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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of: 

Docket No. 9408 

Intuit Inc., a corporation. 

RESPONDENT INTUIT INC.’S OPPOSITION TO COMPLAINT COUNSEL’S 

MOTION IN LIMINE TO PRECLUDE INTUIT FROM INTRODUCING AT TRIAL 

EVIDENCE OF PURPORTED CUSTOMER SATISFACTION 

AS A DEFENSE TO LIABILITY 

Complaint Counsel (CC)’s motion to preclude evidence regarding “customer 

satisfaction” is a thinly-veiled attempt to prevent consideration of evidence confirming that 

consumers were not misled by the challenged ads. To begin, the relief sought is hopelessly 

vague and the motion should be denied on that basis alone. But CC is also wrong on the merits. 

This Court has already recognized that “feedback received by Intuit regarding its free TurboTax 

offer, product, or service” is “relevant to the allegations and the defenses in this case.” Order 

Granting CC’s Motion To Compel 2 (Dec. 30, 2022). While CC interpret that to mean only 

evidence favorable to their case is admissible, that is clearly not the law. Moreover, the exhibits 

and testimony CC’s motion appears to target do not merely demonstrate the “existence of happy 

customers.” Mot. 4. The evidence Intuit intends to introduce demonstrates that TurboTax meets 

or exceeds the majority of customers’ expectations—including expectations about the ability to 

file for free. Such evidence is central to CC’s deception claim, which is why comparable 

evidence has been admitted (and in fact relied on) in similar cases. CC’s motion should be 

denied. 

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I. BACKGROUND 

Intuit’s customers regularly provide feedback on their experiences with TurboTax 

products (products that are extremely popular overall). This consumer feedback—reflected in 

Net Promoter Scores (NPS), reviews and ratings, customer service interactions, empirical survey 

responses, and retention rates—provides strong evidence that Intuit meets or exceeds consumer 

expectations for TurboTax products. NPS, for example, is a standard and well-respected 

customer measure of how likely customers are to recommend a company or product to a friend 

or colleague. See RX504. To assess NPS, Intuit conducts blind, unbranded studies examining 

whether customers’ expectations have been met and comparing performance against its 

competitors. See RX592 at INTUIT-FTC-PART3-000602703. Indeed, a specific question in 

Intuit’s TY2020 NPS study asked consumers about their awareness and expectations about being 

able to file for free using TurboTax. RX592 at INTUIT-FTC-PART3-000602669. The 

percentage of consumers who had an awareness or expectation of being able to file for free using 

TurboTax matched almost exactly the percentage of consumers in the survey who did file for 

free using TurboTax. Id. 

Intuit has relied on these and other data because they reflect comprehensive evidence of 

customer experiences, offer important points of comparison against benchmark companies in the 

tax-preparation industry, and provide empirical support for Intuit’s successful business model. 

See Intuit MSD Opp. 9, 20, 24-25. 

II. ARGUMENT 

A. CC’s Motion Is Facially Deficient And Overbroad 

“[M]otions in limine are generally used to ensure evenhanded and expeditious 

management of trials by eliminating evidence that is clearly inadmissible.” 1-800 Contacts, Inc., 

2017 WL 1345288, at *1 (FTC Mar. 30, 2017) (emphasis added). “The evidence sought to be 

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excluded on a motion in limine must be identified with a level of specificity which permits the 

court to make the appropriate determination.” Bouygues v. Tekelec, 2007 WL 9718142, at *1-3 

(E.D.N.C. Feb. 23, 2007). Courts “routinely” deny motions in limine “for lack of specificity” 

where they fail to identify “the particular evidence” sought to be excluded and “present a serious 

risk of excluding admissible evidence.” A.Hak Indus. Servs. BV v. Techcorr USA, LLC, 2014 

WL 12591696, at *1 (N.D. W. Va. Dec. 18, 2014) (collecting cases); see, e.g., Grouse River 

Outfitters Ltd. v. Oracle Corp., 2019 WL 8918902, at *11 (N.D. Cal. June 21, 2019) (denying 

motion in limine where the movant “has not specified what it seeks to exclude”). 

CC’s motion should be denied on this basis alone. CC’s proposed order would preclude 

Intuit “from introducing evidence of satisfied consumers or high customer satisfaction to show 

that the claims at issue were not satisfied.” But CC have engaged in little effort to identify the 

specific evidence that would fall within that broad, ill-defined category. The motion provides a 

list of 32 “example” exhibits (Mot. 2), but they obscure rather than clarify the motion’s scope. 

To start, many exhibits are largely or entirely unrelated to customer expectations. For instance, 

CC cite to several lengthy Intuit presentations on topics such as product tests, pricing and 

revenue strategy, and customer growth models. See RX59, RX61, RX704. CC make no attempt 

to identify specific portions of those exhibits that should be excluded, or to justify excluding 

entire exhibits. CC also seek to exclude RX9, which is simply a screenshot of the TurboTax 

Products & Pricing page from Tax Year 2021. This page provides detailed information to 

consumers about the TurboTax product suite. CC have provided no justification for excluding it. 

This exhibit and similar ones, to the extent RX9 is provided as an exemplar, plainly should not 

be excluded. Further, most of the exhibits appear to relate (based on title alone) to NPS data, but 

CC do not purport to limit their motion to that single metric, explain why that metric should be 

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excluded, or explain why its exclusion would justify the exclusion of “other customer experience 

metrics,” Mot. 2.1 

Further exacerbating the confusion are CC’s references to excerpts of Intuit’s expert 

reports, because those excerpts analyze certain customer data that are not otherwise mentioned in 

the motion or exemplar exhibits—including customer retention. To the extent retention is also 

covered by this motion, CC never explain why such evidence should be excluded.2 

CC’s failure to adequately identify the specific evidence they seek to exclude (the 

proposed order identifies no exhibits) means granting the motion will not ensure “expeditious 

management” of the trial. 1-800 Contacts, Inc., 2017 WL 1345288, at *1 (FTC Mar. 30, 2017). 

Instead, granting such a broad request “present[s] a serious risk of excluding admissible 

evidence.” A.Hak, 2014 WL 12591696, at *1. At best, it will cause confusion and invite myriad 

disputes over the evidence the motion covers. “Where, as here, a party seek a general exclusion 

of a broad or vaguely defined category of evidence, ‘the best course of action is to deny the 

1

 Making matters worse, CC have not, as far as Intuit can tell, provided courtesy copies of any of 

the listed exhibits to the Court. (The email providing a courtesy copy of the motion to the Court, 

on which Intuit’s counsel were copied, made no mention of CC separately providing any 

exhibits.) Thus, even if it were the Court’s burden to review the exhibits to determine which 

portions fall within the ambit of CC’s motion, the Court has no way of doing so. It is improper 

for CC to ask the Court to rule on the admissibility of dozens of exhibits without being able to 

review them. 

2

 CC cannot attempt to cure the vagueness and overbreadth just identified in a reply. CC had an 

obligation to specify in their motion exactly what evidence they were asking the Court to 

exclude. Allowing CC to do so properly for the first time in reply would unfairly prevent Intuit 

from addressing CC’s actual arguments, and deprive the Court of the benefit of adversarial 

briefing on CC’s motion. 

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motion and see how the case unfolds.’” Championship Tournaments, LLC v. U.S. Youth Soccer, 

Ass’n, Inc., 2022 WL 1002137, *3 (D. Md. Apr. 4, 2022).3 

B. The Evidence At Issue Is Relevant And Admissible 

In any event, CC’s motion fails on the merits. It is premised on the notion that “the 

existence of happy customers is simply not evidence that consumers were not deceived[,] while 

consumers complaining about being deceived is evidence of deception.” Mot. 4. That assertion 

mischaracterizes Intuit’s evidence, misstates the law, and would unfairly allow CC to offer the 

same type of evidence that they seek to exclude. 

To start, CC are wrong to suggest that the evidence cited simply reflects “the existence of 

happy customers.” Mot. 4. Intuit’s competitive NPS, thousands of customer reviews, and 

consistently high product ratings on the TurboTax website also bear on the core issue in this 

case, indicating that Intuit’s advertisements are not deceptive. That is because if the ads were 

deceptive—i.e., if customers who expected to file for free before using TurboTax could not do 

so—expressions of these unmet expectations would be reflected in their reports of their 

experience using the product. Customer-retention rates, for example, are a key metric for 

assessing whether consumers believe they received what they were offered. The fact that most 

customers return to use TurboTax products (both free and paid) year after year suggests the 

absence of any unfulfilled expectation that consumers could file for free; if customers felt 

deceived by a bait-and-switch scheme, they would likely not return to the product the next year. 

