In the Matter of Intuit Inc.

Respondent’s Opposition to Complaint Counsel’s Motion for Summary Decision 

October 31, 2022

Docket No. 9408

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• Complaint Counsel concede Intuit advertised only TurboTax Free Edition—a completely free product that 

was used by 14 million people each year—as free, and in each ad disclosed Free Edition’s qualifications. 

• The Commission “may not weigh conflicting evidence.” Buending v. Town of Redington Beach, 10 F.4th 

1125, 1130 (11th Cir. 2021). “If the record presents disputed issues of fact,” the Commission “may not 

decide them; rather, [it] must deny the motion and proceed to trial.” Id.

 The alleged claims made by Intuit’s ads are DISPUTED

 Allegations that consumers were misled are DISPUTED

 Allegations that the supposedly deceptive ads were material are DISPUTED

• May 4 Settlement Agreement already provides full relief

• Existence of Intuit’s affirmative defenses precludes summary decision

Summary of Argument

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• Complaint Counsel contend:

• “Express claims are ones that directly state the representation at issue.” Thompson Med. Co., 

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

Express Claim

Mot. 36

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CC Response to Intuit SOF ¶ 18

Actual Express Claim: TurboTax Free Edition Is Free If You Qualify

CC Response to Intuit SOF ¶ 17

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See GX 205 ©2022 Intuit Inc. All rights reserved.

5

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Judge Breyer Rejected CC’s Express Claim Theory

RX 73 – TRO Hearing Tr. 36:18-22

“[L]ooking at this one as an example . . . It says 

‘TurboTax free edition, for simple tax returns only*’[.] 

That’s what it is.”

Hon. 

Charles R. Breyer

U.S. District Judge

for the

Northern District 

of California

“[T]his ad . . . tells me that it is limited to simple tax returns[.]”

“I mean, it is right there; isn’t it? I mean, it is right 

under the word ‘free, free, free’ or ‘zero, zero, zero,’ it 

says ‘TurboTax free edition, for simple tax returns only.’”

RX 73 – TRO Hearing Tr. 37:8-9

RX 73 – TRO Hearing Tr. 40:3-6

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• Complaint Counsel first said:

• Complaint Counsel then said:

Reply 3

Intuit’s ads conveyed the message to reasonable 

consumers that TurboTax was free for them.

the unmistakable meaning of Intuit’s ads: that 

TurboTax is free

CC Response to Intuit SOF ¶ 18

Mot. 19

• But Complaint Counsel ultimately conceded:

The Implied Claim: What Is It? 

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• Implied claims should not be found “merely because it could be unreasonably misunderstood by a 

very small and unrepresentative segment of the audience to whom it was directed.” Removatron

Int’l Corp., 111 F.T.C. 206, 292 (1988)

• The intent of the speaker is powerful evidence of whether a claim was made to consumers. See, 

e.g., Telebrands Corp., 140 F.T.C. 27, 304 (2005)

 There is no evidence that Intuit intended to advance either alleged implied claim.

 The undisputed evidence is that Intuit intended to communicate that Free Edition is free for 

those who qualify and did so.

The Only Evidence Contradicts The Purported Implied Claims

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GX 156 – Ryan Dep. Tr. 130:14-131:1

Q. What message did Intuit want consumers to take away from commercials 

in the Free, Free, Free campaign?

A. The objective was to communicate that the TurboTax Free Edition is free.

Q. Why did Intuit want to convey that message to consumers?

A. We wanted to communicate that our Free Edition was free because we 

want consumers to use our Free Edition if they qualify.

CC’s Implied Claim Theory is Disputed by Record Evidence

Cathleen Ryan,

SVP of Marketing

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Golder Decl. ¶ 19

Peter S. Golder, Ph.D.

Golder Decl. ¶ 56

CC’s Implied Claim Theory is Disputed by Expert Testimony

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Intuit’s Extrinsic Evidence Must be Considered

Complaint Counsel improperly ask the Commission to ignore the extrinsic evidence. Reply 1, 4, 

7, 11. 

 “[I]f extrinsic evidence has been introduced, that evidence ‘must be considered by the 

Commission in reaching its conclusion’ about the meaning of the advertisement.” Pom 

Wonderful LLC, 155 F.T.C. 1, 14 (2013). See also Bristol-Myers Co., 102 F.T.C. 21, 319 

(1983); Thompson Med. Co., Inc., 104 F.T.C. 648, 794 (1984).

