. Of course, just as general consumer 

satisfaction is not a defense to claims of deception, general consumer dissatisfaction is not 

evidence of deception. Order on Motions In Limine, at 7 (Mar. 7, 2023); cf. id. at 9. 

iv. Consumer experiences 

Metrics and analyses evaluating consumers experiences with TurboTax show an absence 

of evidence that Intuit failed to meet consumers expectations. If Intuit had engaged in a wideranging deceptive scheme to trick consumers into using TurboTax, as Complaint Counsel allege, 

one would expect to see considerable outrage from those consumers. Yet none of the available 

data reflects that reaction. 

For example, Professor Golders complaint-benchmarking analysis, see supra p.44, 

shows that consumers have not complained about TurboTax at rates indicative of widespread 

deception. The analysis reveals that Intuits rate of BBB complaints (31.3 complaints per million 

customers) is statistically significantly less than that of other companies (191.2 complaints per 

million customers). If Intuit had engaged in a deceptive advertising campaign for years, the 

number of complaints would be vastly higher. 

Mr. Deals expert analysis of TurboTaxs Tax Year 2021 customer base further 

demonstrates that the actual experiences of tens of millions of TurboTax customers are 

inconsistent with Complaint Counsels allegations. Assessing real-world customer data, Mr. 

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Deal found that Complaint Counsels allegations cannot apply to roughly 97.6% of those Tax 

Year 2021 individuals who explored using TurboTax that year. RX1027 (Deal Rep.) ¶12. 

Specifically, Complaint Counsels allegation cannot apply to the approximately: (1) 

individuals who created or accessed a TurboTax account who explored TurboTax but did not file 

with it; (2) TurboTax customers who did file their federal and state returns for free 

with TurboTax; or (3) customers who either (i) demonstrated awareness of 

TurboTax paid products, (ii) demonstrated a revealed preference for paid add-on features, or (iii) 

expressed rational economic choice by using a paid product to maximize their refund. This 

actual evidence from customer-level data, Mr. Deal opined, is incompatible with Complaint 

Counsels theory of deception. Id. ¶¶96-141. Mr. Deal will explain his methodology and 

reasoning during his hearing testimony. 

Other metrics likewise demonstrate that consumers experiences matched their 

expectations, not that they were the victims of a bait-and-switch scheme. If consumers had been 

lured to TurboTax with false or misleading promises, for example, they surely would not 

recommend it to others, or keep coming back themselves. Yet Intuits Net Promoter Scores (a 

standard and well-respected measure of how likely customers are to recommend a company or 

product to a friend or colleague, RX504) for Tax Years 2012-2020, for both free and paid 

TurboTax products, were consistently comparable to (and frequently higher than) the NPS scores 

of other tax-preparation companies, including H&R Block and TaxAct. RX1018 (Golder Rep.) 

at fig. 1. Similarly, TurboTax customer-retention rates were approximately 80% year after year. 

See supra p.30. Intuits even higher retention rates among paying customers, see id., further 

undermine Complaint Counsels theory, because those are the very customers purportedly 

deceived by Intuits advertising. The tens of thousands of positive reviews for both Free Edition 

and paid TurboTax products likewise reflects that consumers have not complained in any 

approximately: (1) 

with it; (2) TurboTax customers who did file th

with TurboTax; or (3) customers who either (i) 

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significant number about being misled, further refuting Complaint Counsels deception theory. 

See supra pp.29-30.8

b. Intuits Internal Documents Do Not Show That Consumers Were 

Deceived 

After four years of investigation, Complaint Counsel have found nothing in the hundreds 

of thousands of pages of internal documents Intuit has produced that corroborates their claims. 

The snippets they cite from a handful of documents lend no support. 

For example, Complaint Counsel cite internal communications among Intuit employees 

regarding research on a single draft advertisement to argue that reasonable consumers are misled 

by ads into believing all TurboTax products are free. Pretrial Br. at 9, 30, 34, 38 (citing GX341). 

But as Ms. Ryan has explained, the research, which involved just 26 people pulled off the 

street, was done to understand whether an ad parodying the Boston Tea Partyand specifically 

a scene involving the use of a bayonetwould elicit polarized reactions in light of the thenprominent Tea Party movement. GX159 (Ryan Dep. Tr.) at 11:9-12:2. The research was not

intended to assess anything else, and such a small survey about a single draft ad provides no 

basis to find that any consumers were deceived even by that ad, let alone that significant 

numbers of consumers were deceived by any of the hundreds of ads actually challenged here, 

none of which this research concerned. That ad, like all the others, stated that it was for the Free 

Edition product only and was for taxpayers with simple returns. GX321. No one who saw the 

ad believed that every TurboTax product was free, just like no one believed that TurboTax was 

8

 Consistent with the Courts March 7, 2023 order on the motions in limine, Intuit is not 

offering the above evidence to establish general customer satisfaction as a defense to liability. 

Intuit nonetheless preserves its argument that such evidence is relevant and admissible for any 

purpose. If a consumer believed that they were supposed to get a product for free and ultimately 

had to pay over $100 for it, it is impossible to believe that they would express overall satisfaction 

with their TurboTax experience. 

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discussed during the Boston Tea Party itself. Again, Complaint Counsel fail to give reasonable 

consumers enough credit. 

Similarly, Complaint Counsel cite an internal Intuit marketing document to support the 

notion that a message of free is compelling and attracts customers, Pretrial Br. 27 (citing 

GX57 at CC-00000646); see also id. at 11-12, 28, 34 (citing GX148 (Somers Dep. Tr.)). Here 

again, Complaint Counsel is grasping at straws. Of course a message of free is compelling 

and attracts customers. There likely is not a business in the world that would disagree with that. 

But so what? How does that do anything to show deception? Complaint Counsel notably does 

not saybecause there is nothing coherent they could say. The Court should not indulge 

Complaint Counsels effort to obtain a deception finding by throwing out barely relevant point 

after barely relevant point, and then averring at the end that the deception is clear. More (much 

more) is required for Complaint Counsel to carry their burden here. 

c. Novemskys Questionnaire Is Not Evidence That Consumers Were 

Deceived 

Professor Nathan Novemsky is the only expert witness in Complaint Counsels case-inchief. But the survey he conducted, as well as his opinions regarding the issues in this case, 

are unreliable and entitled to no weight. 

To start, Professor Novemsky did not test any of the challenged ads or the TurboTax 

website. That is highly problematic, to say the least. Instead, as his rebuttal report 

acknowledges, Professor Novemskys survey was merely an unaided test of respondents 

impressions at the time of the survey. RX1345 ¶21. He did not show survey respondents any 

stimulusnot a single TurboTax adbefore asking them about their understanding of whether 

they c[ould] file their [Tax Year 2021] taxes for free using TurboTax online software. Id.; see 

also RX1392 (Novemsky Dep. Tr.) at 62:6-17, 71:4-6. These omissions are critical because, 

[i]n the real world, Intuits ads and website convey additional informationnot considered 

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or tested by Professor Novemskythat is important to a consumers perception of those 

sources. Superior Consulting Servs., Inc. v. Shaklee Corp., 2021 WL 4438518, at *12 (11th Cir. 

Sept. 28, 2021). Just as a survey to test likelihood of confusion in a trademark case must 

attempt to replicate the thought processes of consumers encountering the disputed mark  as 

they would in the marketplace, a survey to test whether consumers were deceived by ads or a 

website must make some effort to replicate real-world market conditions. Hi-Tech Pharms. Inc. 

v. Dynamic Sports Nutrition, LLC, 2021 WL 2185699, at *18 (N.D. Ga. May 28, 2021). Nor did 

Professor Novemsky assess whether the respondents even understood their own tax situation well 

enough (from memory) to determine how it measured up to the Free Edition eligibility criteria

a predicate for determining whether the consumers were even confused. See RX1392 at 98:15-

99:13. In fact, he did not take any steps to verify whether these consumers had even gathered 

the information necessary to file a tax return, let alone confirm that consumers understood that 

information correctly. Id. at 99:7-13. Yet, he bases his entire survey on consumers recollection 

of their tax situationsinformation Professor Novemsky assumes they have at hand for his 

survey, but not when viewing any of the challenged ads. 