3 To be clear, CC’s motion is not objectionable for targeting a category of evidence rather than a 

specific set of exhibits; it is objectionable because the category CC has “identified” is itself 

vague. Particularly where the exemplar exhibits included by CC do not clearly define the 

boundaries of the proposed category, it is not clear which exhibits would qualify for exclusion 

and which would not. In fact, CC’s proposed category is so broad that it appears to encompass 

some of CC’s own proposed evidence. 

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See RX1018 ¶¶47, 52-54. Customer reviews and ratings (both positive and negative) likewise 

provide meaningful information about customer expectations regarding a consumer’s ability to 

file for free. Again, if any significant number of TurboTax customers had been deceived into 

paying for something that they were previously told was free, one would expect that to be 

reflected in that data. See id. ¶ 50; RX1027 ¶¶154-162. Customer-experience metrics therefore 

indicate more than just the existence of happy customers; they are evidence of customer 

expectations being met—in other words, evidence of no deception. See RX1018 ¶¶31-33, 67. 

Evidence similar to Intuit’s has (contrary to CC’s assertions) been relied on in other 

deception cases. For example, FTC v. DirecTV, 2018 WL 3911196 (N.D. Cal. Aug. 16, 2018), 

involved the “FTC’s theory ... that Defendant’s advertisements were likely to mislead 

reasonable consumers because, in its view, critical details of Defendant’s offer were not 

disclosed prominently enough,” id. at *5. In rejecting that theory, the court relied in part on 

DirecTV’s NPS of 34—lower than Intuit’s score here—and DirecTV’s customer retention rate. 

Id. at *18 & n.17. The court also allowed (and in fact credited) testimony from a DirecTV 

executive that “if consumers believed that the terms in DirecTV’s advertisements did not match 

the terms disclosed when they sought to subscribe, that feeling of deception would have been 

reflected in ... DirecTV’s data collected on pain points, consumer research, sales calls, closing 

rates, activation rates, and churn.” Id. That data, the court found, undermined the FTC’s theory 

of deception. Id. DirecTV makes clear that Intuit’s evidence reflecting consumers’ experiences, 

which similarly demonstrates that customers were not deceived by the challenged ads, is 

admissible. 

CC are equally wrong to request exclusion of lay testimony about “the fulfillment of 

consumer expectations” (Mot. 2), because Intuit surely must be permitted to introduce some 

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evidence regarding “consumer expectations” in a case where its actions are “considered from the 

perspective of the reasonable consumer” (CC Pretrial Br. 30). See also Ex. A (Yoeli Tr.) 38:23-

39:22 (describing CC’s deception theory as consumers visiting the TurboTax website with “some 

expectation” it would be free for them); id. at 49:1-14 (explaining the word “expectation” was 

used as a “catch-all phrase for what the law refers to as the interpretation of a reasonable 

consumer”). 

Intuit’s evidence is thus directly relevant to CC’s claim. CC’s arguments focus on 

reasonable consumers’ beliefs—after being exposed to Intuit’s free advertising—about their 

ability to file their taxes for free using TurboTax. See, e.g., CC’s MSD 21. Evidence that goes 

to that issue—including the exhibits identified in CC’s motion concerning customer expectations 

about TurboTax products, price, or the ability to file for free and whether those expectations 

have been met—is manifestly relevant. CC have already recognized, in fact, that customerfeedback evidence is “facially relevant.” CC’s Motion To Compel Production of Documents 4-5 

(Dec. 9, 2022). That was why CC argued Intuit had to produce “Voice of Consumer” data from 

its customer relationship management (CRM) database. Id. This Court agreed, ruling that 

“feedback received by Intuit regarding its free TurboTax offer, product, or service” is “relevant 

to the allegations and the defenses in this case.” Order Granting CC’s Motion To Compel 2 

(Dec. 30, 2022). That ruling requires admission of the evidence CC now seek to exclude. 

CC’s cited cases do not support exclusion. For example, in Daniel Chapter One, 2009 

FTC LEXIS 86 (Apr. 20, 2009), the court excluded evidence of consumer beliefs that an 

advertised product could treat cancer because the “non-scientific, consumer testimonials” had 

“little probative value for determining whether [the] product work[ed] in the manner claimed”— 

that is whether, as a scientific matter, the product could actually treat cancer. Id. at *4-8. Thus, 

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consumers’ beliefs had no impact on whether the claims were deceptive. And indeed, the 

respondents conceded they did not intend to use the testimonials to show a lack of deception. Id. 

at *7. Here, however, consumers would have discovered whether they were ineligible to file for 

free while using the product—and thus would voice their approval or disapproval in their 

feedback. 

As for FTC v. Amy Travel Service, Inc., 875 F.2d 564, 572 (7th Cir. 1989), the court there 

excluded testimony from two customer witnesses who were not exposed to the allegedly 

deceptive claims, as well as a set of “postcards and letters” from additional customers. Even if 

those customers had been given the allegedly deceptive sales pitch (the court’s opinion does not 

say), there were no indications the isolated anecdotes contained in the postcards were 

representative of customers’ experiences. See id. 

Intuit, by contrast, seeks to introduce comprehensive consumer-experience data with 

metrics on which industry participants themselves rely. Like in DirecTV, if CC’s theory of 

deception were true, one would expect it to be reflected in at least some of those metrics, and yet 

it is not. The evidence instead shows that TurboTax meets or exceeds the expectations of the 

overwhelming majority of its customers, including their expectations about filing for free. CC’s 

request that the Court ignore that data entirely is telling. 

C. The Evidence Is Admissible To Respond to CC’s Evidence 

At a minimum, the evidence apparently covered by CC’s motion is admissible to rebut 

CC’s own consumer-satisfaction evidence. CC’s witness and exhibit lists reflect CC’s intent to 

offer evidence obtained from the CRM database, as well as consumer complaints from the 

Sentinel database, to support their arguments. See also CC’s Pretrial Br. 23-27. But CC cannot 

have it both ways, arguing that evidence of negative customer feedback is relevant but that 

evidence of positive customer feedback is not. If CC’s evidence of negative feedback is admitted 

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(after Intuit was compelled to produce it), Intuit’s responsive evidence of positive feedback must 

be as well. CC’s “heads we win, tails you lose” argument is based on snippets of cases taken 

wholly out of context and misstates the applicable law. 

III. CONCLUSION 

The Court should deny CC’s motion. 

Dated: February 24, 2023 Respectfully submitted, 

WILMER CUTLER PICKERING HALE 

AND DORR LLP 

/s/ David Z. Gringer 

Jonathan E. Paikin David Z. Gringer 

Jennifer Milici 7 World Trade Center 

Derek A. Woodman 250 Greenwich St. 

Andres Salinas New York, NY 10007 

Molly Dillaway Telephone: (212) 230-8800 

2100 Pennsylvania Ave NW Facsimile: (212) 230-8888 

Washington, DC 20037 David.Gringer@wilmerhale.com 

Telephone: (202) 663-6000 

Facsimile: (202) 663-6363 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Attorneys for Respondent Intuit Inc. 

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UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of: 

Docket No. 9408 Intuit Inc., a corporation. 

DECLARATION OF DEREK WOODMAN IN SUPPORT OF 

RESPONDENT INTUIT INC.’S OPPOSITION TO COMPLAINT COUNSEL’S 

MOTION IN LIMINE TO PRECLUDE INTUIT FROM INTRODUCING AT TRIAL 

EVIDENCE OF PURPORTED CUSTOMER SATISFACTION 

AS A DEFENSE TO LIABILITY 

I, Derek A. Woodman, declare as follows: 

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

Inc. in the above-captioned proceeding. 

2. I submit this declaration in support Intuit’s opposition to Complaint Counsel’s 

motion in limine to preclude Intuit from introducing at trial evidence of purported customer 

satisfaction as a defense to liability. 

3. Attached as Exhibit A is a true and correct excerpt of the transcript of the 

deposition of Erez Yoeli, Ph.D. taken by Intuit as part of this proceeding on February 16, 2023. 