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TurboTax has consistently high Net Promoter Scores, overall paid customer-retention rates of more than 

80%, and tens of thousands of 5-star reviews on the TurboTax website. 

RX 9

RX 61 at 36

Customer Retention And Satisfaction Scores Dispute Deception

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“[I]f 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.” 

DirecTV, 2018 WL 3911196, at *18. 

Just like in DirecTV, the evidence does not support Complaint Counsel’s theory:

High NPS (higher than DirecTV’s)

Industry-leading customer-satisfaction scores

Unreliable survey evidence

DirecTV Is Directly On Point 

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No Reliable Evidence of Consumer Complaints

• Only 571 hearsay complaints (out of millions of TurboTax customers) were identified. 

• Almost 40% (227 complaints) have since been withdrawn by Complaint Counsel.

• Many of the remaining hearsay complaints have obvious flaws:

 Many relate to the IRS Free File offering - a different and discontinued product that is 

not at issue in this lawsuit;

 Several were submitted by Canadian residents, who use a different version of Intuit’s 

products, also not at issue in this lawsuit;

 At least eleven were judged invalid by the BBB;

 And many more have nothing to do with TurboTax’s advertising.

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No Reliable Evidence of Consumer Complaints

Peter S. Golder, Ph.D.

Golder Decl. ¶ 44

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The Dearth of Consumer Complaints Is Inconsistent With Deception

Golder Decl. ¶ 43

Golder Decl. ¶ 17

Peter S. Golder, Ph.D.

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Rebecca Kirk Fair

Kirk Fair Decl. ¶ 13

Expert Testimony Creates A Dispute Over Alleged Deception

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Rebecca Kirk Fair

Expert Testimony Creates A Dispute Over Alleged Deception

Kirk Fair Decl. ¶ 24

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Golder Decl. ¶ 69

Expert Testimony Creates A Dispute Over Whether Ads Were Misleading

Peter S. Golder, Ph.D.

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RX 44 at 1, 6

GX 295 at 1, 15

Research Confirms Consumers Were Not Misled

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Professor Novemsky did not show participants any of the challenged ads 

Dr. John R. Hauser

Hauser Decl. ¶ 32

The Novemsky Survey Is Fundamentally Flawed

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Novemsky’s survey was biased – allowing respondents to opt out after learning of the survey’s purpose and 

target.

The Novemsky Survey Was Transparently Biased

GX 305

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A. We use simple tax returns to let consumers know that there are eligibility 

requirements for using the TurboTax Free Edition, let folks know that those eligibility 

requirements are tied to the complexity of their tax return.

GX 155 – Rubin Dep. Tr. 55:16-20

Q. Why doesn’t Intuit say Free Edition for Form 1040 with no attached schedules?

A. That would be a terrible idea.

Q. Why would it be a terrible idea?

A. It would be more confusing for consumers than just to say, for simple tax returns.

GX 155 – Rubin Dep. Tr. 209:11-16

Jack Rubin,

VP of Marketing

Intuit Clearly Discloses Free Edition’s Qualifications

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See RX 5 – Current Free Edition Landing Page

• On the TurboTax website, all free claims are accompanied in close proximity by a hyperlinked disclosure.

• The website includes a Free Edition landing page that repeatedly addresses Free Edition’s qualifications:

Intuit Clearly Discloses Free Edition’s Qualifications

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RX 9 ©2022 Intuit Inc. All rights reserved. 25

Intuit Clearly Discloses Free Edition’s Qualifications

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©2022 Intuit Inc. All rights reserved. 26 See RX 4

Intuit Clearly Discloses Free Edition’s Qualifications

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Expert Testimony Creates A Dispute Over Sufficiency Of Disclosures

Peter S. Golder, Ph.D.

Golder Decl. ¶ 17

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GX 155 – Rubin Dep. Tr. 58:5-11 Jack Rubin,

VP of Marketing

A. I can think of one piece of qualitative research in which the term ‘simple tax 

returns’ was part of the research. . . . [T]he respondent responses were about 

the clarity of the term and appreciating TurboTax showing that right up front 

at the very beginning of the process...

See RX 44 at 8

Market Research On Intuit’s Disclosures Creates Further Dispute

RX 44 at 7

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Intuit’s hyperlinked disclosures closely resemble the examples of acceptable hyperlinks in the 

FTC’s “.com Disclosures” guidelines. 