Complaint Counsel attempt to excuse Professor Novemskys failure to show respondents 

any ads by now arguing (Pretrial Br. 20) that he was trying to measure the cumulative effect of 

Intuits marketing campaign, and not the effect of any particular ad. This ever-shifting rationale 

from Complaint Counsel is implausible on its face, but also does not address the underlying 

issue. The problem is not that Professor Novemsky failed to show any particular ad; the problem 

is that he did not show any Intuit ads at all. Because he showed no ads, Professor Novemsky 

conducted only a memory test, of whether the individuals surveyed (none of whom had 

recently used TurboTax) thought they might be able to file for free, which other courts have 

recognized is useless. Instant Media, Inc. v. Microsoft Corp., 2007 WL 2318948, at *15 (N.D. 

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Cal. Aug. 13, 2007); see also Starter Corp. v. Converse, Inc., 170 F.3d 286, 297 (2d Cir. 1999) 

(affirming the exclusion of a survey that was little more than a memory test). 

Professor Novemskys failure to show survey participants any ads contributes to the 

surveys foundational methodological flaw: the failure to employ a test-and-control design. As 

recognized in a widely used treatise, a survey that aspires to determine the source of attitudes 

or beliefs or behaviors (as did Professor Novemskys survey) is necessarily trying to test a 

causal proposition and thus must include an appropriate test and control group. RX709 at 397. 

Professor Novemsky did not do soflouting the principles that he himself has recognized in past 

testimony. In a 2016 false-advertising trial, Professor Novemsky testified that because an 

opposing experts survey did not contain a control, it was not a test of what the ad caused 

consumers to understand or not understand. RX1349 at 1840:4-20. He further explained that: 

[A] cornerstone of experimental design is that if youre going to 

draw any causal inference of something like an ad caused some 

effect like a consumer understanding of some kind, you have to have 

an experimental design that includes a control and a test group. Any 

other design makes causal inference  impossible.

Id. at 1841:2-12 (emphasis added). Professor Novemsky thus makes clear that Professor 

Novemskys survey in this case should be given no weight. 

During his deposition, Professor Novemsky argued that his survey establishes causality 

because a researcher can identify what are the other possible causes [of an effect] and see if 

those [causes] can be ruled in or outand if those alternative causes get ruled out, then the 

study stands as scientific evidence for the relationship the researcher has hypothesized and is 

trying to test. RX1392 at 89:5-20. But he then promptly admitted that he did not undertake any 

experimental studies to eliminate other possibilities. Id. at 90:22-91:4. Again, Professor 

Novemsky himself makes clear that Professor Novemskys survey should be given no weight. 

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Complaint Counsels justifications for Professor Novemsky failing to conduct a proper 

test-and-control survey have shifted over time. Complaint Counsel once claimed that Professor 

Novemsky had to contend with extensive preexisting consumer impressions about whether or 

not TurboTax was free, and that those preexisting impressions did not allow Prof. Novemsky 

to perform a traditional control  test. Pl.s Reply ISO Emergency Mot. for TRO & PI 2, FTC 

v. Intuit Inc., No. 22-cv-01973-CRB (N.D. Cal. Apr. 8, 2022), Dkt. 48. That argument, if 

credited, is strong evidence there was no deception. Thus, the claim now is that finding an 

appropriate control group would have been unlikely. Pretrial Br. 20 (citing GX303 ¶¶30, 32-

33). That does not excuse junk science. And as demonstrated by the Kirk Fair and Hauser 

surveys discussed below, see infra pp.76-77, it was assuredly possible to accurately measure the 

cumulative effect of Intuits marketing campaign (Pretrial Br. 20) using a properly constructed 

survey. Professor Novemsky simply failed to do so. No amount of excuse-making can change 

that. For the reasons given, the one he did create is fatally flawed and warrants no weight. 

Millennium Labs., Inc. v. Ameritox, Ltd., 924 F. Supp. 2d 594, 601 (D. Md. 2013). 

The defects discussed above do not stop Professor Novemsky from claiming to have

identified the most likely source of [the] consumer misimpressions. GX303 ¶95. He reports 

that 190 of his 607 respondents incorrectly thought they could file for free with TurboTax and 

named either the TurboTax website or a TurboTax ad as having played a role in them forming 

that belief. See id. ¶79 & fig. 2. That overstates the actual results by counting closed-ended 

(multiple-choice) responses that are inconsistent with open-ended (fill-in narrative) responses. 

Employing blind coders, Professor Hauser identified a significant fraction of Professor 

Novemskys respondents who contradicted themselves between open-ended and closed-ended 

responses,  contradicted themselves [across] open-ended responses, [or] answered 

conclusively in a closed-ended response but expressed uncertainty in their open-ended response. 

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RX1017 (Hauser Rep.) ¶54 tbl. 1 n.1. And if one also takes into account that many of Professor 

Novemskys purportedly deceived respondents named multiple sources of their misimpressions, 

the number who were mistaken about their Free Edition eligibility, gave coherent survey 

responses, and named only TurboTax advertisements and/or the TurboTax website as the source 

of that belief drops to 34, or just 5.6% of the total pool of 607 respondents. See id. ¶69 & tbl. 2. 

Even if this had been a proper test-and-control study, that percentage is far below the level of 

consumer confusion that could provide evidence of deception. See Telebrands, 140 F.T.C. at 

446-448; see also Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 467 n.15 (4th Cir. 1996) 

([S]urvey evidence clearly favors the defendant when it demonstrates a level of confusion much 

below ten percent.). 

Still other flaws infect Professor Novemskys survey. For instance, he excluded anyone 

who qualified to use Free Edition in Tax Year 2021 (approximately 59 million people, or 40% of 

taxpayers). See GX303 (Novemsky Rep.) ¶¶24-26. He also excluded those who said they had 

filed their Tax Year 2021 tax return before the survey was run (approximately 107 million 

people, or 60% of taxpayers). RX1392 (Novemsky Dep. Tr.) at 92:12-93:10. And he permitted 

more than 21% of those who completed his survey (164 respondents) to opt out and delete their 

responses after they were told the surveys sponsor, target, and purpose (i.e., litigation against 

Intuit). These self-selected opt-outs likely supported TurboTax, since they elected not to have 

their survey responses used in litigation against Intuit. But Professor Novemsky deleted their 

survey responses, making it impossible to know. See id. at 117:8-118:17. This lax approach to 

handling opt-outs undermines any possible inference that the survey responses were 

objective. In re Autozone, Inc., 2016 WL 4208200, at *18 (N.D. Cal. Aug. 10, 2016), affd, 

789 F. Appx 9 (9th Cir. 2019). 

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After his exclusions and opt-outs, Professor Novemsky was left with just 607 

respondents. See GX303 ¶65 & Appx I. That was less than 5% of the 12,249 individuals who 

began the survey, see id., a response rate courts have found too low to generalize, or extrapolate 

the results of the survey to the wider population from which the sampled group was drawn. 

Autozone, 2016 WL 4208200, at *17 (finding response rate of 3.43% to be woefully low and 

inadequate); see also United States v. Dentsply Intl, Inc., 277 F. Supp. 2d 387, 437 (D. Del. 