4. Attached is a true and correct copy of RX504 (INTUIT-FTC-PART3-

000600984), an article by Chen, E., “What is the Net Promoter Score (NPS)?” MIT Orbit, 

available at https://orbit-kb.mit.edu/hc/en-us/articles/206440723-What-is-the-Net-PromoterScore-NPS-. 

5. Attached is a true and correct copy of RX592 (INTUIT-FTC-PART3-

000602627), a presentation entitled “TurboTax Online TY20 NPS Study,” dated August 2021. 

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6. Attached is a true and correct excerpt of RX1018, the Expert Report of Professor 

Peter N. Golder, Ph.D., dated January 13, 2023. 

7. Attached is a true and correct excerpt of RX1027, the Expert Report of Bruce F. 

Deal, dated January 13, 2023. 

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

Executed on this 24th day of February, 2023. 

By: /s/ Derek Woodman 

DEREK WOODMAN 

Wilmer Cutler Pickering 

Hale and Dorr LLP 

2100 Pennsylvania Ave NW 

Washington, DC 20037 

Telephone: (202) 663-6000 

Derek.Woodman@wilmerhale.com 

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EXHIBIT A

Submitted in Camera

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RX592

(Submitted In Camera) 
 

 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

 Rebecca Kelly Slaughter 

 Christine S. Wilson 

Alvaro M. Bedoya 

Docket No. 9408 In the Matter of: 

Intuit Inc., a corporation. 

EXPERT REPORT OF PROFESSOR PETER N. GOLDER, PH.D. 

JANUARY 13, 2023 
 

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TABLE OF CONTENTS 

I. Introduction.............................................................................................................................1 

A. Qualifications.................................................................................................................1 

B. Case Background ...........................................................................................................3 

C. Assignment ....................................................................................................................7 

II. Summary of Opinions.............................................................................................................9 

III. Complaint Counsel’s Theories of Deception and Lock-In Are Inconsistent 

with Marketing Literature and Practice ................................................................................14 

A. TurboTax Customer Reviews Indicate Customers Receive Benefits 

from the Service and Do Not Feel Misled ...................................................................16 

1. TurboTax Customer Reviews Reflect Meeting or 

Exceeding Consumer Expectations ........................................................... 20 

2. TurboTax Customer Reviews and Retention Are 

Inconsistent with Deception ...................................................................... 28 

B. Customers Are Not Locked-In Once They Have Begun Using 

TurboTax Free Edition or Filed in Prior Years Using TurboTax Free 

Edition..........................................................................................................................30 

1. Many Consumers Try Out Multiple Online Tax Preparation 

Providers in a Given Year......................................................................... 32 

2. Consumers Regularly Switch Tax Preparation Providers 

Year to Year.............................................................................................. 35 

IV. Low Complaint Rates Are Inconsistent with the Theory of Deception 

Alleged..................................................................................................................................39 

A. Complaint Counsel and Ms. Shiller’s Analyses of Complaints Are 

Unreliable.....................................................................................................................40 

B. Intuit’s Rate of BBB Complaints Is in Line with a Set of Comparable 

Benchmark Companies ................................................................................................51 

1. Intuit’s Rate of Customer Complaints Is Comparable to 

Benchmark Companies ............................................................................. 53 

2. Intuit’s Rates of Keywords Related to Deceptive 

Advertising or Deceptive Pricing in Complaints Are 

Comparable to Benchmark Companies .................................................... 57 

V. Intuit’s Free Ads Consistently Include Industry Standard Disclosures Across 

Media That Are in Line with Benchmark Companies’ Disclosures and 

Inform Reasonable Consumers About the Qualifications for Free Offers ...........................59 

A. Intuit’s Free Ads Consistently Include Disclosures that the Free Offer 

Is for Simple Returns Only ..........................................................................................61 

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B. Intuit’s Simple Returns Disclosure Effectively Conveys the Existence 

and Category of Eligibility Limitations for Free Offers ..............................................65 

1. Intuit’s Simple Returns Disclosure Indicates Both the 

Existence and Category of Eligibility Restriction and Is 

Consistent with Industry Norms ............................................................... 65 

2. A Full Assessment of Whether an Individual’s Tax Return 

Is Simple or Complex Is Not Feasible in an Advertisement ..................... 72 

C. Intuit’s Disclosure Proximity and Prominence Are in Line with 

Benchmark Companies’ Disclosures ...........................................................................78 

VI. Intuit’s Free Ads Are One Initial Source of Information in the HighInvolvement Consumer Buying Process for Tax Preparation and Would Be 

Unlikely to Deceive Reasonable Consumers ........................................................................85 

A. Reasonable Consumers of Tax Preparation Services Are Typically 

Careful Buyers Who Make Informed Purchase Decisions ..........................................86 

B. Prolonged Information Search Is Common for High-Involvement 

Products Like Tax Preparation.....................................................................................89 

C. Advertising Represents Only One Piece of Information in the 

Consumer Buying Process ...........................................................................................94 

D. Consumers Encounter Many Offers for Free Products or Services and 

Demonstrate Skepticism and an Expectation of Terms and Conditions 

that Describe Accessing or Keeping the Free Offer ..................................................100 

VII. The TurboTax Website Provides Information in a Clear and Timely Manner ...................106 

A. The TurboTax Website Provides Clear Information About the 

TurboTax Product Lineup and Discloses Up Front that Free Edition Is 

Not Appropriate for All Tax Situations .....................................................................106 

1. Homepage ............................................................................................... 108 

2. Simple Returns Pop-up ........................................................................... 112 

3. Free Edition Landing Page...................................................................... 116 

4. Products & Pricing Page ......................................................................... 118 

B. The TurboTax Website Minimizes the Amount of Time for Consumers 

to Find the Appropriate Product for Their Tax Situation and Provides 

Clear Information Throughout the Process ................................................................123 

1. The TurboTax Website Contains Functionality to Direct 

Customers to the Appropriate Product for Their Tax 

Situation .................................................................................................. 124 

2. Upgrade Screens Inform Customers as Early as Possible of 

a Required Upgrade, Minimizing the Time and Effort 

Customers Spend Before Encountering an Upgrade Screen ................... 129 

3. Even in the Final Stages of the Filing Process, TurboTax 

Provides Clear Pricing Information to Customers One More 

Time Before Purchase............................................................................. 136 

VIII. Reasonable Consumers Are Not Likely to Be Deceived by Intuit’s Free Ads ...................139 

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IX. Non-Standard Disclosure Requirements Could Alter TurboTax Free Edition 

TV Advertising and Could Decrease Awareness and Use of Free Tax Filing 

Solutions .............................................................................................................................141 

A. Intuit’s Investment in Advertising Free Edition Likely Increased the 

Number of Taxpayers Filing Their Tax Returns for Free ..........................................143 

B. Reducing the Impact or Amount of TV Advertising for TurboTax Free 

Edition Would Not Lead Many, if Any, Consumers to Pay Less to File 

Their Taxes and Could Lead Many to Pay More to File Their Taxes .......................146 

1. Other Online Tax Preparation Providers................................................. 147 

2. Other Tax Preparation Filing Options..................................................... 148 

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I. INTRODUCTION 

A. Qualifications 

1. My name is Peter Golder. I am a professor of marketing at the Tuck School of Business at 

Dartmouth College in Hanover, New Hampshire. In 2014, I was appointed by Dartmouth’s 

president to be one of seven founding faculty members in Dartmouth’s Society of Fellows. 

From 2015 to 2018, I served as area coordinator of the Tuck School’s marketing faculty 

group. From 2015 to 2020, I was co-editor-in-chief of the academic journal Marketing 

Letters. From 2017 to 2020, I was faculty director of the Tuck School’s First-Year Project 

course and, from 2018 to 2020, I was faculty director of the Tuck School’s global 

experiential courses. In 2020, I was named an Academic Fellow of the Marketing Science 

Institute. I previously served as professor of marketing and coordinator of the marketing 

department doctoral program at the Stern School of Business at New York University in 

New York, New York. 

2. I hold a Ph.D. in Business Administration (Marketing) from the University of Southern 

California and a B.S. in Mechanical Engineering from the University of Pennsylvania. 

3. My research experience and interests include branding, historical analysis of markets, 

sources of market leadership, product features and customer perceptions associated with 

quality, innovation, market entry strategies, new product development and marketing, and 

global marketing. I have employed a variety of research methods in addressing these topics, 

including the historical research method, surveys, case studies, and econometric analysis. 