Intuit’s Ads Comply With the FTC’s Disclosure Guidelines

RX 96, FTC .Com Disclosures Guidelines at A-7

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• Complaint Counsel claim that Intuit’s representations before the 

point of sale are “[m]isleading door openers.” Mot. 33.

• That theory does not apply.

 The ads invite consumers to learn about the product online, 

which you can do well before purchase. It is not deceptive to 

ask consumers to learn about your product on your website. 

 Complaint Counsel fail to introduce evidence that consumers 

were deceived and seek improper inferences regarding 

consumers who abandon the product. 

Mot. 33

Complaint Counsel concede that:

The “Deceptive Door Opener” Theory Should Be Shut

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The FTC Investigator’s Credibility Has Not Been Tested 

Intuit has not had an opportunity to depose Ms. Shiller, whose declaration includes troubling inaccuracies, 

such as:

The Functionality of Intuit’s Website: Clicking on the orange “File for $0” brought consumers to a 

screen to create an account and linked the Terms and Privacy Policy. (Shiller Dec. ¶ 97.)

RX 26

CC SOF ¶ 75

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Materiality Is Disputed And Complaint Counsel Have Not Offered Evidence

• Complaint Counsel must show that the alleged misrepresentations were likely to affect a 

reasonable consumer’s purchasing decision or conduct regarding TurboTax. See Int’l 

Harvester Co., 104 F.T.C. 949, 1057-1058 (1984).

 Complaint Counsel have not put forth any evidence of materiality.

• Complaint Counsel rely on an inapplicable presumption.

• Intuit has rebutted any presumption. 

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No Presumption of Materiality Applies

• The alleged misrepresentations actually concern Free Edition’s qualifications, for which no presumption 

is appropriate. 

• Judge Breyer recognized this important distinction:

RX 73 – TRO Hearing Tr. 16:3-7

Hon. 

Charles R. Breyer

U.S. District Judge

for the

Northern District 

of California

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• Presumptions are always rebuttable:

 POM Wonderful LLC, 155 F.T.C. 1, 62 (2013): “A respondent may rebut a presumption 

of materiality by providing evidence that the claim is not material . . . . ‘This is not a 

high hurdle.’”

• The presumption is particularly easy to rebut on a motion for summary decision.

Intuit’s Evidence Rebuts Any “Presumption” of Materiality

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Expert Testimony Rebuts Any “Presumption” of Materiality

Evidence demonstrates that consumers do not choose TurboTax solely because of Intuit’s ads.

Dr. John R. Hauser

Hauser Decl. ¶ 76

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Consumer behavior is inconsistent with Complaint Counsel’s theory of deception:

Golder Decl. ¶ 36

Peter S. Golder, Ph.D.

Golder Decl. ¶ 38

Expert Testimony Rebuts Any “Presumption” of Materiality

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Q. Did you read any reviews before you began using TurboTax?

A. Yeah. [...]

Q. Do you remember how many reviews you read before you began using TurboTax?

A. ... [I]f you had to put a number on it, it would be five or six at least reviews and they were 

generally from individuals. [...]

Q. And do you recall what the reviews you read about TurboTax said?

A. Just that it was easy to use mostly and that the word that came to mind ... painless, you know, 

stuck in my head.

RX 72 – Harford Dep. Tr. 57:9-59:16

Consumer Testimony Creates Dispute Over Materiality

Q. If we can go to paragraph 5 [of your declaration]. It says, “I began using TurboTax in tax year 

2013 because I liked the interface and it was straightforward and easy to use and thought it 

looked clean.” Is that right?

A. Yes.

RX 71 – Rozar Dep. Tr. 73:5-11

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• The purpose of prospective relief is not to “impose criminal punishment or exact compensatory 

damages,” but rather to prevent future violations of the FTC Act. FTC v. Ruberoid Co., 343 U.S. 470, 

473 (1952).

• Instead of evaluating Intuit’s current advertising practices, Complaint Counsel continue to focus on 

Intuit ads that aired years ago and are outside the limitations period. See Opp. 25-26. 

• There is no “cognizable danger” of these ads recurring in the same form. TRW, Inc. v. FTC, 647 F.2d 

942, 954 (9th Cir. 1981).

 Indeed, the May 4 Settlement Agreement forbids it.