2003) (dismissing a survey with a response rate of approximately 39% for not meet[ing] the 

necessary research standards due to the low response rate), revd on other grounds, 399 F.3d 

181 (3d Cir. 2005); Univ. of Kan. v. Sinks, 2008 WL 755065, at *4 (D. Kan. Mar. 19, 2008) 

(noting that a 2.16% response rate is by any standard ... quite low and that it was extremely 

likely that [such a low response rate] exerted a bias on the results (citation omitted)). 

In addition to unjustifiably excluding large swaths of people, Professor Novemsky 

improperly included individuals who likely had preexisting biases. He did not trymuch less 

take the required [s]pecial precautions, RX709 at 382to exclude participants who (1) were 

parties to the arbitrations filed in a coordinated mass-arbitration attack against Intuit, RX1392 

(Novemsky Dep. Tr.) at 134:13-138:6, 140:17-141:1, (2) were among the hundreds of thousands 

of consumers solicited on social media by the mass-arbitration firms, id. at 138:10-139:12, or (3) 

had heard about the allegations the survey tested (including from the investigations and lawsuits 

that have received widespread media coverage), id. at 118:18-122:17, 125:2-126:12, 132:9-

134:12, 141:2-5. 

Finally, throughout the survey, it was clear to respondents that the survey concerned 

TurboTax. RX1392 (Novemsky Dep. Tr.) at 184:13-185:10, 289:6-13. As the Commission 

itself has recognized, such complete[] transparen[cy] about the nature or purpose of a survey 

may create bias in  consumers decision to participate in the survey or potentially result in 

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biased responsesa flaw that would affect the accuracy and validity of the information 

collected and effectively nullify the survey. RX89 at 8 (emphasis added). In other cases, in fact, 

the Commission has repeatedly argued to federal courts that revealing a surveys sponsor and 

purpose is an error that, at minimum, warrants giving that survey less weight. FTCs Mot. To 

Exclude Expert Test. 7, FTC v. LendingClub Corp., No. 3:18-cv-02454 (N.D. Cal. Feb. 27, 

2020), Dkt. 155; FTCs Reply ISO Mot. for Summ. J. 8, FTC v. Kutzner, No. 8:16-cv-00999 

(C.D. Cal. Aug. 14, 2017), Dkt. 315; see also Autozone, 2016 WL 4208200 at *8 (excluding a 

survey because its purpose was no mystery, creating a problem of self-interest bias). 

d. Competent Survey Evidence Demonstrates That Consumers Were 

Not Deceived 

As explained, the TY20 Test demonstrates that consumers understood Free Editions 

qualifications. See supra pp.27-28. Indeed, 

RX379 at 28. That is lower than the overall population 

that can in fact file for free using TurboTax, RX95 at 2, suggesting that consumers have a fairly 

accurate gauge into whether they personally are qualified for a free offer. Likewise, 

 

RX379 at 28. That likely reasonably approximates the TY20 Test samples actual qualifications 

in the aggregate, id. at 35, an age range 

in which tax filers are more likely to have simple returns and to file those returns online, see

GX160 (Rubin Dep. Tr.) 96:13-17. Intuits Tax Year 2020 NPS study had similar results: 

 See RX592 at INTUIT-FTCPART3-000602703. 

 pp.27-28. Indeed, 

RX379 at 28. That is 

qualified for a free offer. Likewise, 

 

in the aggregate, 

milar results: 

 

PART3-000602703. 

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 Id. at INTUITFTC-PART3-000602669, -000602703. 

In arguing that the TY20 Test is evidence of deception, Complaint Counsel focuses on a 

line in the tests slide deck stating that 

 RX379 at 8 (emphasis added), quoted in Pretrial Br. 23. But 

enticing does not mean deceptive. It is unremarkable that people who were able to use the 

free product found it enticingthat is the whole point of advertising. Complaint Counsel also 

ignore that the slide deck states that

id. at 9. And they ignore that 

id. at 27. All of that is true, and 

none of those messages indicates that respondents were deceived. 

Notably, the TY2020 Copy Test is not the only survey evidence suggesting that the 

proportion of consumers who believe they can file for free is largely in line with the share of 

consumers who actually can do so. In Tax Year 2018, a study Intuit undertook regarding Brand 

Sentiment Metrics that indicated that just 22% of respondents were confident that Free 

Edition was actually free. RX595 at 17. This is an even lower share of respondents than the 

TY2020 study, which itself undershot the share of the population that was actually qualified to 

file for free. 

 

line in the tests slide deck stating that 

 RX379 at 8 (emphasis added), 

e that 

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Complaint Counsel claim (Pretrial Br. 34 n.44) that 2019 consumer-insight research 

conducted by Intuit regarding Free Perception, RX597, demonstrates that a significant 

minority of taxpayers were misled about their ability to file for free with TurboTax. But that 

study asked whether consumers surveyed believed that TurboTax Free Edition was truly free. 

The result49%, see id. at INTUIT-FTC-PART3-000601665is comparable to the proportion 

of TurboTax customers who do file for free using Free Edition. See supra p.72. And of course, 

Free Edition is truly free, so even if 100% respondents believed it to be true, it would not support 

deception. This document actually illustrates the absence of deception and the challenge in 

marketing a free tax preparation product. Even though there are no fees and no charges, a 

majority of consumers still do not believe it is free. 

Complaint Counsels deception arguments are also refuted by Dr. Hausers Disclosure 

Efficacy Survey, supra p.54. If Complaint Counsel were correct that Intuits advertisements and 

website failed to adequately disclose Free Editions qualifications, one would expect that 

respondents in the [test group], who were exposed to expanded disclosures about the limitations 

to filing for free, would be substantially less likely than respondents in the [control group] to 

consider starting their taxes with Vertax (again, the fictional company that served as a stand-in 

for Intuit). RX1017 (Hauser Rep.) ¶91. But that hypothesis is rejected scientifically by the 

results of the survey. Id. In fact, members of the test group indicated that they would start with 

Vertax Free Edition more frequently (to a statistically significant degree) than members of the 

control group. Id. ¶95. These results are consistent with marketing-theory literature, which 

suggests that the emphasis in the Revised Disclosures stimuli on the product limitations  

might make the offer more plausible and realistic to all consumers, even those who do not 

qualify. Id. ¶97. 

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Complaint Counsel now suggest (Pretrial Br. 19 n.21) that the test-group stimuli from the 

Disclosure Efficacy Survey are themselves deceptive. But those stimuli were modeled off 

revisions to the ads that Complaint Counsel themselves previously advocated. See RX1017 

(Hauser Rep.) ¶¶88-90 (quoting Compl. ¶¶29, 43). For example, the test-group video 

advertisement stimulus, included, in enlarged and brightened font, a text disclosure stating, For 

simple returns only. Not all taxpayers qualify for Free Edition. See if you qualify at 

vertax.com. RX1549. That qualifying language appeared on screen for 8 seconds in a 30-

second ad, and was accompanied by an 8-second-long voiceover stating Vertax Free Edition is 

for simple returns only. Not all taxpayers qualify to file for free. See if you qualify at 

vertax.com. Id. It defies credulity for Complaint Counsel to suggest that this prominent 

qualifying language does not clearly signal to consumers that there are qualifications. 

RX1017 (Hauser Rep.) Appx C-1-6 (Revised Disclosures Group Video Advertisement 

Screenshot). 

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A survey conducted by Rebecca Kirk Fair further demonstrates that consumers who 

switch to a TurboTax paid product do so for reasons other than supposedly deceptive advertising. 

Ms. Kirk Fair, a survey expert that the FTC has previously retained, conducted a test-and control 

survey to determine whether and to what extent the presence of TurboTaxs free advertising and 

the use of upgrade screens on the TurboTax website affect consumers product selection. 