In 2000, I published a paper on the historical research method in the Journal of Marketing 

Research, one of the leading journals in the marketing discipline, providing a 

comprehensive description of the method and explaining its usefulness for generating 

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loyalty increases,28 improving the chances they will return to Intuit in future years and 

share their positive experience with friends and family. 

30. Companies that operate on a Customer Lifetime Value strategy, therefore, are incentivized 

to ensure that customers have a positive experience with the product and regularly track 

metrics that reflect the customer experience. Consistent with a Customer Lifetime Value 

approach, Intuit tracks NPS, customer reviews and ratings, and customer retention. Across 

each of these metrics, Intuit has high ratings, indicative of customers who feel that the 

TurboTax product meets or exceeds their expectations. 

A. TurboTax Customer Reviews Indicate Customers Receive Benefits from the 

Service and Do Not Feel Misled 

31. Customer ratings and reviews reflect a post-consumption judgment made by customers that 

compares their experience of a product relative to their expectations.29 Customer sentiment 

largely reflects the difference between what a customer expected from a product and what 

he or she received.30 A consumer’s expectations about a product may come from various 

28 See e.g., Yang, Zhilin and Robin T. Peterson, “Customer Perceived Value, Satisfaction, and Loyalty: The Role 

of Switching Costs,” Psychology & Marketing, Vol. 21, No. 10, October 2004, pp. 799-822 (“Yang and 

Peterson (2004)”), INTUIT-FTC-PART3-000598504, p. 815 (“Perceived value is another key driver of 

customer loyalty and also significantly influences customer satisfaction. As e-commerce has made cost 

transparency more feasible, total product/service cost, not solely the list price, has become an increasingly 

important feature for attracting customers. The total cost constitutes both explicit expenses (i.e., product/service 

price) and implicit expenses such as shipping costs, return costs, coupon usages, discount rewards, and free 

services. Additionally, firms should provide the product portfolio and value-added free services that are in 

demand to increase their competitive advantage.”). 

29 Golder, Peter N. et al., “What is Quality? An Integrative Framework of Processes and States,” Journal of 

Marketing, Vol. 76, No. 4, July 2012, pp. 1-23 (“Golder, Mitra, and Moorman (2012)”), INTUIT-FTC-PART3-

000595336, p. 4. 30 Kotler, Philip and Kevin Keller, Marketing Management 14th Ed., Pearson Education, 2012 (“Kotler and Keller 

(2012)”), INTUIT-FTC-PART3-000596682, (“satisfaction is a person’s feelings of pleasure or disappointment 

that result from comparing a product’s perceived performance (or outcome) to expectations. If the performance 

falls short of expectations, the customer is dissatisfied. If it matches expectations, the customer is satisfied. If it 

exceeds expectations, the customer is highly satisfied or delighted. Customer assessments of product 

performance depend on many factors, especially the type of loyalty relationship the customer has with the 

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sources of information including past experiences, third-parties, competitors’ offerings, the 

firm itself (advertising, market share, firm reputation), and product-specific signals.31 

Thus, both the experience of the product attributes and the customer’s expectations 

regarding the product attributes are key components of whether customers feel their 

expectations were met.32 Managing expectations regarding both price and product 

attributes (in particular by not setting expectations unrealistically high) is a key component 

of improving customer sentiment, and ultimately customer retention.33 

32. Academic literature indicates that feelings of deception lead to negative feelings about a 

brand, lower probability of recommending the product to a friend, and lower overall 

satisfaction.34 In contrast, high customer ratings indicate that the customers’ expectations 

were generally matched or exceeded by the customers’ experiences with the product. 

Because meeting or exceeding customer expectations leads to customer loyalty, it is critical 

brand.”) p. 128. See also, Golder, Mitra, and Moorman (2012); Mitra, Debanjan and Peter N. Golder, “How 

Does Objective Quality Affect Perceived Quality? Short-Term Effects, Long-Term Effects, and Asymmetries,” 

Marketing Science, Vol. 25, No. 3, May-June 2006, pp. 230-247 (“Mitra and Golder (2006)”), INTUIT-FTCPART3-000595317. 

31 Golder, Mitra, and Moorman (2012), p. 10. 

32 Golder, Mitra, and Moorman (2012), p. 10. 

33 Golder, Mitra, and Moorman (2012), p. 15; See also, Kerin, Roger and Steven Hartley, Marketing 15th Ed., New 

York, NY, McGraw-Hill Education, 2020 (“Kerin and Hartley (2020)”), INTUIT-FTC-PART3-000596659; 

Perreault, William et al., Essentials of Marketing, New York, NY, McGraw-Hill Education, 2019 (“Perreault., 

et al. (2019)”), INTUIT-FTC-PART3-000598454. 

34 See e.g., Xie, Guang-Xin et al., “Disentangling the Effects of Perceived Deception and Anticipated Harm on 

Consumer Responses to Deceptive Advertising,” Journal of Business Ethics, Vol. 29, April 1, 2014, pp. 281-

293 (“Xie, Madrigal, and Boush (2014)”), INTUIT-FTC-PART3-000598490; Craig, Adam et al., “Suspicious 

Minds: Exploring Neural Processes During Exposure to Deceptive Advertising,” Journal of Marketing 

Research, Vol. 49, No. 3, June 2012, pp. 361-372 (“Craig, et al. (2012)”), INTUIT-FTC-PART3-000595267; 

Román, Sergio, “Relational Consequences of Perceived Deception in Online Shopping: The Moderating Roles 

of Type of Product, Consumer’s Attitude Toward the Internet and Consumer’s Demographics,” Journal of 

Business Ethics, Vol. 95, No. 3, September 2012, pp. 373-391 (“Román (2012)”), INTUIT-FTC-PART3-

000598459; Held, Johanna and Claas Christian Germelmann, “Deception in Consumer Behavior Research: A 

Literature Review on Objective and Perceived Deception,” Cairn.Info, Vol. 3, No. 21, 2018, pp. 119-145 

(“Held and Germelmann (2018)”), INTUIT-FTC-PART3-000595396. 

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that companies do so, especially in the case of product categories reliant on repeat 

purchasers.35 

33. Meeting or exceeding customer expectations is also essential to brand reputation and longterm growth.36 Intuit has every incentive to cultivate and maintain a strong reputation and 

to meet customers’ expectations to both secure new customers and to retain existing 

ones.37,38 Meeting or exceeding customer expectations is especially critical in the tax 

preparation industry where there is low overall industry growth, relatively low barriers to 

switching, and renewed competition for each and every customer each year.39 

35 Kotler and Keller (2016), p. 152 (“A buyer’s satisfaction is a function of the product’s perceived performance 

and the buyer’s expectations. Recognizing that high satisfaction leads to high customer loyalty, companies must 

ensure that they meet and exceed customer expectations.”). 

36 Kerin and Hartley (2020), p. 128 (“Studies show that satisfaction or dissatisfaction affects consumer 

communications and repeat-purchase behavior. Satisfied buyers tell three other people about their experience. 

In contrast, about 90 percent of dissatisfied buyers will not buy a product again and will complain to nine 

people. Satisfied buyers also tend to buy from the same seller each time a purchase occasion arises. The 

financial implications of repeat-purchase behavior are significant”). See also, Perreault., et al. (2019), p. 133. 

37 Intuit’s Senior Vice President of Marketing Cathleen Ryan testified to the importance of meeting or exceeding 

customer expectations including in Intuit’s advertising, stating “it is in our best interest to ensure clarity in our 

advertising. We want the right customers to find the right products. We do not want the wrong customers to find 

products that aren’t right for them. We want people to start in the right SKU. It is best for our business. It is best 

for our customers, and that is what we strive for,” Deposition of Cathleen Ryan (as Intuit 3.33(c) Designee), In 

the Matter of: Intuit Inc., A Corporation, Docket No. 9408, November 28, 2022 (“Ryan 3.33c Deposition 

(2022)”), 47:6-15. 

38 Greg Johnson, Intuit’s Executive Vice President and General Manager of Intuit’s Consumer Group at the time 

of his deposition, also testified to the importance of meeting or exceeding customer expectations in respect to 

long term growth, that Intuit’s “guiding approach is to grow customers that pay us nothing, and so that is our 

focus to build relationships and grow our business and grow those relationships,” Examination of Greg Johnson 

via Zoom, Federal Trade Commission in the Matter of: TurboTax, Inc., A Corporation, Docket No. 1923119, 

September 29, 2020 (“Johnson Deposition”) at 124:17-23. 