No Prospective Relief Is Warranted

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The Settlement forbids Intuit from running its “free, free, free” ads, 

or substantially similar ads:

It also requires Intuit to make meaningful enhancements to its 

“free” disclosures:

The Multistate Settlement Already Prohibits the Allegedly 

Deceptive Conduct

RX 76 at 1

RX 76 at 21

RX 76 at 20

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Category FTC’s November 10, 2021 Proposal State AG Settlement

Non-Space Constrained 

Ads

“(1) the existence of material limitations on a consumer’s ability 

to use that free product; 

(2) the general nature, category, or type of those limitations; 

and

(3) that not all taxpayers qualify for the free product.”

“(1) the existence and category of material limitations on a consumer’s ability to use 

that free product; and

(2) that not all taxpayers qualify for the free product.”

Space Constrained Ads “that eligibility requirements apply.” “that eligibility requirements apply.”

Space Constrained 

Online Ads

“must also include a hyperlink to a landing page or webpage on a 

TurboTax Website that contains full disclosure of all material 

eligibility restrictions.”

“(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.”

Space Constrained 

Video Ads

“must [also] verbally disclose ... that eligibility limitations apply 

and not all taxpayers qualify.”

“except for such Advertisements that are 8 seconds or shorter, Intuit must [also] 

verbally disclose ... that not all taxpayers qualify.”

TurboTax Website

“must disclose ... very near to the representation or through a 

hyperlink that is very near to the representation, all material 

limitations on a consumer’s ability to use that free product, 

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

product.”

“must disclose (1) ... all material limitations on a consumer’s 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 consumer’s 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 consumer’s ability to use that free product, including, but 

not limited to, eligibility criteria for that free product.”

The Multistate Settlement Mirrors the Prior FTC Proposal

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• Complaint Counsel’s motion outright ignored Intuit’s affirmative defenses:

 Mootness: Intuit has discontinued the allegedly unfair and deceptive advertising campaign.

 Overbroad Relief: Requested relief exceeds the scope of the allegations in the Complaint.

 Invalid Complaint: The Commission did not vote on the final version of the Complaint. 

 Laches/Estoppel: The Commission unreasonably delayed taking action.

 Due Process Violations: Prejudgment. 

 Other Constitutional Violations: Substantial separation-of-powers and nondelegation concerns. 

Intuit’s Affirmative Defenses Remain Unaddressed

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Rule 3.24(a)(4) provides:

“Should it appear from the affidavits of a party opposing the motion that it cannot, for reasons 

stated, present by affidavit facts essential to justify its opposition, the Commission . . . 

[1] may deny the motion for summary decision or 

[2] may order a continuance to permit affidavits to be obtained or depositions to be taken or 

discovery to be had . . . .”

The appropriate action here is to deny the motion—not to order a continuance. 

• There was and is no deception. 

• CC have not introduced any evidence—after a three-year investigation. 

• Intuit, not the Commission, is entitled to summary decision on this record, but it is time for a fair 

and contested hearing before the ALJ. Each side should get its day in court after a full and fair 

record is created. 

No Continuance Is Necessary or Appropriate 

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CERTIFICATE OF SERVICE

I hereby certify that on October 24, 2022, 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

 I further certify that on October 24, 2022, I caused the foregoing document to be served via email to: 

Roberto Anguizola

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: ranguizola@ftc.gov

Tel: (202) 326-3284 

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 

Christine Todaro

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: ctodaro@ftc.gov 

Tel: (202) 326-3711 

Thomas Harris

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: tharris1@ftc.gov

Tel: (202) 326-3620 

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Jody Goodman

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580 

Email: jgoodman1@ftc.gov 

Tel: (202) 326-3096 

Colleen Robbins

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580 

Email: crobbins@ftc.gov 

Tel: (202) 326-2548 

Virginia Rosa

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: vrosa@ftc.gov 

Tel: (202) 326-3068 

J. Ronald Brooke, Jr.

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Email: jbrooke@ftc.gov 

Tel: (202) 326-3484 

Counsel Supporting the Complaint

April Tabor

Office of the Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW 

Suite CC-5610 

Washington, DC 20580 

ElectronicFilings@ftc.gov

Dated: October 24, 2022 Respectfully submitted,

/s/ Molly Dillaway

MOLLY DILLAWAY

Counsel for Intuit Inc

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