RX1016 (Kirk Fair Rep.) ¶¶7, 18-19. The survey presented respondents with a Free Edition 

advertisement, instructed them to start completing tax returns in Free Edition, and then showed 

them upgrade screens with varying amounts of information. Id. ¶20. Respondents were 

subsequently asked open- and close-ended questions regarding the different tax-preparation 

solutions they would consider and were most likely to select. Id. ¶21. 

The responses show that consumers decisions to upgrade were not affected by the 

information or lack thereof on the upgrade screen. RX1016 (Kirk Fair Rep.) at fig. 1. If it were 

true that consumers start filing their taxes with TurboTax because they are deceived into 

believing they can file for free, one would expect to see a substantial, statistically significant 

reduction in respondents selection of a TurboTax paid product after learning of [an] additional 

free option, such as the IRS Free File program (as was done in the survey). Id. ¶28. One 

would also expect to see this reduction in selection of TurboTax Paid products if consumers 

choose to upgrade because they [felt] locked into the TurboTax platform. Id. But Ms. Kirk 

Fairs survey shows no such reduction. Id. ¶¶31-37. 

Respondents answers, moreover, refute Complaint Counsels theory that any deceptive 

advertising left consumers feeling locked into buying a paid tax-preparation product. For 

example, many respondents explained that upon seeing an upgrade screen, they would search 

the internet and compare the TurboTax pay for edition with other tax platforms with comparable 

features, [l]ook into other options, or file taxes with another tax-preparation service. RX1016 

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(Kirk Fair Rep.) ¶34. And respondents who chose to upgrade did so for reasons other than 

allegedly deceptive free advertising, id. ¶¶27-28, including that they had used TurboTax for 

many years and felt the upgrade was worth it, id. ¶36. 

C. Intuits Representations Were Not Material 

Complaint Counsels claim would fail even if they could prove deception, because none 

of the allegedly deceptive statements in any of the ads was material, i.e., that it was likely to 

affect a reasonable consumers purchasing decision, Novartis Corp., 127 F.T.C. 580, 667 (1999). 

To use TurboTax, a consumer must go to the website, meaning any purchasing decision 

she makes is necessarily informed by what appears there. The majority of individuals who visit 

the website were specifically looking for TurboTax. See RX1018 (Golder Rep.) ¶157. And once 

consumers get to the website, every reference to a free offer is accompanied by immediate 

qualifying language and color-contrasted hyperlinks that lead to even more information. See 

supra pp.10-18. 

Complaint Counsels own expert (and Complaint Counsel itself) recognized that 

consumers are presented with detailed information concerning whether they qualify for the free 

offer within minutes of visiting the website. RX1396 (Yoeli Dep. Tr.) at 29:19-35:3; accord

Compl. Counsels Resps. & Objs. To Intuits SMF (Sept. 8, 2022) ¶64 (admitting that 

consumers with income-related disqualifiers, for instance, are likely informed that they do not 

qualify for Free Edition as quickly as 10 minutes into the process of completing their tax 

returns). Complaint Counsel cannot and do not credibly claim that spending mere minutes on 

the TurboTax website caused consumers to purchase TurboTax when they otherwise would not 

have, or even that any of the challenged ads were material to any consumers decision to take the 

brief time required to go to the TurboTax in the first place. Indeed, the fact that nearly 

of the visitors to the TurboTax website in Tax Year 2021 who accessed a TurboTax account 

d, the fact that nearly 

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ultimately did not file their taxes with any TurboTax product, RX1027 (Deal Rep.) ¶98, 

underscores that the decision to use TurboTax remains up for grabs even once someone decides 

to visit the website. Accordingly, there is no evidence that anything in the TurboTax ads were 

material to any purchase decision. 

II. THE PROPOSED CEASE-AND-DESIST ORDER IS UNWARRANTED 

The Commissions remedial power in a Part 3 proceeding like this one is limited to 

issuing an order requiring [the respondent] to cease and desist from using any act or practice 

found to be deceptive. 15 U.S.C. §45(b). This relief is not designed to fasten liability on 

respondents for past conduct. FTC v. Cement Inst., 333 U.S. 683, 706 (1948). To obtain such 

an order based on past misconduct, Complaint Counsel must establish that there exists some 

cognizable danger of recurrent violation, something more than the mere possibility which serves 

to keep the case alive. United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953) (emphasis 

added)); Benco Dental Supply Co., 2019 WL 5419393, at *75 (F.T.C. Oct. 15, 2019). Any 

remedy, moreover, must have a reasonable relation to the unlawful practices found. 

Standard Oil Co. of Cal. v. FTC, 577 F.2d 653, 662 (9th Cir. 1978) (quoting F.T.C. v. ColgatePalmolive, 380 U.S. 374, 394-395 (1965); accord North Tex. Specialty Physicians v. FTC, 528 

F.3d 346, 371 (5th Cir. 2008). The factors relevant to  whether to issue an order when a 

respondent professes to have ceased the complained-of activities [include]: the bona fides of the 

respondents expressed intent to comply with the law in the future; the effectiveness of the 

claimed discontinuance; and the character of the past violations. Benco Dental, 2019 WL 

5419393, at *75 (quotation marks omitted). Applying these factors here, a cease-and-desist 

order would not be warranted if the Court found any liability because Intuits prior practices do 

not create a risk of future unlawful conduct. Indeed, any future potentially unlawful conduct is 

already enjoined. 

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A. Intuits Discontinued Historical Practices Do Not Create A Cognizable Danger 

Of Future Violations 

Even if Intuits past advertising were found to be deceptive, that finding would not be 

evidence of potential future misconduct, because the vast majority of the challenged ads do not 

run anymore; Intuit has repeatedly revised its ads over the years to make them even more clear. 

For example, in Tax Year 2019, Intuit revised its television ad, more prominently conveying 

Free Editions qualifications and changing the primary text on the title card at the end of the ad 

to refer to TurboTax Free Edition. See, e.g., RX1114-1115; RX1120; RX1122. These 

meaningful steps toward improving customer satisfaction undermine Complaint Counsels 

efforts (Pretrial Br. 2-3) to rely on substantially outdated advertising, FTC v. Merchandise 

Servs. Direct, LLC, 2013 WL 4094394, at *3 (E.D. Wash. Aug. 13, 2013), to argue that future 

violations are simply a foregone conclusion based upon the number of prior alleged violations,

id.

Nor can Complaint Counsel look to the handful of Intuits current advertisements to 

support relief. Not only are those ads unquestionably not deceptive, supra pp.32-33, they are not 

properly at issue in this proceeding. Commission authorization is required before its staff 

attorneys file an action. Order, FTC v. Libbey Inc., No. 1:02-cv-00060-RBW (D.D.C. Apr. 3, 

2002), Dkt. 76; see 16 C.F.R. §3.11(a) (an adjudicative proceeding is commenced when an 

affirmative vote is taken by the Commission to issue a complaint.). The Commission has never 

voted to issue a complaint regarding Intuits Tax Year 2022 (i.e., calendar year 2023) 

advertising. 