39 Intuit, “ ,” November 18, 2022, INTUIT-FFA-FTC-000153389 (GX 448-B), 

p. 26. (“ ”). 

Intuit, “ INTUIT-FTC-PART3-000489527 (“ 

). Expert Report 

of Rebecca Kirk Fair, In the Matter of: Intuit Inc., a corporation, No. 9408, January 13, 2023 (“Kirk Fair 

Report”), Section V.C (“Many Respondents Demonstrate a Willingness to Consider Alternatives and To 

Identify and Use the Appropriate Product for Their Specific Situation”). 

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with 4.4 stars, and H&R Block with 4.1 stars.60 The Auto Insurance Provider benchmark 

group had an average rating of 4.6 out of 5 stars,61 followed by the Wireless Carrier 

benchmark group with 3.7 stars,62 and the TV Service Providers benchmark group with 3.1 

stars.63 

c) Customer Retention Rates 

47. Intuit reported an approximately 80 percent customer retention rate in a September 2022 

Investor Day presentation, meaning that the vast majority of customers continue to use 

TurboTax products year-over-year.64 

60 Jackson Hewitt did not have a rating available on Influenster. “TurboTax,” Influenster, 

https://www.influenster.com/reviews/turbo-tax (“TurboTax”), accessed January 2, 2023; “TaxAct,” Influenster, 

https://www.influenster.com/reviews/taxact (“TaxAct”), accessed January 2, 2023; “TaxSlayer,” Influenster, 

https://www.influenster.com/reviews/taxslayer (“TaxSlayer”), accessed January 2, 2023; “H&R Block,” 

Influenster, https://www.influenster.com/reviews/hr-block (“H&R Block”), accessed January 2, 2023. 

61 I calculate the average rating of the Automobile Insurance Provider benchmark group by taking the average 

Influenster rating of the following auto insurance providers: Geico (4.5 stars out of 5), State Farm (4.6 out of 5 

stars), and Allstate (4.7 out of 5 stars). Progressive and USAA did not have ratings available on Influenster. See 

“GEICO Reviews 2022,” Influenster, https://www.influenster.com/reviews/geico (“GEICO Reviews 2022”), 

accessed January 2, 2023; “StateFarm Insurance Reviews 2022,” Influenster, 

https://www.influenster.com/reviews/statefarm-insurance (“StateFarm Insurance Reviews 2022”), accessed 

January 2, 2023; “Allstate Insurance Reviews 2022,” Influenster, https://www.influenster.com/reviews/allstateinsurance (“Allstate Insurance Reviews 2022”), accessed January 2, 2023. 

62 I calculate the average rating of the Wireless Carriers benchmark group by taking the average Influenster rating 

of the following wireless carriers included in the benchmark company analysis: AT&T (3.8 out of 5 stars), TMobile (3.3 out of 5 stars), Verizon Wireless (4.0 out of 5 stars). See “AT&T Insurance Reviews 2022,” 

Influenster, https://www.influenster.com/reviews/att (“AT&T Insurance Reviews 2022”), accessed January 2, 

2023; “T-Mobile Insurance Reviews 2022,” Influenster, https://www.influenster.com/reviews/t-mobile (“TMobile Insurance Reviews 2022”), accessed January 2, 2023; “Verizon Wireless Insurance Reviews 2022,” 

Influenster, https://www.influenster.com/reviews/verizon-wireless (“Verizon Wireless Insurance Reviews 

2022”), accessed January 2, 2023. 

63 I calculated the average rating of the TV Service Providers benchmark group by taking the average Influenster 

rating of the following TV service providers included in the benchmark company analysis: Charter Spectrum 

(3.1 out of 5 stars) and Comcast (3.1 out of 5 stars). Dish Network did not have ratings available on Influenster 

and I exclude DirecTV because the average rating is based on one customer review. See “Charter 

Communications Reviews 2022,” Influenster, https://www.influenster.com/reviews/charter-communications 

(“Charter Communications Reviews 2022”), accessed January 2, 2023; “Comcast Xfinity Reviews 2022,” 

Influenster, https://www.influenster.com/reviews/comcast-xfinity (“Comcast Xfinity Reviews 2022”), accessed 

January 2, 2023. 

64 Investor Day (2022), p. 96 (“Excluding stimulus-only filers”). 

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who feel deceived by their purchase are unlikely to return to the product in the next year, 

thus TurboTax’s high customer retention rates suggest the absence of an unfulfilled 

expectation that consumers could file for free, and therefore indicate the opposite of 

deception among its consumers. 

2. TurboTax Customer Reviews and Retention Are Inconsistent with Deception 

48. Complaint Counsel disregard the evidence that customers reflect positively on their 

experience with TurboTax and choose to remain TurboTax customers year-over-year. Dr. 

Novemsky speculated that customer ratings “could” remain high because of customers’ 

attempts to decrease cognitive dissonance after paying for TurboTax.67 This theory relies 

on the theory of cognitive dissonance, which refers to the conflict that occurs when a 

person’s behaviors and beliefs do not align. In this case, such cognitive dissonance would 

65 Intuit, “ ,” May 16, 2019, INTUIT-FTC-PART3-000607308, p. 8. 

. Intuit, “ ,” 

May 16, 2019, INTUIT-FTC-PART3-000607308, p. 9. 

66 Intuit, “ ,” June 2021, INTUIT-FTC-PART3-000602174, slide 3. 

67 Second Novemsky Declaration, ¶ 58 (“Professor Golder points to TurboTax’s high customer satisfaction scores 

and retention rates as evidence that consumers were not misled about TurboTax’s products. However, high 

customer satisfaction could be in spite of initial confusion rather than indicating a lack of confusion. Dissonance 

reduction (i.e., ‘I paid to use TurboTax, so I must have valued it’) and high switching costs could contribute to 

positive scores and retention rates. The action of paying alone causes consumers to like a product more, as does 

the action of honoring one’s sunk costs and continuing with the product.”). Whether or not Dr. Novemsky offers 

this opinion in rebuttal, my opinion remains that cognitive dissonance is not driving Intuit’s high customer 

ratings. 

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supposedly cause customers that made an apparently illogical choice (i.e., paying for 

something they thought would be free) to reconcile this choice with their perception of the 

product (i.e., to rate the product highly, even though they were deceived or dissatisfied).68 

While cognitive dissonance is a real phenomenon in the literature, I have seen no evidence 

(and Dr. Novemsky points to no evidence) that, in this case, cognitive dissonance exists, 

let alone is so strong as to overpower the negative feelings of deception that are 

hypothesized to exist here. In my opinion, cognitive dissonance cannot explain Intuit’s high 

customer ratings. 

49. Under such a theory, customers expressing that they value their purchase of products and 

services could be seen as an indicator of deception. If this theory is to be believed, it would 

lead to future FTC investigations into products and services delivering value to tens of 

millions of customers. This would be absurd, especially in cases such as this one where no 

evidence of cognitive dissonance has been provided. 

50. Thus, if a consumer expected to file for free when they began using the TurboTax product 

but, in fact, could not do so, we would expect to see that reflected in a customer’s report of 

their experience using the product. 

51. As a result, Dr. Novemsky’s unsupported assertion that cognitive dissonance is driving 

Intuit’s consistently positive ratings from its customers and high customer retention rate is 

68 George, Babu P and Manoj Edward, “Cognitive Dissonance and Purchase Involvement in the Consumer 

Behavior Context,” The IUP Journal of Marketing Management, Vol. VIII, No. 3 &4, 2009, pp. 7-24 

(“Cognitive Dissonance and Purchase Involvement in the Consumer Behavior Context”), INTUIT-FTCPART3-000595280, p. 7 (“Cognitive dissonance is a psychological phenomenon that occurs when there exists a 

discrepancy between what a person believes and information that calls this into question (Festinger, 1957). It is 

psychologically uncomfortable to hold contradictory cognitions. The psychological discomfort triggers a mental 

recovery process in the affected individual that can lead to: (1) search for information supportive of the held 

belief coupled with constant attempts to downplay the cognition that resulted in the phenomenon of dissonance, 

or (2) to a change in belief reflective of the new condition.”). 

