1 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter

Alvaro M. Bedoya 

In the Matter of: 

Intuit Inc., a corporation. Docket No. 9408 

RESPONDENT INTUIT’S MOTION FOR LEAVE TO FILE REPLY 

IN SUPPORT OF MOTION TO DISQUALIFY CHAIR LINA M. KHAN

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

Respondent Intuit Inc. respectfully seeks leave to file a short reply brief in support of its Motion 

to Disqualify Chair Lina M. Khan. Intuit submits its Reply to correct Complaint Counsel’s 

misstatement of the standard governing disqualification. Leave to file has been granted in 

similar circumstances. See Order Denying CC’s Mot. to Bar Testimony and Argument at 1 

(F.T.C. No. 9372 Feb. 21, 2017); Order Denying CC’s Mot. to Disregard and Strike, 1-800 

Contacts, Inc., 2017 WL 2459061, at *1 (F.T.C. May 31, 2017). Intuit’s proposed reply brief, 

conditionally filed with this motion, complies with Rule 3.22’s timing and word-count 

requirements. 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 08/10/2023 OSCAR NO. 608378 -PAGE Page 1 of 7 * PUBLIC * 
2 

Dated: August 10, 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 

HOWARD M. SHAPIRO 

JONATHAN E. PAIKIN 

JENNIFER MILICI 

DEREK A. WOODMAN 

Wilmer Cutler Pickering 

 Hale and Dorr LLP 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Howard.Shapiro@wilmerhale.com 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Attorneys for Respondent Intuit Inc.

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 08/10/2023 OSCAR NO. 608378 -PAGE Page 2 of 7 * PUBLIC * 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter

Alvaro M. Bedoya 

In the Matter of: 

Intuit Inc., a corporation. 

ORAL ARGUMENT REQUESTED 

Docket No. 9408 

RESPONDENT INTUIT INC.’S REPLY IN SUPPORT OF 

MOTION TO DISQUALIFY CHAIR LINA M. KHAN 

Pursuant to 16 C.F.R. § 3.22(d), Respondent Intuit Inc. respectfully submits this short 

reply brief to correct Complaint Counsel’s misstatement of the applicable legal standard 

governing disqualification in their response to Intuit’s motion. 

As set forth in the motion, Chair Khan’s public testimony before the House Judiciary 

Committee and other comments would lead a disinterested observer to conclude that she has at 

least in some measure decided how she will rule. See Mot. at 5-8.1

 Under the D.C. Circuit’s 

standard, Chair Khan must be disqualified. See Cinderella Career & Finishing Schools, Inc. v. 

FTC, 425 F.2d 583, 589-590 (D.C. Cir. 1970); ABA Model Code of Judicial Conduct R. 2.11

(2020). Complaint Counsel do not even attempt to argue that Chair Khan’s statements survive 

scrutiny under this standard. 

1

 Complaint Counsel’s assertion that Chair Khan did no more than make a “factual statement that 

the FTC had brought a lawsuit,” see Response at 3, is disconnected from the actual facts. In 

response to comments that Intuit was “evil” and had “trick[ed] and trap[ped]” consumers, Chair 

Khan told Rep. Jayapal that the acts set forth in “our” complaint were “deceptive practices,” the 

ultimate issue in this case. And she then went on to say that the conduct at issue “really hurts 

people.” 

1 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 08/10/2023 OSCAR NO. 608378 -PAGE Page 3 of 7 * PUBLIC * 
2 

In their response, Complaint Counsel mischaracterize dicta from a footnote that appeared 

in Fast Food Workers Committee v. NLRB, 31 F.4th 807 (D.C. Cir. 2022), to invent a different 

disqualification standard. According to Complaint Counsel, derisive comments about a litigant 

in a pending matter are permissible so long as there is no proof that a Commissioner has 

“demonstrably made up [his/her] mind about important and specific factual questions and is 

impervious to contrary evidence.” Response at 1, 4-5 (quoting Fast Food Workers Committee, 

31 F.4th at 815 n.4 (quoting Metropolitan Council of NAACP Branches v. FCC, 46 F.3d 1154, 

1164-1165 (D.C. Cir. 1995))). 

Chair Khan’s comments here are sufficiently serious and concrete that they meet even 

this standard, but requiring definitive proof that a Commissioner had made up their mind would 

be an extraordinary test in light of the Supreme Court’s admonition that due process “requires 

both the appearance and reality of impartial justice.” Williams v. Pennsylvania, 579 U.S. 1, 16 

(2016) (emphasis added). Contrary to Complaint Counsel’s suggestion, neither Fast Food 

Workers nor Metropolitan Council purported to override the disqualification standard articulated 

by the D.C. Circuit in Cinderella over 50 years ago. Both decisions reaffirm that due process 

requires disqualification where there is an appearance of prejudgment by an agency adjudicator. 

Fast Food Workers explained that disqualification is required when “a disinterested observer 

may conclude that the agency has in some measure” prejudged the case. 31 F.4th at 815. And 

Metropolitan Council similarly made clear that “[i]n an adjudicatory proceeding, recusal is 

required ... where ‘a disinterested observer may conclude that [the decisionmaker] has in some 

measure adjudged the facts as well as the law of a particular case in advance of hearing it.’” 46 

F.3d at 1164-1165 (quoting Cinderella, 425 F.2d at 591).

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 08/10/2023 OSCAR NO. 608378 -PAGE Page 4 of 7 * PUBLIC * 
3 

Complaint Counsel similarly miscite N.C. Board of Dental Examiners, 151 F.T.C. 644 

(2011), to suggest that the Commission adopted their seemingly heightened standard for 

disqualification. While disqualification was not required in that matter under circumstances very 

different from the comments Chair Khan made here, that determination was expressly made 

under the familiar standard that disqualification is required where “a disinterested observer may 

conclude that [the agency] has in some measure adjudged the facts as well as the law of a 

particular case in advance of hearing it.” N.C. Bd. of Dental Examiners, 151 F.T.C. at 648 

(quoting Cinderella, 425 F.2d at 591). 

The applicable disqualification standard is met here. 

Dated: August 10, 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 

HOWARD M. SHAPIRO 

JONATHAN E. PAIKIN 

JENNIFER MILICI 

DEREK A. WOODMAN 

Wilmer Cutler Pickering 

 Hale and Dorr LLP 

1875 Pennsylvania Ave NW 

Washington, DC 20006 

Telephone: (202) 663-6000 

Howard.Shapiro@wilmerhale.com 

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Attorneys for Respondent Intuit Inc.

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 08/10/2023 OSCAR NO. 608378 -PAGE Page 5 of 7 * PUBLIC * 
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION 

COMMISSIONERS: Lina M. Khan, Chair 

Rebecca Kelly Slaughter

Alvaro M. Bedoya 

In the Matter of: 

Intuit Inc., a corporation. Docket No. 9408 

PROPOSED ORDER

Upon consideration of Intuit’s Request for Leave to File Reply in Support of Motion to 

Disqualify Chair Lina M. Khan: 

IT IS HEREBY ORDERED, that the Motion is GRANTED. 

ORDERED: ___________________________

Lina M. Khan 

Chair of the Federal Trade 

Commission 

Date: ______________________ 

PUBLIC

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 08/10/2023 OSCAR NO. 608378 -PAGE Page 6 of 7 * PUBLIC * 
CERTIFICATE OF SERVICE

I hereby certify that on August 10, 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 August 10, 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 

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 

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: August 10, 2023 

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

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 08/10/2023 OSCAR NO. 608378 -PAGE Page 7 of 7 * PUBLIC *