Complaint Counsel go astray in asserting (Pretrial Br. 48) that Intuits present conduct 

does not matter because it changed its advertising practices only under substantial scrutiny 

from the Commission and others. In reality, Intuits advertising practices evolved both before 

and after the Commission and others launched their investigations (in 2019). Consider, for 

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example, the changes Intuit has made over time to its television advertising for TurboTax. Prior 

to Tax Year 2017, Intuits ads for TurboTax Federal Free Edition stated that the product was for 

simple U.S. returns only. See, e.g., RX17; RX18. For Tax Years 2017 and 2018, Intuits ads 

for free TurboTax products retained that simple U.S. returns only language and added an 

encouragement for consumers to [s]ee details at turbotax.com. See, e.g., RX29; RX30. For 

Tax Years 2019 and 2020, each ad for Free Edition included a disclosure stating that TurboTax 

Free Edition is for simple U.S. returns only and asking consumers to [s]ee if [they] qualify at 

turbotax.com; in addition to those language updates, Intuit changed the disclosures color and 

font to make the language more prominent and easier to read. See, e.g., RX15; RX16. Given 

that Intuit is not attempting and does not intend to violate the law, an injunction is 

unwarranted. New Standard Pub. Co. v. FTC, 194 F.2d 181, 183 (4th Cir. 1952). Intuits 

prompt decision to take down the Free, Free, Free ads that most concerned the Commission, 

after Intuits meeting with Chair Khan, is further evidence of the sincerity of Intuits efforts and 

its commitment to being clear and honest in its advertising to consumers. See Mot. to Withdraw 

Matter from Adjudication 9, 123 (May 4, 2022). As explained at the time, the meeting with 

Chair Khan was the first time the Commission had articulated specific concerns with those 

advertisements, id. at 123, and in response Intuit acted immediatelyas a continuation of its 

earlier efforts to improve its ads. Intuits Consent Order with state attorneys general, see supra

pp.30-32, is also strong evidence of Intuits commitment to improving its ads, and it refutes 

Complaint Counsels contention (Pretrial Br. 48) that Intuit has no contrition whatsoever. 

These steps demonstrate Intuits resolute intent to comply with the law in the future. Benco 

Dental 2019 WL 5419393, at *75. 

Complaint Counsel are also wrong (Pretrial Br. 48) that Intuit intentionally sought to 

deceive consumers. In fact, Complaint Counsel have conceded that there is no such evidence. 

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RX161 (Maxson Dep. Tr.) at 173:4-13, 174:8-17. This is for good reason: As explained, see 

supra pp.28-29, deception has never been in Intuits business interests. Intuits 

contemporaneous business records confirm that the company was committed to being clear with 

consumers and endeavored to have them start in the TurboTax product that best fit their needs. 

See supra pp.15-16. Put simply, Complaint Counsel ask the Court (Pretrial Br. 48) to consider 

the circumstances surrounding the purportedly deceptive advertisingand those circumstances 

reflect that Intuits past practices do not indicate likely future violations. 

B. Future Deceptive Conduct Is Already Enjoined 

A cease-and-desist order would be improper for the independent reason that, as 

explained, any unlawful conduct Intuit might plausibly undertake in the future regarding 

advertisements for Free Edition (or other free offers) has already been enjoined by the Consent 

Order. See RX399; supra pp.30-32. Because the order is binding on Intuit and enforceable by 

the chief law-enforcement officer of every State as well as by a California court (among others), 

see supra p.30, it provides powerful assurances of future compliance with the FTC Act and 

eradicates any cognizable danger of future conduct by Intuit inconsistent with the Consent 

Orders terms, TRW, Inc. v. FTC, 647 F.2d 942, 954 (9th Cir. 1981). And any question as to 

whether Intuit intends to comply with the Consent Order should be assuaged by Intuits current 

advertisements, which contain numerous disclosures and about which no complaints have been 

raised by any of the States enforcing the Consent Order. Supra pp.32-33. 

The Consent Order also forecloses Complaint Counsel from obtaining relief because, 

with the Consent Order in place, the record reflects no reasonable expectation that Intuits 

challenged conduct could recur, making this case moot. S.C. State Bd. of Dentistry, 138 F.T.C. 

229, 262 (2004) (citing W.T. Grant, 345 U.S. at 632). As explained, the Consent Ordera 

binding agreement with the chief law-enforcement officers of all 50 States and the District of 

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Columbia that is enforceable by a California courtalready provides all relief that has a 

reasonable relation to the unlawful practices alleged in the complaint, Standard Oil, 577 F.2d 

at 662. 

Thus, not only is there no present violation of the FTC Act, or a cognizable danger of 

future violations, TRW, 647 F.3d at 954; there is also a covenant promising no violations of the 

type alleged in the complaint, Already, LLC v. Nike, Inc., 568 U.S. 85, 97 (2013). The Consent 

Orders terms make it more than merely unlikely that future Section 5 violations will occur

there is no reasonable expectation of any future violations of the sort challenged in the 

complaint, TRW, 647 F.3d at 953 (quoting W.T. Grant, 345 U.S. at 633). Indeed, a court recently 

found that a plaintiffs claims were moot because any relief would be redundant to an FTC 

consent decree. iMortgage Servs., LLC v. Louisiana Real Estate Appraisers Bd., 2023 WL 

2254528, at *2-5 (M.D. La. Feb. 27, 2023). There, the Court held that the threat that the FTC 

would enforce that judicially enforceable agreement preclude[d] a reasonable expectation that 

the wrong will be repeated. Id. at *4. [S]peculative misconduct that the plaintiff asserted 

might occur after the consent decrees expiration did not alter that conclusion. See id. Here, too, 

because the states can enforce the judicially binding Consent Order, any relief is redundant and 

Complaint Counsels claim is moot. 

Complaint Counsel respond by citing (Pretrial Br. 47-48) SEC v. Murphy, 626 F.2d 633 

(9th Cir. 1980). But that case was quite different: The respondent offered only his assurances 

against future violations, plus he already had a new venture  provid[ing] ample opportunity 

for continued misconduct. Id. at 655-656. Here, Intuit offers (in addition to its assurances) both 

facts about why the nature of its industry gives Intuit a strong incentive to avoid deception, see 

supra pp.28-29, and a binding court order that bars Intuit from doing what Complaint Counsel 

allege was deceptive in prior years. 

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Complaint Counsel also offer (Pretrial Br. 46) various additional reasons why the 

Consent Order does not obviate[] the need for further Commission action. None holds water. 

First, Complaint Counsel say (Pretrial Br. 46) that the Consent Order allows for SpaceConstrained Advertisements in which Intuit need only disclose that eligibility requirements 

apply and provide a hyperlink to more fulsome disclosures. These requirements, according to 

Complaint Counsel (id.), contradict the Commissions .com Disclosures guidance. But 

guidance is just that; it is not the law. And regardless, the Consent Order comports with the 

guidance. The guidance acknowledges that [h]yperlinks allow additional information to be 

placed on a webpage entirely separate from the relevant claim and can provide a useful means 

to access disclosures that are not integral to the triggering claim. GX316 at 10. Consistent with 

the guidance, the Consent Order requires Clear and Conspicuous hyperlinksor that the entire 

ad be a hyperlinktaking consumers directly to a landing page containing Clear and 

Conspicuous full disclosures of Free Editions eligibility criteria. RX399 at INTUIT-FTCPART3-000614010-000614011; see also GX316 at 10 (explaining that details  too complex 

to describe adjacent to the price claim  may be provided by using a hyperlink). 

Complaint Counsel argue, however, that a cease-and-desist order could specify that 

information integral to the claim cannot be hidden behind a hyperlink. Pretrial Br. 47 

(emphasis added). But the Consent Order does require Intuit to disclose clearly and 

conspicuously that eligibility requirements apply, RX399 at INTUIT-FTC-PART3-

000614010-000614011, which is the information integral to Intuits free product or offers. To 

the extent Complaint Counsel are suggesting that every detail of a free offer must be disclosed in 

each space-constrained ad, that is not the law, not feasible, and would be harmful to consumers, 

see supra pp.48-49. 