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directly at odds with decades of marketing research on customer behavior, including 

marketplace evidence where actually deceptive or deceitful products tend to have consumer 

ratings that reflect the mismatch between customer expectations and reality.69 

B. Customers Are Not Locked-In Once They Have Begun Using TurboTax Free 

Edition or Filed in Prior Years Using TurboTax Free Edition 

52. In apparent recognition that Intuit’s paying customer retention rate is inconsistent with the 

deception alleged, Dr. Novemsky and Complaint Counsel have previously suggested that 

Intuit’s customer retention is high because of high switching costs, sunk costs, the status 

quo bias, and “brand loyalty” (which it appears Complaint Counsel consider to be negative, 

rather than evidence that disproves their theory).70 However, Complaint Counsel and Dr. 

69 For example, the NPS for Chime Financial, Inc., which was investigated by ProPublica for consumer deception, 

was -28 in 2022. In another example, the NPS for MoneyGram International, Inc., which was investigated by 

the FTC for consumer deception, was 25 in 2022. See “Brand Page MoneyGram International,” Comparably, 

July 20, 2022, https://www.comparably.com/brands/moneygram-international (“Brand Page MoneyGram 

International”), accessed July 20, 2022, INTUIT-FTC-PART3-000600989; “Brand Page Chime,” Comparably, 

July 20, 2022, https://www.comparably.com/brands/chime (“Brand Page Chime”), accessed July 20, 2022, 

INTUIT-FTC-PART3-000600996. See also Appendix F for more discussion of the investigations into Chime 

Financial and MoneyGram. 

70 Second Novemsky Declaration, ¶ 59 (“Professor Golder discusses this point in further detail, including Intuit’s 

high customer retention rate. He presents this high retention rate as evidence that consumers were never 

deceived. However, if consumers were deceived but continued with TurboTax so as not to waste their sunk time 

and effort in entering information, then they might continue to use TurboTax in subsequent years because of the 

status quo bias, a well-known bias in consumer behavior. Their lack of awareness of this bias will lead them to 

infer that they are in fact using TurboTax because they like it, not just because it’s the status quo.”); FTC 

Administrative Complaint; FTC Administrative Complaint, ¶¶ 10-12 (“This ‘freemium’ business strategy 

involves, in part, growing Intuit’s customer base by offering free services to consumers to whom Intuit sells 

separate add-on products and services. The ‘freemium’ strategy also involves persuading customers to upgrade 

from free to paid versions of TurboTax. The ‘freemium’ strategy further involves ‘brand loyalty,’ or retention of 

consumers who previously filed their taxes for free in the ‘freemium version of TurboTax returning to 

TurboTax in subsequent years when they are no longer eligible for the ‘freemium’ version and paying Intuit for 

a paid version of TurboTax.”); Batra, Rajeev et al., “Brand Love,” Journal of Marketing, Vol. 76, No. 2, March 

2012, pp. 1-16 (“Brand Love”), INTUIT-FTC-PART3-000595202, p. 6 (“When consumers described their love 

of brand to us, they invariably described a broad and long-term consumer-brand relationship, with multiple 

interrelated cognitive, affective, and behavioral elements.”); Batra, Rajeev et al., “Brand Love: Development 

and Validation of a Practical Scale,” Springer Science and Business Media Marketing Letter, Vol. 28, No. 1, 

2017, pp. 1-14 (“Brand Love: Development and Validation of a Practical Scale”), INTUIT-FTC-PART3-

000595188. Again, whether or not Dr. Novemsky offers this opinion in rebuttal, or Complaint Counsel actually 

maintains its suggestion regarding switching costs, my opinion remains that switching costs are not driving 

Intuit’s high retention rates. 

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Novemsky provide no evidence of high switching costs, instead suggesting vaguely (and 

without support) that the status quo bias may cause customers to stick with their prior 

provider. Although status quo bias may cause a customer without strong feelings about a 

particular product category to return to the same brand out of familiarity or inertia,71 the 

literature makes clear that if consumers were deceived, they would have strong feelings.72 

53. These arguments are inconsistent with my review of the record, and the theory disregards 

the widely accepted and well-studied marketing literature on customer satisfaction and 

Customer Lifetime Value and the realities of Intuit’s operation in a competitive industry. 

The argument that cognitive dissonance and the status quo bias will be strong enough to 

deliver consistently high retention rates in the face of an effort to mislead consumers at the 

scale alleged by Complaint Counsel belies common sense and basic principles of 

marketing. 

54. Importantly, Dr. Novemsky’s and Complaint Counsel’s theory is inconsistent with the 

evidence from Intuit’s ordinary course of business documents discussing the competitive 

nature of the tax preparation industry and low switching costs, the existence of advertising 

by Intuit’s competitors emphasizing the ease of switching among different tax providers 

each year, and evidence of actual customer switching behavior. 

55. In fact, consumer deponents highlight multiple avenues they used for filing their taxes after 

switching from TurboTax, including H&R Block, TaxAct, TaxSlayer, FreeTaxUSA, 

71 Arkes, Hal R. and Catherine Blumer, “The Psychology of Sunk Cost,” Organizational Behavior and Human 

Decision Processes, Vol. 35, 1985, pp. 124-140 (“The Psychology of Sunk Cost”), INTUIT-FTC-PART3-

000595136. 

72 See e.g., Xie, Madrigal, and Boush (2014), Román (2012); Held and Germelmann (2018). 

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Open-ended responses to the Kirk Fair Disclosure Survey also indicated a willingness of 

consumers to conduct additional research and potentially switch tax preparation providers 

when faced with an upgrade screen.96 

67. TurboTax’s high NPS, positive customer reviews, and high customer retention imply that 

customers do not feel misled upon using TurboTax. In other words, Intuit’s consumer data 

demonstrate that most customers feel that the service they receive from TurboTax products 

matches or exceeds their expectations. Given the high-involvement purchase process and 

demonstrably low switching costs, both within-year and between-years, the fact that 

customers choose to stay with Intuit indicates they are simply revealing their true 

preference for TurboTax as a provider. 

IV. LOW COMPLAINT RATES ARE INCONSISTENT WITH THE THEORY OF 

DECEPTION ALLEGED 

68. Another potential source of information regarding whether customers’ expectations were 

met or exceeded is consumer complaints. In this matter, Complaint Counsel have provided 

to date only 396 complaints that they currently allege are relevant to the allegations.97 Even 

if we were to accept that all of these complaints are relevant complaints (which, as I will 

discuss in this section, is an overstatement), this upper bound on complaints would 

represent the views of only 0.0005 percent of the 86.4 million TurboTax customers who 

96 For example, one survey respondent stated that, if faced with an upgrade screen, they would, “search the 

internet and compare the Turbo Tax pay for edition with other tax platforms with comparable features.” See 

Kirk Fair Report, ¶¶ 34-35. 

97 Complaint Counsel’s Supplemental Responses to Intuit’s First and Second Set of Interrogatories, In the matter 

of: Intuit Inc., A Corporation, No. 9408, December 22, 2022 (“Complaint Counsel’s Supplemental Responses to 

First and Second Set of Interrogatories, December 22, 2022”). 

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you buy” with assisted tax preparation products, meaning any taxpayers who choose to 

evaluate a CPA or tax professional as an option will likely be faced not only with higher 

prices, but would be more limited in their ability to evaluate different assisted tax 

preparation options and comparison shop based on price. 

246. Therefore, reducing the impact or amount of Intuit’s advertising of Free Edition could have 

the perverse effect of diverting potential TurboTax customers to other, comparable, DIY 

tax preparation solutions or to more expensive assisted tax preparation solutions, including 

people who could have filed for free using TurboTax. 

Peter N. Golder 

January 13, 2023 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter 

Christine S. Wilson 

Alvaro M. Bedoya 

In the Matter of: 

Docket No. 9408 

Intuit Inc., a corporation. 

EXPERT REPORT OF BRUCE F. DEAL 

JANUARY 13, 2023 
 

 

 

 

 

 

 

 

 

 

 

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TABLE OF CONTENTS 

I. Introduction.............................................................................................................................1 

A. Qualifications .................................................................................................................1 

B. Assignment.....................................................................................................................2 

C. Case Background and Allegations of Misrepresentation...............................................3 

II. Summary of Opinions .............................................................................................................4 

III. Tax Preparation Using TurboTax .........................................................................................12 

IV. Complaint Counsel’s Claims of Widespread and Significant Deception Are

Inconsistent with Intuit’s Economic Incentives....................................................................22 

A. Economic Reasoning Shows That Competition and Pursuit of Repeated 

Customer Interactions Act Together as a Self-Disciplinary Mechanism 

Against a Firm Deceiving Its Customers .....................................................................22 

B. Complaint Counsel’s Claims of Widespread and Significant Deception of

Intuit’s Customers Are Inconsistent with the Competitive Dynamics in the 

Tax Preparation Industry..............................................................................................28 

1. Saturation: The Tax Preparation Industry Has Few New Customers 

Each Year and Is Characterized by Providers Competing for Repeated 

Customer Purchases .............................................................................................. 30 

2. Competing Solutions: Consumers Choose Among Many Offerings by 

Different Providers Competing Aggressively Against Each Other ...................... 31 

3. Differentiation: Tax Preparation Services Are Differentiated.............................. 35 

4. Switching Costs: Consumers Willing to Consider Digital DIY 

Solutions Face Low Switching Costs ................................................................... 41 

C. Customer Retention and Reputation Building Are Critical Elements of Tax 

Preparation Services Providers’ Competitive Strategies .............................................44 

V. Intuit’s Actual Business Strategy Is Inconsistent with Complaint Counsel’s

Theory of Deception .............................................................................................................46 

A. Customer Retention Is Essential to Intuit’s TurboTax Business Model......................46 

B. Contrary to Complaint Counsel’s Allegations, the TurboTax Website Is

Designed to Funnel Customers to the Expected Appropriate Product ........................52 

C. Intuit’s Effortsto Improve Customer Experience by Reducing the Time and 

Effort to File Taxes with TurboTax Are Inconsistent with the Strategy of 

Deception Alleged by Complaint Counsel ..................................................................61 

D. Contrary to Complaint Counsel’s Allegations, Intuit Does Not Have Any 

Means to Prevent Customer Defection ........................................................................67 

VI. Evidence from TurboTax Customer Data Is Inconsistent With Complaint 

Counsel’s Allegations of Deception for the Vast Majority of TurboTax 

Customers..............................................................................................................................73 

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A. Customers Who Explored TurboTax and Pursued Other Options...............................77 

B. Customers Who Filed Their Tax Returns for Free ......................................................82 

C. Customers Who Expressed Rational Economic Choice by Seeking to 

Maximize Their Tax Refund, Revealed Preference for Paid Features, or 

Demonstrated Awareness of TurboTax Paid Products................................................85 

1. Customers Who Expressed Rational Economic Choice by Seeking to 

Maximize Their Tax Refund but Could Have Used Free Edition to 

Report Their Income to the IRS............................................................................ 86 

2. Customers Who Revealed a Preference for Paid Features or Other 

Capabilities Available in Paid Products................................................................ 89 

3. Customers Who Demonstrated Awareness of TurboTax Paid Products .............. 94 

VII. There Are No Data Supporting Claims that Intuit’s Alleged Deception 

Resulted in Customers Using TurboTax Paid Products in TY21 as Alleged 

by Complaint Counsel.........................................................................................................104 

A. Customers’ Past Interactions with TurboTax Suggest Their Awareness of

Alternatives to TurboTax Products and Their Preference for TurboTax 

Products......................................................................................................................106 

B. Customers’ Interactions with Marketing Materials and the TurboTax 

Website Indicates Awareness That TurboTax Was Not Free for Them ....................108 

C. Customers Behavior After Filing Using TurboTax Undermines Complaint 

Counsel’s Assertion That They Were Deceived ........................................................110 

Appendix A: Curriculum Vitae................................................................................................... A-1 

Appendix B: Materials Considered..............................................................................................B-1 

Appendix C: Digital DIY Tax Preparation Products Overview ..................................................C-1 

Appendix D: Technical Appendix .............................................................................................. D-1 

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I. INTRODUCTION 

A. Qualifications 

1. My name is Bruce Deal. I am a Managing Principal of Analysis Group, Inc. (“Analysis

Group”), an economic and financial consulting firm. I lead the economic consulting 

practice in Analysis Group’s Menlo Park, California office. I have over 30 years of 

experience in economic, litigation, and financial consulting. I have developed and 

managed hundreds of assignments requiring complex economic analysis of publicly 

available and internal client information. I have a master’s degree in Public Policy from

Harvard University and I have completed additional graduate coursework at Harvard. 

2. Before joining Analysis Group in 1996, I worked as a consultant and manager at Arthur 

Andersen, the then-largest accounting and consulting firm in the world. In this position, I 

provided financial and management consulting services in areas such as operational 

organization and efficiency and projected financial performance. In addition, I taught 

economics and analytic methods to graduate students at Harvard, as well as serving as a 

consultant through Harvard University for the Minister of Finance of Indonesia, where I 

joined a group of Harvard colleagues focusing on trade policy and government finance. 

Over the course of my career I have also given many presentations and published articles 

in trade journals and professional journals. 

3. Since joining Analysis Group more than 25 years ago, I have been involved in hundreds 

of projects involving a wide variety of economic issues. This has included dozens of 

projects where I have served as an expert on economic and financial issues. I have been 

accepted as an expert in federal courts, state courts, and international and domestic 

arbitrations. My work has included matters working for both defendants and plaintiffs, 

working for government entities, and has included both civil and criminal matters. 

4. I have led and served as an expert on many matters involving alleged violations of false 

advertising and consumer protection laws in many different contexts, including 

insurance, banking, healthcare, and telecommunications. This work has been done at all 

phases of litigation, including class certification, liability, damages, and restitution. 

Nearly all of my projects involve the analysis of detailed financial and related data. This 

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doing so.314 Out of the approximately , I identified 

customers who saw the first upgrade screen (measured in elapsed 

rather than active time) into the process. 

153. In summary, Complaint Counsel’s theory of harm is arguably most applicable to 

customers who: (i) arrived at the TurboTax website directly through an Intuit 

advertisement, (ii) were new customers seeking to file for free (so started in Free 

Edition), (iii) subsequently spent “significant” time entering information before being 

informed that they would need to upgrade; and (iv) ended up paying for filing their 

federal or state tax return using TurboTax. Out of customers not addressed 

in Section VI, my analyses have identified customers who even potentially fit this 

description. For the rest of the customers, one or more of the conditions above do not 

apply. Complaint Counsel, and Dr. Novemsky, assert that customers were misled into 

believing that TurboTax was free for them and were harmed as a result of Intuit’s alleged 

deception. This assertion is contradicted by Intuit’s data. At most, I find 

customers may have the 

conditions consistent with the possibility of being deceived. In Section VII.C below, I 

describe the additional contemporaneous evidence that suggests that even these 

customers were not deceived, as Complaint Counsel and Dr. Novemsky allege. 

C. Customers Behavior After Filing Using TurboTax Undermines Complaint 

Counsel’s Assertion That They Were Deceived 

154. As discussed in Section IV.A, customer deception is likely to present itself in the form of 

low customer experience scores and low retention. Put simply, it is hard to imagine that 

being the victim of a “bait and switch” operation would lead to positive feelings about a

company or product; indeed, one would expect the opposite. In this section, I analyze 

customer product recommendation scores (“PRS”),

315 reviews, and complaints, which 

314 Complaint, ¶¶ 41, 58 (“Since TY 2020, Intuit has continued to employ a customer interview model in which

consumers who are not eligible for the ‘freemium’ version of TurboTax do not learn they are ineligible until 

they have already invested significant time and effort creating an account and inputtingtheir sensitive personal 

and financialinformation into TurboTax.”; “In the case of the Hard Stop screens, this confront ation comes after 

consumers have already created a TurboTax account and expended substantialtime inputting sensitive personal 

and financialinformation into Intuit’s user interface.”).

315 I note that PRS are different from NPS, another customer satisfaction measure discussed in Section V.A. While 

NPS data are obtained through a n unbranded study sent via email and include satisfaction scores for Intuit’s

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TY21 customers I discussed in the previous section participated in the survey 

and assigned a score, which are available in Intuit’s customer-level data.317 The rate is 

similar to the overall percentage TurboTax customers 

who completed their returns in TY21. Of the customers, slightly 

gave a perfect score of 10, indicating that they would be extremely likely 

to recommend TurboTax to a friend. Only of these customers gave a score of 

1, indicating that they would not be very likely to recommend TurboTax to a friend.318 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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demonstrate that the majority of the customers I analyzed did not have unfavorable 

experiences using TurboTax. This is unlikely to have been true had they been deceived 

by Intuit since, customer experience typically measures the difference between 

customers’ expectations and the product purchased; where high satisfaction ratings

indicate that the customer’s expectations were met and low satisfaction ratings indicate 

316 that the customer’s expectations were not met. 