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Second, Complaint Counsel assert (Pretrial Br. 46-47) that the Consent Order permits 

visual-only disclosures in Space-Constrained Video Advertisements, allowing the audio 

portion to disclose only that not all taxpayers qualify. But requiring a more comprehensive 

voiceover disclosurea purported requirement that Complaint Counsel appear to draw from a 

50-year-old Commission policy statement lacking the force of law, see Pretrial Br. 39 (citing 

Enforcement Policy Statement in Regard to Clear and Conspicuous Disclosure in Television 

Advertising (Oct. 21, 1970), § I.A))is not necessary to avoid deception. In the decades since it 

issued that policy statement, the Commission has recognized both that the written or verbal 

disclosures needed [d]epend[] on the circumstances, and that even [l]ess elaborate 

disclosures than those in the statement may suffice. FTC Policy Statement on Deception, 103 

F.T.C. at 180-181. Intuits post-Consent-Order disclosures in space-constrained ads are easily 

sufficiently prominent to ensure that the ads leave an accurate impression, Removatron, 884 

F.2d at 1497. 

Third, Complaint Counsel argue (Pretrial Br. 47) that space-constrained video ads shorter 

than eight seconds are deceptive if those ads do not include verbal disclosures. Again, 

Complaint Counsel identify no allegedly deceptive ads in this category. And in TikTok ads from 

Tax Year 2022presumably the target of Complaint Counsels ireFree Editions 

qualifications are clearly communicated to consumers. RX1483. Indeed, during the entirety of a 

five-second ad, text on the screen states Simple returns only. See if you qualify at 

turbotax.com. Id. Moreover, those ads do not make a verbal free claim, id., meaning that 

Complaint Counsels supposed black letter law (Pretrial Br. 46-47) that disclosures must 

appear in the same medium as the free claim does not apply. See also, e.g., GX546 (TY 2020 

TikTok ad). 

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Requiring more detailed audio disclosures in video ads shorter than 8 seconds, moreover, 

would effectively preclude Intuit from advertising on TikTok and similar short-form socialmedia platforms because there is not enough time to do so and say anything else. Such a 

requirement would thus harm consumers by preventing them from using those platforms to learn 

about a product they might well be able to use to file their taxes for free. 

Fourth, Complaint Counsel contend (Pretrial Br. 47) that the Consent Orders monetary 

relief is available only to certain consumers harmed from 2016 to 2018, whereas a Section 5 

cease-and-desist order would empower the Commission to seek additional monetary relief in a 

Section 19 proceeding. This argument contravenes the purpose of this proceeding, is improper, 

and cannot be considered. As noted, a cease-and-desist order cannot serve to fasten liability on 

respondents for past conduct. Cement Inst., 333 U.S. at 706; supra p.78. Complaint Counsel 

disregard that principle by premising their claim, at least partly, on their desire to obtain 

monetary relief for years-old conduct. In any event, Complaint Counsels desire for 

retrospective monetary relief does not justify a prospective injunction. Complaint Counsel have 

not pleaded the requisite dishonest or fraudulent conduct. 15 U.S.C. §57b(a)(2). And the 

record refutes any suggestion that Intuit intended to deceive consumers. See supra pp.51-53. 

Fifth, Complaint Counsel argue (Pretrial Br. 46) that a cease-and-desist order is necessary 

to cover Intuits  marketing beyond TurboTax. But Complaint Counsel have made no 

allegations concerning any other product, and as noted, injunctive relief cannot extend beyond 

what is reasonably related to the practices alleged in the complaint. See American Home Prods., 

Corp. v. FTC, 695 F.2d 681, 710-711 (3d Cir. 1982). That is particularly true given that the only 

evidence Complaint Counsel offer on this pointso thin its relegated to a footnote (Pretrial Br. 

46 n.58)is that Intuit once considered applying a  free marketing campaign to its 

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QuickBooks product (emphasis added). No such campaign exists. Such consider[ation] 

cannot possibly support any prospective relief. 

Sixth, Complaint Counsel note (Pretrial Br. 47) that one sole provision of the Consent 

Order sunsets after ten years. The balance of the Order sunsets after 20, just like any order that 

would be entered in this case. Moreover, the Commission itself just agreed to a ten-year order in 

a case involving Mastercard. Mastercard, Inc., 2022 WL 17975182, at *6 (F.T.C. Dec. 23, 

2022). The possibility that, more than ten years from now, Intuit could engage in deceptive 

conduct manifestly provides no basis for the Court to enter a cease-and-desist order now. Again, 

if they wish to establish a cognizable danger of future violations of Section 5, W. T. Grant, 345 

U.S. at 633 (emphasis added), Complaint Counsel must go beyond a speculative riskwhich 

assuredly includes conjecture about how Intuit might act a decade (or more) from today, Allen 

v. Williams, 2022 WL 17551564, at *10 (D. Colo. Dec. 8, 2022) (quoting Winzler v. Toyota 

Motor Sales U.S.A., Inc., 681 F.3d 1208, 1215 (10th Cir. 2012)). 

C. Imposing Additional Restrictions Or Requirements On Intuits Advertising 

Would Harm Consumers 

In an effort to show that prospective relief is warranted even after the Consent Order, 

Complaint Counsel stretch to identify additional disclosures Intuit could make. But the evidence 

indicates that those additional disclosures would harm consumers. Supra pp.48-49. As such, 

Intuit should not be enjoined to include those counterproductive disclosures. 

III. THE STATUTE OF LIMITATIONS AND LACHES EACH BAR CONSIDERATION OF 

OUTDATED ADVERTISEMENTS 

Section 5 of the FTC Act does not include an express statute of limitations. Complaint 

Counsel argue (Pretrial Br. 49) that because of this, no statute of limitations applies here. But 

the Supreme Court has explained that courts do not ordinarily assume that the absence of an 

explicit statutory limitations period means Congress intended that there be no time limit on 

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actions at all. DelCostello v. International Bhd of Teamsters, 462 U.S. 151, 158 (1983); see 

also FTC v. Centro Natl Corp., 2014 WL 7525697, at *7-8 (S.D. Fla. Dec. 10, 2014) (noting 

that the FTC cites many cases that fail to consider DelCostello). Instead, courts typically 

borrow a limitation period from an analogous state law. DelCostello, 462 U.S. at 159. 

Alternatively, courts may apply a limitations period rooted in federal law. See Reed v. United 

Transp. Union, 488 U.S. 319, 324 (1989) (citing cases). Here, both state and federal law point to 

a three-year statute of limitations. See Cal. Civ. Code §1783; D.C. Code §28-3904; N.Y. 

C.P.L.R. §214(2); see also 15 U.S.C. §57b(d). And because Intuit entered into a tolling 

agreement with the Commission beginning January 5, 2022, there can be no liability based on 

ads predating January 5, 2019three years before tolling. 

Laches independently bars any attempt to punish Intuit for outdated ads of which the FTC 

has long been aware. To prevail on a laches defense, a defendant must show an unreasonable 

delay by the plaintiff and prejudice to itself. Danjaq LLC v. Sony Corp., 263 F.3d 942, 951 

(9th Cir. 2001). Contrary to Complaint Counsels assertion, moreover (Pretrial Br. 49), laches is 

available against the federal government when delayed enforcement action would be 

substantially unfair to the defendant, see United States v. Lindberg Corp., 882 F.2d 1158, 1164 

(7th Cir. 1989), or when the government engages in affirmative misconduct, United States v. 

Ruby Co., 588 F.2d 697, 705 n.10 (9th Cir. 1978). Laches can also be asserted against the FTC 

where it unreasonably delays bringing an enforcement action to the defendants detriment. See 

FTC v. DirecTV, Inc., 2015 WL 9268119, at *3 (N.D. Cal. Dec. 21, 2015); FTC v. Hang-Ups Art 

Enterprises, Inc., 1995 WL 914179, at *4 (C.D. Cal. Sept. 27, 1995). Here, the FTC allowed 

multiple tax seasons to pass before initiating an action even thoughas the District Court 

observed at the preliminary injunction hearingthe conduct in question was known to the FTC 

for a considerable period of time, RX73 at 6:10-12. It is inequitable to penalize Intuit for 

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outdated ads when the FTC delayed suit for years. And it is telling that the FTC did nothing 

about years and years of ads, across three different administrations before filing this case (and 

losing in federal court). 

IV. THIS PROCEEDING IS UNCONSTITUTIONAL

Separate from the merits, Complaint Counsel cannot prevail because this proceeding is 

unconstitutional in several ways. First, Intuit has been denied its due-process right to a fair 

proceeding before a neutral arbiter. Second, the FTCs internal administrative processes 

independently violate due process. Third, the non-delegation doctrine bars Intuit from being 

subjected to an administrative proceeding based on a black-box system in which the Commission 

has unchecked authority to allocate some cases to the FTCs administrative process and others to 

the protections of federal court. Fourth, separation-of-powers principles require FTC 

Commissioners and judges to be subject to direct presidential control, and prohibit combining the 

functions of all three branches of government in a single agency directly accountable to no one. 

To the extent this Court cannot grant relief on any of these constitutional arguments, 

Intuit presents each to preserve them all for further review. 

A. Intuits Due-Process Rights Have Been Violated By The Reality Or 

Appearance Of Prejudgment 

The Due Process Clause prohibits an agency from adjudg[ing] the facts as well as the 

law of a particular case in advance of hearing it. Fast Food Workers Comm. v. NLRB, 31 F.4th 

807, 815 (D.C. Cir. 2022). To determine whether due process is violated, courts ask whether a 

disinterested observer may conclude that the agency has in some measure prejudged the case. 

Id. Here, certain Commissioners comments and actions would lead a disinterested observer to 

concludeaccuratelythat the ultimate determination of the merits improperly move[d] in 

predestined grooves. Cinderella Career & Finishing Schs., Inc. v. FTC, 425 F.2d 583, 589-590 

(D.C. Cir. 1970). 

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Actions and statements from Chair Khan demonstrate that Intuit has not had a fair 

opportunity to present its side of the story. On March 29, 2022, while the Part 3 wall was up 

and the Commission was required to play the role of neutral adjudicator, Chair Khan tweeted 

about Intuits deceptive Turbotax free filing campaign and the need for an immediate halt to 

Intuits deceptive ads. RX102; RX103. This is not the same as the issuance of a press release. 

Instead, by retweeting the content of the press release, the Chair amplified and indicated her 

support for the content of the press release itself. Simply put, it is impossible to imagine a 

federal judge retweeting a plaintiffs press release announcing a case that she were going to be 

deciding. That would clearly violate the admonition that judge[s] should not make public 

comment on the merits of a matter pending or impending in any court. Code of Conduct for 

U.S. Judges Canon 3(A)(6). 

Then, not one month later (with the Part 3 wall still in place), Chair Khan reinforced the 

perception of prejudgment by once again publicly suggesting, this time in a widely watched 

interview, that Intuit was a lawbreaker. RX103. Although Chair Khan described the purported 

conduct as alleged, a reasonable observer can see the bias inherent in holding up Intuit as her 

chosen exemplar of an unqualified lawbreaker whom the Commission needed to take prompt 

action against, especially in light of the Chairs earlier tweet. Chair Khans public statements 

were made before Intuit had an opportunity to present its case, and at a time when FTC rules

and broader due process principlesrequired her to appear and remain neutral. Again, a federal 

judge hearing a case could not stand up and give a speech pointing to actions taken by a 

defendant in a case pending before that judge and point to that Defendants conduct as 

necessitating an enforcement action. The rules for Chair Khan in Part 3 should beand areno 

different. 

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Courts have invalidated FTC actions tainted by the participation of a Commissioner 

whose statements were far less problematic. In American Cyanamid Co. v. FTC, 363 F.2d 757 

(6th Cir. 1966), for example, Chair Paul Rand Dixon participated in an antitrust matter even 

though, as counsel to a Senate subcommittee, he had previously investigated similar facts and 

issues in preparing a subcommittee report that criticized companies facing antitrust scrutiny, id. 

at 763, 767. The Sixth Circuit invalidated an FTC antitrust order in which Chair Dixon had 

participated, explaining that FTC proceedings must be attended, not only with every element of 

fairness but with the very appearance of complete fairness, and that [w]herever there may be 

reasonable suspicion of unfairness, it is best to disqualify. Id. at 767. The D.C. Circuit 

embraced this reasoning in Cinderella and invalidated a different FTC order. In that case, Chair 

Dixon made public statements appearing to condemn particular industries as engaging in 

deceptive practices while a matter concerning a member of that industry was pending before the 

FTC. 425 F.2d at 584-585. The FTC subsequently found that company liable. In vacating the 

FTCs order, the court explained that Commissioners may not make speeches which give the 

appearance that the case has been prejudged. Id. at 590. Such conduct ha[s] the effect of 

entrenching a Commissioner in a position which he had publicly stated, making it difficult, if not 

impossible, for him to reach a different conclusion in the event he deems it necessary to do so 

after consideration of the record. Id. Permitting Chair Dixons participation, therefore, would 

give the impression that the ultimate determination of the merits will move in predestined 

grooves. Id. 

Like Chair Dixon, Chair Khan made public statements asserting her view that Intuit 

engaged in conduct that violated the law. Chair Khan publicly embraced the conclusion that 

Intuit engaged in deceptive conduct with respect to its free advertising, going so far as to 

counterfactually endorse that the product was somehow not really free. A disinterested observer 

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reasonably would conclude that Chair Khan meant what she tweetedthat she already 

considered Intuits ads deceptive and would vote to halt those ads. And Chair Khan reinforced 

that perception when, weeks later at an academic conference, she referenced Intuit by name as an 

example of alleged law-breaking that the FTC should stop quickly. 

B. The FTCs Internal Administrative Process Violates The Due Process Clause 

The FTCs structure and procedures are also constitutionally infirm. Due process 

requires a fair opportunity to rebut the Governments factual assertions before a neutral 

decisionmaker. Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004). And an unconstitutional 

potential for biasi.e., a potential for a decision-making not to be neutralinevitably exists 

when the same person serves as both accuser and adjudicator in a case. Williams v. 

Pennsylvania, 579 U.S. 1, 8 (2016). The FTC Act violates these principles by authorizing an 

administrative hearing in which the FTC simultaneously acts as prosecutor, judge, jury, and 

appellate court. Indeed, the FTCs extraordinary win rate before itself provides strong evidence 

of a biased institutional process that is incompatible with basic tenets of due process. See

Hamdi, 542 U.S. at 533. 

In arguing to the contrary, Complaint Counsel rely on Withrow v. Larkin, 421 U.S. 35 

(1975), in which the Supreme Court held that a federal agency does not violate due process by 

combining investigative and adjudicative functions without more, id. at 58. Even in that case 

the Supreme Court recognized that special facts and circumstances present in the case may 

demonstrate that the risk of unfairness is intolerably high. Id. The FTCs concentration of 

governmental power, coupled with the copious evidence of case-specific prejudgment in this 

matter discussed above, makes plain that the risk of unfairness is intolerably high. 

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C. Congress Unconstitutionally Delegated Legislative Power To The FTC 

The FTC Act empowers the Commission to enforce its provisions either through 

administrative proceedings or in federal court. See 15 U.S.C. §§45(b), 53(b). The power to 

assign disputes to agency adjudication is peculiarly within the authority of the legislative 

department. Oceanic Steam Navigation Co v. Stranahan, 214 U.S. 320, 339 (1909). But the 

FTC Acts wholesale delegation of a core legislative power to an executive agency, without any 

criteria or intelligible principle to govern that agency action, is unconstitutional. See Jarkesy v. 