155. Upon completion of their tax returns, some TurboTax customers are offered an 

opportunity to evaluate their experience or refer TurboTax to a friend. Customers’

evaluation of their experience is collected through two types of surveys: PRS and 

customer review. For the PRS survey, customers rate their experience by answering how 

likely they are to recommend TurboTax to a friend on a scale of 1 (not very likely) to 10 

(extremely likely), shown in Figure 16. Approximately 332,000 of the 

direct competitors, PRS are gathered in-product and can be traced back to each customer’s unique 

authentication. See Golder January 2023 Report, Section III.A titled “TurboTax Customer Reviews Indicate 

Customers Receive Benefits from the Service and Do Not Feel Misled.”

316 See e.g., Kerin, Roger A. and Steven W. Hartley, Marketing Fifteenth Ed., McGraw Hill, 2020INTUIT-FTCPART3-000596659, p. 128 (“After buying a product, the consumer compares it with his or her expectations and

is either satisfied or dissatisfied. If the customer is dissatisfied, marketers must determine whether the product 

was deficient or consumer expectations were too high. Product deficiency may require a design change. If 

expectations are too high, a company’s advertisingor the salesperson may have oversold the product’s

features.”). See also Kotler, Philip and Kevin Lane Keller, Marketing Management Fifteenth Ed., Pearson, 

2016INTUIT-FTC-PART3-000597494, p. 153 (“In general, satisfaction is a person’s feelings of pleasure or

disappointment that result from comparing a product or service’s perceived performance (or outcome) to

expectations.11 If the performance or experience falls short of expectations, the customer is dissatisfied. If it 

matches expectations, the customer is satisfied. If it exceeds expectations, the custome r is highly satisfied or 

delighted.”).

317 See Appendix D, “Technical Appendix,” for additionalinformation relevant to the data.

318 respondents gave a score of 9 or 10, 

indicating their high satisfaction, only 

Looking at the top two and bottom two scores, while 

a score of 1 or 2. 

111 
state tax return for $39 instead of $49 for Deluxe, Premier, and Self Employed, respectively. See Intuit,

INTUIT FTC PART3 000609964. 

 

 

 

 

 

 

 

 

 

 

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Figure 16 

TurboTax Product Recommendation Survey 

156. For comparison, I also analyzed the scores for approximately PRS survey 

respondents among the TY21 TurboTax customers discussed in Section VI.C who 

319 started their returns in Free Edition and filed using a paid product without live support. 

Among this comparison group, responded to the product recommendation 

survey. Out of these respondents, gave a perfect score of 10 and 

319 Not surprisingly, satisfaction is correlated with prices paid, which is why this comparison group excludes those 

who used TurboTax Live or TurboTax Live Full Service products and is therefore limited to the subset of 

customers who paid a similar amount to file their returns. A comparison of PRS between customers who paid 

the full price to customers who took advantage of the early-season discount illustrates the importance of prices 

paid. (Early-season discount is built into the pricing. In TY21, the discount was valid until February 28, 2022, 

allowing customers to file their federaltax return for $39, $69, and $89 instead of $59, $89, and $119 and each 

- - -

112 
customers who responded to the product recommendation survey from among the 

customers (between to file their federal returns and between 

to file their state returns). 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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gave a score of 1, consistent with the pattern shown among the respondents 

discussed above, of whom gave a 10 and a 1, respectively. 

The data also show that it is unlikely that any potential systematic difference in customer 

satisfaction has been mitigated by different prices paid by the two groups. These 

customers paid, on average, similar amounts to file their TY21 tax returns as did the 

157. Other customers are invited to provide feedback in the form of customer review to be 

published on the TurboTax website. These customers can submit an overall rating 

between 1 and 5 along with written feedback.

320 Approximately 6,000 (or 0.4 percent) of 

customers submitted a customer review, available in the customer review 

data.321 The submission rate (i.e., the percentage of those who were prompted to 

participate in the survey and chose to do so) is comparable to the overall percentage 

of the entire population customers who completed a return in 

TY21. Similar to the PRS survey, a majority of customers who had an opportunity and 

agreed to assign an overall rating gave a perfect score, with 

customers giving a perfect overall rating of 5 and only giving a score of 1.322 

158. The consistency of high customer satisfaction across different groups of customers is also 

observed among customers who submitted a customer review. percent of 

approximately customer survey respondents among the TY21 TurboTax 

customers discussed in Section VI.C who started their returns in Free Edition and filed 

using a paid product without live support gave a perfect score of 5. Those who gave the 

lowest score of 1 constitute of the respondents. The two groups, one among 

320 While my analysis is focused on the numeric ratings, I understand that Dr. Golder performs a comprehensive 

analysis of the text of the customer reviews in his report. See Golder January 2023 Report, Section IV.B.2 titled 

“Intuit’s Rates of Keywords Related to Deceptive Advertising or Deceptive Pricing in Complaints Are 

Comparable to Benchmark Companies.”

321 As further discussed in Appendix D, “Technical Appendix,” TY21 customer reviews I analyze in my report are 

from customers who filed their tax return using a TY21 TurboTax Online product. TY21 Customer-Level Data, 

INTUIT-FTC-PART3-000608572; TY21 Customer Reviews, INTUIT-FTC-PART3-000490341; TY21 

Customer Review ID Crosswalk, INTUIT-FTC-PART3-000608569. 322 Looking at the top and bottom two ratings, of respondents gave an overall rating of 4 or 5 while 

gave an overall rating of 1 or 2. 

the 

these 

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161. Combined, there is direct evidence of either a low rating (from PRS survey or submitted 

as part of customer review) or a complaint for customers who started their TY21 

tax return in Free Edition, encountered an upgrade screen, and paid to file their federal 

and/or state returns. Among the customers who arrived at the TurboTax website directly 

through an Intuit advertisement that were new customers and subsequently spent 

“significant” time entering information before being informed that they would need to 

upgrade, there is direct evidence of either a low rating or a complaint for 508 and 2 

customers, respectively. It is my opinion that these would be the only TY21 TurboTax 

customers for which Intuit’s customer-level data may be consistent with Complaint 

Counsel’s allegations of deception and theories of harm, and Dr. Novemsky’s conclusion 

regarding consumer misimpression. In total, these 510 customers represent 

TY21 TurboTax customer base, which is an insignificant 

minority of consumers (see Figure 17). 

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162. Based on my analyses of Intuit’s customer-level data, for 97.6 percent of the TY21 

TurboTax customer base, I find direct evidence that is inconsistent with Complaint 

Counsel’s allegations of deception. I closely analyzed the remaining customers and found 

that, even assuming Complaint Counsel’s theories of harm were substantiated, the data 

contradict them for all but of the TY21 TurboTax customer base. Finally, I 

cross-referenced customer complaint data, customer experience scores (PRS scores), and 

customer review data with my results and found 510 TY21 TurboTax customers, or 

TY21 TurboTax customer base, for whom Intuit’s

alleged deception may have resulted in using a TurboTax paid product. These results 

directly contradict Complaint Counsel’s allegations and Dr. Novemsky’s conclusions. In 

my opinion, the vast majority of Intuit’s TY21 TurboTax customer base could not have

been deceived by Intuit’s marketing campaigns or website design into paying for 

TurboTax products that they had expected to get for free. 

__________________________________________ 

Bruce Deal 

January 13, 2023 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 24, 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 February 24, 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 

James Evans 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: jevans1@ftc.gov 

Tel: (202) 326-2026 

Counsel Supporting the Complaint 

April Tabor 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov 

Dated: February 24, 2023 

Rebecca Plett 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: rplett@ftc.gov 

Tel: (202) 326-3664 

Sara Tonnesen 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: stonnesen@ftc.gov 

Tel: (202) 326-2879 

The Honorable D. Michael Chappell 

Administrative Law Judge 

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

Washington, DC 20580 

Respectfully submitted, 

/s/ Derek Woodman 

DEREK WOODMAN 

Counsel for Intuit Inc 

PUBLIC