SEC, 34 F.4th 446, 461 (5th Cir. 2022) (citing Crowell v. Benson, 285 U.S. 22, 50 (1932)). By 

empowering the FTC to proceed either before a federal court or an administrative tribunal, 

Congress effectively gave the [FTC] the power to decide which defendants should receive 

certain legal processes. Id. at 462. Such a decision is a power that Congress uniquely 

possesses and cannot delegate. Id.

As with the Securities and Exchange Commission, Congress has said nothing at all 

regarding how the FTC should exercise its exclusive authority and absolute discretion to decide 

whether to bring  enforcement actions within the agency instead of in an Article III court, 

Jarkesy, 34 F.4th at 462. Such a total absence of guidance is impermissible under the 

Constitution. Id.; see also Gundy v. United States, 139 S. Ct. 2116, 2123 (plurality); Panama 

Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). 

The history of this case underscores why the FTCs unchecked discretion to determine 

the forum in which it will proceedand, therefore, which legal processes will governis so 

problematic. Even before this proceeding began in earnest, Complaint Counsel, without success, 

sought relief in federal court. Now, having failed in a judicial forum, Complaint Counsel is 

wielding this core legislative authority to get a second bite at the apple in an administrative 

proceeding. By the looks of it, the principle guiding Complaint Counsels decision to proceed 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 97 of 161 * PUBLIC *; 
89 

here is simply that, having been rejected in the district court, this forum is perceived as friendlier. 

Such considerations should not play a role and under the Constitution cannot play a role. 

D. The FTCs Structure Violates The Separation Of Powers 

The FTCs structure contravenes separation-of-powers principles because the 

Commissioners and the FTCs administrative law judges are each too insulated from presidential 

removal. See, e.g., Seila Law v. CFPB, 140 S. Ct. 2183, 2191 (2020); Free Enterprise Fund v. 

Public Co. Accounting Oversight Bd., 561 U.S. 477, 484 (2010). 

First, Article II of the Constitution vests [t]he executive Power  in a President, who 

must take Care that the Laws be faithfully executed. Art. II, §1, cl. 1. That power includes the 

power to supervise and remove those who wield executive power on his behalf. Seila Law, 

140 S. Ct. at 2191. FTC Commissioners, who exercise executive power, Morrison v. Olson, 487 

U.S. 654, 690 n.28 (1988), are shielded from at-will Presidential removal, see 15 U.S.C. § 41. 

Although Complaint Counsel are not wrong (Pretrial Br. 51) that the Supreme Court upheld the 

FTCs removal structure in Humphreys Executor v. United States, 295 U.S. 602 (1935), 

Complaint Counsel ignore the Courts repeated undermining of that case. Seila Law, for 

example, repudiated almost every aspect of Humphreys Executor, 140 S.Ct. at 2212 (Thomas, 

J., concurring in part and dissenting in part), by refusing to apply the decision to an agency with 

a slightly different structure to the 1935 FTC, id. at 2206. Intuit preserves the argument that 

Humphreys Executors reasoning has been eroded and it can no longer stand. 

Second, the FTCs structure unconstitutionally insulates ALJs from removal. The 

President may not be restricted in his ability to remove a principal officer, who is in turn 

restricted in his ability to remove an inferior officer. Free Enter. Fund, 561 U.S. at 484. That 

precisely describes the protections from removal afforded to FTC ALJs, who are appointed 

under the authority and subject to the prior approval of the Office of Personnel Management, 16 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 98 of 161 * PUBLIC *; 
90 

C.F.R. §0.14, yet are insulated from executive oversight, see. See 5 U.S.C. §7521(a) (An action 

may be taken against an [ALJ]  by the agency in which [he] is employed only for good cause 

established and determined by the Merit Systems Protection Board on the record after 

opportunity for hearing before the Board.); 5 U.S.C. § 1202(d) (providing that members of the 

Merit System Protection Board, in turn, are removable by the President only for inefficiency, 

neglect of duty, or malfeasance in office). Accordingly, like the officials in Free Enterprise 

Fund, FTC ALJs enjoy a double layer of protection from the President. As Free Enterprise 

Fund makes plain, that structure violates Article II. 

Complaint Counsels assertion (Pretrial Br. 51-52) that any defect in removal power is 

harmless because the Commissioners have been property appointed is wrong (and does not 

address the ALJ argument). Proper appointment does not salvage the actions of an officer with 

unconstitutional removal protection if that protection contributes to any harm inflicted. See

Collins v. Yellen, 141 S.Ct. 1761, 1789 (2021). That is the case here. If the Commissioners were 

accountable to the President, the prospect that Intuit would be subjected to such a skewed 

proceeding would be significantly reduced. 

CONCLUSION 

Complaint Counsel have failed to meet their burden to prove deception and it is not a close 

call. The Court should find in Intuits favor and dismiss the Complaint. 

March 17, 2023 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 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 99 of 161 * PUBLIC *; 
91 

HOWARD M. SHAPIRO 

JONATHAN E. PAIKIN 

JENNIFER MILICI 

DEREK A. WOODMAN 

Wilmer Cutler Pickering 

 Hale and Dorr LLP 

2100 Pennsylvania Ave NW 

Washington, DC 20037 

Telephone: (202) 663-6000 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 100 of 161 * PUBLIC *; 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 114 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 115 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 116 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 117 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 118 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 119 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 120 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 121 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 122 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 123 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 124 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 125 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 126 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 127 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 128 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 129 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 130 of 161 
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Page 31 of 60

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 131 of 161 
Appendix A to Intuit's Pretrial Brief

No. Exhibit Number Tax Year Medium Written Qualifying Language Verbal Qualifying Language Is Ex

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GX 176 ‐ Declaration of

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 132 of 161 
Appendix A to Intuit's Pretrial Brief

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GX 189 ‐ 

Declaration ofDiana F. Shiller

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 133 of 161 
Appendix A to Intuit's Pretrial Brief

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GX 488 ‐ Declaration of

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 134 of 161 
Appendix A to Intuit's Pretrial Brief

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GX 492 ‐ Declaration of

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 135 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 136 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 137 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 138 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 139 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 140 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 141 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 142 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 143 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 144 of 161 
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 145 of 161 
Appendix A to Intuit's Pretrial Brief

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Page 46 of 60

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 146 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 147 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 148 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 149 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 150 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 151 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 152 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 153 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 154 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 155 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 156 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 157 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 158 of 161 
Appendix A to Intuit's Pretrial Brief

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 159 of 161 
Appendix A to Intuit's Pretrial Brief

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Page 60 of 60

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 160 of 161 
CERTIFICATE OF SERVICE

 I hereby certify that on March 17, 2023, I caused the foregoing document to be filed 

electronically using the FTC’s E-Filing system, which will send notification of such filing to: 

April Tabor 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

The Honorable D. Michael Chappell 

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

Washington, DC 20580 

 I further certify that on March 17, 2023, 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 

Rebecca Plett 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: rplett@ftc.gov 

Tel: (202) 326-3664 

James Evans 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: jevans1@ftc.gov 

Tel: (202) 326-2026 

Sara Tonnesen 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: stonnesen@ftc.gov 

Tel: (202) 326-2879 

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 

The Honorable D. Michael Chappell 

Administrative Law Judge 

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

Washington, DC 20580 

Dated: March 17, 2023 Respectfully submitted, 

/s/ Derek Woodman 

DEREK WOODMAN 

Counsel for Intuit Inc

PUBLIC FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/17/2023 | Document No. 607260 | PAGE Page 161 of 161 * PUBLIC *;